finding that where suspect was an apparently unarmed man suspected of a misdemeanor was insufficient to justify officers’ action of drawing gun at close range and pointing it at the suspect’s head, and concluding that the presently unarmed suspect’s earlier use of a weapon was still insufficient, without more, to justify the intrusion to his person
How later courts described this case
- finding that where suspect was an apparently unarmed man suspected of a misdemeanor was insufficient to justify officers’ action of drawing gun at close range and pointing it at the suspect’s head, and concluding that the presently unarmed suspect’s earlier use of a weapon was still insufficient, without more, to justify the intrusion to his person
- concluding that “[t]he only circumstance[] in this case favoring the use of force was the fact that plaintiff had earlier been armed” and that “[plaintiff’s] earlier use of a weapon, that he clearly no longer carried, is insufficient to justify the intrusion on [his] personal security”
- finding the law sufficiently established in 2002 to recognize the "general principle that pointing a gun to the head of an apparently unarmed suspect during an investigation" can constitute excessive force, "especially where the individual poses no particular danger"
- stating that “under more extreme circumstances the pointing of a gun has been held to violate even the more rigorous standard applicable before Graham, when plaintiffs were required to establish conduct so exces- sive that it ‘shocked the conscience’ ”
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
with whom RYMER and T.G. NELSON, Circuit Judges, join, concurring:
I concur in the result only. Although I agree that the officers are entitled to qualified immunity, I do so because, in my view, there was no use of excessive force.
My reason is quite simple. I do not believe that an officer who points a gun while making an otherwise proper seizure of a suspect can be found to have violated the Fourth Amendment by using excessive force upon the suspect, when no force whatsoever has been applied. While Robinson would like to lure us into a realm where we must dissect and second-guess each and every instance of an officer’s pointing of a weapon at another person (or perhaps when he even threatens to do so), I believe it is a grave mistake to enter that realm. It will vastly expand, even trivialize, the concerns about the use of force to accomplish a seizure which drove the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 9-12 , 105 S.Ct. 1694, 1700-01 , 85 L.Ed.2d 1 (1985). 1
The difference between a threat of force and the actual use of force upon a person can seem slight at times, but it is rarely, if ever, difficult to distinguish between the two. It is simply the ancient distinction between assault and battery. The latter requires a touching, no matter how slight; the former merely requires a threat. We can consult Blackstone 2 or Prosser 3 on that ineluctable proposition. But we need not go quite that deeply into the literature. Black’s will do as well. Assault is “[a]ny willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do.... ” Black’s Law Dictionary 105 (5th ed.1979). Battery is “the unlawful application of force to the person of another....” Id. at 139 .
We should adhere to that hoary distinction in this area and refuse to find excessive use of force upon another when there has been gun pointing, but there has not been a touching. 4 In my view, when the seizure itself is otherwise proper the mere threat of force cannot be an excessive use of force within the meaning of the Fourth Amendment. 5 Of course, if the seizure *1018 itself was otherwise improper, and Robinson does not assert that this one was, that would violate the Fourth Amendment, even if no force was used. On the other hand, if the seizure itself was otherwise proper, but excessive force was applied to a person in order to effect it, and Robinson does not claim that excessive force was applied to him, that, too, would violate the Fourth Amendment. It is also true that the threat of force may ultimately lead to a seizure. But, then, perhaps it will not. See Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.1994). The threat may also escalate and finally lead to an excessive application of force to the person of another. Still, the threat alone is not that application. One can bare a fang without biting. As I see it, showing the fang is not an excessive use of force. By and large, the case law is not to the contrary.
In one case where we narrated the story of the overall excessive force used by officers, that involved bursting into a hotel room, handcuffing the appellants, throwing them on the floor, and actually pressing guns against their heads. See McKenzie v. Lamb, 738 F.2d 1005, 1010-11 (9th Cir.1984). We did not say that a mere threat of force accomplished by pointing a gun would have been excessive. Indeed, the use of the guns was simply part of a whole course of unnecessary and improper conduct. In another case, police had just slain the appellant’s dog. They then pointed a gun at the appellant’s head and threatened to send him “ ‘to the morgue.’ ” Fuller, 36 F.3d at 68 . Appellant wished to amend his complaint to allege that the officers’ actions as to him “ ‘were not objectively reasonable and constituted the use of excessive force in violation of the Fourth Amendment to the United States Constitution.’ ” Id. We held that there was no seizure because the only restraint was that the person was not free to attack the officers. Id. Of course, we did not separate excessive force from the concept of a seizure, but it is clear that excessive force was claimed. Again, mere pointing and threatening did not raise a constitutional issue, as we saw it. 6
In general, other circuits have reached similar results. Thus, in Skarrar v. Fels-ing, 128 F.3d 810 (3d Cir.1997), the court determined that the use of guns, the use of vulgar language, and the requirement that the appellants lie face down on the ground was not the use of excessive force, although the court recognized that there could be excessive force without “extensive physical contact.” 7 Id. at 821 . In Taft v. Vines, 83 F.3d 681 (4th Cir.1996) (per cu-riam) (en banc), the court strongly indicated, but did not decide, that training weapons on individuals at close range, but not touching them with the weapons, was not excessive force; the court actually determined that there was qualified immunity in any event. Id. at 684 , adopting Taft v. Vines, 70 F.3d 304, 317-21 (4th Cir.1995) (Motz, J., concurring in part and dissenting in part).
