Police are trained to “shoot to stop.” This means rapid fire “center mass” into the chest of someone who may be posing a threat to the officer or someone else. The police fire multiple times until the perceived threat has been eliminated; in other words, the subject is lying dead on the ground or is so critically wounded as to be unable to act.
On May 21, 2010, Alex Garcia was a University of Arizona Police Department (UAPD) “officer-in-training.” He was assigned to ride patrol with Corporal Andrew Kisela.
Campus Police Can Arrest Off Campus
Campus police are common on college and university campuses in this modern age. These departments are generally known as “campus police.” The officers who serve in these departments usually have arrest powers beyond university campuses— 80 percent of campus police officers can arrest off-campus, according to the U.S. Justice Department in a 2011-2012 report. They are paid by the university, or a private contractor, and not the city or state.
Kisela and Garcia riding together that day presented a volatile situation. The training officer (Kisela) wants to make sure that the “rookie” understands what it takes to eliminate a potential threat. Police encounter potential threats every day. The key to being a good officer is knowing when to use either excessive or lethal force to eliminate a real threat—not a perceived threat based on individual nervousness or professional biases.
What is known about the tragic shooting of Amy Hughes that day in May was outlined in a November 28, 2016 decision by the Ninth Circuit Court of Appeals.
Call for Service About Woman Hacking Tree
Kisela and Garcia were monitoring the Tucson Police Department’s radio traffic when they heard what is known as a “welfare check” call. That call reported an incident of a woman hacking a tree with a knife. The two officers decided to respond to the call. UAPD officer Lindsay Kuntz decided to join them. All three had been alerted through the Tucson Police Department’s radio dispatch that the woman “had been acting erratically.”
In short, this was a non-criminal police radio dispatch that the woman with the knife was acting erratically and was in possible need of assistance. The only thing Ms. Hughes had attacked was a tree in her own yard—something that was not a criminal offense.
Yet these three campus police officers felt a need to gallop off to the rescue in a matter that was not remotely connected to the university campus or any of its students.
Woman in Yard with Knife
The two officers and one rookie arrived at the Ms. Hughes’s house at the same time. In less than one minute, they saw Ms. Hughes exit the house carrying a large kitchen knife. They also saw Susan Chadwick, who lived at the residence with Ms. Hughes, “standing outside the house in the vicinity of the driveway.”
Thus, when the officers arrived, Ms. Chadwick was clearly in a position to see that Ms. Hughes held the knife down at her side with the blade pointing backwards. Ms. Chadwick was not afraid and never expressed any concern to the officers that Ms. Hughes posed a threat to either her (Ms. Chadwick) or to her own self.
Police Shoot Woman Through Fence
That was the scene the three officers confronted upon arrival at the Hughes residence. The Ninth Circuit explains what happened next:
“As Ms. Hughes approached Ms. Chadwick, the officers each drew their guns and ordered her to drop the knife. Although Corporal Kisela contends that the officers yelled numerous times for Ms. Hughes to drop the blade, Ms. Chadwick recalls hearing only two commands in quick succession. Ms. Hughes did not drop the knife and continued to move towards Ms. Chadwick. Corporal Kisela recalls seeing Ms. Hughes raise the knife as if to attack. Officers Garcia and Kunz later told investigators that they did not see Ms. Hughes raise the knife.
“A chain link fence at the edge of the property prevented the officers from getting any closer to the two women. Because the top of the fence obstructed his aim, Corporal Kisela dropped down and fired four shots through the fence. Each of the shots struck Ms. Hughes, causing her to fall at Ms. Chadwick’s feet. Her injuries were not fatal.”
Witnesses Dispute Officers Account
In post-shooting interviews, Ms. Chadwick told investigators she had “managed Ms. Hughes’s behavior” before; and that Ms. Hughes had been diagnosed with a bipolar disorder for which she took medication. She also told investigators that she believed Ms. Hughes did not “understand what was happening” when the officers yelled for her to drop the knife. Ms. Chadwick expressed the belief that the police should have given her the “opportunity” to get Ms. Hughes to give her the knife.
In addition to Officers Garcia and Kunz statements that they did not see Ms. Hughes raise her arm, Ms. Chadwick and multiple other witnesses who saw the shooting said that Ms. Hughes was “both composed and non-threatening immediately prior to the shooting.”
Giving Officer Kisela a huge benefit of the doubt, it can be assumed that he was concerned about Ms. Chadwick’s safety. He had heard a radio dispatch about a woman with a knife acting erratically, and when he arrived at the Hughes residence, he saw a woman with a knife approaching another woman.
But what is seriously suspect here is that only Kisela saw Ms. Hughes as a threat. Ms. Chadwick and the multiple other witnesses did not see her exhibiting any kind of threat. Even Kisela’s two fellow officers admitted they did not see Ms. Hughes raise her arm in a threatening manner.
The question, then, before the Ninth Circuit was relatively simple: does an individual have a right to walk down their own driveway in their own yard holding a knife without being shot by the police?
Statement of Fear Not Enough to Justify Shooting
The appeals court immediately turned to longstanding precedent to conclude that “a simple statement by officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.”
Kisela had no objective factors to support his threat perception. He had a “welfare check” dispatch call; he had information that a woman with a knife was acting erratically by cutting a tree with a knife. Significantly, this erratic behavior took place in the privacy of her own yard. She was not in the public where she may have posed a threat to others. And when Kisela decided to shoot her, she was walking in a non-threatening manner with a knife in her hand down by her side toward a longtime friend and companion.
Those were not the kind of “objective factors” upon which to base a decision to use potentially lethal force. As the Ninth Circuit put it, “’Law enforcement officials may not kill suspects who do not pose an immediate to their safety or to the safety of others simply because they are armed.’”
Mere Presence of Weapon Does Not Justify Excessive Force
We pointed out in a post this past October that the Fifth Circuit Court of Appeals has adopted the same rule of law: the mere presence of a weapon does not justify excessive or lethal force by the police.
The simple fact is that these three officers should not have responded to this “welfare check” call involving a subject with obvious mental health issues, without calling for help from department that was so equipped. The UAPD does not have a Crisis Intervention Team (CIT) program that provides mental health training to its officers—training that equips officers with the knowledge, language, and skill set to effectively and non-violently respond to mental health calls.
Three campus police officers responding to a “welfare check” dispatch call was a recipe for a tragedy. The only training they had was to yell out, “drop the knife.” They were not responding to a “reported crime” dispatch where a yell to “drop the knife” may have been sufficient to justify either excessive or lethal force. As the Ninth Circuit pointed out, the officers were not at the Hughes residence to arrest Ms. Hughes, but rather to “investigate her peculiar behavior.”
All these factors compelled the Ninth Circuit to conclude that Ms. Hughes was entitled to a trial by jury in her civil rights lawsuit against Corporal Kisela claiming excessive force in violation of her constitutional rights.
We believe, however, this case will never reach a jury. The State of Arizona will settle. And so it should.