In Hopson v. Alexander,[1] the Ninth Circuit held that police detectives were entitled to qualified immunity in an action alleging excessive force under 42 U.S.C. section 1983. The detectives had approached a parked vehicle with guns pointed and forcibly removed the occupants without first identifying themselves as law enforcement officers because of their suspicion of intent to commit an armed robbery. The Court found that plaintiff’s conduct gave rise to a reasonable belief that the occupants were likely to be armed and dangerous.
Background
In January 2018, Detective Jacob Alexander pulled his unmarked police vehicle into a Gilbert, Arizona gas station to make a purchase. He observed another driver, later identified as Tommy Jones, as Jones backed into a parking spot, “cran[ed] his neck,” and “nervously” looked around. Jones repeated this sequence several times, each time backing into a new parking spot and “turn[ing] his body 180 degrees in the vehicle to get a good look at his surroundings.” Jones stayed in his vehicle the entire time, leading Detective Alexander to conclude that Jones did not intend to buy something at the gas station. Detective Alexander believed that Jones was scouting around for police officers, video cameras, or other means by which he could be detected, and that Jones was trying to find a parking spot that would allow a quick exit. Based on Jones’s “abnormally nervous” behavior and the detective’s training and law enforcement experience of over ten years, Detective Alexander believed Jones was “casing” the gas station and that an armed robbery was about to occur.
After observing this activity for approximately fifteen minutes, Detective Alexander observed DeJuan Hopson drive into the parking lot and park alongside Jones. Jones then exited his own vehicle and got into Hopson’s. The detective watched them talk and exchange items. At one point, Jones retrieved something from his own car and returned to Hopson’s vehicle. Believing that Jones and Hopson were about to embark on criminal activity and knowing that traffic stops can be dangerous, Detective Alexander called for backup. Detective Brandon Grissom arrived a few minutes later, accompanied by four other officers. Detective Grissom parked his unmarked police car behind Hopson’s vehicle.
According to Hopson’s account of subsequent events,[2] Detective Alexander approached Hopson’s driver’s side door with his gun pointed out, opened the door and forcefully removed Hopson from the vehicle. In the process, he yanked Hopson’s left arm with “enough force to put [him] in a state of shock and make [him] think that [he] was being robbed,” and then “forcefully” handcuffed him while “verbally dar[ing]” Hopson to make a move. Detective Alexander never announced that he was a police officer. Detective Grissom stood nearby throughout the encounter and kept his gun pointed at Hopson. Another officer pulled Jones out of the passenger side of the vehicle, and three more officers also stood by, all with guns drawn. Hopson later alleged no physical injury, but claimed that the detectives’ actions caused him to experience “depression, anxiety, loss of sleep, nervous[ness], and a fear of retaliation.”
The detectives questioned Hopson about the smell of marijuana coming from the car. They checked Hopson’s driver’s license status and criminal history, which revealed that Hopson had prior felony convictions for aggravated assault and several weapons-related offenses, that he was on probation for another crime, and that his license was suspended. Because he was a convicted felon and on probation, Hopson was not permitted to possess a firearm. Based on the marijuana odor coming from the car, Hopson’s inability to demonstrate he could use marijuana for medical purposes, and the fact that he was driving with a suspended license, the detectives searched the car. They found marijuana and discovered a Glock handgun with an extended magazine between the driver’s seat and the center console. Detective Alexander arrested Hopson.
Hopson was charged in Maricopa County Superior Court with possession of marijuana and unlawful possession of a firearm. Hopson filed a motion to suppress the evidence found in his car, arguing that there was insufficient justification for an investigatory stop. The trial court found that there was no reasonable suspicion to support the stop, granted Hopson’s motion, and dismissed all charges without prejudice.
In April 2020, Hopson sued Detectives Alexander and Grissom under 42 U.S.C. section 1983 in a federal District Court, alleging that the detectives violated the Fourth and Fourteenth Amendments when they stopped him without reasonable suspicion and used excessive force when arresting him, all without identifying themselves as law enforcement officers. The detectives moved for summary judgment.
