By: Karina Johnson
Impunity Watch Reporter, North America

WASHINGTON D.C.  — On Monday, April 2, the Supreme Court of the United States issued a 7-2 decision to grant qualified immunity from prosecution to a police officer, Andrew Kisela, who shot a woman, Amy Hughes, for holding a kitchen knife outside her home.

In May 2010, Kisela and his partner responded to a 911 call reporting a woman acting erratically and hacking a tree with a kitchen knife.  They were joined by another police officer and saw Hughes—carrying a large kitchen knife—and her roommate, Sharon Chadwick, exiting their house.  The three officers drew their weapons and ordered Hughes to drop the knife.  When Hughes did not acknowledge the officers’ presence, Kisela shot Hughes four times.  The entire encounter occurred in less than a minute.

While the three officers later testified that they believed Hughes to be a threat to her roommate, Chadwick said that Hughes was speaking to her calmly from six feet away and that Chadwick at no time felt threatened by Hughes.  Kisela was the only officer to shoot at Hughes, and he did so without warning.

Hughes sued Kisela in a §1983 claim for $150,000 in damages, alleging that his use of deadly force was a violation of her Fourth Amendment rights.  Initially, a federal judge had granted summary judgment in favor of Kisela, but that ruling was reversed by the Ninth Circuit Court of Appeals.

The Supreme Court’s per curiam decision overturned the Ninth Circuit’s ruling in favor of Hughes without full briefings or oral arguments.  Justice Sotomayor wrote a dissenting opinion and was joined by Justice Ginsberg.

Qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To challenge qualified immunity, courts must determine through precedent (1) if the official’s conduct counts as a violation of the plaintiff’s rights; and (2) if the plaintiff’s rights were clearly established.  The Supreme Court determined that Kisela’s conduct, by shooting Hughes four times as she stood still in front of her house, did not violate any of Hughes’ established rights.

In her dissent, Justice Sotomayor wrote that the Supreme Court’s “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment,” and that “it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The Washington Post noted that the Supreme Court has developed a trend of siding in favor of law enforcement officers by reversing lower courts that deny qualified immunity to police.  Police officials applaud the Supreme Court’s broad approach, which they say give officers the benefit of the doubt and protect them from “frivolous lawsuits.”  Critics such as the libertarian-leaning Cato Institute believe this approach virtually absolves law enforcement from accountability for their misconduct.

The majority’s decision comes 15 days after police officers killed Stephon Clark while he was standing in his grandmother’s backyard in Sacramento, California.  It comes 3 days after the Louisiana Attorney General declined to file charges against the two Baton Rouge police officers that shot Alton Sterling at point-blank range outside of a convenience store while they had him pinned to the ground.  As of April 1, there have been 325 reports of people killed by police in the United States since January 1, 2018.

For more information, please see:

NPR – Police Shootings Stir Outrage Among Some, But Not The Supreme Court – 3 April 2018

The Washington Post – Ariz. woman survives police shooting, but Supreme Court says the officer is immune from her lawsuit – 3 April 2018

The Hill – Supreme Court rules police officer cannot be sued for shooting Arizona woman in her front yard – 2 April 2018

The New York Times – Supreme Court Rules for Police Officer in Excessive Force Case – 2 April 2018

SCOTUS Blog – Kisela v. Hughes – 2 April 2018

Slate – The Conservatives vs. Sonia Sotomayor – 2 April 2018

The Washington Post – What is “qualified immunity,” and how does it work? – 14 July 2015

By: Sarah Purtill
Impunity Watch Reporter, North America

NEW YORK, USA – Natasha Alexenko was 20 years old on August 6, 1993 when a man held a gun to her back. She had been trying to get her keys out when she felt the gun against her back. She heard that man say “If you don’t do everything I say I’ll blow your brains out.” The man brought Alexenko into the stairwell of her building where he sexually assaulted her at gun point. Alexenko went to the hospital that night for a rape kit. But it was not until 10 years later that she finally got the call from the New York County’s District Attorney’s office informing her that the rap kit had finally been tested.

“I was like, ‘This is great, it’s moving forward — I can’t believe it after all these years,’” says Alexenko. “It wasn’t until later that I thought, ‘Holy mackerel! Why on Earth did this take so long?’” Alexenko was unsure why it took so long to be tested. “It just doesn’t make sense,” Alexenko said.  “Why would you put someone through this very invasive, whole-body exam, which is traumatizing in itself, take their rape kit and just let it sit there?”

After her rape, Alexenko moved back home to Ontario. In Canada she had the support of her mother and close friends. But she ended up drinking heavily to try to get through the pain. “I just felt so much grief,” says Alexenko. She felt this way because she was not able to explain her assailants face to the police. “I blamed myself for not being able to help catch this man who was still out there, probably hurting other people.”

Four years after she received the call from the DA’s office, Alexenko’s assailant was caught. Victor Rondon was arrested in Las Vegas for jaywalking and then extradited to New York after he was finger printed by police. A year later, he was found guilty of eight counts of violent assault. He was also found guilty of burglary, robbery, two counts of rape, sodomy and sexual abuse. He was sentenced to 44 to 107 years in prison.

“I was just grateful that he was put behind bars,” said Alexenko, who fainted when she saw him at his trial. “My body just shut down. It wasn’t just that I was remembering stuff; it was like I was there.” In 2011, Alexenko founded Natasha’s Justice Program. The goal of the nonprofit is to get rid of the backlog of rape kits in the United States.

Alexenko’s story is not unique. In fact, her rape kit had been one of 17,000 unprocessed rape kits held in a storage facility in New York. Fortunately, New York City has since eliminated that backlog. Around the United States, there were 70,000 unprocessed rape kits in 2015. There are estimates that put that number in the hundreds of thousands.

According to Alexenko, people have started taking sexual assault and the backlog of rape kits much more seriously. The US Department of Justice announced it would be dedicating $41 million in federal grant money to test the 70,000 known unprocessed rape kits nationwide in 2015. So far, many communities have taken advantage of it.

“There’s been such a shift — and I think it’s because there have been so many survivors who have come forward,” says Alexenko. “There are so many amazing people who are fighting so hard.”

For more information, please see:

New York Post – I was Raped in 1993 – And No One Tested My Rape Kit for 10 Years – 4 April 2018

USA Today – Tens of Thousands of Rape Kits Go Untested Across USA – 16 July 2015

New York Post – DA Hailed After Pledging $35M to Eliminate Rape Kit Backlogs – 12 November 2014