                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 AMY HUGHES,                                       No. 14-15059
           Plaintiff-Appellant,
                                                    D.C. No.
                    v.                         4:11-cv-00366-FRZ

 ANDREW KISELA, Corporal,
 0203; individually and in his                     ORDER AND
 official capacity,                                 AMENDED
               Defendant-Appellee.                   OPINION


         Appeal from the United States District Court
                  for the District of Arizona
          Frank R. Zapata, District Judge, Presiding

          Argued and Submitted September 12, 2016
                  San Francisco, California

                     Filed November 28, 2016
                      Amended June 27, 2017

 Before: Ronald M. Gould and Marsha S. Berzon, Circuit
   Judges, and William K. Sessions III,* District Judge.




     *
       The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2                        HUGHES V. KISELA

               Order Amending Opinion;
     Order Denying Petition for Rehearing En Banc;
Concurrence in Order Denying Petition for Rehearing En
                         Banc;
Dissent to Order Denying Petition for Rehearing En Banc;
               Opinion by Judge Sessions


                            SUMMARY**


                             Civil Rights

    The panel amended the opinion, filed on November 28,
2016, and on behalf of the court denied the petition for
rehearing en banc.

    In the amended opinion, the panel reversed the district
court’s summary judgment in favor of a University of
Arizona police officer and remanded in a 42 U.S.C. § 1983
action in which plaintiff alleged that the officer used
excessive force when he shot her four times.

    Judge Berzon, joined by Judge Gould, concurred in the
denial of rehearing en banc, and wrote separately to address
arguments in Judge Ikuta’s dissent from the denial of
rehearing en banc.

    Judge Ikuta, joined by Judges Kozinski, Tallman, Bybee,
Callahan, Bea, and N.R. Smith, dissented from the denial of
rehearing en banc because the panel opinion took a path

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     HUGHES V. KISELA                       3

contrary to the Supreme Court’s direction on the proper
application of the qualified immunity doctrine in the Fourth
Amendment context.


                         COUNSEL

Vince Rabago (argued), Stacy Scheff, and Norma Kristine
Rabago, Vince Rabago Law Office PLC, Tucson, Arizona,
for Plaintiff-Appellant.

Robert R. McCright (argued), Assistant Attorney General;
Mark Brnovich, Arizona Attorney General; Office of the
Attorney General, Tucson, Arizona; for Defendant-Appellee.


                           ORDER

    The opinion filed November 28, 2016, is amended as
follows:

    1. At page 14 of the slip opinion, add “(en banc)” after
the citation “Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir.
2011).”

    2. At page 15 of the slip opinion, add a footnote after
“this Court remanded Glenn for a jury trial.” The footnote in
the amended opinion should state:

            Glenn was decided on summary judgment
       after the incident that gave rise to this case. It
       concerned a shooting that occurred in 2006.
       The panel in Glenn concluded that “resolution
       of . . . [genuine factual] issues is crucial to a
4                   HUGHES V. KISELA

       proper determination of the officers’
       entitlement to qualified immunity,” and
       remanded the question whether the right was
       clearly established at the time of the alleged
       misconduct, to be decided “after the material
       factual disputes have been decided by the
       jury.” 673 F.3d at 871. Although the panel
       stated that it was “[expressing] no opinion on
       the second part of the qualified immunity
       analysis,” the remand for trial would have
       been improper were the officers entitled to
       qualified immunity on the facts most
       favorable to the plaintiff. See Mattos,
       661 F.3d at 445–48, 452. We therefore read
       Glenn as at least suggestive of the state of the
       clearly established law at the time it was
       decided.

           In any event, we rely on Glenn as
       illustrative, not as indicative of the clearly
       established law in 2010. See Berzon, J.,
       concurring in the denial of rehearing en banc,
       at 9–12.

   3. At page 17 of the slip opinion, delete the “Glenn and
Deorle” and replace it with “Deorle and Harris.”

   No new Petition for Panel Rehearing or Petition for
Rehearing en Banc will be entertained.
                        HUGHES V. KISELA                               5

                               ORDER

    Judges Gould and Berzon voted to deny the petition for
rehearing en banc, and Judge Sessions so recommended.

    The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

    The petition for rehearing en banc is DENIED.



BERZON, Circuit Judge, 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
Kisela. 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


    ***
        Judge William K. Sessions III, a visiting judge from the District
of Vermont sitting by designation, was a member of the three-judge panel
that decided this case and the author of the Panel’s opinion. Judge
Sessions agrees with the views expressed in this opinion.
6                    HUGHES V. KISELA

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 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, 134 S. Ct. 2012, 2023
(2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011)). The import of that instruction is, as the Court has
explained, that “doing so avoids the crucial question whether
the official acted reasonably in the particular circumstances
that he or she faced.” Id. The panel’s opinion could not
reasonably be characterized as avoiding that “crucial
question.” Nor, in defining the relevant constitutional right
at issue, did the panel rely simply on the general, abstract
principle set forth in Tennessee v. Garner, 471 U.S. 1 (1985),
that “deadly force is only permissible where the officer has
probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others,” as
the Supreme Court has cautioned us not to do. Mullenix v.
Luna, 136 S. Ct. 305, 309 (2015) (per curiam) (citation
omitted). Nowhere did the panel define the relevant right as
the “right to be free of excessive force,” as the dissent
incorrectly asserts in its opening lines.

    Instead, the panel held that our precedents clearly
established a far more specific constitutional right: that under
the Fourth Amendment, a mentally disturbed individual who
had committed no known crime, was not acting erratically
when encountered by police, and presented no objective
threat to officers or third parties may “walk down her
                      HUGHES V. KISELA                           7

driveway holding a knife without being shot.” Hughes v.
Kisela, 841 F.3d 1081, 1090 (9th Cir. 2016). Taking the facts
in the light most favorable to Hughes, that is what happened
in this case. On those facts, the panel held, no reasonable
police officer could have thought that shooting Hughes was
constitutionally permissible.

    The inverse of a “high level of generality” is not, as the
dissent suggests, a previous case with facts identical those in
the instant case – because, of course, no two cases are exactly
alike. The Supreme Court has repeatedly stated that “[w]e do
not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question
beyond debate.” Mullenix, 136 S. Ct. at 308 (quoting al-
Kidd, 563 U.S. at 741); see also White v. Pauly, 137 S. Ct.
548, 551 (2017) (per curiam). Were the rule otherwise, as we
have previously observed, “officers would escape
responsibility for the most egregious forms of conduct simply
because there was no case on all fours prohibiting that
particular manifestation of unconstitutional conduct.” Deorle
v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). “If
qualified immunity provided a shield in all novel factual
circumstances, officials would rarely, if ever, be held
accountable for their unreasonable violations of the Fourth
Amendment.” Mattos v. Agarano, 661 F.3d 433, 442 (9th
Cir. 2011) (en banc). It is thus “clear that officials can still be
on notice that their conduct violates established law even in
novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730,
741 (2002).

    Consider, for example, the hypothetical case of a
policeman who happens upon someone standing outside a
house using a kitchen knife to chop onions at a summer
barbecue, while chatting amicably with another woman
8                         HUGHES V. KISELA

standing close by. The policeman draws his weapon and,
twice in rapid succession, orders the individual holding the
knife to drop it; when she does not immediately comply, the
policeman opens fire within a few seconds and shoots the
individual four times. There is no precedential case with
these precise facts (although this case, when the facts are
viewed in the light most favorable to Hughes, is not far off),
yet our precedents as well as common sense would place
beyond debate the question of whether that officer acted
lawfully.

