Can a mere show of force be considered 'excessive?'
The balance courts strike is to evaluate any police use or show of force as to whether it was objectively reasonable
Officers and their departments need to understand under what circumstances displaying a gun, calling out a SWAT team, or using a large number of officers to execute a warrant might be considered excessive force for which they could be held liable.
DISCLAIMER – Case law can differ across federal circuits and states, but court decisions can provide helpful guidance. This article is not “legal advice.” Officers should consult a local prosecutor about their specific cases.
In Graham v. Connor, the U.S. Supreme Court held that whether officers have used excessive force in the course of an arrest, stop, or other “seizure” of a person is properly analyzed under the Fourth Amendment’s “objective reasonableness” standard.
The court provided three factors to consider in determining whether this standard has been met:
- The severity of the crime;
- Whether the suspect poses an immediate threat to the officers or others;
- Whether the suspect attempts to resist or flee the scene.
This article looks at how courts have applied Graham to displaying or pointing a weapon. The sidebar does the same for the number of officers used to execute a warrant.
When pointing a firearm is excessive
Baird v. Renbarger is helpful because the Seventh Circuit not only applied the Graham factors clearly to the facts before it, but also discussed gun-pointing cases from other circuits.
Renbarger was one of several officers executing a search warrant for evidence of an altered car VIN at an auto shop.
He pointed a 9 mm submachine gun at those present, who were already complying with instructions to sit on the floor. He then went and rounded up occupants from surrounding businesses at gunpoint, including a group of Amish men.
Everyone was detained for approximately two hours while the search – which established the VIN had not been modified or removed – was completed.
A number of those present filed a § 1983 lawsuit claiming, among other things, Renbarger’s pointing the gun at them had been unreasonable. This wasn’t a close case for the Seventh Circuit, which didn’t appreciate a Rambo-round up that included peace-loving Amish. The court noted:
- The crime wasn’t a violent one;
- There was no indication anyone at the scene was armed, dangerous, or otherwise posed a threat;
- Everyone was compliant.
The Seventh Circuit discussed its own precedent. In Jacobs v. City of Chicago, the court held pointing a gun at a cooperative elderly man’s head for 10 minutes after police realized he wasn’t their suspect was unreasonable.
The court also cited other circuit cases holding that pointing guns at persons who are compliant and present no danger is excessive:
- Robinson v. Solano County, (9th Cir.): The crime was a misdemeanor, the unarmed suspect was approaching in a peaceful manner, the officers outnumbered the suspect, there was no indication of danger;
- Holland v. Harrington, (10th Cir.): Holding children at gunpoint after the officers had gained complete control of the situation "was not justified under the circumstances";
- Baker v. Monroe Township, (3d Cir.): Detention at gunpoint wasn’t reasonable, as there was “no evidence of anything” to justify that kind of force.
In Binay v. Bettendorf the Sixth Circuit noted an officer may arguably have some justification for the display of force at one point, only to lose it when it becomes clear the suspect is exonerated or the wrong person (see Jacobs, above). That is, an initial danger may dissipate. In Mlodzinski v. Lewis, the First Circuit held that pointing a rifle to the head of a suspect’s 15-year-old, nonthreatening, handcuffed sister for up to 10 minutes in her bedroom and keeping a gun trained on the suspect’s mother for up to 30 minutes while she lied partially nude in her bedroom were both excessive.
When pointing a firearm is reasonable
The Baird decision also provided examples for when pointing a gun is reasonable, noting police “are allowed to do so when there is reason to fear danger.” This broader language and other court decisions show the three Graham factors are considerations, but not all three are required.
In L.A County v. Rettele, the U.S. Supreme Court held it reasonable to point guns and detain suspects of a non-violent crime, but known to own a handgun. See also:
- Aponte Matos v. Toledo Davila (1st Cir.): Individual attempted to enter house that was being searched for weapons;
- Sharrar v. Felsing (3d Cir.): Suspect was believed to have a handgun;
- Edwards v. Giles (8th Cir.): Suspect fled police;
- Collins v. Nagle (6th Cir.): Individual approached scene in which officers were dealing with uncooperative suspects.
The Third Circuit case of Stiegel v. Collins, in which the court upheld an officer’s pointing a gun during a Terry stop, is also instructive. Officer Collins could only speculate on the severity of the crime when he approached Stiegel and his friend, Majcher, both wielding shotguns at 11:00 pm on private property the landowner had asked Collins to keep an eye on because of past trespassers and other illegal activity. But the court noted the second and third Graham factors were clear:
- Collins was outnumbered by two men with shotguns;
- Majcher didn’t immediately comply with Collins’ command to place his weapon on the ground.
The court concluded it was objectively reasonable for the officer to believe the men posed a serious threat and to point his service weapon at them. The court also noted the entire incident lasted only 5 to 10 minutes and neither men were arrested once it was determined they were legally fox hunting with the owner’s permission.
In Estate of Bennett v. Wainwright there was no crime involved. Instead officers faced a mentally ill young man who had stopped taking his medication, killed a dog, gone to his grandmother’s house in a disturbed state, and told his mother, “I don’t want to kill you too.” There were multiple weapons in the house and the man had access to a shotgun.
Attempts to communicate were unavailing and, at one point, a deputy pointed a long gun at him, demanding he put his hands up. Sadly, officers ending up having to shoot the man and he died. Of note, was the First Circuit court’s ruling that a reasonable officer “could have believed that pointing a firearm at a mentally ill individual with access to weapons did not amount to excessive force under the circumstances.”
Any officer who has ever had a gun pointed at them understands the seriousness of such conduct. But courts also understand that officers intentionally place themselves in harm’s way to protect and serve. The balance courts strike is to evaluate any police use or show of force as to whether it was objectively reasonable.
Graham provides three factors to consider, only one of which is the seriousness of the subject crime. Courts will support an officer’s pointing of a gun – and more – when there are circumstances that would make a reasonable officer believe they or others were in danger.