On March 13, 2018, in the case of Thompson v. Rahr, 2018 U.S. App. LEXIS 6191 (9th Cir. Mar. 13, 2018), the Ninth Circuit Court of Appeals decided that an officer who pointed a loaded gun at a suspect’s head used excessive force, but was entitled to qualified immunity because the law was not clearly established at the time of the incident that the officer’s conduct was unconstitutional under the circumstances that he encountered.
Background
In December 2011, King County Sheriff’s Deputy Pete Copeland, was on patrol in the City of Burien, Washington. After watching Lawrence Thompson commit traffic violations, Copeland pulled him over. Thompson apologized to Copeland but did not provide his driver’s license. He offered Copeland some mail with his name. After running Thompson’s identifying information through a computer, Copeland learned that Thompson’s license had been suspended for an unpaid ticket, and that his most recent felony conviction was for unlawful possession of a firearm.
The deputy decided to arrest Thompson for driving with a suspended license. After having Thompson exit the vehicle, Deputy Copeland patted him down for any weapons. The deputy found none. Copeland radioed for backup and had Thompson sit on the bumper of Copeland’s patrol car. Deputy Copeland next conducted an inventory search of Thompson’s car, finding a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, Copeland decided to arrest Thompson for a felony violation of the Uniform Firearms Act.[1] Another deputy had arrived for backup on the scene, and watched over Thompson as he continued to sit on the bumper of Deputy Copeland’s cruiser. Thompson was about 10- 15 feet from the gun in the back seat of his car, and was not handcuffed.
Deputy Copeland signaled to the deputy watching over Thompson, and then drew his gun. The parties disputed what happened next. Copeland claimed that he assumed a low-ready position, with his gun clearly displayed, but not pointed directly at Thompson. Thompson claimed that Copeland pointed his gun at Thompson’s head, demanded Thompson surrender, and threatened to kill Thompson if he did not. Deputy Copeland directed Thompson to get on the ground, facedown, so that he could be handcuffed. Thompson complied and was handcuffed without incident.
Copeland arrested Thompson for being a felon in possession of a firearm. A Washington state court dismissed the charges after determining that the evidence against Thompson had been gathered in violation of the state constitution. Thompson sued Deputy Copeland and King County under 42 U.S.C. section 1983, alleging violations of his Fourth Amendment rights. Specifically, Thompson alleged that Copeland used excessive force in pointing his gun at Thompson and threatening to kill him. The district court granted Copeland’s motion for summary judgment, and dismissed Thompson’s claims with prejudice. Thompson appealed.
Discussion
The Ninth Circuit held that pointing a loaded gun at the suspect’s head in these circumstances constituted excessive force under the Fourth Amendment, but the deputy was still entitled to qualified immunity because the law was not clearly established at the time of the traffic stop that his conduct under the circumstances he encountered was unconstitutional.
In reaching its conclusion, the Court began by noting that, under Saucier v. Katz,[2] police officers do not have qualified immunity if “(1) the facts ‘[t]aken in the light most favorable to the party asserting the injury’ show that ‘the [officers’] conduct violated a constitutional right’ and (2) ‘the right was clearly established’ at the time of the alleged violation.” The Court observed that its review of a judgment obtained by way of a motion for summary judgment entailed viewing the facts in the light most favorable to the “nonmoving party”, i.e., Thompson. Therefore, the Court proceeded with its analysis assuming as true Thompson’s claim that Copeland did point his gun at Thompson’s head and threaten to kill him, rather than hold it in the low-ready position as Copeland had claimed.
1. Violation of Constitutional Right
The Ninth Circuit noted that an allegation of excessive force meant the Constitutional right to be examined was the Fourth Amendment right against unreasonable seizures.[3] The Court applied the three-part application described in Espinosa v. City & Cty. of S.F.[4] to evaluate Thompson’s excessive force claim: “First, we ‘assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted.’…Then, we evaluate the government’s interests by assessing the severity of the crime; whether the suspect posed an immediate threat to the officers’ or public’s safety; and whether the suspect was resisting arrest or attempting to escape….Finally, we ‘balance the gravity of the intrusion on the individual against the government’s need for that intrusion.’”
The Court observed that it had previously held that pointing a loaded gun at a suspect, using the threat of deadly force, was use of a high level of force. The Court further determined the government’s need for intrusion was relatively low. In drawing this conclusion, the Court stated that Thompson was not close to the weapon in the car, had already been searched, had not resisted or attempted to evade arrest, was sitting on the bumper being watched by the backup deputy, and was compliant throughout the incident.