    In the absence of a precedential case with precisely the
same facts as the case before us, we must compare the
specific factors before the responding officers with those in
other cases to determine whether those cases would have put
a reasonable officer on notice that his actions were unlawful.1

    1
        Mullenix, on which the dissent places great emphasis, is wholly
consistent with the analysis I identify here. See also City & Cty. of San
Francisco. v. Sheehan, 135 S. Ct. 1765, 1776–77 (2015). The Supreme
Court did not limit its qualified immunity analysis in Mullenix to the
question of whether some facts distinguished Mullenix from the Court’s
most analogous precedents involving excessive-force claims in high-speed
car chases, namely Plumhoff, Scott v. Harris, 550 U.S. 372 (2007), and
Brosseau v. Haugen, 543 U.S. 194 (2004). Instead, the Court compared
the factors relevant to the excessive-force inquiry in each case
(emphasizing, in its analysis, the potential threat posed by the suspects in
each case). Mullenix, 136 S. Ct. at 309–10. The Court concluded that
“[t]he threat . . . posed was at least as immediate as that” in Brosseau, and
that although the suspect in Mullenix passed fewer cars than those in
Plumhoff and Scott, he had also expressly threatened to kill any police
officers in his path. Id. at 310. In short, in coming to its conclusion that
Mullenix did not violate clearly established law, the Court considered the
specific facts of the case, compared those facts to the relevant facts in
available precedential cases (with a heavy focus on the threat presented),
and weighed whether those precedents would have placed a reasonable
officer in Mullenix’s position on notice that his actions were unlawful –
                         HUGHES V. KISELA                       9

That framework is precisely the one the panel applied to
Kisela’s claim of qualified immunity. After conducting that
inquiry, the panel concluded that this case is, given the
pertinent precedents, squarely within – indeed, at the more
egregious border of – the group of precedents in which
excessive force was found.

2. That conclusion was correct.

    We have held unconstitutional the use of deadly force
where an individual “did not point [a] gun at the officers and
apparently was not facing them when they shot him the first
time.” Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th
Cir. 1991). We have also held that deadly force is
impermissible against an armed suspect “who makes no
threatening movement” or “aggressive move of any kind,”
even where that suspect is suspected of killing a federal
agent. Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir.
1997). “Law enforcement officers may not shoot to kill
unless, at a minimum, the suspect presents an immediate
threat to the officer or others, or is fleeing and his escape will
result in a serious threat of injury to persons.” Id. at 1201
(emphasis added). We have held that a reasonable jury could
find a constitutional violation, even concerning the use of
nondeadly force, where an arrestee never attacked or even
threatened to attack a police officer. Smith v. City of Hemet,
394 F.3d 689, 703–04 (9th Cir. 2005) (en banc). And we
have held that “[e]very police officer should know that it is
objectively unreasonable to shoot . . . an unarmed man who:
has committed no serious offense, is mentally or emotionally
disturbed, has been given no warning of the imminent use of
such a significant degree of force, poses no risk of flight, and


precisely what the panel did in this case.
10                    HUGHES V. KISELA

presents no objectively reasonable threat to the safety of the
officer or other individuals,” even where that individual had
previously brandished weapons and threatened to “kick [a
police officer’s] ass.” Deorle, 272 F.3d at 1277, 1285.

    On the other side of the ledger, we have held that it is
constitutionally permissible to shoot an armed, mentally
disturbed individual who makes threatening movements;
commits a nonviolent crime in view of police; is warned to
drop his weapon and that he will be shot if he does not
comply; not only ignores those commands but apparently
“flaunt[s]” them; and then attempts to enter a private
residence for which he has no key. Blanford v. Sacramento
Cty., 406 F.3d 1110, 1113, 1116–19 (9th Cir. 2005).

    Taken together, our precedents as of May 21, 2010
suggest several factors critical to the constitutional analysis.
These include the severity of the underlying crime, if any;
whether the individual against whom force is used was
armed, and if so, whether her movements suggested an
immediate threat; whether a warning has been issued, if
practicable, and particularly whether she has been warned of
the imminent use of a significant degree of force; whether she
complies with such warnings, ignores them, or actively
flaunts them; whether she poses a risk of flight; whether she
is mentally or emotionally disturbed; and whether she makes
any threatening statements. None of these factors is
dispositive, but each is relevant.

3. I turn, then, to the facts of this case taken in the light most
favorable to Hughes, as we must do at the summary judgment
stage. Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014) (per
curiam). Kisela and two other police officers arrived at
Hughes’s residence in response to a “check welfare” call –
                     HUGHES V. KISELA                      11

not a report of a crime or a threatened crime. The call
reported that a woman matching Hughes’s description was
seen hacking at a tree with a large knife.

    Hughes emerged from her house holding a kitchen knife
– an everyday household item which can be used as a weapon
but ordinarily is a tool for safe, benign purposes. Although
the dissent makes much of Hughes’s “reportedly erratic”
behavior, Hughes’s demeanor when Kisela encountered her
was in fact “composed and content,” not “erratic,” as she
exited her home and walked down her driveway. She
engaged in conversation with another woman, Sharon
Chadwick, the content of which Kisela did not hear. The
only officer who did hear Hughes speak stated that she
seemed “unfocused,” but was not shouting and did not appear
angry.

     The police did not observe Hughes making any verbal
threats toward Chadwick or the police (who were safe behind
a gated fence). Nor did Hughes raise the knife from her side,
or make any threatening or aggressive movements. After
initially approaching Chadwick, Hughes periodically walked
away from Chadwick before reapproaching. Kisela and the
other officers ordered Hughes to drop the knife, but the
officers received no indication that Hughes heard them, as she
did not acknowledge their presence. At no time did any
officer orally identify himself or herself as police (although
they were in uniform), nor did they warn Hughes that they
would shoot if she did not comply with their commands to
12                       HUGHES V. KISELA

drop the knife.2 Nevertheless, within seconds after Hughes
stepped out of her house, Kisela shot her four times.

    On these facts – many of which the dissent elides or
ignores – no officer could have reasonably believed in light
of our precedents that Hughes’s conduct justified the use of
lethal force. As we held in Deorle, “[e]very police officer
should know” that it is objectively unreasonable to shoot an
unarmed, mentally disturbed person who has been given no
warning about the imminent use of serious force, poses no
risk of flight, and presents no objective imminent threat to the
safety of others – even where that person had committed a
minor criminal offense and threatened to assault a police
officer, neither of which Hughes had done. 272 F.3d at 1285.

   It is true that Hughes, unlike Deorle, held a kitchen knife.
But it was down at her side, and she did not verbally threaten


     2
        We have held, based on longstanding Supreme Court precedent,
that “whenever practicable,” such a warning “must be given before deadly
force is employed.” Harris, 126 F.3d at 1201–02 (citing Garner, 471 U.S.
at 11–12). We have recently held, in a factual situation quite similar to
that presented here, that a failure to warn a suspect that he would be fired
upon if he did not comply with police instructions is an important factor
in determining the reasonableness of force. See Hayes v. Cty. of San
Diego, 736 F.3d 1223, 1234–35 (9th Cir. 2013). Hayes, like Hughes, was
holding a knife; he was standing six feet away from San Diego County
sheriff’s deputies (roughly the same distance separating Hughes and
Chadwick) and was walking toward them when the deputies opened fire.
We held that “seen in the light most favorable to [the nonmoving party],”
Hayes “posed no clear threat at the time he was shot without warning.”
Id. at 1235. Cf. White, 137 S. Ct. at 551, 552 (qualified immunity is
warranted if an officer who arrives late on the scene and sees a suspect
pointing a firearm at him could reasonably assume that proper police
procedures such as officer identification and warning had already
occurred).
                      HUGHES V. KISELA                        13

to “kick [a police officer’s] ass” as Deorle did, nor did police
have any basis for thinking she had committed a crime. Id. at
1277. Our case law clearly establishes that the use of deadly
force against a suspect simply because he is holding a gun –
even when that suspect is in proximity to police officers or
other individuals, and even when that suspect has “committed
a violent crime in the immediate past”– is not ipso facto
reasonable, particularly when that gun is not pointed at
another individual or otherwise wielded in a threatening
fashion. Harris, 126 F.3d at 1203–04; Curnow, 952 F.2d at
325. Hughes was holding a kitchen knife – again, an item
that can be used as a weapon but normally is not – not a gun.
And on the facts favorable to Hughes, she never raised her
knife, pointed it toward Chadwick, made any verbal threats,
or moved in a threatening manner toward Chadwick.

    Judge Ikuta’s emphasis on Hughes’s “reportedly erratic”
behavior is crucial to the dissent’s formulation of what it
considers to be the relevant alleged constitutional right in this
case. See Dissent at 22 (“The panel should have considered
the alleged violation as: shooting a reportedly erratic, knife-
wielding woman who comes within striking distance of a
third party, ignores multiple [actually two] orders to drop her
weapon, and cannot otherwise be timely subdued due to a
physical barrier separating her from the officer.”) (emphasis
added). The “erratic” characterization is quite a thin reed
upon which to base a claim of qualified immunity, as the facts
seen in the light most favorable to Hughes make clear that she
did not act erratically once the officers arrived. Instead, she
was “composed and content” and did not appear angry or
disturbed.

