In Hopson v. Grissom, published June 16, 2023, a divided panel of the 9th Circuit Court of Appeals reversed an order denying summary judgment. The defendant police detective in an unmarked car parked at a gas station. He witnessed another driver repeatedly backing into parking spaces, looking around, and backing out. It appeared to the detective that the driver was casing the station for an armed robbery. The detective witnessed the plaintiff drive into the parking lot, park alongside the driver, get into the driver's car and converse with him. Believing the two were about to engage in criminal conduct, the detective called for backup. A few minutes later, a defendant officer and other officers arrived. The defendant officer parked behind the suspect's vehicle. According to the plaintiff's version of the facts (which was disputed), the detective approached the driver's side door with his gun pointed out, opened the door, and forcefully removed the plaintiff from the vehicle, yanking his arm with enough force to "put him in a state of shock" and make him think he was being robbed. The detective then allegedly forcefully handcuffed the plaintiff and verbally dared him to make a move. During these events, the defendant officer kept his gun pointed at the plaintiff. None of the officers identified themselves as police officers. The plaintiff was not injured, but alleged emotional distress. The officers questioned the plaintiff about the smell of marijuana emanating from the car, checked his driver's license, and discovered the plaintiff's prior felony convictions and that he was on probation. The officers searched the car and found marijuana and a handgun with an extended magazine, which the plaintiff was not allowed to possess. The plaintiff was arrested and charged, but the evidence was thrown out when the trial court concluded there was not reasonable suspicion to support the stop. The plaintiff sued the defendant detective and officer under 42 U.S.C. section 1983 for violating his 4th and 14th Amendment rights when they stopped him without reasonable suspicion and used excessive force when arresting him. The district court granted the defendants summary judgment on the unlawful stop claim, but denied it on use of force, finding genuine issues of fact.
The panel majority ruled that the officers were entitled to qualified immunity. Viewing the evidence in the light most favorable to the plaintiff, the majority ruled that no clearly-established law prevented the officers from reasonably suspecting that the plaintiff was about to engage in armed robbery, or that he might be armed (as he in fact was). In regard to use of force, the plaintiff failed to provide specific case law that demonstrates the unlawfulness of the detectives' conduct under the particular circumstances they confronted. No authority placed beyond debate that the defendants violated the constitution by pointing their guns at the plaintiff. As for the amount of force used, the right to make an arrest or investigatory stop necessarily includes the right to use some degree of physical coercion. Under the plaintiff's version, the officers forcefully removed him from the vehicle and forcefully handcuffed him, but did not physically injure him. This was weighed against the government's interest in investigating and preventing a potential armed robbery. In most cases in which the 9th Circuit has found officers used excessive force, the force used was gratuitous or violent. Controlling authority did not establish beyond debate that the force used during the plaintiff's arrest was objectively unreasonable. Similarly, the plaintiff failed to show that precedent clearly established that the officers' failure to identify themselves rendered the use of force excessive.
A dissenting judge opined that there were genuine triable issues as to whether the law clearly established the officers' stop was unconstitutional and their use of force excessive.
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