In addition, the Court concluded that Thompson’s suspected crimes of driving with a suspended license and violating the firearms act were crimes of, at most, moderate severity. The Court further noted that “pointing guns at persons who are compliant and present no danger is a constitutional violation.”[5] Finding that the governmental interests were outweighed by the severity of the intrusion on Thompson’s rights, the Ninth Circuit held that Deputy Copeland’s pointing his gun at Thompson’s head constituted excessive force in the circumstances here, thereby violating Thompson’s constitutional rights.
2. No Violation of a “Clearly Established” Right
The Ninth Circuit observed that “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.’ Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). For a right to be ‘clearly established,’ existing ‘precedent must have placed the statutory or constitutional question beyond debate,’ such that ‘every’ reasonable official, not just ‘a’ reasonable official, would have understood that he was violating a clearly established right. Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (emphasis added).” The Court of Appeals observed that, under the Supreme Court’s decision in White v. Pauly,[6] qualified immunity protected “all but the plainly incompetent or those who knowingly violate the law,” and that the clearly established law should not be defined at a “high level of generality.”
The Ninth Circuit disagreed with Thompson’s argument that the Circuit’s earlier decisions in Robinson v. Solano Cty.[7] and Hopkins v. Bonvicino[8] required a denial of qualified immunity to Deputy Copeland, finding that their respective facts distinguished those cases from the circumstances Deputy Copeland faced. The Court observed that neither Robinson nor Hopkins involved felony crimes, suspects with known nearby firearms, nor dangerous or exigent circumstances. The Court further noted that the suspects in Hopkins and Bonvicino were in or near their home, as opposed to the traffic stop context faced by Deputy Copeland, a context which the Supreme Court viewed as “especially fraught with danger to police officers”.[9] As such, the Ninth Circuit concluded that neither Hopkins nor Bonvicino involved facts sufficiently similar to those in the present case to put the constitutional question beyond debate, as required to defeat qualified immunity.
Addressing the facts faced by the deputy here, the Court observed that the arrest was a vehicle stop at night, for a felony, upon a suspect who already had a prior felony conviction, who was not handcuffed, who was significantly heavier and taller than the deputy, and who was a mere 10-15 feet away from a loaded gun. The Court determined that the situation was still a “fluid, dangerous” one that, at the time, posed potential danger to the officers. The Ninth Circuit found that qualified immunity applied because a reasonable officer in Deputy Copeland’s position would not have known that he was violating a clearly established constitutional right by pointing a gun at Thompson in the situation he encountered.
The Court thus concluded that, although Deputy Copeland’s use of excessive force violated Thompson’s constitutional rights, the deputy was entitled to qualified immunity because Thompson’s right not to have a gun pointed at him under such circumstances was not clearly established at the time the events took place. Accordingly, the Court affirmed the district court’s grant of summary judgment.
HOW THIS AFFECTS YOUR AGENCY
As we discussed in our Client Alert Vol.32 No. 3,[10] analyzing White v. Pauly, the United States Supreme Court has emphasized that, in order to deny qualified immunity, the determination of whether the law was clearly established at the time of an incident must be “particularized to the facts of the case.” Generally, the Thompson case should reinforce the notion highlighted in Pauly that denial of qualified immunity requires a court to establish a significant level of factual similarity between the facts of the case before it and case precedent upon which it relies to determine that the law was “clearly established” at the time of the incident giving rise to the lawsuit.
Agencies should note, however, that with the Thompson case now available as precedent, the Ninth Circuit has determined that there is “little question” that holding the gun in the low-ready position would have been a superior option for Copeland to use in the circumstances he faced, and that pointing his gun at Thompson’s head constituted excessive force under the circumstances. While under the law existing during the events of the Thompson case, there was not yet a clearly established constitutional violation, the Ninth Circuit declared that “going forward, however, the law is clearly established in this scenario.” As such, law enforcement agencies should ensure that their members are aware of this new decision and that their use-of-force policies are in compliance with this case.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.
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[1] Wash. Rev. Code section 9.41.040.
[2] 533 U.S. 194, 201 (2001).
[3] Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam).
[4] 598 F.3d 528, 537 (9th Cir. 2010).
[5] Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009).
[6] 137 S. Ct. 548, 551 (2017).
[7] 278 F.3d 1007 (9th Cir. 2002).
[8] 573 F.3d 752 (9th Cir. 2009).
[9] Arizona v. Johnson, 555 U.S. 323, 330 (2009).
[10] Please see: https://jones-mayer.com/news/2017/02/20/vol-32-no-3-united-states-supreme-court-reverses-denial-of-qualified-immunity.