Lawrence L. Thompson, Plaintiff-Appellant,
Sue Rahr, Head Sheriff's Officers/and Department, Defendant, and Pete Copeland, Deputy Sheriff Officer; King County Sheriff's Department, in all, Defendants-Appellees.
and Submitted December 7, 2017 Seattle, Washington
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,
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.
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
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.
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.
panel addressed plaintiff's other claims for unreasonable
search and failure to supervise in a concurrently-filed
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
MCKEOWN, CIRCUIT JUDGE:
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
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.
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.
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.
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.
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.
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.
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.
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
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 ...