Thompson v. Rahr

• Decision Date: 13 March 2018
• Docket Number: No. 16-35301,16-35301
• Parties: Lawrence L. THOMPSON, Plaintiff–Appellant, v. Sue RAHR, Head Sheriff's Officers/and Department, Defendant, and Pete Copeland, Deputy Sheriff Officer; King County Sheriff's Department, in all, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

885 F.3d 582

Lawrence L. THOMPSON, Plaintiff–Appellant,

v.Sue RAHR, Head Sheriff's Officers/and Department, Defendant,andPete Copeland, Deputy Sheriff Officer; King County Sheriff's Department, in all, Defendants–Appellees.

No. 16-35301

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2017, Seattle, Washington

Filed March 13, 2018

Benjamin Michael Flowers (argued), Jones Day, Columbus, Ohio, for Plaintiff–Appellant.

Endel R. Kolde (argued), Senior Deputy Prosecuting Attorney, King County Prosecuting Attorney's Office, Seattle, Washington, for Defendants–Appellees.

Before: Michael Daly Hawkins, M. Margaret McKeown, and Morgan Christen, Circuit Judges.

Dissent by Judge Christen

In recent years, the use of force by police officers making traffic stops has flared into a national debate of renewed importance. At the same time, the doctrine of qualified immunity in the excessive force context has continued to evolve. This appeal presents a question at the intersection of the Fourth Amendment and qualified immunity law. In the course of a felony arrest, may a police officer point a loaded gun at an unarmed suspect's head, where that suspect had already been searched, was calm and compliant, was watched over by a second armed deputy, and was seated on the bumper of a police cruiser 10– 15 feet away from a gun found in the suspect's car? Because the facts are at this stage disputed, we take the facts in the light most favorable to the suspect. We hold that pointing a loaded gun at the suspect's head in these circumstances constitutes excessive force under the Fourth Amendment, but that the officers here are entitled to qualified immunity because the law was not clearly established at the time of the traffic stop.

Background

In December, 2011, Pete Copeland, a deputy in the King County Sheriff's Office ("KCSO"), was on patrol in the City of Burien, Washington. After watching Lawrence Thompson commit "multiple traffic violations," Copeland pulled him over. Thompson apologized to Copeland but failed to provide a driver's license, although he did offer up some mail addressed in his name.

When Copeland ran Thompson's identifying information, he discovered that Thompson had a suspended license for an unpaid ticket, that Thompson was a convicted felon, and that his most recent felony conviction was for possessing a firearm. Copeland decided to arrest Thompson for driving with a suspended license, and to impound Thompson's car, as required by a City of Burien ordinance.¹

Copeland had Thompson exit the vehicle and patted him down for weapons. Finding none, Copeland radioed for backup, and had Thompson sit on the bumper of Copeland's patrol car. Copeland then conducted an inventory search of Thompson's vehicle. During his search, Copeland saw a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, Copeland decided to arrest Thompson for violating the Uniform Firearms Act, a felony. See Wash. Rev. Code § 9.41.040.

Thompson continued to sit on the bumper of Copeland's police cruiser, watched over by another deputy who had arrived for backup on the scene. Thompson was about 10–15 feet from the gun in the backseat of his car, and was not handcuffed. Copeland signaled to the deputy watching over Thompson, then drew his gun.

What happened next is disputed by the parties. Copeland claims he unholstered his firearm and assumed a low-ready position, with his gun clearly displayed but not pointed directly at Thompson. By contrast, Thompson claims that Copeland pointed his gun at Thompson's head, demanded Thompson surrender, and threatened to kill him if he did not.

Copeland directed Thompson to get on the ground, face-down, so that he could be handcuffed. Thompson complied and was cuffed without incident. Copeland arrested Thompson for being a felon in possession of a firearm.

