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Thompson v. Rahr

United States Court of Appeals, Ninth Circuit

March 13, 2018

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.

          Argued and Submitted December 7, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding D.C. No. 2:14-cv-01769-MJP

          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.

         SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's summary judgment, on qualified immunity grounds, in a 42 U.S.C. § 1983 action alleging that a police officer used excessive force when he pointed a gun at plaintiff's head in the context of a felony arrest after plaintiff had already been searched, was calm and compliant, and was being watched over by a second armed deputy.

         Examining the facts in the light most favorable to plaintiff, the non-moving party on summary judgment, the panel assumed that the police officer did indeed point his gun at plaintiff's head and threatened to kill him. The panel held that under the circumstances, defendant's use of force in arresting plaintiff was not objectively reasonable. The panel held that where, as in this case, officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force under the Fourth Amendment.

         The panel nevertheless held that although the use of excessive force violated plaintiff's constitutional rights, defendant was entitled to qualified immunity because plaintiff's right not to have a gun pointed at him under the circumstances was not clearly established at the time the events took place.

         The panel addressed plaintiff's other claims for unreasonable search and failure to supervise in a concurrently-filed memorandum disposition.

         Dissenting, Judge Christen would hold that the police officer was not entitled to qualified immunity on plaintiff's excessive force claim because plaintiff's right not to have a gun pointed at his head was clearly established in Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc), which was decided long before plaintiff's arrest in 2011.

          OPINION

          MCKEOWN, CIRCUIT JUDGE:

         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, facedown, 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 ...


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