    It is certainly true that Hughes’s earlier, reportedly
“erratic,” behavior toward a tree could be construed as an
14                       HUGHES V. KISELA

indicator of mental instability. But there is no basis in our
case law for treating mental illness as an aggravating factor
in evaluating the reasonableness of force employed. To the
contrary, we have held that the apparent mental illness of a
suspect weighs, if anything, in the opposite direction. See
Deorle, 272 F.3d at 1283, 1285. The approach proposed in
the dissent suggests the reverse: that an officer’s use of
deadly force is more reasonable where that officer is aware of
an individual’s mental instability. That approach not only
violates our previous refusal “to create two tracks of
excessive force analysis, one for the mentally ill and one for
serious criminals,” Bryan v. MacPherson, 630 F.3d 805, 829
(9th Cir. 2010), but turns Deorle on its head.

4. It is the dissent from denial of en banc consideration, not
the panel opinion, that ignores the “specific context” in
reaching its conclusion, despite the longstanding principle
that at the summary judgment stage we are to make all
reasonable inferences in favor of the nonmoving party.
Tolan, 134 S. Ct. at 1868.

    The dissent identifies four facts in maintaining that
qualified immunity should have been granted – that Hughes
held a kitchen knife in her hand, that she was within five or
six feet of another woman, that she was “reportedly erratic,”
and that she did not respond to two commands to drop the
knife – to the exclusion of all other relevant circumstances
and context. For example, the dissent ignores that Hughes
held the knife calmly at her side, and did not raise it.3 It


     3
         The dissent incorrectly characterizes Hughes as “wielding” the
knife, a term that suggests she had it in position for use as a weapon. See
20 Oxford English Dictionary 323–24 (2nd ed. 1989) (defining current
sense of “to wield” as “[t]o use or handle with skill and effect; to manage,
                         HUGHES V. KISELA                               15

ignores that Hughes was not suspected of having committed
a crime. It ignores that Hughes made no threatening
movements or statements. It ignores that Kisela, on the facts
most favorable to Hughes, gave two warnings in quick
succession, after failing to identify himself as a police officer
and without any warning that he would open fire if Hughes
did not comply with his instructions.

    The dissent ultimately proposes that Kisela was entitled
to qualified immunity for shooting Hughes because one
purportedly analogous case, Blanford, found no constitutional
violation. As the panel held, Blanford is simply inapposite.
Several critical distinctions between the facts here and those
present in Blanford confirm that a reasonable officer would
not view Blanford as condoning the Hughes shooting.

    At the time he was shot, Blanford was carrying a two-
and-a-half foot sword. Blanford, 406 F.3d at 1112–13.
Swords, of course, are meant as weapons. In contrast, all the
while the officers were present, Hughes was holding a large
kitchen knife at her side; such a knife certainly can serve as
a weapon but is usually employed as an ordinary culinary
tool. In Blanford’s case, the officers specifically identified
themselves as law enforcement officials. Id. Kisela and the
other officers did not do so orally. Officers expressly warned
Blanford – repeatedly – that they would shoot him if he did
not comply with orders to drop the sword. Id. at 1116–17,


actuate, ply (a weapon, tool, or instrument, now always one held or carried
in the hand”); Webster’s New International Dictionary of the English
Language 2924 (2nd ed. 1959) (defining “wield” as “[t]o use (an
instrument, implement, etc.) with full command or power; to handle with
skill, effectiveness, etc.; to employ, manipulate, or ply.”). Hughes was
just carrying a kitchen knife; she was not using it “with skill and effect,”
or actuating, plying, or employing it, as a weapon.
16                   HUGHES V. KISELA

1119. Hughes received no such warning, although such a
warning is required “where feasible.” Garner, 471 U.S. at
11–12. After that warning, Blanford “appeared to flaunt the
deputies’ commands,” as he then raised his sword and roared
in a threatening manner. Id. at 1113, 1119. Hughes did not
raise her knife from her side, and Kisela did not hear her say
anything at all, much less roar in a threatening way. Blanford
ignored repeated police commands over the course of roughly
two minutes. Id. at 1114. Hughes was gunned down within
thirty to forty-five seconds of Officer Kisela’s arrival.
Blanford had committed a (nonviolent) crime witnessed by
the officers present. Id. at 1113, 1116. The officers here did
not see Hughes commit any crime. Blanford was seen
attempting to enter a private residence for which he had no
key, facts probative of a possible home invasion. Here, the
officers had no reason to think Hughes was entering someone
else’s house. She emerged from a house into a yard, and
there was no reason to think it was not her house (which it
was).     No reasonable officer could conclude, even
mistakenly, that Blanford sanctioned the shooting of Amy
Hughes in this case.

    In short, the panel opinion is a routine application of
established qualified immunity principles to a set of facts
that, under the applicable precedents, any reasonable officer
should have realized did not justify the use of deadly force.
Of course there was no precedent with precisely the same
facts, but there nearly never is. On the dissent’s approach,
officers using excessive force would just about never be
liable for doing so.

    Indeed, the more egregious the use of excessive force, the
less likely it is that deadly force would have been used in a
closely similar situation, and the more likely is a grant of
                     HUGHES V. KISELA                        17

qualified immunity on the dissent’s analysis. It is true that
we could find no case in which a court held deadly force
excessive where there was no threat made, verbally or
physically, to anyone, and no crime committed. But almost
surely that is because no reasonable officer would use deadly
force under those circumstances.

    I concur in the denial of rehearing en banc.



IKUTA, Circuit Judge, with whom KOZINSKI, TALLMAN,
BYBEE, CALLAHAN, BEA, and N. R. SMITH, Circuit
Judges, 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, 137 S.
Ct. 548, 552 (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, 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. 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 takes a path contrary to the Supreme Court’s
18                   HUGHES V. KISELA

direction on the proper application of the qualified immunity
doctrine in the Fourth Amendment context, I would take this
case en banc to correct the panel opinion’s error.

                               I

    The relevant facts necessary to resolve the qualified
immunity analysis are not in dispute. On May 21, 2010,
Andrew Kisela was a corporal with the University of Arizona
Police Department. That evening, he and his colleague
received a radio report that a woman was walking down 7th
Street in Tucson and hacking at a tree with a large knife.
Upon arrival at the scene, Officer Kisela spoke briefly with
the reporting party, and eventually a third officer arrived at
the scene.

    Against this backdrop, the incident at the center of this
lawsuit unfolded in the course of thirty to forty-five seconds.
Officer Kisela saw Amy Hughes—a woman matching the
description of the tree-hacker—walking toward a third party,
now known to be Hughes’s housemate Sharon Chadwick.
Hughes was still holding the large knife, so the officers
present drew their guns and ordered Hughes to drop the knife
at least twice. Hughes failed to comply. Instead, she
continued to approach Chadwick, and in fact came close
enough to Chadwick to deliver a blow with the knife. With
a chainlink fence separating the officers from Hughes and
Chadwick, and with insufficient time to transition from his
firearm to his taser, Officer Kisela fired four shots at Hughes,
striking but not killing her.

    Amy Hughes then filed this suit against Officer Kisela
pursuant to 42 U.S.C. § 1983, alleging that Officer Kisela
violated her Fourth Amendment right to be free of excessive
                     HUGHES V. KISELA                        19

force. The district court granted summary judgment for
Officer Kisela, which the panel hearing this appeal reversed.

                               II

    The dispositive question here is whether Officer Kisela is
entitled to qualified immunity. As the Supreme Court has
explained, the qualified immunity analysis has two prongs:
In order to deny qualified immunity, the facts must establish
a violation of a constitutional right, and that right must have
been “clearly established” at the time of alleged violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). We may
assess the prongs in either order, “in light of the
circumstances in the particular case at hand.” Id. at 236.

    In a Fourth Amendment excessive force case, we analyze
the first prong by engaging in “a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.” Plumhoff v. Rickard, 134 S. Ct. 2012,
2020 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). This is a “totality of the circumstances” analysis that
we conduct from the perspective of a reasonable officer on
the scene. Id. The analysis is accordingly quite deferential
to the officer. See Saucier v. Katz, 533 U.S. 194, 205 (2001).

