*1 APPENDIX ROBINSON, Plaintiff- F.
James Appellant, Cauwells, COUNTY; Brian
SOLANO Deputy offi- County Sheriffs Solano County Faulkner, Gary Solano cer; Officer, Defendants- Deputy Sheriffs Appellees.
No. 99-15225. Appeals, States
United Ninth Circuit. 12, 2000. July Filed Panel Decision 22, 2001. March Argument Banc En *2 Submission April Deferred 2001. Sept.
Resubmitted Filed Feb. against unrea- protections
Amendment’s seizures, clari- sonable searches scope of on the circuit fy the law immunity for qualified *3 police aof arises out case The claims. un- apparently anof gunpoint at seizure having earli- suspected individual armed dogs. shoot two shotgun to used a er guarantees Amendment Fourth The their in “to be right secure citizens the sei- ... unreasonable ... persons Const, In Gra- IV. amend. U.S. zures.” Connor, 490 U.S. ham v. (1989), the L.Ed.2d
S.Ct. all that claims held Supreme Court U.S. used have officials law enforcement that arrest, of an in course excessive anof other seizure stop, or investigatory analyzed under should individual “objective reason- Fourth Amendment’s also cau- The Court standard. ableness” rea- “calculus of however, tioned, for embody allowance must sonableness often are officers police the fact judgments— split-second make forced to CA, Oakland, for Simpich, tense, M. uncer- William that are circumstances plaintiff-appellant. evolving tain, rapidly and —about necessary in a force that Scott, amount Porter, Wei- Cassidy, J. Terence 396-97, 109 situation.” Sacramento, CA, particular for Delehant, &bert S.Ct. defendants-appellees. interplay be must address
Here we objective Amendment’s Fourth tween of ex claims standard reasonableness for measur the standard and cessive force officer’s enforcement a law scope of ing the SCHROEDER, Judge, Chief Before: embodies which also immunity, qualified CANBY, FLETCHER, HUG, B. Harlow standard. reasonableness RYMER, FERNANDEZ, REINHARDT, 800, 818, 102 S.Ct. Fitzgerald, U.S. GOULD, KLEINFELD, NELSON, (1982). T.G. 2727, 73 L.Ed.2d Judges. PAEZ, Circuit this recently grappled Supreme Katz, 533 U.S. Saucier subject in SCHROEDER; Judge by Chief Opinion (2001), and 2151, 150 L.Ed.2d FERNANDEZ. Judge by Concurrence teachings. its follow Judge. SCHROEDER, Chief FACTS in order case en banc this We took F. James Plaintiff-Appellant regarding circuit clarify the law retired Robinson, African-American violates force that San Francisco officer. Defendants- dent to them. Wearing an unbuttoned Appellees are the County of Solano and pair shirt and jeans, he walked the 135 individual police officers Brian Cauwells feet from his front door to the street. He Gary Faulkner. asserts that the officers were able to see approach, him
When the they events this issue case observed that place, took his Robinson was 64 years demeanor was old. He calm. He also states lived a farmhouse set that the officers kept five-acre their guns holstered parcel in a semi-rural Fairfield, area of approached. he as Officers Cauwells and California, where he raised in- Faulkner, livestock however, contend that Robinson cattle, ducks, cluding turkeys, geese, and appeared agitated, and they unhol- *4 chickens. He had fenced his property and stered their upon seeing first him. kept a shotgun protect to his livestock. As Robinson street, neared the Officer morning One he saw two dogs attacking Cauwells, who had then with been the killing and his livestock. He took out his police force approximately months, nine shotgun and shot dogs, both killing one walked forward to meet him. Robinson wounding and the other. Robinson then said, “My name is Robinson and I’m the looking went for the dog. wounded His man that was involved with the dogs.” search him public took to the road fronting Officer Cauwells pointed then gun his his property, and he walked approximately Robinson’s head from a distance of about along 50 feet the road carrying the shot- six feet. Officer Faulkner also took gun. out his pointed and it at Robinson. Cau- neighbor Robinson’s Reyes, Sarah the wells told put Robinson to his hands over owner of dogs, the came out of her house his head. As Robinson putting was his while Robinson was on the road looking for up, hands he asked the officers “What’s dog. wounded to According Robinson, going on?” Without answering ques- he was standing approximately 160 feet tion, Cauwells repeated the command as from Reyes Ms. when she yelled to him stepped forward, he and according to Rob- dogs. about the She angry was that he inson, thrust his gun three or four feet had shot dogs, her and he tried to explain from Robinson’s head. As a police former that he not did know the dogs were hers. officer, Robinson was aware of the immedi- After the two had conversation, a heated physical ate danger posed by point- Robinson returned home. ed at his head from point blank range; he Reyes Ms. went back into her house and testified that he feared for his life. phoned police. police sent out a radio dispatch regarding a man carrying a police Two officers not named in this shotgun just who had shot dogs two and suit handcuffed Robinson and shoved him “is the middle of the street yelling at into the back seat of their patrol car. this time.” The appellee officers were Robinson was confined in police car among police officers responded who while the officers talked to Reyes Ms. and to the call parked on the public road in other neighbors. The interval was approx- front of property. Robinson’s imately 15-30 minutes. Both sides agree
Robinson, who was apparently Robinson attempted
explain
to
moment inside discussing with his
situation
officers,
wife
to the
they
re-
whether to call
authorities,
saw
to
six fused
listen to him. The officers re-
pull
vehicles
up outside his home.
