No Liability for Pointing Guns at Suspected Armed Robbers

by | June 20, 2023

Hopson v. Alexander, 2023 WL 4038631 (9th Cir. 2023)

Detective Jacob Alexander pulled into a gas station to buy a drink. He saw Tommy Jones, backed into a parking spot, craning his neck and “nervously” looking around. Jones moved his vehicle several times, each time backing into a new parking spot and “turning his body 180 degrees in the vehicle to get a good look at his surroundings.” Detective Alexander surmised Jones was scouting for surveillance cameras and police officers.

As Detective Alexander was watching Jones, DeJuan Hopson drove up and parked next to Jones, who got out of his car and into Hopson’s car. The two men exchanged something; Jones briefly got out and retrieved an item from his car before returning to Hopson’s car. Detective Alexander called for backup. Detective Brandon Grissom and four other officers arrived a few minutes later.

Detectives Alexander and Grissom approached Hopson and Jones as they sat in Hopson’s vehicle. The detectives held their guns pointed out, forcibly removed Hopson from his vehicle and handcuffed him. Hopson claimed Detective Alexander yanked his left arm with “enough force to put him in a state of shock and make him think that he was being robbed.” Perhaps Hopson had robbery on his mind at that moment. Detective Grissom stood to the side, his gun pointed at Hopson. Although Hopson did not claim he was injured, he claims he now suffers “depression, anxiety, loss of sleep, nervousness, and a fear of retaliation.”

The detectives questioned Hopson about the smell of marijuana emanating from the car. They discovered Hopson’s driver’s license was suspended, that he had prior felony convictions for aggravated assault and gun crimes, and that he was on probation. Hopson could not produce a medical permit for marijuana. Based on the odor, the detectives searched the car and found marijuana and a Glock handgun with an extended magazine between the driver’s seat and the center console.

The detectives arrested Hopson for possession of marijuana and possession of a handgun by a restricted person. Hopson was charged in state court; he asked the judge to suppress the evidence found in his car, claiming there was no reasonable suspicion for the investigatory detention. The court agreed and the charges were dismissed.

Hopson then sued the detectives in federal court, alleging excessive force and unlawful detention. The trial court found the facts of Hopson’s case “very similar” to the facts of the famous Terry v. Ohio (392 U.S. 1 (1968)) case. The judge ruled, “A reasonable officer easily could have believed that he had reasonable suspicion to stop” Hopson and Jones. The court granted summary judgment on the unlawful detention claim. However, the court ruled it was uncertain whether the detectives “used any force at all against Hopson, let alone unreasonable force,” and denied summary judgment on the excessive force claim.

“The parties’ competing perspectives underscore the competing considerations at stake when law enforcement officers approach a suspect.”

Hopson appealed. The court of appeals held “it was not clearly established that the officers lacked an objectively reasonable belief that criminal activity was about to occur.” That’s sort of the double-negative way of saying the detectives did reasonably believe criminal activity was about to unfold. Unsurprisingly, no prior case put the detectives on notice that the suspicious behavior witnessed by Detective Alexander—considering his training and experience—was insufficient to reasonably suspect an armed robbery (or some other crime) was about to occur.

The appellate court disagreed with the trial court’s denial of summary judgment on the excessive force claim. The appellate court held clearly established law did not prevent Detectives Alexander and Grissom from suspecting Hopson might be armed. The detectives reasonably believed Hopson was about to commit armed robbery, which is a crime typically involving the use of a gun. In fact, the appellate court opined, Hopson’s behavior was similar to the suspicious conduct at issue in Terry v. Ohio: “Under the qualified immunity framework, and given the suspicious Terry-like conduct observed here, no clearly established law gives us cause to second-guess Detective Alexander’s on-the-ground suspicion that an armed robbery was about to occur.”

There is no doubt that an officer pointing a gun at a person is a use of force. The 9th Circuit Court of Appeals previously held, “All people have a right to be free from the terrifying and humiliating experience of being pulled from their cars at gunpoint, handcuffed, or made to lie face down on the pavement when insufficient reason for such intrusive police conduct exists,” and that “police may not employ such tactics every time they have an articulable basis for thinking that someone may be a suspect in a crime.” The court has also previously held that “the pointing of a gun at someone may constitute excessive force, even if it does not cause physical injury.”

The court rejected Hopson’s claim that it was a violation of a clearly established right to point a firearm at him and order him out of the vehicle without the detectives first identifying themselves as officers (remember that for purposes of determining qualified immunity the court had to accept Hopson’s claim the detectives did not identify themselves). The court reiterated the long-standing rule 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.” Gun-pointing is permitted “when an officer reasonably believes force is necessary to protect his own safety or the safety of the public.”

The court did not believe the failure of the detectives to identify themselves (if, in fact, that really happened) was fatal to granting qualified immunity. The court acknowledged, “An officer’s failure to identify himself can be a relevant factor in the Fourth Amendment reasonableness analysis.” While there may be times tactical expediency prevents officers from identifying themselves, the best practice is to both identify oneself and give a warning, where reasonably feasible, before using force.

The single dissenting judge took a very different view of Detective Alexander’s assessment of Hopson’s conduct. The “emphatic” dissent interpreted the facts very differently, that Hopson was “merely conversing” with Jones and “posed no threat to the officers or to members of the public.” I recommend reading both the majority and dissenting opinions in full. A concluding paragraph from the majority opinion summarizes the law relating to pointing guns at suspects:

“The parties’ competing perspectives underscore the competing considerations at stake when law enforcement officers approach a suspect. Police must be cautious not to point guns at people in haste when the circumstances do not warrant it. Such conduct can lead to accidents or violent escalations that might not otherwise have occurred. It can also under our precedents produce harm of a constitutional magnitude, even when no physical injury results. At the same time, police officers must have some latitude in relying on their judgment and experience to anticipate criminal conduct that may be about to occur. Officers are allowed and expected to be proactive. And when they have a basis for intervening, they are not inevitably required to use only the most minimal force and hope for the best.”

The court remanded the case to the trial court with the order that the officers be granted qualified immunity.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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