• Civil liability and the doctrine of qualified immunity 
• Detentions for investigation 
• Use of force in executing a detention 

A police officer’s use of his or her firearm and handcuffs in the detention of a person suspected of preparing to commit a dangerous felony isn’t necessarily unconstitutional.  

An officer’s reasonable suspicion that “criminal activity is afoot” allows that officer to conduct a temporary detention for investigation. A reasonable suspicion that the suspected criminal activity might be a dangerous felony (e.g., a robbery) allows the detaining officer to use reasonable force in conducting a detention. Such force may include the use of firearms and handcuffs. The prior case authority for these rules is sufficiently vague to allow for the qualified immunity in a subsequent lawsuit alleging that officers illegally detained a plaintiff and used excessive force in doing so.  

Gilbert, Az., Detective Jason Alexander stopped at a gas station/convenience store on Jan. 25, 2018, for something to drink. While sitting in his unmarked police vehicle, he noticed an individual (later identified as Tommy Jones) in a vehicle already backed into another parking spot. Watching Jones, Alexander observed that he “cran[ed] his neck” and “nervously” looked around, repeating this behavior several times. Jones was also observed moving his car several times, each time backing into a new parking space as he “turn(ed) his body 180 degrees in the vehicle to get a good look at his surroundings.” Because Jones never got out of his car, Alexander surmised that he was not there to make a purchase at the convenience store. It also appeared to Alexander, based on his training and decade-plus of law enforcement experience, that an “abnormally nervous” Jones was scouting around for police officers, video cameras or other means by which he could be detected, and that he was trying to find a parking spot that would allow for a hasty exit.  

Alexander concluded that Jones was “casing” the gas station and that “an armed robbery was about to occur.” After watching Jones’ suspicious actions for about 15 minutes, Alexander observed another subject, later identified as the plaintiff, DeJuan Hopson, drive into the parking lot and part alongside Jones. Jones then got out of his car and into Hopson’s. As Alexander watched, Jones and Hopson conversed while appearing to exchange unknown items. At one point, Jones went back to his car to retrieve something and then returned to Hopson’s. Believing that Jones and Hopson were about to embark on criminal activity (e.g., a robbery), Alexander called for backup. Detective Brandon Grissom responded, parking behind Hopson’s car. Four other officers also responded.  

Accepting Hopson’s version of the facts as true (as an appellate court must do at this stage of an appeal), the court described how Alexander – in plain clothes and with his gun drawn –  approached Hopson sitting in the driver’s seat of his car and opened the door, “forcefully remov(ing)” Hopson from the vehicle. Alexander yanked on Hopson’s left arm with “enough force to put [him] in a state of shock and make [him] think that [he] was being robbed.” Alexander then “forcefully” handcuffed Hopson while “verbally dar[ing]” him to make a move. Per Hopson’s account, Alexander never announced that he was a police officer. Grissom stood nearby as he kept his gun pointed at Hopson. Another officer pulled Jones out of the passenger side of the vehicle as the other three officers stood by with their guns drawn. As a result of this experience, Hopson claimed in his subsequent lawsuit that he experienced “depression, anxiety, loss of sleep, nervous[ness], and a fear of retaliation.” 

Meanwhile, back at the scene, a records check – conducted while Hopson was being questioned about the smell of marijuana emanating from his car – resulted in the discovery that he had felony convictions for aggravated assault and several weapons-related offenses, that he was on probation for another crime, and that his driver’s license was suspended. Based on the marijuana odor coming from the car and Hopson’s inability to demonstrate that he was allowed use marijuana for medical purposes, plus the fact that he had been driving on a suspended license, the detectives undertook a search of his car. They first found marijuana and then discovered a Glock handgun with an extended magazine between the driver’s seat and the center console. Hopson was arrested for being a felon in possession of a firearm. He was later charged in Maricopa County Superior Court with the illegal possession of both marijuana and a firearm. 

Hopson filed a motion to suppress the evidence found in his car, arguing that there was insufficient justification for an investigatory stop, i.e., that he had been illegally detained. The trial court judge determined that there was insufficient reasonable suspicion to justify the detention and Hopson’s motion was granted and dismissed all charges against him (Author’s note: a questionable decision).  

More than two years later, Hopson filed a civil suit in federal court, pursuant to 42 U.S.C. § 1983, alleging that the detectives violated his Fourth (illegal search and excessive force) and Fourteenth (due process) Amendment rights. The detectives’ legal representatives responded with a motion for summary judgment, arguing that at the very least, they were entitled to “qualified immunity” from civil liability. The federal district (trial) court ruled that the detectives were entitled to qualified immunity on the detention issue, but denied it as to the alleged use of excessive force. The detectives appealed.  

The Ninth Circuit Court of Appeal, in a 2-1 decision, reversed the district court’s denial of qualified immunity on the excessive force issue. In evaluating whether the detectives were entitled to qualified immunity, the court necessarily considered the lawfulness of Hopson’s detention and whether the force that was used (assuming the truth of Hopson’s allegations) in executing that detention was reasonable.   

Doctrine of Qualified Immunity: As for whether the detectives were entitled to qualified immunity from civil liability, the rules are well-established: “Under the doctrine of qualified immunity, police officers are not liable under (42 U.S.C.)?§ 1983?‘unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the time.’” (Italics added.) (District of Columbia v. Wesby (2018) __ U.S. __ [138 S.Ct. 577, 589; 199 L.Ed.2nd 453].)  