The District Court viewed the facts of this case as very similar to those in Terry v. Ohio, 392 U.S. 1 (1968), and found that “a reasonable officer easily could have believed that he had reasonable suspicion to stop” Hopson and Jones. The District Court thus granted summary judgment to the detectives on Hopson’s unlawful stop claim. On the excessive force claim, however, the District Court foundthat it could not resolve “the key factual dispute in this case—whether Defendants used any force at all against Plaintiff, let alone unreasonable force.” The District Court denied qualified immunity to the detectives. The District Court denied their motion for summary judgment on the excessive force claim. Detectives Alexander and Grissom appealed.
Discussion
The Ninth Circuit Court of Appeals initially explained that under the doctrine of qualified immunity, police officers are not liable under Section 1983 “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The Ninth Circuit noted that it could exercise its discretion to resolve a case only on the second ground when no clearly established law shows that the officers’ conduct was unconstitutional.” O’Doan v. Sanford, 991 F.3d 1027, 1036 (9th Cir. 2021).
The Court noted that under the second prong, a constitutional violation is clearly established only if existing law “placed the constitutionality of the officer’s conduct ‘beyond debate,’” such that “every ‘reasonable official would understand that what he is doing’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Although “a case directly on point” is not necessarily required, a rule is only clearly established if it has been “settled” by “controlling authority” or “a robust consensus of cases of persuasive authority” that “clearly prohibit[s] the officer’s conduct in the particular circumstances,” with “a high degree of specificity.” Id. at 589-90 (quotations omitted).
The Ninth Circuit observed that it could not “define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Id. at 590 (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). The Court added that Fourth Amendment violations generally, and excessive force claims more specifically, can involve situations “in which the result[s] depend[] very much on the facts of each case.” Plumhoff, 572 U.S. at 779 (quoting Brosseau v. Haugen, 543 U.S. 194, 201, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004) (per curiam)).
The Ninth Circuit explained that to determine whether an officer used excessive force in violation of the Fourth Amendment, courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Felarca v. Birgeneau, 891 F.3d 809, 816 (9th Cir. 2018) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). This requires considering the totality of the circumstances, including the “type and amount of force inflicted,” “the severity of injuries,” “the severity of the crime at issue,” “whether the suspect poses an immediate threat to the safety of the officers or others,” and “whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 817 (quotations omitted). Courts may also consider “the availability of less intrusive alternatives to the force employed and whether warnings were given.” Id. Whether the suspect poses a threat is “the most important single element.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (quotation omitted). Courts must evaluate these factors while appreciating 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 necessaryin a particular situation.” Graham, 490 U.S. at 396-97.
The Circuit Court first considered whether, under the existing case law, the officers could have reasonably suspected that Hopson was engaged in criminal activity and that he was armed and dangerous. The Court noted that “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” (Illinois v. Wardlow, 528 U.S. 119, 123 (2000).) The Court of Appeals agreed with the District Court that the facts here were notably similar to those in the United States Supreme Court’s Terry decision.
In Terry, an officer watched two men repeatedly walk in front of a store window, look around, and confer amongst themselves for several minutes. A thirdman approached and briefly conversed with the other two before walking away. Soon after, the two men also walked off in the same direction. The officer’s training and experience led him to believe that the three men were casing the store for a robbery, and he stopped and frisked all three of them. The Terry Court held that the officer had reasonable suspicion that the men were armed and dangerous, permitting the officer to frisk them for weapons. The suspects’ actions “were consistent with [the officer’s] hypothesis that these men were contemplating a daylight robbery—which, it is reasonable to assume, would be likely to involve the use of weapons.” 392 U.S. at 28.
Here, the Ninth Circuit agreed with the District Court that because the facts of this case were so similar to Terry, a reasonable officer easily could have believed that he had reasonable suspicion to stop Hopson and Jones. The Ninth Circuit stated that Terry confirmed that the detectives’ suspicion of a planned armed robbery was reasonable. Terry also allowed that when officers suspect a person of “casing” a store for an armed robbery, the officers may reasonably believe that person to be armed and dangerous. The Court concluded that under the qualified immunity framework and given the suspicious Terry-like conduct observed here, no clearly established law gave the Court cause to second-guess Detective Alexander’s on-the-ground suspicionthat an armed robbery was about to occur. Clearly established law therefore did not prevent the officers from suspecting Hopson might be armed.