leased Robinson
they
after
ascertained
He
go
decided to
out
explain
the inci-
that he had not violated the law.
force
regarding the
fact existed
material
time—from
at no
asserts
Robinson
officers and whether
by the
actually used
to release —did
detention
original
cir
under the
reasonable
such
was
weapons. He
any
for
him
search
officers
v. Solano
See Robinson
cumstances.
utility knife
four-inch
wearing
in fact
was
(9th Cir.), reh’g en
County,
never detect-
his belt that
strapped
Cir.2000).
granted,
any
banc
charged
Robinson
ed.
on our
panel relied
deciding, the
In so
question.
the events
crime
Katz
recently explained in
then
circuit law
BACKGROUND
States,
PROCEDURAL
Cir.
F.3d 962
v. United
rev’d,
1999),
533 U.S.
in federal
action
filed a civil
Robinson
(2001). Judge O’Scann-
150 L.Ed.2d
federal
state
alleging both
court
panel also reversed
dissented.
lain
officers
the individual
against
claims
judgment on
summary
court’s grant
grant-
judge
district
County. The
Solano
torts.
the state-law
respect
judgment with
summary
partial
ed
County and all
Solano
against
all claims
this case
be reheard
ordered
After we
de-
individual
claims
state law
granted
banc,
Supreme
en
*5
However,
judge de-
district
the
fendants.
Katz, 531
v.
Katz. Saucier
in
certiorari
on the
judgment
summary
grant
to
clined
480,
454
L.Ed.2d
991,
148
S.Ct.
121
U.S.
the
claim
force
§
excessive
1983
de-
(2000).
argument, but
heard oral
stipulated
then
parties
The
officers.
Supreme
pending the
submission
ferred
a
before
claim
on
federal
jury trial
the
to a
for
called
in Katz. We
Court’s decision
judge.
magistrate
un-
took the case
briefs
supplemental
Supreme
following the
der submission
length of Robin-
the
found that
jury
The
v.
in
See Saucier
Katz.
decision
reasonable,
Court’s
divided
was
son’s detention
2151, 150
194,
Katz,
121 S.Ct.
533 U.S.
the
of whether
the question
four on
four to
(2001).
272
L.Ed.2d
rea-
was
to
Robinson
employed
seize
force
the
dismissed
court
The trial
sonable.
The Katz Case
then
The court
the deadlock.
jury after
motion
Rule 50
appellees’
granted
law,
Supreme
prior to
circuit
Our
federal
of law on the
judgment as a matter
Katz,
quali-
on
focused
in
decision
Court’s
the offi-
claim, holding that
force
excessive
by the
enunciated
immunity principles
fied
immunity.
qualified
to
entitled
cers were
Fitzgerald,
v.
in Harlow
Supreme Court
2727, 73 L.Ed.2d
800, 102 S.Ct.
457 U.S.
sum-
grant of
appealed
Robinson
to deter-
(1982).
us
Harlow instructed
396
claims
law
on the state
judgment
mary
offi-
governing
the law
mine whether
of law
as a matter
judgment
grant of
established, and
clearly
was
cial’s conduct
The
claim.
force
the federal excessive
on
could
official
reasonable
so,
whether
if
this court
panel of
three-judge
original
See
was lawful.
the conduct
have believed
were
the officers
It held
reversed.
