Hughes

*778 OPINION

After receiving a report of a person hacking at a tree with a knife, three members of the University of Arizona Police Department (UAPD) responded to the scene. Upon their arrival, the officers saw Plaintiff Amy Hughes carrying a large kitchen knife. Ms. Hughes then began to walk toward another woman, Sharon Chadwick, at which point the police yelled for her to drop the knife. Ms. Hughes did not comply. Ms. Chadwick has submitted an affidavit in which she describes Ms. Hughes’s demeanor at the time as composed and non-threatening. Multiple witnesses attest that Ms. Hughes never raised the knife as she neared Ms. Chadwick. Unable to approach the two women because of a chain-link fence, defendant and UAPD Corporal Andrew Kisela shot Ms. Hughes four times.

Ms. Hughes brings suit under 42 U.S.C. § 1983 claiming excessive force in violation of her constitutional rights. The district court granted summary judgment in favor of Corporal Kisela, concluding that his actions were reasonable and that he was entitled to qualified immunity. The facts when viewed in the light most favorable to Ms. Hughes do not support the district court’s decision. We reverse and remand for…

with whom GOULD, Circuit Judge, joins, concurring in the denial of rehearing en banc: ***

I write separately to address the arguments in Judge Ikuta’s dissent from the denial of rehearing en banc.

The dissent’s principal complaint is that the panel characterized the relevant constitutional right at too high a level of generality. That is incorrect. The dissent proposes that the panel failed adequately to consider the “specific context” of the circumstances facing Corporal Andrew Kise-la. That is mistaken. And the dissent suggests that qualified immunity is available in an excessive force case only where there is an identical or nearly identical prior case which held that force was excessive. That understanding is directly contrary to the Supreme Court’s repeated recognition that no case is likely to be directly on point factually, so the qualified immunity inquiry *786 must be whether existing precedent places the constitutional question beyond debate.

1. The Supreme Court has indeed advised lower courts construing claims of qualified immunity in excessive force cases “not to define clearly established law at a high level of generality.” Plumhoff v. Rickard, - U.S. -, 134 S.Ct.…

join, dissenting from denial of rehearing en banc:

The panel opinion that we let stand today directly contravenes the Supreme Court’s repeated directive not to frame clearly established law in excessive force cases at too high a level of generality. See, e.g., White v. Pauly, — U.S. -, 137 S.Ct. 548, 552 , 196 L.Ed.2d 463 (2017) (per curiam). 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, — U.S. —, 136 S.Ct. 305, 308 , 193 L.Ed.2d 255 (2015) (per curiam). In doing so, the panel opinion adopts the same standard that the Supreme Court has repeatedly overruled. Compare id. at 309 (“The general principle that deadly force requires a sufficient threat hardly settles this matter.”), with Hughes v. Kisela, 841 F.3d 1081, 1089 (9th Cir. 2016) (holding that the “most important[ ]” question is “whether it was reasonable to believe that Ms. Hughes presented a threat”). Because the panel opinion…