The Ninth Circuit next considered whether it was clearly established that the amount of force the detectives used in responseto the perceived threat was excessive under the Fourth Amendment. Hopson argued that three aspects of the detectives’ conduct were clearly prohibited under existing precedent: (1) pointing a weapon at him; (2) “forcefully” removing him from his vehicle and handcuffing him; and (3) failing to announce that they were police officers.
The Court held that the police detectives did not violate clearly established law when they pointed their guns at the plaintiff. The Court noted that the Ninth Circuit had expressly held that “[i]t is well settled that when an officer reasonably believes force is necessary to protect his own safety or the safety of the public, measures used to restrain individuals, such as stopping them at gunpoint and handcuffing them, are reasonable.” Alexander v. County of Los Angeles, 64 F.3d 1315, 1320 (9th Cir. 1995) (emphasis added). Further, the Court could find no authority that placed the unconstitutionality of the detectives’ conduct beyond debate in the circumstances they confronted. (See Wesby, supra, 138 S. Ct. at 589.) Cases that Hopson cited were materially different than the case here.
The Court next rejected Hopson’s argument that the detectives violated clearly established law by using excessive force when removing him from the car and arresting him. The Court explained that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion.” Graham, 490 U.S. at 396. The Court stated that in most cases in which the Ninth Circuit had found that officers used excessive force in the course of an arrest, the force used was gratuitous or violent.[3] Here, the Court noted there was no suggestion that the detectives physically injured Hopson when they extracted him from his car and arrested him. The Court of Appeals concluded that no clearly established law prevented the detectives from acting quickly and with moderate force to ensure that Hopson was detained without incident. Thus, no controlling authority clearly established beyond debate that the amount of force used during his arrest was objectively unreasonable.
Finally, the Court rejected Hopson’s argument that the detectives violated clearly established law in failing to identify themselves as law enforcement officers. Under the circumstances of this case, precedent did not clearly establish that the detectives’ alleged failure to identify themselves as police officers made their use of force excessive.
The Ninth Circuit thus held that the detectives were entitled to qualified immunity because the officers did not violate clearly established constitutional law in the circumstances they confronted. The Court of Appeals accordingly reversed the District Court’s denial of qualified immunity to the detectives and remanded.
In his dissent, Judge Rawlinson maintained that under the facts of this case, viewed in the light most favorable to plaintiff, the officers violated clearly established law when they forcefully yanked plaintiff from his vehicle at gunpoint without warning and forcefully handcuffed him, when he was merely conversing with a passenger in the vehicle and posed no immediate threat to the officers or to the public. Finding such use of force gratuitous and violent, the dissenting judge believed that detectives were not entitled to qualified immunity and would affirm the District Court’s judgment.
HOW THIS AFFECTS YOUR AGENCY
This ruling highlights that Fourth Amendment violations generally, and excessive force claims more specifically, can involve situations “in which the result[s] depend[] very much on the facts of each case.” Plumhoff, 572 U.S. at 779 (quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam)). The Ninth Circuit observed that plaintiffs asserting excessive force claims must point to an existing rule that “squarely governs” the facts at issue and that moves the officer’s actions outside the “hazy border between excessive and acceptable force.” Brosseau, 543 U.S. at 201 (quotation omitted) – something the plaintiff here failed to do. Accordingly, it is critical that law enforcement officers receive regular training on changes in case law so that they can conform their activities to constitutional law in order to minimize liability exposure and conduct themselves in a professional manner.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 2023 U.S. App. LEXIS 15033 (9th Cir. June 16, 2023).
[2] Though the Court of Appeals recited plaintiff’s version of events after this point, the Court noted that this version was disputed.
[3] See, e.g., Winterrowd v. Nelson, 480 F.3d 1181, 1182-83 (9th Cir. 2007); Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003); Santos v. Gates, 287 F.3d 846, 849-50, 853-54 (9th Cir. 2002); Palmer v. Sanderson, 9 F.3d 1433, 1434-36 (9th Cir. 1993).