Police Training Article

Law Enforcement and the Law
with Ken Wallentine

February 22, 2008

Use-of-force law and its impact on muzzle position

Recently, some P1 members questioned the legalities surrounding a situation where an officer points a firearm at a person when the officer is not imminently prepared to fire. In response, this article discusses the relevant use-of-force legal parameters law enforcement must function within and how they affect muzzle position.

Exercising the discipline during a search to keep the muzzle slightly depressed, at the low ready and finger indexed off the trigger, is an effective method of preventing potentially deadly unintended discharges. In Tallman v. Elizabethtown Police Department, 167 Fed.Appx. 459 (6th Cir. 2006), a suspect seated behind the wheel of a car was slow to raise his hands. The officer, pointing a weapon at the suspect’s head, reached into the car to grab the suspect. The officer shot himself in the hand and fatally shot the unarmed suspect in the head. Stories like this, describing unintended discharges following a startle response, balance disruption causing a clenching response, or sympathetic muscle response clenching are too common.

Some believe that an officer saves precious time by firing from the eye-muzzle-target position rather than coming up on target from a depressed muzzle. Mroz counters that this argument fails to consider the reaction time required to recognize the threat. He also points out that the lag time between the brain’s message to the finger and the actual finger-pull is greater than the time it takes to (simultaneously) raise the muzzle to the target. The majority of law enforcement firearms instructors agree that there is no critical time lost in a searching with a depressed muzzle, and that the slight intimidation factor isn’t worth the trade-off of an unsafe tactic. Their views are supported by use-of-force rules applied by courts across the nation.

The traditional use-of-force continuum begins with “officer presence,” recognizing that the authority and presence of a uniformed officer may introduce some compulsion into a situation. Drawing a gun adds force, and pointing a gun at a person adds even more force. The reasonableness of all law enforcement use of force is measured against the standard outlined in the U.S. Supreme Court decision Graham v. Connor, 490 U.S. 386 (1989). In Graham, the court prescribed three questions to measure the constitutionality of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or to be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape? The court also stated that the use of force should be measured by what the officer knew at the scene.

Applying the Graham factors, some courts have ruled that pointing a gun at a person can — in particular circumstances — constitute “excessive force.” See the 9th U.S. Circuit Court of Appeals decision Robinson v. Solano County, 278 F.3d 1007 (2002) (en banc). In McDonald v. Haskins, 966 F.2d 292 (1992), the 7th Circuit considered a claim that an officer aimed his gun at a passive 9-year-old boy during the course of a search and then threatened to shoot the boy. The court ruled that the alleged force, if true, was “objectively unreasonable given the alleged absence of any danger to [the] officers at the scene and the fact that the victim, a child, was neither attempting to evade the officer nor posing any other threat.” The court stated that “the display of weapons, and the pointing of firearms directly at persons, inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time. These are the very ingredients relevant to an excessive force inquiry.”

In another case involving weapons pointed at children, the 10th Circuit denied qualified immunity to officers serving a misdemeanor arrest warrant. The plaintiff alleged that the officers swarmed a property with guns drawn and ordered those present, including children as young as 4, to lie face down. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (2001), cert. denied, 535 U.S. 1056 (2002). One of the officers allegedly chased the 4-year-old girl, with the red dot of a Taser sight on her back, while another yelled “get the f__ down.” (Note: in cases addressing qualified immunity and summary judgment, the facts must be construed in the light most favorable to the plaintiff. In other words, often only one side of the story is reported in the case reports). Though it is a topic for another day, judges often cite foul and/or threatening language in the discussion of the excessive force calculation. Talk nice; think mean!

These cases suggest that an officer may be liable for unjustified weapon display and aiming. However, there are many situations where officers are justified and should display weapons and point them at people, fully hoping and intending that the threat of deadly force will induce the suspect to comply. Officers responded to a “man with a gun” report when a caller saw a teenage male pointing a gun at a girl. As the officers approached and saw a teenage boy matching the suspect description, they ordered him to the ground at gunpoint. One officer pointed a shotgun at the teen as another handcuffed him. Within five minutes, the officers released the boy after learning that he and his sister had been playing with realistic water guns. The boy’s family sued.

The court granted immunity and summary judgment to the officers. Applying the Graham test, the court could see that the crime under investigation was serious. The officers reasonably believed that the boy had threatened someone with a gun. Though the boy complied with the officers’ commands, they did not know whether he still had the gun or not. Thus, they reasonably believed that he presented a serious threat to them and to the public. The court had no trouble finding that the officers acted reasonably and properly in aiming their weapons at the teen. Murray ex rel Morrow v. Metropolitan Government of Nashville, 2007 WL 1521004 (M.D. Tenn. 2007).

Numerous decisions citing Graham follow this same logic. See United States v. Swift, 220 F.3d 502 (7th Cir. 2000) (under the Fourth Amendment “an officer may have his gun drawn and order a suspect to lie prone on the ground, handcuff, and frisk him if the officer reasonably believes the suspect is dangerous); Crisp v. City of Kenton, 1998 WL 180561 (6th Cir. 1998) (summary judgment appropriate in Section 1983 case where, responding to a call of a possible burglary of a pigeon coop, police officers, with guns drawn, ordered suspects to the ground and handcuffed them, even though the suspects were lawfully emptying pigeon coop); United States v. McMurray, 34 F.3d 1405, (8th Cir. 1994) (“officers conducting valid investigative detention may draw their weapons in situations involving potential danger to the officers”); Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991) (pointing a weapon and ordering a person to lie on the ground while others are arrested is not excessive force, distinguishing between an officer's use or attempted use of a weapon and mere display of a weapon in the line of duty “that only conditionally threatens actual force” ). The 8th Circuit has gone so far to hold that an officer's “conduct in drawing his gun and pointing it at [a suspect], without any indication [the officer] intended or attempted to fire the gun, does not rise to the level of a constitutional violation.” Edwards v. Giles, 51 F.3d 155 (1995).

“Searching with the muzzle” or pointing a gun at a possible suspect is perfectly lawful and reasonable, if, as the cases discussed illustrate, the officer is justified in using the threat of deadly force. Simply put, searching for a misdemeanor suspect or a nonviolent suspect probably won’t justify the display and aiming of a weapon at the suspect. As Mroz’s video tip mentions, the liability concern arises from the grave danger of an unintended discharge. An unintended discharge that results in injury, where the Graham factors don’t justify deadly force, spells significant liability for the officer and potentially the agency and its trainers.

Aside from liability concerns, officers must be aware that displaying a weapon, pointed or not, may unintentionally convert an investigative detention into a custodial arrest. Once that happens, Miranda interrogation rules come into play, and unwarned admissions might be suppressed in court. The unintended arrest might also be ruled to be improper unless there was probable cause to arrest and not merely the reasonable suspicion that initially prompted the detention.

Like it or not, police work is often a balancing act: Balancing the rights of citizens to travel without restriction against the need to enforce traffic laws, balancing the need for overtime to pay bills against the need to sleep and to have a life, and many other balancing tasks. Balancing the rights of citizens, even criminals, not to be subjected to excessive force against the authority of law enforcers to protect themselves and others is one of the tough dangers of wearing the heavy badge. Even so, we can be safe and still respect the Constitution that we are sworn to protect.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. He may be contacted at KenWallentine@Utah.gov. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.

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