Pulling gun on defendant for parking violation was unreasonable arrest

Pulling a gun on the defendant for parking in a red zone (fire lane) in California was unreasonable because there was no reason to do so, thereby making the arrest unlawful. [Somehow,] Neverthless, the impoundment of the car was still valid. United States v. Zacarias, 2008 U.S. Dist. LEXIS 31444 (C.D. Cal. April 15, 2008):

“[I]f the police draw their guns it greatly increases the seriousness of the stop.” Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir. 1996); see also United States v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir. 1988) (“The significance of the pointed gun is that it makes the encounter far more frightening than if the officer’s gun remains holstered, or even drawn but pointed down at his side; and certainly where the danger of the encounter to the officer, though potentially serious, is not clear and present, the deliberate pointing of a gun at the suspect is problematic.”). Whether the drawing and pointing of a gun transforms a permissible stop into an arrest turns on an examination of the reasonableness of the police conduct in light of a number of factors:

[O]ur cases make clear that we have only allowed the use of especially intrusive means of effecting a stop in special circumstances, such as (1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight; (2) where the police have information that the suspect is currently armed; (3) where the stop closely follows a violent crime; and (4) where the police have information that a crime that may involve violence is about to occur. Clearly, some combination of these factors may also justify the use of aggressive police action without causing an investigatory stop to turn into an arrest.

Lambert, 98 F.3d at 1189.

Here, Groenow states that he pulled his gun for his safety, but fails to establish why it was reasonable to do so under the circumstances. There is no evidence that Zacarias was uncooperative or prone to flight. Nor is there any evidence of recent or impending violent criminal activity in the area. The only facts in Groenow’s favor are that it was “dark outside” and Zacarias “seemed to be trying to conceal something in one of his hands.” However, there is no evidence as to the time of day or night, or whether there were street or other artificial lights illuminating the scene. Additionally, Groenow does not state that he believed Zacarias was or might have been armed, only that he was trying to conceal something. In light of the scant evidence on the record supporting the existence of a legitimate personal safety concern, the Court finds that Groenow’s pointing of his gun at Zacarias was unreasonable under the circumstances and constituted an arrest. See United States v. Delgadillo-Velasquez, 856 F.2d 1292 (9th Cir. 1988) (finding that a stop was an arrest because “[t]he show of force and detention techniques used in this context are indistinguishable from police conduct in an arrest”).