614,
Thurman,
616-17
F.3d
109
Somers
immunity on the
qualified
not entitled
Katz
Cir.1997).
in
Circuit
(1)
The Ninth
claim because:
federal
in
principles
follow those
endeavored
pointing
governing
of the law
the contours
See
force case.
of an excessive
context
put
sufficiently clear
of
were
panel
The
Katz,
at 967-71.
194 F.3d
pointing
notice that
officer on
reasonable
mer-
on
inquiry
that the
Katz observed
head,
circum-
under the
at Robinson’s
of force
the use
as to
its
whether
constitu-
violate his
alleged, would
stances
immunity
reasonable,
inquiry
(2)
issues
disputed
rights;
tional
as to whether a reasonable officer could standard of reasonableness
embodied
have believed that the force used was rea-
Fourth
Amendment.
Id. at 2158-59.
circumstances,
sonable under the
both fo-
Supreme
The
Court
thus overruled our
objective
cused on the
reasonableness of
cases that had treated the standard as the
the officer’s
conduct.
therefore stated
same, including
panel opinion
in this
“
inquiry
‘the
as to whether officers
at
F.3d
as well as
panel
are entitled to qualified immunity for the
opinion Katz,
The Court therefore held that the skip ahead to question the purposes of whether standard of reasonableness for the law clearly qualified immunity established that the offi- is distinct from the however, Cir.1994). There, the issue in the cir- unlawful was conduct cer’s force, there was whether was not of the case. cumstances In Full- was a seizure. there whether but Katz, at 2156. 121 S.Ct. no seizure because there we held was er Katz, in an exces- after Consequently, from the distance some police were one, ask must we like this case sive allega- no there was id. at plaintiff, light in the the facts taken whether first gun use of the restricted tion that the estab- plaintiff would to the most favorable at 68. Here liberty. Id. plaintiffs Amendment. Fourth of the a violation lish sequestered. was handcuffed plaintiff the affirmative is in if the answer Only contrast, con- Fuller, “no there was In immunity issue. should address his arrested or that he was tention focuses then immunity inquiry restrained,” and the officers liberty was clearly established law was whether acting in self-defense. they were claimed Id. the time. plain- that the in this case conclude of the a violation alleged has tiff applied Mendenhall In Fuller we of Fuller Amendment, light that in here, requires that test, which we do as Cir.1994), law Vines, F.3d 65 “a be there must a seizure there concerning when unclear circuit this person that the such liberty restraint at a gun reasonably point may officer an to leave.” is not free reasonably he believes investigation. There during suspect States Fuller, (citing United F.3d at 68 cir- other conflicting decisions were also Mendenhall, challenged conduct. time of cuits at the (1980)). conclud- 64 L.Ed.2d quali- entitled to therefore The officers are was no seizure there in Fuller ed im- the officers’ immunity. Because fied only to ensure used because narrower, we law is state munity under the offi- could not attack plaintiff state law claims and remand reverse contrast, case, by Robinson In this cers. officers. individual because, awith alleged a seizure handcuffed, and then at his head pointed Alleged Violation *7 not free he was reasonably believed he Amendment may be that Fuller To the extent leave. formally ar- officers never Although the of the conduct suggesting as read at Robinson, they detain him did rested suspect a gun at pointing in a officers in place him him and gunpoint, handcuff ex- can never an actual seizure during to other they talked while squad the car force, it is cessive overruled. is not of a seizure fact The witnesses. raised concern- any is issue nor disputed, was a that there Having concluded in hand- of force involved ing the amount ques case, to the turn in this seizure him the placing in cuffing Robinson unreason was the seizure tion whether of in of not conduct did squad car. That excessive the officers used able because only force. excessive itself constitute “objectively i.e., force, was force that use of a the officers’ is dispute whether cir light of the facts in reasonable” head at Robinson’s gun pointed drawn See confronting the officer. cumstances excessive range constituted close from Graham, 490 U.S. force. in Gra cautioned Supreme As the careful “requires ham, determination this involving circuit in our leading case of and circumstances the facts Vines, 65 attention v. 36 F.3d is Fuller gun a drawn particular case, each including the severity tive by reasonableness” enunciated the Su- issue, of the crime at whether the suspect preme Court in Graham. poses an immediate threat to safety the of Indeed, under more extreme circum- others, the officers or and whether he is stances pointing gun of a has been held resisting actively arrest or attempting to to violate rigorous even more standard evade by flight.” arrest Id. (citing Ten applicable Graham, before plaintiffs when Garner,
nessee
1, 8-9, 105
471 U.S.
S.Ct.
required
were
to establish
so
conduct
ex-
(1985)).
