Fairfax County Ad Hoc Police Commission

[HCM]

HCM, can you explain your agency dropping the low ready? It seems odd not to offer it as an option for at least some situations. Are your officers shooting better? I've considered suggesting compressed/high ready as an option for some situations, but I think the earth would open and the skies would pour down fire if I mentioned it at a firearms meeting. Thanks and be safe.

My understanding is for both legal and practical reasons.

On the legal side, at the Fed/constitutional/4th amendment level our agency attorneys and the FLETC legal training program agree that display of a weapon including pointing/muzzling with a firearm by an LEO is a display of authority, not a use of force, though as noted above it still requires specific RAS. Documentation as part of the arrest or incident report is recommended as best practice but a use of force report is not required since U de federal law it is not a UOF. State law and your agency policy may differ.

From a practical perspective, low ready has some benefits, a huge one being it gives you a better view of your suspect or the area you're searching. However, we've been teaching the press out from the holster for many years. They would refer to it as prepping the trigger and pushing the sights but it is the press out under another name. We found it took more time to come up from below ready then to press out from the compressed hi ready. Both the reaction time and accuracy were better coming from the compressed high ready than from the low ready. You could say our results are biased since our guys start all but one of their qualification Stages from the holster and then pressing out or you could say we're taking advantage of commonality of training.

One of the negatives of the low ready his officers think of it as a "safe "position when in fact they're often muzzling the legs and feet of officers, suspects, or third parties in close proximity. Currently we are teaching the compressed high ready and have them go to a Sul /NRA safety circle position to avoid muzzling people who don't need to be muzzled. They can press out to high ready or aimed in from either of these positions if necessary. It's not a perfect solution, since you can wind up muzzling your own feet when moving in Sul.

One negative to dropping the low ready has been trying to ensure all of our officers understand the difference between the high ready and aimed in and how aimed in blocks your view and hinders you when you are trying to search and/or assess a suspect.

[Dagga Boy]

Just so I am clear.....pointing a loaded firearm at someone is the same as displaying a badge? Or an officer can threaten someone with a firearm that the could not legally shoot, or articulate some level of potential violent threat simply to show they are in charge or have an extra special right. Interesting.

[rsa-otc]

In NJ a LEO or Security pointing a gun at someone is concidered constructive authority the same as verbal commands or hand signals, the lowest level of force.

[Lon]

Muzzling someone may legally be considered a use of force in some jurisdictions, (though not under the constitution, AFAIK), but that doesn't make it an actual use of force. Officer presence and verbal commands are on the continuum, but when you employ them, you are not actually using force.

In other words, despite the fact that an LEO muzzling someone is not a use of force pursuant to federal constitutional law it may be considered a use of force for state or local officer under state law, depending on the state

If by "muzzling", you mean intentionally pointing your gun at someone to get them to comply, the Circuit Courts have ruled on numerous occasions that muzzling someone can be excessive force under the U.S. Constitution. If it's not a use of force, how can it be determined to be excessive force?

From the Baird v. Renbarger decision (7th Circuit):

 The plaintiffs allege that Renbarger violated their Fourth Amendment rights through an unreasonable seizure done with the use of excessive force-in particular, by using a submachine gun to round them up and detain them during the search.   The question whether the seizure was unreasonable under the Fourth Amendment depends on whether it was objectively reasonable, judged from the perspective of a reasonable officer on the scene.   Graham, 490 U.S. at 396, 109 S.Ct. 1865.

No officer involved had reported having any suspicion that anyone at the industrial park was armed or dangerous.   Nevertheless, Renbarger slung a 9-millimeter submachine gun around his neck.   McCracken and Renbarger then entered Baird's shop, and McCracken told the people there to get in the center of the building and to sit down on the concrete.   Everyone complied.   Pointing his submachine gun, Renbarger rounded up anyone in the surrounding shops and warehouse, including a group of Amish men who were working nearby.   He collected identification from everyone, except for the Amish, and held them for around two hours while the search was completed.   Meanwhile, the other officers detained everyone in Robinson's shop and searched for the Zephyr.   The Robinson group, too, were entirely compliant.   When the officers found the car, Beard examined the VIN and concluded that it had not been altered.   The officers then left.