The State of Washington charged Thompson with "unlawful possession of a firearm." A Washington state court dismissed the charges after determining that the evidence against Thompson had been gathered in violation of the Washington State Constitution.²

Thompson sued Copeland and King County under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights. Specifically, Thompson alleged that Copeland used excessive force in pointing his gun at Thompson and threatening to kill him.³

In recommending dismissal of this claim, the Magistrate Judge noted that the question is "whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." The Magistrate Judge found that the degree of force used on Thompson was reasonable given that Copeland was conducting a "felony arrest of a suspect who was not secured, who was in relatively close proximity to a weapon, who was taller and heavier than him, and who had a prior felony conviction for unlawfully possessing a firearm." The Magistrate Judge concluded that "Copeland's minimal use-of-force in effectuating [Thompson's] arrest was objectively reasonable" and did not violate Thompson's Fourth Amendment rights. The Magistrate Judge also recommended granting Copeland's motion for summary judgment on the basis of qualified immunity. The district court adopted the Magistrate Judge's Report and Recommendation, and dismissed Thompson's claims with prejudice, a decision we review de novo. Sandoval v. Las Vegas Metro. Police Dep't , 756 F.3d 1154, 1160 (9th Cir. 2014).

Analysis

Our analysis involves two distinct steps. Id. Police officers are not entitled to qualified immunity if (1) the facts "[t]aken in the light most favorable to the party asserting the injury" show that "the [officers'] conduct violated a constitutional right" and (2) "the right was clearly established" at the time of the alleged violation. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We may address these two prongs in either order. Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). These inquiries are questions of law. Morales v. Fry , 873 F.3d 817, 819 (9th Cir. 2017) ; Serrano v. Francis , 345 F.3d 1071, 1080 (9th Cir. 2003).

Because this case was decided on summary judgment, we examine the facts in the light most favorable to the non-moving party and hence assume that Copeland did indeed point his gun at Thompson's head and threaten to kill him—rather than hold it in the alternative low-ready position as Copeland claims. See Sandoval , 756 F.3d at 1160. If genuine issues of material fact prevent a determination of qualified immunity, the case must proceed to trial. Id.

I. Violation of Constitutional Right

Where, as here, Thompson "alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures." Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014) (per curiam); Tennessee v. Garner , 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

We approach an excessive force claim in three stages. Espinosa v. City & Cty. of S.F. , 598 F.3d 528, 537 (9th Cir. 2010). First, we "assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted." Id. (citation and internal quotation marks omitted). Then, we evaluate the government's interests by assessing the severity of the crime; whether the suspect posed an immediate threat to the officers' or public's safety; and whether the suspect was resisting arrest or attempting to escape. Id. Finally, we "balance the gravity of the intrusion on the individual against the government's need for that intrusion." Id. ; Graham v. Connor , 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

Applying these standards here, we conclude that Copeland's use of force in arresting Thompson was not objectively reasonable. Accepting Thompson at his word, as we are required to do at the summary judgment stage, Copeland pointed the gun at Thompson's head and threatened to kill him if he did not surrender. This type and amount of force can hardly be characterized as "minor," as the government contends. We have previously held, in the context of a residential confrontation, that "pointing a loaded gun at a suspect, employing the threat of deadly force, is use of a high level of force." Espinosa , 598 F.3d at 537. With respect to the government's interests, Thompson was suspected of driving with a suspended license and violating the Uniform Firearms Act—potential crimes of low and moderate severity, respectively. The safety threat either to the officers or the public was relatively low. The government's claim that Thompson "could have charged past Deputy Copeland and grabbed the revolver [in the back of the car] in a matter of seconds" is weak. Thompson would have had to travel 10–15 feet to his car to grab the gun or make any use of it. Thompson had no weapon and had already been searched. He was sitting on the bumper of a squad car, watched over by an armed deputy. He was not "actively resisting arrest or attempting to evade arrest by flight." Graham , 490 U.S. at 396, 109 S.Ct. 1865. He was "compliant with the directions of law enforcement at all times." See Green v. City & Cty. of S.F. , 751 F.3d 1039, 1048, 1050 (9th Cir. 2014). Nor did the officers have "reason to believe that he would resist or flee." See Baldwin v. Placer Cty. , 418 F.3d 966, 970 (9th Cir. 2005). Reviewing the totality of the circumstances, the force used against Thompson was excessive when balanced against the government's need for such force.

In the end, "pointing guns at persons who are compliant and present no danger is a constitutional violation." Baird v. Renbarger , 576 F.3d 340, 346 (7th Cir. 2009) (citing Motley v. Parks , 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc) ). A jury could find that "brandishing a cocked gun in front of [Thompson...