    But the test for the second prong of the qualified
immunity analysis is different and adds another layer of
deference. See id. For excessive force cases in particular, the
Supreme Court has identified two key principles about what
constitutes a “clearly established” right. First, courts must
define the alleged constitutional violation in terms of the
officer’s “particular conduct.” Mullenix, 136 S. Ct. at 308
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). As
20                   HUGHES V. KISELA

Mullenix explained, “[s]uch specificity is especially important
in the Fourth Amendment context, where the Court has
recognized that ‘[i]t is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive
force, will apply to the factual situation the officer
confronts.’” Id. (quoting Saucier, 533 U.S. at 205) (second
alteration in original). Thus, courts may not define the
clearly established right at a high level of generality that
covers a wide range of conduct, as that would “mak[e] it
impossible for officials reasonably [to] anticipate when their
conduct may give rise to liability for damages.” Anderson v.
Creighton, 483 U.S. 635, 639 (1987) (quotation marks
omitted) (second alteration in original).

    Second, having identified the context-specific conduct
that allegedly violated the Constitution, courts must
determine whether any precedent existing at the time placed
beyond debate that the use of force in such circumstances
violated the Fourth Amendment. See, e.g., White, 137 S. Ct.
at 551; Mullenix, 136 S. Ct. at 308. The “beyond debate”
standard is a high one: Officers are entitled to qualified
immunity unless “every reasonable official”—which excludes
only the plainly incompetent and those who knowingly
violate the law—“would have understood that what he is
doing violates [the plaintiff’s] right.” Mullenix, 136 S. Ct. at
308 (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012)). And officers remain entitled to qualified immunity
even if they make “reasonable mistakes” about “the legal
constraints on particular police conduct.” Saucier, 533 U.S.
at 205. Given this high standard, the Supreme Court has
made clear that an official can lose qualified immunity in the
excessive force context only if an earlier case held that
conduct closely analogous to the specific conduct at issue
violated a constitutional right. E.g., Mullenix, 136 S. Ct. at
                     HUGHES V. KISELA                        21

308. For example, the Court recently held that the Tenth
Circuit “misunderstood the ‘clearly established’ analysis”
when it “failed to identify a case where an officer acting
under similar circumstances . . . was held to have violated the
Fourth Amendment,” and instead relied on cases that “lay out
excessive-force principles at only a general level.” White,
137 S. Ct. at 552.

    Mullenix illustrates both key principles of the second
prong of the qualified immunity analysis. The officer in
Mullenix was sued for using excessive force after he shot and
killed an individual evading an arrest warrant who was
speeding down the interstate. 136 S. Ct. at 306–07. The
officer’s objective was to disable the fleeing man’s car by
shooting it from an overpass, a tactic that the officer had
neither been trained in nor previously attempted. Id. at 306.
In evaluating whether the officer violated clearly established
law, the Court first explained the alleged violation in terms of
the officer’s specific conduct: The officer “confronted a
reportedly intoxicated fugitive, set on avoiding capture
through high-speed vehicular flight, who twice during his
flight had threatened to shoot police officers, and who was
moments away from encountering an officer.” Id. at 309.

     After identifying this context-specific conduct, the Court
then stated that “[t]he relevant inquiry is whether existing
precedent placed the conclusion that [the officer] acted
unreasonably in these circumstances ‘beyond debate.’” Id.
(quoting al-Kidd, 563 U.S. at 741). The Court concluded that
it had “never found the use of deadly force in connection with
a dangerous car chase to violate the Fourth Amendment, let
alone to be a basis for denying qualified immunity.” Id. at
310. Because no Supreme Court case “squarely govern[ed]”
the facts of Mullenix, id., and lower court decisions left the
22                       HUGHES V. KISELA

question hazy, id. at 312, the Court could not say that it was
“beyond debate” that the officer violated the plaintiff’s
constitutional right, id. (quoting Stanton v. Sims, 134 S. Ct. 3,
7 (2013) (per curiam)). Therefore, the officer was entitled to
qualified immunity. Id.

                                   III

   The panel opinion directly contravenes the qualified
immunity principles relevant to the “clearly established”
inquiry. By doing so, the panel opinion fails to heed the
central lesson of White, Mullenix, and multiple other Supreme
Court decisions in the excessive force context.

    First and most fundamentally, the panel opinion fails to
define the alleged constitutional violation in terms of the
officer’s “particular conduct.” Mullenix, 136 S. Ct. at 308
(quoting al-Kidd, 563 U.S. at 742). The panel should have
considered the alleged violation as: shooting a reportedly
erratic, knife-wielding woman who comes within striking
distance of a third party, ignores multiple orders to drop her
weapon, and cannot otherwise be timely subdued due to a
physical barrier separating her from the officer. Instead, the
panel defines the alleged violation at issue as shooting a
plaintiff who “present[ed] no objectively reasonable threat to
the safety of the officer or other individuals,” Hughes,
841 F.3d at 1089 (quoting Deorle v. Rutherford, 272 F.3d
1272, 1285 (9th Cir. 2001)), and focuses solely on whether
Officer Kisela was unreasonable in determining that Hughes
posed a threat.1 By defining the conduct at issue at such a


     1
       According to the panel, this is the “most important[]” aspect of the
qualified immunity determination because if the issue is determined in
Hughes’s favor, “then Corporal Kisela clearly violated [Hughes’s]
                         HUGHES V. KISELA                              23

high level of generality, the panel adopts the exact erroneous
approach reversed in Mullenix, among other cases; it focuses
only on the general elements of an excessive force violation.
The abstract legal principle that an officer may not use deadly
force when a suspect does not present an objectively
reasonable threat is well established. See, e.g., Tennessee v.
Garner, 471 U.S. 1, 11 (1985). But the proper question for
purposes of identifying a “clearly established” right is
whether any precedent placed beyond debate how this legal
principle applies to the specific facts on the ground in this
case. See Mullenix, 136 S. Ct. at 309. As the Supreme Court
has made clear, at the second prong of the qualified immunity
analysis we are not to focus on the reasonableness of the
officer’s conduct, but on whether the officer could reasonably
have thought that the law permitted his specific conduct
under the facts of the case. See Saucier, 533 U.S. at 205.

    The opinion also mishandles the Court’s second key
principle for identifying clearly established law because it
“fail[s] to identify a case where an officer acting under
similar circumstances as Officer [Kisela] was held to have
violated the Fourth Amendment.” White, 137 S. Ct. at 552.
Indeed, by relying on Glenn v. Washington County, 673 F.3d
864 (9th Cir. 2011), the panel tacitly admits that no precedent
squarely governed these facts at the time of the officer’s
conduct. Glenn, which the panel calls “[t]he most analogous
Ninth Circuit case,” Hughes, 841 F.3d at 1088, post-dates the


constitutional right.” Hughes, 841 F.3d at 1089. Obviously, this part of
the panel’s analysis is relevant only to the first prong of the qualified
immunity inquiry: whether the facts establish a violation of a
constitutional right. But this is not the appropriate inquiry at the second
prong, where the question is whether precedent placed “beyond debate”
that the officer’s “particular conduct” was unlawful “in light of the
specific context of the case.” Mullenix, 136 S. Ct. at 308.
24                       HUGHES V. KISELA

conduct at issue by more than a year. Needless to say, a case
that was decided after Officer Kisela acted could not have
informed his conduct, and so is “of no use in the clearly
established inquiry.” Brosseau v. Haugen, 543 U.S. 194, 200
n.4 (2004) (per curiam).2

    And indeed, no case that the panel cites held that conduct
closely analogous to the conduct at issue in this case violated
the plaintiff’s constitutional rights. The panel’s reliance on
Deorle, see Hughes, 841 F.3d at 1089, is misplaced. In
Deorle, we held that there was “no objectively reasonable
threat to the safety of the officer or other individuals,”
272 F.3d at 1285, where an unarmed man, id., who had been
compliant with at least three police requests to discard
weapons, id. at 1276–77, was shot while walking toward an
officer with a clear path of retreat, id. at 1282, while “the only
neighbors in the vicinity, along with the other police officers,
were safely behind [] two roadblocks,” id. Given these facts,
Deorle “does not clearly dictate the conclusion that [Officer
Kisela] was unjustified in perceiving grave danger and
responding accordingly” in the situation at issue here.
Mullenix, 136 S. Ct. at 311. In stark contrast to Deorle,
Officer Kisela was present at the scene for only a matter of
seconds, while the officer in Deorle had been on the scene for
forty minutes and had observed the victim “for about five to


     2
       After we dissenting judges pointed out that Glenn was decided
more than a year after the incident in this case, the panel belatedly
amended its opinion to retreat from its reliance on Glenn. See Amended
Op. at 44 n.2. But having now conceded that the panel’s “most analogous
Ninth Circuit case,” id. at 43, is merely “suggestive of the state of the
clearly established law,” and serves only “as illustrative” rather than “as
determinative of clearly established law,” id. at 44 n.2, the panel opinion
more clearly than ever rests on nothing but the general rule that deadly
force requires an objective threat of harm.
                     HUGHES V. KISELA                        25

ten minutes from the cover of some trees.” Deorle, 272 F.3d
at 1277, 1281–82. Hughes was not only armed (unlike
Deorle), but also refused at least two requests to drop her
knife (again unlike the largely compliant Deorle). Likewise,
Hughes was within striking distance of a third party while
separated from the officers by a physical barrier, and Officer
Kisela had been put on notice of Hughes’s earlier erratic
behavior with a knife, which Officer Kisela had been
dispatched to investigate. Shooting an armed, unresponsive,
and reportedly erratic woman as she approaches a third party
is materially different from shooting an unarmed, largely
compliant man as he approaches an officer with a clear line
of retreat. On its facts, therefore, Deorle does not place
“beyond debate” that Officer Kisela’s conduct violated
Hughes’s Fourth Amendment rights. al-Kidd, 563 U.S. at
741.

