{"id":1813,"date":"2008-04-08T09:42:37","date_gmt":"2008-02-23T23:30:40","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-02-24T10:50:21","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1813","title":{"rendered":"Pulling gun during stop was a mistake, but officer still gets qualified immunity"},"content":{"rendered":"

Stop based on BOLO entitled officer to qualified immunity for that. Pulling a gun on plaintiffs during the stop was a mistake under the circumstances, but not a disqualifier for qualified immunity because it was still in good faith. Dorsey v. Barber<\/a>, 517 F.3d 389, 2008 FED App. 0086P (6th Cir. 2008)*:<\/p>\n

Applying these standards, we have no trouble concluding that Begin made a mistake. Considering that the suspects were wanted in connection with an auto theft investigation, and that plaintiffs did not manifestly pose an immediate threat to anyone’s safety or a risk of flight, Begin should have been able to “stop and hold” them without brandishing his firearm and ordering them to lie face-down on the pavement. Begin’s response to the apparent demands of the situation seems to have been exaggerated and the resultant seizure, though supported by reasonable suspicion, was, due to the unnecessarily intrusive means employed by Begin, at least arguably unreasonable.<\/p>\n

Yet, it does not follow that Begin’s mistake necessarily disqualifies him from qualified immunity. Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Humphrey<\/em>, 482 F.3d at 847. There is no support for the notion that Begin knowingly and deliberately violated plaintiffs’ right to be free from unreasonable seizure. Nor can his mistake be fairly characterized as so egregious as to suggest outright incompetence. At worst, Begin made an error of judgment, erring on the side of public safety. Not knowing the seriousness of the criminal activity for which the suspects were wanted, but knowing that the persons before him, who matched the BOLO description, had first disregarded and then resisted his orders to stop, Begin chose to stabilize the situation by acting with a preemptive show of authority. This approach turned out to be unnecessary, but cannot be said to have been plainly incompetent or objectively unreasonable. See Maryland v. Wilson<\/em><\/a>, 519 U.S. 408, 414, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (recognizing that risk of harm to police and others during a traffic stop is minimized if officers routinely exercise unquestioned command of the situation). When Begin confronted plaintiffs, they were among a crowd of people. Had he equivocated in response to their challenge to his authority, tensions might quickly have escalated into a confrontation difficult to manage without the use of force, as opposed to a mere show of force. By acting firmly and without hesitation, Begin appears to have acted in the good faith belief that he was minimizing the risk of harm.<\/p><\/blockquote>\n

Plaintiffs’ arrest was justified. When their son was arrested, they made a move toward him, and the officer could justifiably believe that they were going to interfere with the arrest. Bradford v. Wiggins<\/a>, 516 F.3d 1189 (10th Cir. 2008)*:<\/p>\n

In this case, the governmental interest at stake was the successful arrest of Michael Bradford. When the Bradfords rushed toward their son upon his arrest, it was reasonable of the officers to make the split-second decision that the Bradfords’ actions could possibly interfere with the arrest. Therefore the brief seizure of the Bradfords was reasonable. While the Bradfords’ concern for their son’s well-being may be understandable — given how aggressively he was tackled — we hold that the deputies’ actions were reasonable in light of the totality of the circumstances, and the circumstances were unquestionably escalated by Debra and Michael’s behavior.<\/p>\n","protected":false},"excerpt":{"rendered":"

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