Typically, the court will skip right to the second prong of this test, i.e., whether the rules establishing the alleged unlawfulness of the officers’ conduct were clearly established at the time. According to the ruling, “Under the second prong of the inquiry, a constitutional violation is clearly established only if existing law ‘placed the constitutionality of the officer’s conduct “beyond debate,’ ” such that “every ‘reasonable official would understand that what he is doing’ is unlawful.”  

What all this means is, the courts recognize that it is not fair to hold an officer responsible for his or her actions if there isn’t prior case authority putting them on notice that what they are doing is wrong. While there does not need to be a case directly on point, the rules an officer are expected to follow must have “been ‘settled’” by “controlling authority,” or at the very least, by “a robust consensus of cases of persuasive authority” that “clearly prohibit[s] the officer’s conduct in the particular circumstances” with “a high degree of specificity.” In other words, officers, using their common sense, must be on notice from the courts that what they are doing violates a suspect’s federal statutory or constitutional rights to be held civilly liable.   

Lawfulness of the Detention: The federal district (trial) court had earlier ruled that the detectives were entitled to qualified immunity on the detention issue. Though this was not an issue on appeal, the Ninth Circuit discussed it anyway, with a majority of the panel holding that it agreed with the district court. The controlling authority is Illinois v. Wardlow (2000) 528 U.S. 119, 123 [120 S.Ct. 673; 145 L.Ed.2nd 570], where the Supreme Court held that: “an officer may, consistent with the?Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.”  

The landmark case decision that, per the court, “bear(s a) notable resemblance” to the instant case, is Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889].) In Terry, an officer watched two men repeatedly pace in front of a store window, peer around and confer amongst themselves for several minutes.?They were soon joined by a third man, who briefly conversed with them before walking away.?The officer’s training and experience led him to believe that the three men were casing the store for a robbery. Based upon what was held to be the officer’s “reasonable suspicion” that “criminal activity was afoot,” the officer stopped and frisked all three.? 

The Supreme Court held in Terry that the officer had sufficient reasonable suspicion to believe that the men were armed and dangerous, permitting the officer to stop and detain them for further investigation and to frisk them for weapons.?Per the Supreme Court, “The suspects’ actions were consistent with [the officer’s] hypothesis that these men were contemplating a daylight robbery – which, it is reasonable to assume, would be likely to involve the use of weapons.” 

In the instant case, Hopson v. Alexander, despite the state trial court’s (and the Ninth Circuit’s dissenting justice’s) conclusion that the officers did not have sufficient reasonable suspicion to justify a detention, the majority of the court here held that there was at the very least sufficient prior authority to cause detectives Alexander and Grissom to reasonably believe that Hopson and Jones were casing the convenience store in preparation for committing a robbery (a suspicion later bolstered by the discovery of a loaded handgun in their vehicle).  

The Court thus concluded as follows: “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. And an armed robbery necessarily involves the use of weapons…(E)stablished law therefore did not prevent the officers from suspecting Hopson might be armed – which, in fact, he was.” The federal district court’s conclusion that the officers were entitled to qualified immunity on this, therefore the issue was upheld.   

Use of Force and Failing to Identify: The federal district (trial) court ruled that the officers were not entitled to qualified immunity on the issue of whether the force used to detain Hopson and Jones was excessive under the circumstances. A majority (with again, one dissenting opinion) of the Ninth Circuit disagreed. The question is – in a civil case such as this one – “whether it was clearly established that the degree of force the detectives used in response to the perceived threat was excessive under the Fourth Amendment.” In his lawsuit, Hopson cites three aspects of the detectives’ conduct that, in his view, were clearly prohibited under existing case law, i.e., (1) pointing a weapon at him, (2) “forcefully” removing him from his vehicle and handcuffing him and (3) failing to announce that they were police officers.  

In rejecting Hopson’s argument that case authority made it clear that the first two acts were excessive, the court first noted that under the right circumstances “the proper use of force can include the very types of force used here: pointing a gun at a suspect and handcuffing him.” Rejecting various prior cases submitted by Hopson arguing that it was well settled that the detectives’ use of guns and handcuffs in similar situations was excessive, the court noted to the contrary: “Indeed, we have expressly held that ‘[i]t is well settled 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.’” (Italics in the original. Alexander v. County of Los Angeles (9th Cir. 1995) 64 F.3rd 1315, 1320.)  

As for the officers’ failure to identify themselves as a police officers, the court simply noted that Hopson did not cite any “clearly established law concerning (1) when an officer must identify himself as such before using the degree of force used here, (2) what form that identification should take, and (3) how the lack of verbal identification is to be weighed against other considerations.” 

So even assuming the officers failed to identify themselves when they perhaps should have, there is no prior case authority supporting the argument that this fact alone somehow converted an officer’s failure to identify himself into “excessive force.”  

Conclusion: Finding no prior authority for the argument that it violated the Fourth Amendment for a police officer to (1) use his firearm and handcuffs in a detention situation such as occurred here (i.e., where the plaintiff was reasonably suspected of preparing to commit an armed robbery), (2) forcibly pulling that suspect out of his car, and then (3) failing to identify himself as a police officer, the court held that the detectives were entitled to qualified immunity on these issues when raised in a subsequent civil suit.