Our
Circuit
Gates,
jury
discussion
affirmed a
in Chew v.
verdict against
(9th Cir.1994)
officer
helpful.
excessive force
under
there
stated
“shocks
may
courts
in appropriate
conscience” standard where
officer,
cases
many
factors,
consider
relevant
in-
the course of arresting a
cluding
plaintiff, pointed
used,
“whether
warrant was
at his head with his
plaintiff
directly
whether
wife
resisted or
in the line of
fire. Id. at 188-
armed,
whether more than
Haskins,
also
one
or
arrestee
McDonald
involved,
Cir.1992)
officer was
F.2d 292
whether
plaintiff
(pointing
sober,
head of
whether other
dangerous
nine-year-old boy
or
and threat-
exigent
ening to
circumstances
shoot during
existed at the
time
search of
boy’s
arrest,
parents’
and the
apartment
force).
nature of the
arrest
charges.” Id. at 1440 n. 5 (citing Hunter
agree
with the
observations
Columbia,
District
Third
Circuit
Baker v. Monroe Town-
(D.C.Cir.1991)). Consideration of those
(3d
ship,
The only
guns
people
circumstances in this
not
suspicion,
case fa-
under
hand-
voring the use of force
cuffed them
the
fact that
detained them 25
for min-
plaintiff had earlier
utes could
been armed
be liable
a
with a
for Fourth Amend-
shotgun that he used to
ment
shoot
violation:
neigh-
the
bor’s dogs. We conclude that Robinson’s
There is
per
no
se rule that pointing
earlier
of weapon,
use
a
that he clearly no
guns at people, or
them,
handcuffing
longer carried, is insufficient to justify the
constitutes an arrest....
But use of
intrusion on
personal
Robinson’s
security.
guns and handcuffs
justified
must be
by
He therefore
alleged
has
a claim of exces-
the
Moreover,
circumstances....
sive force in violation of the Fourth
must
look at
the
of all
intrusiveness
Amendment under the
“objec-
of
standard
aspects of the
in
incident
the aggregate.
Briggs, 475
v.
guns
of
up the use
adding
In this
(1986)).
1092, L.Ed.2d 271
indeed,
length of
and,
the
and handcuffs
very substantial
detention,
a
shows
1995, and
occurred in
The conduct
securi-
personal
the Bakers’
of
invasion
guide.
must be our
that time
the law
ty-
discussion
foregoing
2159. As the
Id. at
alia, United
(citing, inter
Id. at
that a
reflects,
1989 the standard
up until
(9th
Vizo,
Cir.
Del
v.
States
on
to succeed
in order
had to meet
plaintiff
1990)).
very high.
claim was
an unreasonable
Terry
investigatory or
involving
In cases
had to “shock
conduct
officer’s
The
consistently applied
have
stops, we
Supreme Court
After
conscience.”
using
weapons
drawing
principle
“objective reason
to
the standard
lowered
is unreason-
restraints
or other
handcuffs
Graham,
federal
in
lower
ableness”
See,
Del
e.g.,
many situations.
in
able
it,
in
particularly
apply
to
struggled
courts
825; Washington
Vizo,
F.2d at
guns.
use of
officers’
with
connection
Cir.1996)
(9th
Lambert,
F.3d
respect
the law
development of
The
circumstances,
when
(“Under ordinary
us to
now allows
and detentions
to arrests
suspicion
only reasonable
have
police
point
principle
general
a
recognize as
weap-
drawing
stop,
investigatory
an
make
apparently
of an
to the head
ing
re-
and other
using handcuffs
ons
investigation
during an
suspect
unarmed
the Fourth Amend-
will violate
straints
Amend
a violation
can be
ment.”).
Fifth Circuit
agree with the
poses
the individual
ment,
where
especially
terrorizes
officer who
“[a]
Vizo, 918
Del
See
particular danger.
no
in
cocked
brandishing a
by
civilian
right
The contours of
F.2d at
may not cause
that civilian’s face
front
1995, however.
in
at all clear
were
certainly laid
has
injury, but he
physical
had cast substantial
own Fuller case
Our
1983 claim
for a
building blocks
section
this
the law of
in
question
doubt
Rivera, 143 F.3d
Petta v.
him.”
circuits
the other
circuit,
and the law
omitted)
Cir.1998) (citation
895, 905
dis
had
circuits
Some
also unclear.
original).