    Worse yet, the panel’s reliance on Deorle repeats the
exact same error for which the Supreme Court reprimanded
us just two years ago in Sheehan, in which the Court noted
that the differences between Deorle and the situation
confronting the officers in Sheehan “leap[t] from the page.”
City & County of San Francisco v. Sheehan, 135 S. Ct. 1765,
1776 (2015). For reasons just discussed, the same is true
here. The Supreme Court went on to hold that, even if Deorle
supported the general rule that an officer’s forcible entry into
a mentally ill individual’s home requires an objective need
for immediate entry, qualified immunity was appropriate
because “no precedent clearly established that there was not
‘an objective need for immediate entry.’” Id. at 1777
(emphasis in original). As in Sheehan, the panel here uses
Deorle to justify denial of qualified immunity based on a
violation of a general Fourth Amendment principle that
deadly force requires an objective threat, without citing a
26                   HUGHES V. KISELA

single relevant case in which any court has held that there
was not an objective threat on facts comparable to those here.

    The panel further exacerbates its error by brushing aside
Officer Kisela’s argument that a reasonable officer could rely
on Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir.
2005), to justify the use of force in this situation. It is
irrelevant whether Blanford is distinguishable, as the panel
claims. Hughes, 841 F.3d at 1090. The issue is not whether
Blanford compels the conclusion that Officer Kisela’s
conduct does not rise to the level of a constitutional violation
(the first prong of the qualified immunity analysis). Rather,
the question is whether any reasonable officer could have
understood Blanford, rightly or wrongly, as permitting the use
of deadly force in this situation. See Saucier, 533 U.S. at
205. On that score, the panel errs.

    In Blanford, the officers confronted a man “wearing a ski
mask and carrying a sword” walking through a suburban
neighborhood and “behaving erratically.” 406 F.3d at 1112.
Over the course of approximately two minutes, id. at 1114,
the officers trailed Blanford and repeatedly ordered him to
drop the sword, which he did not do, id. at 1112–13. The
officers “considered whether Blanford might be mentally
disturbed,” but they believed that he “posed an imminent
threat” to the public and that they needed to secure his
weapon, even though no third parties were known to be in the
vicinity. Id. at 1113. When Blanford attempted to enter his
own home, the officers—unaware that it was Blanford’s
home, and not knowing whether anyone was inside the
home—shot him and severed his spine. Id. at 1113–14. We
held that no constitutional violation occurred. Id. at 1117–18.
More specifically, we identified the four elements of the
situation that supported our holding: “[1] [Blanford] was
                     HUGHES V. KISELA                       27

armed, [2] refused to give up his weapon, [3] was not
surrounded, and [4] was trying to get inside a private
residence . . . where his sword could inflict injury that the
deputies would not then be in a position to prevent.” Id. at
1117–18.

    Despite the panel’s efforts to distinguish Blanford, see
Hughes, 841 F.3d at 1090, the four elements that compelled
our conclusion in Blanford are present in this case, and it is
therefore clear that Officer Kisela could have reasonably
relied on Blanford to justify his use of force against Hughes.
Cf. Mullenix, 136 S. Ct. at 311 (looking to comparable
decisions from the circuit courts to determine whether an
officer’s assessment of a threat was reasonable); Shinault v.
Hawks, 782 F.3d 1053, 1060 (9th Cir. 2015) (holding that
“qualified immunity is appropriate” where “some courts”
held that no violation of a constitutional right occurred “in
analogous cases,” as this “shows that the right was not clearly
established at the time of conduct”). Just as in Blanford,
Hughes was armed, refused to drop her weapon, was not
surrounded, and was attempting to put herself in a situation
where she could have caused harm that the officers would not
have been able to prevent. See 406 F.3d at 1117–18. Given
our holding in Blanford, Officer Kisela could reasonably have
thought that his conduct was lawful. For qualified immunity
purposes, that is dispositive. See Saucier, 533 U.S. at 205.

    Finally, the panel attempts to rescue its ruling by arguing
that it should have been obvious to Officer Kisela that he
could not use deadly force in this context. Hughes, 841 F.3d
at 1090 (citing Brosseau, 543 U.S. at 199, which held that “in
an obvious case,” general Fourth Amendment standards “can
‘clearly establish’ the answer, even without a body of relevant
case law”). In effect, the panel’s argument here is that
28                       HUGHES V. KISELA

Officer Kisela’s conduct constituted excessive force under
general Fourth Amendment principles, and it is obvious that
an officer may not use excessive force.                  See id.
(characterizing as “obvious” that Hughes “had a
constitutional right to walk down her driveway holding a
knife without being shot”). Given that Hughes, as the panel
acknowledges, “may have been acting erratically, was
approaching a third party, and did not immediately comply
with orders to drop the knife,” id., this is far from an obvious
case. Indeed, if this case is obvious—especially in light of
precedents like Blanford—then the “obvious case” exception
will have swallowed the rule to identify a case that “squarely
governs” the situation confronting the officer. Mullenix,
136 S. Ct. at 310.

    All told, the panel opinion denies qualified immunity on
the authority of a general Fourth Amendment principle, a
post-dated case, and a wholly unpersuasive attempt to
distinguish a precedent that held, on comparable facts, that no
constitutional violation occurred. These errors are easily
perceived, and we ought to have corrected them.

                                    IV

   The concurrence’s last ditch effort to salvage the panel
opinion is to no avail. See Concurrence to Denial of
Rehearing En Banc. Of course, a concurrence is not the
opinion of the court, and is not a means by which this court
can definitively speak on legal questions.3 Moreover, the


     3
       As some of our colleagues on the Fifth Circuit recently observed,
although a panel publishing a response to denial of rehearing en banc has
“the right to comment on the dissent from denial,” it cannot “articulate any
additional binding precedent.” EEOC v. Bass Pro Outdoor World, LLC,
                         HUGHES V. KISELA                              29

concurrence has no better luck than the panel in identifying
precedent pre-dating Officer Kisela’s use of force that is close
enough to the situation facing Officer Kisela that only a
plainly incompetent or lawless officer would know that his
actions were unconstitutional. See Mullenix, 136 S. Ct. at
308.

    First, the concurrence claims that this case is quite like
Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), which
addressed the infamous 1992 siege at Ruby Ridge. See
Concurrence at 9, 13.4 But the suggestion that Officer Kisela
ought to have known that his conduct was unlawful because
we held in the wake of Ruby Ridge that a sniper ensconced
safely on a hill cannot shoot a retreating suspect merely
because that suspect had committed a crime the day before,
see Harris, 126 F.3d at 1203, does not pass the straight-face
test. At a minimum, Harris does not place it “beyond debate”
that Officer Kisela violated the Constitution by using deadly
force against a person who had been reported as acting
erratically with a knife minutes before the encounter, was still
armed with the knife, failed to respond to at least two orders
to drop the knife, and was within striking distance of a third
party. White, 137 S. Ct. at 551.




