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SCOTUS summarily reverses USCA9, again, on qualified immunity

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Last June, the Ninth Circuit denied rehearing en banc in a qualified immunity case where the police shot (but did not kill) a woman who appeared to be threatening another with a knife and did not obey commands to drop it.  Dissenting from denial of rehearing, Judge Ikuta warned her colleagues:

Rather than ask the correct question--whether Officer Kisela's split-second decision in "the specific context of the case" was "plainly incompetent" or "knowingly violate[d] the law"--the panel opinion defines the "clearly established right" here at the highest level of generality: the right to be free of excessive force. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam). In doing so, the panel opinion adopts the same standard that the Supreme Court has repeatedly overruled.
Judge Berzon, concurring in the denial, confidently stated, "The dissent's principal complaint is that the panel characterized the relevant constitutional right at too high a level of generality. That is incorrect."

Today, the Supreme Court summarily reversed, 7-2, meaning that seven justices not only thought the Ninth Circuit was wrong but concluded it was so obviously wrong that full briefing and oral argument are not needed:

This Court has "'repeatedly told courts--and the Ninth Circuit in particular--not to define clearly established law at a high level of generality.'"
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An officer "cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. [Citation.] That is a necessary part of the qualified-immunity standard, and it is a part of the standard that the Court of Appeals here failed to implement in a correct way.
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The panel's reliance on [the Ruby Ridge sniper case] "does not pass the straight-face test." 862 F. 3d, at 797 (opinion of Ikuta, J.).
Memo to the Ninth:  To be embarrassed less often, listen to Judge Ikuta more often.  The case is Kisela v. Hughes, No. 17-467.

In other action, the high court took up yet another question on when a prior conviction counts as "violent" for the Armed Career Criminal Act.  The new case involves robbery, defined as theft plus force, when the amount of force is minimal.  It is Stokeling v. United States, No. 17-5554.

2 Comments

As summary reversals go, this one wasn't the worst. Sotomayor's opinion was, of course, over the top.

By the way, Judge Berzon has been wrong a lot--she's eaten her share of summary reversals.

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