 The factors identified in Graham all tend to show that the use of the submachine gun was objectively unreasonable in the setting that Renbarger faced.   First, the search and seizure concerned the crime of altering a special identification number.   See Ind.Code § 9-18-8-12 (2008).   This is a far cry from crimes that contain the use of force as an element, crimes involving possession of illegal weapons, or drug crimes, all of which are associated with violence.   Second, there was never a reason to suspect that there was any threat to the safety of the officers involved.   McCracken had been to the site the day before, and the officers made no mention of danger or violence during the search.   Third, none of the plaintiffs resisted detention or attempted to flee.   Renbarger attempts to defend the reasonableness of his actions by pointing out that he did not know the identities of those who might be on the scene and that he was outnumbered.   But taking the facts in the light most favorable to the plaintiffs, as we must, we see a scene of peaceable folks (including the famously pacifist Amish) going about their business, while the police inspect various vehicles for identifying information.   Renbarger's subjective concerns do not transform this setting into one calling for such a heavy-handed use of force.   Moreover, the facts show that the police were familiar with the site and had no reason to believe that there would be resistance.

Other circuits have also held that pointing guns at persons who are compliant and present no danger is a constitutional violation.   See, e.g., Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir.2005) (en banc ) (holding an infant at gunpoint constitutes excessive force);  Robinson v. Solano County, 278 F.3d 1007, 1015-16 (9th Cir.2002) (en banc ) (pointing a gun at an unarmed suspect who poses no danger constitutes excessive force);  Holland v. Harrington, 268 F.3d 1179, 1192-93 (10th Cir.2001) (holding children at gunpoint after the officers had gained complete control of the situation “was not justified under the circumstances”);  Baker v. Monroe Township, 50 F.3d 1186, 1193-94 (3d Cir.1995) (detention at gunpoint violated the Fourth Amendment as there was “simply no evidence of anything that should have caused the officers to use the kind of force they are alleged to have used”).   We note that these cases so often involve children because they are much less likely to present the police with a credible threat.   In other words, the unreasonableness of the gun-pointing is more apparent in these cases, though pointing a gun at a compliant adult in a non-threatening situation, as in this case, can also constitute excessive force.

And finally:

We conclude that a reasonable jury could find that Renbarger violated the plaintiffs' clearly established right to be free from excessive force when he seized and held them by pointing his firearm at them when there was no hint of danger.   As a result, Renbarger is not entitled to qualified immunity.

Full opinion here:
http://caselaw.findlaw.com/us-7th-circuit/1418128.html

[SLG]

Haven't we been though this already? If people insist on reading things that aren't there, then a useful discussion on the topic is impossible.

[Dagga Boy]

I guess I ll just be wrong. Nevermind as it really doesn't matter, I knew better than to wade in. My apologies.

[HCM]

K

Just so I am clear.....pointing a loaded firearm at someone is the same as displaying a badge? Or an officer can threaten someone with a firearm that the could not legally shoot, or articulate some level of potential violent threat simply to show they are in charge or have an extra special right. Interesting.

No, as noted - you need specific RAS the person is armed, a threat, etc.

Once that threshold is met, then yes, it is a legally a display of authority, not a UOF unless / until you apply physical force such as shooting / striking them with the gun etc

Again, this is at the federal/constitutional/4th amendment level only. Also there is no free lunch becausei if they comply with your display of authority it's still a 4th amendment seizure which you are responsible for just like your example of handcuffing somebody you're detaining but not arresting.

[HCM]

If by "muzzling", you mean intentionally pointing your gun at someone to get them to comply, the Circuit Courts have ruled on numerous occasions that muzzling someone can be excessive force under the U.S. Constitution. If it's not a use of force, how can it be determined to be excessive force?

From the Baird v. Renbarger decision (7th Circuit):









And finally:



Full opinion here:
http://caselaw.findlaw.com/us-7th-circuit/1418128.html

Lon, first of all, it's obvious the judge in this case has never seen the Amish Mafia reality TV show ... :-)

Seriously, I cant explain the judges choice of words, and not all judges may agree with FLETC and the Givernments legal position but it is in writing and clearly laid out in our training materials. Regardless of the judges language it is clear the officer in the case you cited did not have RAS to believe any of these people were armed or a potential lethal threat so pointing a gun at them would clearly be an unlawful seizure under the fourth amendment whether you want to call it a use of force or not.

[Lon]

I think I found part of the disconnect we are having. The 5th Circuit Court of Appeals (where HCM is at) has a different opinion of pointing a gun at people and the use of force. From the Baird opinion:

In dicta, Wilkins cited with approval the physical injury requirement for Fourth Amendment claims from the Fifth Circuit case Hinojosa v. Terrell, 834 F.2d 1223 (5th Cir.1988).  Wilkins, 872 F.2d at 194.   As noted earlier, however, the physical injury requirement has not been adopted by this circuit, and for good reason.   Rigid insistence on physical injury would be tantamount to a rule under which pointing a gun is always per se reasonable.   This would not be consistent with Graham or Hodari D., which require us to delve further into the facts to determine the context in which the gun pointing occured.

So we are both right. What an officer in other circuits can get sued for, you can't. Gotta love the judicial system.

[SouthNarc]

The 5th and 9th might as well be different planets.