No. 15-20078, — F.3d —, 2017 WL 1540853, at *14 (5th Cir. Apr. 28,
2017) (Jones, J., dissenting from denial of rehearing en banc) (emphasis
omitted).
    4
     The panel follows suit by amending the opinion to remove a cite to
Glenn and replace it with a cite to Harris, albeit without any explanation.
Compare Hughes, 841 F.3d at 1090 (“As indicated by Glenn and
Deorle, . . . .”), with Amended Op. at 47 (“As indicated by Deorle and
Harris, . . . .”).
30                      HUGHES V. KISELA

    Equally unconvincing is the concurrence’s reference to
Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321
(9th Cir. 1991). See Concurrence at 9, 13. On the facts as we
assumed them in Curnow, the victim was sitting in his home,
unarmed, and holding his girlfriend in his lap when a police
officer shot him in the back through a window. Id. at 323.
Whatever wisdom Curnow may impart to a policeman
observing a person chopping onions at an innocent backyard
barbecue, see Concurrence at 7–8, it does not clearly establish
the unreasonableness of deadly force where a reportedly
erratic individual who is unresponsive to police commands
approaches a third party, knife in hand.

    Finally, the concurrence points to distinctions between the
facts of this case and those in Blanford, such as the length of
the blade Blanford carried, the fact that the police shouted
“we’ll shoot” to Blanford in addition to an order to drop the
weapon, and the length of the encounter (two minutes in
Blanford rather than forty-five seconds in this case).5
Concurrence at 15–16. Such distinctions might be more
compelling if a federal judge could descend as a deus ex
machina to whisper in the ears of officers on the scene about
the application of precedent before a shot is ever fired. But
in the world in which we actually live, officers must make
split-second decisions regarding the use of force, and a
reasonable officer could have understood Blanford as



     5
       The concurrence fails to note other distinctions between Blanford
and this case, such as the fact that Hughes was just a few feet away from
a potential victim, whereas Blanford was 20 to 25 feet away from the
police and there was no known third party at risk. Blanford, 406 F.3d at
1112–13. This distinction highlights the need for even faster decision-
making and action on Officer Kisela’s part.
                          HUGHES V. KISELA                               31

recognizing that deadly force could be used in the situation
Officer Kisela faced.

                                     V

     By failing to take this case en banc, we unfortunately
repeat our error of framing clearly established law at too high
a level of generality, divorced from the specific context of the
situation facing the officer. Sheehan, 135 S. Ct. at 1775–76
(“We have repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.”); al-Kidd, 563 U.S. at 742 (same; citation
omitted); Brosseau, 543 U.S. 194, 198–99 (reversing the
Ninth Circuit for relying on “the general tests” for excessive
force to evaluate clearly established law).6 More unfortunate
still, we do so by over-reading Deorle, the exact same case
that we erroneously over-extended in Sheehan. The panel

    6
        Indeed, just days ago the Supreme Court rejected yet again this
court’s approach of defining clearly established law at too high a level of
generality. See Petersen v. Lewis County, 663 F. App’x 531 (9th Cir.
2016), cert. granted and judgment vacated sub nom. McKnight v.
Peterson, No. 16-1003, (U.S. June 12, 2017). In Peterson, a police officer
responded to a 911 call reporting that an individual was using a large knife
to stab the front door of a mobile home. Petersen v. Lewis County, No.
C12-5908, 2014 WL 584005, at *1–2 (W.D. Wash. Feb. 13, 2014). The
officer believed, incorrectly as it turned out, that the suspect had a knife.
Id. at *2. The suspect failed to comply with the officer’s orders to get on
the ground and took two steps towards the officer, who was 20 to 25 feet
away, at which point the officer shot the suspect to stop his approach. Id.
Petersen defined clearly established law at a high level: it is clearly
established that an officer may not use deadly force without probable
cause to believe that the plaintiff posed a threat of serious physical harm,
and the officer “did not have probable cause to use deadly force and
therefore acted in violation of clearly established law.” 663 F. App’x at
532. The panel here takes a similarly erroneous approach, and thus also
invites vacatur, if not summary reversal.
32                    HUGHES V. KISELA

opinion that we leave in place contradicts White, Mullenix,
Sheehan, al-Kidd, Brosseau, and multiple other Supreme
Court precedents instructing us to “identify a case where an
officer acting under similar circumstances . . . was held to
have violated the Fourth Amendment.” White, 137 S. Ct. at
552.

     The panel would have us believe this is all
inconsequential—“[t]he application of qualified immunity,”
it assures us, simply “will depend upon the facts as
determined by a jury.” Hughes, 841 F.3d at 1090. But there
is no set of facts for which Hughes has proffered evidence
that would establish a clear violation of the Fourth
Amendment as of the date of Officer Kisela’s conduct, and
qualified immunity is immunity from suit, not just a defense
to liability. Pearson, 555 U.S. at 237. In this situation, “[o]ur
grand business undoubtedly is . . . to do what lies clearly at
hand.” Thomas Carlyle, Signs of the Times, 49 Edinburgh
Rev. 439, 439 (1829). Because it is apparent on the summary
judgment record that qualified immunity, when properly
applied, shields Officer Kisela from suit in this situation, I
would afford him the immunity to which the law entitles him.
I therefore dissent from the denial of rehearing en banc.



                          OPINION

SESSIONS, District Judge:

    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
                     HUGHES V. KISELA                      33

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 further proceedings.

              FACTUAL BACKGROUND

    On May 21, 2010, Corporal Kisela and UAPD officer-in-
training Alex Garcia were monitoring the Tucson Police
Department radio when they heard a “check welfare” call
regarding a woman reportedly hacking at a tree with a large
knife. The officers drove to the location and were told by the
reporting party that the person with the knife had been acting
erratically. UAPD Officer Lindsay Kunz also responded to
the call.

   The following events occurred in less than one minute.
Soon after the three officers arrived, Amy Hughes emerged
from her house carrying a large kitchen knife. Sharon
34                   HUGHES V. KISELA

Chadwick was standing outside the house in the vicinity of
the driveway. According to Ms. Chadwick’s affidavit, Ms.
Hughes was composed and content as she exited the house,
holding the kitchen knife down to her side with the blade
pointing backwards. Ms. Chadwick submits that she was
never in fear, and did not feel that Ms. Hughes was a threat.

    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 time for Ms. Hughes to drop the knife, Ms.
Chadwick recalls hearing only two commands in quick
succession. Ms. Hughes did not drop the knife and continued
to move toward 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.

    In an interview with police after the shooting, Ms.
Chadwick explained that she and Ms. Hughes lived together,
and that she had managed Ms. Hughes’s behavior in the past.
She also informed police that Ms. Hughes had been
diagnosed with bipolar disorder and was taking medication.
Ms. Chadwick believes that Ms. Hughes did not understand
what was happening when the police yelled for her to drop
the knife. She also believes that Ms. Hughes would have
                     HUGHES V. KISELA                       35

given her the knife if asked, and that the police should have
afforded her that opportunity.

                STANDARD OF REVIEW

    A district court’s grant of a motion for summary judgment
is reviewed de novo. Colwell v. Bannister, 763 F.3d 1060,
1065 (9th Cir. 2014). “Summary judgment is appropriate
only ‘if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law.’” Stoot v. City of Everett,
582 F.3d 910, 918 (9th Cir. 2009) (quoting Fed. R. Civ. P.
56(c)). In reviewing a summary judgment ruling, we draw all
reasonable inferences in favor of the non-moving party.
Galvin v. Hay, 374 F.3d 739, 745 (9th Cir. 2004). We are
obligated to construe the record in the light most favorable to
the party opposing summary judgment. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
We review an officer’s entitlement to qualified immunity de
novo. Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir.
2011).

                       DISCUSSION

I. Excessive Force

    When evaluating a Fourth Amendment claim of excessive
force, courts ask “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Graham v. Connor,
490 U.S. 386, 397 (1989). This inquiry “requires a careful
balancing of ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the
36                   HUGHES V. KISELA

countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). “The
calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 396–97. Reasonableness
therefore “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 396.

    The strength of the government’s interest in the force
used is evaluated by examining three primary factors: (1) “the
severity of the crime at issue,” (2) “whether the suspect poses
an immediate threat to the safety of the officers or others,”
and (3) “whether [s]he is actively resisting arrest or
attempting to evade arrest by flight.” Id. (citing Garner,
471 U.S. at 8–9). The “‘most important’ factor under
Graham is whether the suspect posed an ‘immediate threat to
the safety of officers or third parties.’” George v. Morris,
736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v.
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)).

