||Can Pointing a gun be considered a use of force?

Can Pointing a gun be considered a use of force?

E-Newsletter Edition: Jan 27, 2010

Response Provided By: Jack Ryan, Attorney

Always note that state law may be more restrictive on police power than the U.S. Constitution.

THE QUESTION PRESENTED IS BASED ON THE FOLLOWING FACTS:

Officers pursued a vehicle whose operator was clearly trying to elude the officers.  The pursuit occurred at approximately 1:00 a.m. and lasted for only a third of a mile.  Initially the suspect was traveling at 85 mph in a 55 mph zone.  The suspect turned onto a secondary roadway where the speed limit was 40 mph, turned off his lights and eluded the officers.  The officers lost the suspect vehicle however the suspect approached the officers on foot with his hand in the air in an apparent offer to surrender.  The area where he approached the officers was a remote, poorly lit industrial complex. The approaching suspect stopped approximately 100 feet in front of the patrol car and indicated that he was the subject the police were looking for.

The two officers exited their vehicle and pointed their duty weapons at the 16-year-old-suspect who was wearing a t-shirt and jeans.  They ordered the suspect to lift his shirt and rotate 360 degrees.  When the subject complied the officers did not see a weapon.  The officers then ordered the suspect to lie face down on the ground.  The subject complied.  One officer approached and handcuffed the juvenile suspect while the second provided cover.  It is noted that the suspect’s vehicle was not in sight at the time the officers took this suspect into custody and the officers did not know if there were other occupants or who had been driving the vehicle during the pursuit.  The officer acknowledged that they both personally knew this subject as a “good kid” who was previously law-abiding, respectful of the police and never before known to be violent or dangerous.  It is noted that the suspect was the son of a prominent citizen in the community.

According the question, although much was unknown initially, no immediate or direct threat to the officers was observed or articulated.  The original offense was an illegal passing on the highway.  It is noted that the juvenile suspect admitted he saw the patrol car’s emergency lights and knew the marked patrol car was chasing him and signaling him to stop.

Note: Juvenile was charged with felony eluding, charges subsequently reduced to reckless driving and obstructing police officers, juvenile pled guilty with a deferment agreement.

QUESTION:

Was the pointing of guns (from a distance) and the manor of handcuffing an excessive use of force?  In hind sight it turned out there was no actual danger to the officers.  (It is noted that the question presented is from a jurisdiction within the United States Court of Appeals for the 9th Circuit.)

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ANSWER:

At the outset it is important to note that it is well settled that pointing a firearm at a subject who submits to an officer’s authority is a seizure under the 4th Amendment and must be reasonable as a use of force.  How a court will review an officer’s decision to point a firearm at a suspect can be seen in a case from the United States Court of Appeals for the 9th Circuit, Robinson v. Solano County.

In Robinson v. Solano County, the United States Court of Appeals for the 9th Circuit had an opportunity to review whether a police officer’s pointing of a handgun at a citizen without actually pulling the trigger may violate the Fourth Amendment under some circumstances.  The plaintiff in this case was James Robinson, an African-American retired police officer from San Francisco.  When the events giving rise to this lawsuit occurred, Robinson was living on a five acre parcel of land in a rural area.  Robinson was 64 years old and raised livestock.  On the day in question, Robinson observed two dogs on his fenced property killing his livestock.  Robinson took a shotgun and shot the dogs.  One of the dogs was killed but the second one took off wounded.  Robinson searched for the wounded dog.  In doing so he went on to the pubic road with the shotgun where he was confronted by his neighbor, who owned the dogs.  Though Robinson told the neighbor he did not realize the dogs were hers, an altercation ensued.  The neighbor, Mrs. Reyes returned home and called the police.

As a result of Mrs. Reyes’ call, the police were dispatched to a call of a man in the “middle of the street with a gun, who had shot two dogs and is yelling at this time.”  By the time officers arrived, Robinson was in his house.  He observed the six police cars and started the 135 foot trip from his house to the public roadway to explain to the officers what had happened.  Robinson was not carrying his shotgun.  As he approached the officers he gave his name and said that he was the man involved with the dogs.  Officer Cauwells pointed his gun at Robinson’s head from a distance of six to eight feet and ordered Robinson to put his hands up.  As Robinson put his hands up, Cauwell moved to within three to four feet with his gun pointed at Robinson’s head.  Two other officers handcuffed Robinson and put him in a cruiser where he remained while the officers interviewed Mrs. Reyes and other neighbors.  The officers did not search Robinson who was carrying a knife that was never discovered.  Robinson was never allowed to explain what had occurred.  Robinson was released after the officers determined that he had done nothing illegal.
The court decided that the pointing of a gun at Robinson was an unjustified and excessive use of force.

The court pointed out that Robinson was approaching the police peacefully and they could clearly see that he was not armed with a shotgun.  Further the court noted that Mr. Robinson had committed no crime by his actions at the outset.  After finding that a constitutional violation had taken place, the court concluded that the officers were entitled to qualified immunity because the law was not clearly established at the time of the incident in 1995.   The court did point out that the law is now clearly established that pointing a gun toward the “head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger.”

While there is no way to definitively determine how a court will rule on the facts presented by the question, an analysis in the manner in which a court would look at these facts can lead to an educated hypothesis.
There is almost no question that the stop which occurs at the end of a pursuit is a high-risk or felony traffic stop.  As such, if the suspect had remained with the vehicle, there is a good indication that pointing guns at the subject until he is handcuffed and searched would be reasonable. 

The fact that this suspect did not remain with his vehicle did not diminish the danger to the officers, in fact, it may have heightened the danger as the officers could not see the vehicle and did not know if there were other occupants.  Additionally, the area was not well lit.  Cutting against the danger was the subject’s sign of surrender, however the officer’s could not see behind him or anything that may be hidden by clothing until he not only rotated with his shirt up, but until he was secured and searched.

An additional issue was the officer’s knowledge of the subject and at what point the officers realized who the suspect was.  If this was 20/20 hindsight then it does not go into the equation of analyzing the use of force.  If they knew who the subject was and his history of being law abiding it may cut against the subject’s threat level; however his conduct in fleeing from the police on the night in question certainly was contrary to the officer’s prior knowledge.

The educated hypothesis is that a court would find the pointing of guns and the handcuffing of this suspect to be reasonable.  The officers were faced with a subject who had fled at high speed in a vehicle.  All stops following pursuits are considered by law enforcement to be high-risk or felony stops.  The fact that the pursuit occurred in the wee hours of the morning and ended in an industrial complex which was not well lit further added to the danger faced by the officers.  The officers followed generally accepted practices of cover and control while handcuffing the suspect.  Thus, it would appear that although there was no articulated threat, the totality of circumstances were such that an officer would be justified in being prepared for the need to use deadly force.  Unlike the facts in Robinson, this suspect was not the obviously unarmed subject.

CITATIONS:

Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002).

Id.

See e.g. Williams v. City of Champaign, 2007 U.S. Dist. LEXIS 10494  (Central Dist. Ill. Urbana, 2007)

By |2018-07-09T23:02:45+00:00January 27th, 2010|Legal questions|

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