Similarly, in Collins v. Nagle, 892 F.2d 489 (6th Cir.1989), the court rejected a claim that an officer violated an individual’s Fourth Amendment rights when he pointed a gun at the individual. Id. at 497 . As the court noted, there is a vast difference between a “show of force” and “the actual use of force.” Id. It expressed concern about second-guessing an officer’s decision to draw a gun, and opined that resorting to second-guessing may well lead *1019 to even greater dangers to citizens. Id. In so doing, the court relied on a Fifth Circuit case, which also turned aside a claim that a constitutional right was violated when an officer pointed a gun at a citizen. See Hinojosa v. City of Terrell, 834 F.2d 1223, 1230 (5th Cir.1988). There, too, the appellant was not touched; he was only intimidated. Id. It should be noted, however, that the court was not considering a Fourth Amendment claim; it was, instead, considering a Fourteenth Amendment due process claim. Id. at 1228-29 . 8
And in Edwards v. Giles, 51 F.3d 155 (8th Cir.1995), the court turned aside a claim that the mere pointing of a gun at a suspect constituted excessive force. Id. at 157 . Finally, in Jackson v. Sauls, 206 F.3d 1156 (11th Cir.2000), the court found no excessive use of force when the officer drew his gun and required the appellant to lie on the ground during an investigatory stop. Id. at 1171-72.
The Seventh Circuit, on the other hand, has opined that holding a gun to the head of an unoffending person — a nine-year-old child — and threatening to pull the trigger was unreasonable, where the child was not a suspect and not violent; that constituted an excessive use of force. See McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir.1992). It seems, but is not clear, that there was a touching, and the seizure of the child would appear to have been illegal. In any event, if the case stands for the proposition that the mere pointing of a weapon is, or can be, excessive force under the Fourth Amendment when a seizure is otherwise proper, I disagree. 9 That same court has, however, indicated “that the action of a police officer in pointing a gun at a person is not, in and of itself, actionable.” Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989). Earlier on, the court had determined that when officers made an “unnecessary display of force,” 10 but caused no physical or bodily injury, the substantive due process demands of the Fourteenth Amendment were not violated. See Gumz, 772 F.2d at 1401.
Taken together, the cases do demonstrate that the courts’ explication of the law to date may not be a thing of symmetrical beauty. The courts have continued to hold out the possibility that an egregious course of conduct by police officers, which included the pointing of and threat to use a gun, might constitute use of excessive force, even without any touching. Nevertheless, the step that Robinson successfully urges upon us is a giant one. He asks us to hold that an otherwise legal seizure (detention) becomes a violation of the Fourth Amendment merely because guns were unnecessarily pointed at a suspect. At first blush, that may seem like a tiny pebble dropped into the lake of Fourth Amendment jurisprudence. It is not; what appear to be mere ripples might well become enormous waves of portentous problems. Henceforth, no officer in the Ninth Circuit can draw his gun in order to assure control of a suspect without making *1020 a nice calculation about whether that mere threat to use force might violate the suspect’s constitutional rights. Perhaps he cannot even put his hand on his gun. Hereafter, the officer is supposed to wait until he is sure that the suspect is dangerous; he cannot attempt to “abort a potentially violent situation.” Hinojosa, 834 F.2d at 1231 . Rather, he must “wait until the situation escalates further before drawing his gun.” Id. That is even true where, as here, violence (the shooting of dogs with a shotgun, and patrolling the neighborhood with that same shotgun to find a wounded one) has preceded the officers’ encounter with the suspect. It is true even though it is admitted that the seizure itself was otherwise legal. Henceforth, we are committed to ignoring the basic difference between the mere display of force and the use of force itself. I fear that we will vastly increase the opportunities for litigation against society’s front line, and heighten the legal noise level which distracts good officers, who wish to protect the rights of everyone in our society.
Like my colleagues, I do not relish the idea of police officers unnecessarily pointing guns — personally, I find that to be unnerving. Nevertheless, I do not see it as the use of excessive force because I do not read the serious commands of our Constitution as enacting an all-purpose code of civility. When we give officers their dangerous jobs, we can expect restraint; we cannot expect sangfroid.
Thus, I respectfully concur in the result only. 11
. Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), does not deviate from those same serious concerns. In that case, actual unnecessary force was perpetrated upon the person being arrested. See id. at 389-90 , 109 S.Ct. at 1868 .
. Assault "is an attempt or offer to beat another, without touching him.” 3 William Blackstone, Commentaries *120. Battery "is the unlawful beating of another. The least touching of another’s person willfully, or in anger, is a battery.” Id.
. Assault is putting one in apprehension of a harmful or offensive touching. William L. Prosser, The Law of Torts 34 (2d ed.1955). Battery is unprivileged contact with the person of another. Id. at 30.
. I recognize that Robinson was ultimately touched in this case, but that is not the excessive force claim that we are asked to consider. The claim here is that the mere pointing of the gun was enough to constitute excessive force.
. The same result might well be reached if the seizure was not otherwise proper, but we need not decide that issue in this case.
. Cf. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (per curiam) (a mere threat to do an act prohibited by the Constitution was not a constitutional wrong).
. The court distinguished an earlier case where it had found a Fourteenth Amendment substantive due process violation. Id. at 821— 22.
. In a later case, where it did find a violation arising out of a whole series of improper acts, including firing a gun at a car, the court also used a substantive due process analysis, rather than a Fourth Amendment analysis. See Petta v. Rivera, 143 F.3d 895, 902 (5th Cir.1998).
. Holland v. Harrington, 268 F.3d 1179, 1183-84, 1192-93 (10th Cir.2001), also involved the pointing of guns at a number of individuals, including children. It reached a similar result as to the children, and my response is similar.
. Ten officers armed with pistols, a rifle and a shotgun converged on the appellant to arrest him. Gumz v. Morrissette, 772 F.2d 1395, 1398 (7th Cir.1985), overruled on other grounds by Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987).
. I do not disagree with the majority on the state tort issue because I read the opinion as doing no more than rejecting the notion that the County and the officers are automatically immune under state law.