    The factors identified in Graham are not exclusive. See
Bryan, 630 F.3d at 826. When assessing the officer’s
conduct, a court must examine “the totality of the
circumstances and consider ‘whatever specific factors may be
appropriate in a particular case, whether or not listed in
Graham.’” Id. (quoting Franklin v. Foxworth, 31 F.3d 873,
876 (9th Cir. 1994)). Other relevant factors may include the
availability of less intrusive force, whether proper warnings
were given, and whether it should have been apparent to the
officer that the subject of the force used was mentally
disturbed. See, e.g., Bryan, 630 F.3d at 831; Deorle v.
                        HUGHES V. KISELA                             37

Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001). With
respect to the possibility of less intrusive force, officers need
not employ the least intrusive means available so long as they
act within a range of reasonable conduct. See Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

    In this case, when viewing the facts in the light most
favorable to Ms. Hughes, the record does not support
Corporal Kisela’s perception of an immediate threat. Officer
Garcia told Tucson police that Ms. Hughes did not raise the
knife and did not make any aggressive or threatening actions
toward Ms. Chadwick. Officer Kunz similarly did not see
Ms. Hughes raise her arm. Ms. Chadwick describes Ms.
Hughes as having been composed and non-threatening
immediately prior to the shooting.1

    Corporal Kisela was undoubtedly concerned for Ms.
Chadwick’s safety. He had received a report of a person with
a knife acting erratically, and soon thereafter saw that same
person still holding a knife and approaching another
individual. In some situations, “[i]f the person is armed . . .
a furtive movement, harrowing gesture, or serious verbal
threat might create an immediate threat.” George, 736 F.3d
at 838. Nonetheless, “a simple statement by an 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.” Deorle,
272 F.3d at 1281 (“A desire to resolve quickly a potentially
dangerous situation is not the type of governmental interest


    1
       While Ms. Chadwick’s description may not be entirely consistent
with some of her other statements in the record, “we must draw all
justifiable inferences in favor of [Ms. Hughes], including questions of
credibility and of the weight to be accorded particular evidence.” Masson
v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).
38                   HUGHES V. KISELA

that, standing alone, justifies the use of force that may cause
serious injury.”); see also Harris v. Roderick, 126 F.3d 1189,
1204 (9th Cir. 1997) (“Law enforcement officials may not kill
suspects who do not pose an immediate threat to their safety
or to the safety of others simply because they are armed.”).
Here, viewing those “objective factors” in a light most
favorable to Ms. Hughes, a rational jury could find that she
did not present an immediate threat to the safety of others,
and that Corporal Kisela’s response was unreasonable. Id.

    The question of the severity of the crime being committed
also weighs in Ms. Hughes’s favor. The three officers present
at the time of the shooting were responding to a “check
welfare” call. No crime was reported. As in Deorle, where
the police shot a mentally ill man acting strangely, the
officers arrived “not to arrest [Ms. Hughes], but to investigate
[her] peculiar behavior.” 272 F.3d at 1280–81. And also as
in Deorle, this was not a situation of a “lone police officer
suddenly confronted by a dangerous armed felon . . . .” Id. at
1283. The majority in Deorle noted that “[t]he character of
the offense is often an important consideration in determining
whether the use of force was justified,” and ultimately
concluded that “where the crime being committed, if any, was
minor and the danger to . . . others appear to have been
minimal,” the governmental interest in using force was
“clearly not substantial.” Id. at 1280–82. A rational jury,
viewing the facts in a light most favorable to Ms. Hughes,
could reach the same conclusion here.

    The third factor cited in Graham, whether the suspect was
resisting or seeking to evade arrest, does not apply as the
events in this case occurred too quickly for the officers to
make an arrest attempt. A related issue is Ms. Hughes’s
disregard of the officers’ commands to drop the knife. It is
                     HUGHES V. KISELA                        39

undisputed that officers yelled at least twice for her to drop
the knife. If the case goes to trial, the jury may hear evidence
of several additional warnings. At summary judgment,
however, the Chadwick affidavit plays an important role on
this point. Ms. Chadwick heard only two warnings in quick
succession, and perceived that Ms. Hughes did not understand
what was happening. Whether the police should have
perceived this is a question for the jury.

    At the time, the police were privy to facts suggesting that
Ms. Hughes might have a mental illness. The initial report
was to “check welfare” of a person trying to cut down a tree
with a knife. Upon arriving at the scene, the reporting party
informed Corporal Kisela that this same person was acting
erratically. Just prior to the shooting, Corporal Kisela himself
recalled Ms. Hughes “stumbling” toward Ms. Chadwick.

    This Court has “refused to create two tracks of excessive
force analysis, one for the mentally ill and one for serious
criminals.” Bryan, 630 F.3d at 829. The Court has, however,
“found that even when an emotionally disturbed individual is
acting out and inviting officers to use deadly force to subdue
him, the governmental interest in using such force is
diminished by the fact that the officers are confronted . . .
with a mentally ill individual.” Id. (citation and internal
quotation marks omitted). A reasonable jury could conclude,
based upon the information available to Corporal Kisela at
the time, that there were sufficient indications of mental
illness to diminish the governmental interest in using deadly
force.

    Another factor to be considered is whether there were less
intrusive means that could have been used before employing
deadly force. As noted previously, officers “need not avail
40                   HUGHES V. KISELA

themselves of the least intrusive means of responding to an
exigent situation; they need only act within that range of
conduct we identify as reasonable.” Henrich, 39 F.3d at 915.
However, “police are ‘required to consider [w]hat other
tactics if any were available,’” and whether there are “clear,
reasonable and less intrusive alternatives” to the force being
contemplated. Bryan, 630 F.3d at 831 (quoting Headwaters
Forest Def. v. Cty. of Humboldt, 240 F.3d 1185, 1204 (9th
Cir. 2000)); see also Smith v. City of Hemet, 394 F.3d 689,
703 (9th Cir. 2005) (holding that officers should consider
“alternative techniques available for subduing [a suspect] that
presented a lesser threat of death or serious injury”).

    In this case, the record includes expert opinions about the
reasonableness of using a firearm in this situation. Ms.
Hughes’s expert concluded that Corporal Kisela should have
used his Taser, and that shooting through the fence was both
dangerous and excessive. Corporal Kisela’s expert opined
that a Taser would likely have become tangled in the fence,
and that the shooting was reasonable. It is well established
that a jury may hear expert testimony in this type of case, and
rely upon such evidence in assessing whether the officer’s use
of force was unreasonable. See Larez v. City of Los Angeles,
946 F.2d 630, 635 (9th Cir. 1991) (as amended) (finding that
testimony of “an expert on proper police procedures and
policies” was relevant and admissible). Here, the differences
in the experts’ opinions reinforce our conclusion that there
are questions for a jury to consider in determining whether
Ms. Hughes’s constitutional rights were violated.

    This Court has noted that “[b]ecause [the question of
excessive force] nearly always requires a jury to sift through
disputed factual contentions, and to draw inferences
therefrom, we have held on many occasions that summary
                     HUGHES V. KISELA                       41

judgment or judgment as a matter of law in excessive force
cases should be granted sparingly.” Santos v. Gates, 287 F.3d
846, 853 (9th Cir. 2002); see also Liston v. Cty. of Riverside,
120 F.3d 965, 976 n.10 (9th Cir. 1997) (as amended) (“We
have held repeatedly that the reasonableness of force used is
ordinarily a question of fact for the jury.”). This is such a
case. Material questions of fact, such as the severity of the
threat, the adequacy of police warnings, and the potential for
less intrusive means are plainly in dispute. See, e.g., City of
Hemet, 394 F.3d at 703 (“Considering the severity and extent
of the force used, the three basic Graham factors, and the
availability of other means of accomplishing the arrest, it is
evident that the question whether the force used here was
reasonable is a matter that cannot be resolved in favor of the
defendants on summary judgment.”). Corporal Kisela is not
entitled to summary judgment with respect to the
reasonableness of his actions.

II. Qualified Immunity

    The district court determined that because Corporal
Kisela acted reasonably, it need not reach the question of
qualified immunity. Nonetheless, the court commented that
“under the totality of the circumstances and the standard of
whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted, it
appears that [Corporal Kisela’s] conduct was reasonable;
[Corporal Kisela] would therefore be entitled to qualified
immunity.” As discussed above, there are questions of fact
in dispute that foreclose a finding of reasonableness as a
matter of law. We therefore undertake a qualified immunity
analysis.
42                    HUGHES V. KISELA

    The Supreme Court has explained that “[t]he doctrine of
qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity
shields an officer from liability even if his or her actions
resulted from “a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Groh v.
Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).
The purpose of qualified immunity is to strike a balance
between the competing “need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id.
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open
legal questions. When properly applied, it protects ‘all but
the plainly incompetent or those who knowingly violate the
law.’” Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

    “In determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged
misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th
Cir. 2014) (citing Pearson, 555 U.S. at 232). Consequently,
at summary judgment, an officer may be denied qualified
immunity in a Section 1983 action “only if (1) the facts
alleged, taken in the light most favorable to the party
asserting injury, show that the officer’s conduct violated a
constitutional right, and (2) the right at issue was clearly
                     HUGHES V. KISELA                       43

established at the time of the incident such that a reasonable
officer would have understood [his] conduct to be unlawful
in that situation.” Torres v. City of Madera, 648 F.3d 1119,
1123 (9th Cir. 2011).

     Here, the question of a constitutional violation involves
disputed facts which, when viewed most favorably to Ms.
Hughes, could support a rational jury finding in her favor.
We therefore move to the second question: whether the right
at issue was clearly established such that a reasonable officer
would have understood his actions were unlawful. The law
does not “require a case directly on point, but existing
precedent must have placed the . . . constitutional question
beyond debate.” al-Kidd, 563 U.S. at 740. That said, this
Court has acknowledged that qualified immunity may be
denied in novel circumstances. See Mattos v. Agarano,
661 F.3d 433, 442 (9th Cir. 2011) (en banc) (citing Hope v.
Pelzer, 536 U.S. 730, 741 (2002)). “Otherwise, officers
would escape responsibility for the most egregious forms of
conduct simply because there was no case on all fours
prohibiting that particular manifestation of unconstitutional
conduct.” Deorle, 272 F.3d at 1286; see also Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (stating that “in an
obvious case, these [Graham] standards can ‘clearly
establish’ the answer, even without a body of relevant case
law”).

    The most analogous Ninth Circuit case is Glenn, 673 F.3d
864, in which an eighteen-year-old man was shot in his
driveway by police officers. Police received a report of an
agitated, intoxicated man carrying a pocket knife and
threatening to kill himself. Although at least one officer was
told that the man had calmed down, when police saw him
holding the knife to his own neck they drew their guns and
44                        HUGHES V. KISELA

screamed for him to drop it. Additional officers arrived at the
scene, one of whom shot the man with several beanbags. The
impact of the beanbags caused the man to move away from
the beanbag fire and toward the house in which his parents
were standing. As police had determined that if the man
“made a move toward the house with his parents inside, they
would use deadly force,” they opened fire and killed him.
Glenn, 673 F.3d at 869.

     Glenn is similar to this case in several respects. For
example: it was not clear that the decedent in Glenn was
actually threatening anyone; no serious crime was being
committed; there was no effort to resist or evade arrest aside
from failing to put down the knife; the failure to drop the
knife may have been the result of confusion by an impaired
person; and it might have been reasonable to use less
intrusive force. Although the district court had granted
summary judgment, this Court remanded Glenn for a jury
trial.2 Id. at 879–80.


     2
       Glenn was decided on summary judgment after the incident that
gave rise to this case. It concerned a shooting that occurred in 2006. The
panel in Glenn concluded that “resolution of . . . [genuine factual] issues
is crucial to a proper determination of the officers’ entitlement to qualified
immunity,” and remanded the question whether the right was clearly
established at the time of the alleged misconduct, to be decided “after the
material factual disputes have been decided by the jury.” 673 F.3d at 871.
Although the panel stated that it was “[expressing] no opinion on the
second part of the qualified immunity analysis,” the remand for trial would
have been improper were the officers entitled to qualified immunity on the
facts most favorable to the plaintiff. See Mattos, 661 F.3d at 445–48, 452.
We therefore read Glenn as at least suggestive of the state of the clearly
established law at the time it was decided.

     In any event, we rely on Glenn as illustrative, not as indicative of the
clearly established law in 2010. See Berzon, J., concurring in the denial
                        HUGHES V. KISELA                   45

    Deorle, 272 F.3d 1272, also offers similar facts, though
the plaintiff in Deorle was acting far more strangely than Ms.
Hughes. In Deorle, an officer responded to a call about an
individual who was drunk and behaving erratically. At
different points, the man brandished a hatchet, shouted “kill
me,” threatened to “kick [a police officer’s] ass,” and walked
around with an unloaded cross-bow. 272 F.3d at 1276–77.
Police observed him for five to ten minutes before the man
began walking towards an officer with a bottle of lighter
fluid. At that point the officer fired a bean bag, permanently
blinding the man and fracturing his skull in several places.
Id. at 1277–78.

    As in this case, police in Deorle were at the scene to
investigate peculiar behavior.      Some sort of mental
impairment was evident, the suspect was not trying to escape,
and the risk of imminent harm was in question. In denying
the officer’s qualified immunity defense, this Court wrote:

         Every police officer should know that it is
         objectively unreasonable to shoot . . . an
         unarmed man who: has committed no serious
         offense, is mentally or emotionally disturbed,
         has been given no warning of the imminent
         use of such a significant degree of force,
         poses no risk of flight, and presents no
         objectively reasonable threat to the safety of
         the officer or other individuals.

Id. at 1285.




of rehearing en banc, at 9–12.
46                   HUGHES V. KISELA

    Here, several of those same determinations are in dispute,
namely: whether Corporal Kisela was reasonable in believing
that the kitchen knife was a weapon; whether he should have
suspected mental health issues; whether the warning was
sufficient; and most importantly, whether it was reasonable
to believe that Ms. Hughes presented a threat to Ms.
Chadwick’s safety. If those questions are determined in Ms.
Hughes’s favor, then Corporal Kisela clearly violated her
constitutional right.

    Corporal Kisela claims support to the contrary from
Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir.
2005), in which police had received reports of a man in a ski
mask carrying a sword through a suburban residential
neighborhood. But that case could not reasonably be relied
upon as justifying shooting Ms. Hughes. Mr. Blanford was
carrying a two-and-a-half-foot-long Civil War-era cavalry
saber and made “a loud growling or roaring sound.”
Blanford, 406 F.3d at 1113. He then walked toward a
residence and tried to enter after searching his pockets for
keys. Unsuccessful, he turned to a walkway, saw the police
officers with guns drawn, and heard them order him to drop
the sword. The police shot the man as he rounded the far
corner of the house, then again as he tried to enter through
another door. After the man continued walking, police fired
a third time and severed his spine, rendering him a paraplegic.
On those facts, the Court found that the officers were entitled
to qualified immunity. Id. at 1119.

    This case, when viewing the facts in Ms. Hughes’s favor,
differs from Blanford in several critical respects. Most
importantly, in contrast to a clearly disturbed man carrying a
sword, Ms. Hughes held a kitchen knife—which has a
perfectly benign primary use—down at her side, and
                     HUGHES V. KISELA                       47

according to Ms. Chadwick’s affidavit, did not appear either
angry or menacing. The only information the police had
regarding her use of the knife was that she was carving a tree,
not that she was threatening or hurting a person. Mr.
Blanford plainly disregarded police orders to drop the
weapon. Here, it was apparent to Ms. Chadwick, and there is
a fact issue whether it should have been evident to the police,
that Ms. Hughes did not understand what was happening
when they yelled for her to drop the knife. And in Blanford
the suspect actively evaded police, while Ms. Hughes made
no such attempt to get away.

    The application of qualified immunity in this case will
depend upon the facts as determined by a jury. The facts,
viewed in Ms. Hughes’s favor, present the police shooting a
woman who was committing no crime and holding a kitchen
knife. While the woman with the knife may have been acting
erratically, was approaching a third party, and did not
immediately comply with orders to drop the knife, a rational
jury—again accepting the facts in the light most favorable to
Ms. Hughes—could find that she had a constitutional right to
walk down her driveway holding a knife without being shot.
As indicated by Deorle and Harris, as well as the Supreme
Court’s reference to the “obvious case,” Brosseau, 543 U.S.
at 199, that right was clearly established. Based on the
disputed facts, Corporal Kisela is not entitled to qualified
immunity.

                      CONCLUSION

   We therefore reverse the district court’s grant of summary
judgment and remand for a jury to determine whether
Corporal Kisela’s use of deadly force was lawful.
48             HUGHES V. KISELA

     REVERSED AND REMANDED.