(emphasis
a show of force
tinguished between
alleged viola-
adequately
Robinson
training
force, holding that
use
actual
rights.
Amendment
tion of his Fourth
shooting,
arrestee, without
on an
Fifth
force.
not be excessive
could
Clearly
Law
Was
Whether
Terrell, 834
City
Hinojosa
Circuit
Established
(5th Cir.1988), made
1223, 1229-32
F.2d
sub
Fifth
Circuit
distinction.
such
are
the officers
To determine whether
Petta
Hinojosa, see
repudiated
sequently
a further trial
immunity from
entitled
Cir.
Rivera,
903-09
Katz,
must, after
liability, we
determine
incident
after
1998),
years
it did so
it would have
whether
additionally address
mean
case. In
present
in the
involved
that their
in 1995
to the officers
clear
been
adopted
circuits
Katz,
time, several other
was unlawful.
alleged conduct
*9
See,
v.
e.g., Collins
Hinojosa distinction.
put
did not
“If
law
121 S.Ct.
Cir.1989);
(6th
489, 497
F.2d
Nagle, 892
conduct
[their]
on notice that
officer[s]
190, 194
F.2d
May, 872
v.
judg Wilkins
summary
unlawful,
clearly
would
155,
Giles, 51 F.3d
Cir.1989);
Edwards
immunity
ap
is
qualified
based on
ment
Cir.1995).
Malley
(citing
at 2156-57
propriate.”
We therefore conclude that while the
employees
of its
under the doctrine of
facts,
light
in a
respondeat
taken
most favorable to the
superior to the same extent as
plaintiff,
private
would establish a violation of
employer.
Under subdivision
Amendment,
(b),
County
the law was not
if,
suffi-
liability
immune from
ciently
if,
immune.”)
only
established
this circuit in
employee]
[the
1995 to
(emphasis omitted);
qualified
override the officers’ claim
County
of
im-
White v.
of
munity.
Orange,
566, 570,
166 Cal.App.3d
Nor was it
established
other
212 Cal.
(1985) (“in
Rptr.
affirm
governmental
circuits.
therefore
We
the district
tort
cases, the rule is liability, immunity
court’s dismissal of the Fourth Amend-
is the
(citation
exception”)
qualified
quotation
ment claim on
and internal
immunity grounds.
omitted).
marks
State Law Claims
law,
California
county’s
Under
alleged
Robinson has
state law immunity depends upon
police
whether the
against
claims
both the individuals and the
officers are immune. Most of the state
county
arrest,
imprisonment,
for false
false
law claims arise from
allegation
battery,
assault and
negligence
gross
the individual
force,
officers used excessive
negligence. The
granted
district court
and California
immunity
denies
police
summary judgment on all of them because
officers who use excessive force in arrest
it held that
grants
California
immunity to ing a suspect.
Mary
See
M. City
Los
of
both the individual defendants and to the Angeles,
202, 215,
54 Cal.3d
285 Cal.Rptr.
county.
disagree,
as did the three- 99,
(1991) (“[A]
Los Cal.App.4th 139-40, We hold that Officers Cauwells and Cal.Rptr.2d (1994) (“Under Govern Faulkner were entitled to qualified immu- ment 815.2, (a), Code section nity subdivision on the federal excessive force claim the County is liable for acts and omissions because the Fourth Amendment gov- law *10 vastly expand, clearly realm. It will even trivial not estab- their conduct was erning ize, of force to the concerns about the use time of the incident. at the lished accomplish a seizure which drove the Su judgment as a grant of district court’s Garner, Tennessee v. preme that claim is therefore of law on matter 1694, 1700-01, 1, 9-12, 105 S.Ct. However, the district court AFFIRMED. (1985).1 L.Ed.2d summary judgment improperly granted claims, and the state-law tort Robinson’s The difference between a threat of force RE- upon person must be actual use of force on those claims and the judgment times, if slight rarely, it is can seem claims REMANDED. and the VERSED ever, distinguish difficult to between its own costs. party Each bear simply ancient distinction two. It is PART, REVERSED AFFIRMED IN battery. The latter between assault and PART, REMANDED. IN slight; how requires touching, no matter merely requires a threat. the former FERNANDEZ, Judge, with Circuit or Prosser3 on can consult Blackstone2 NELSON, T.G. whom RYMER and But we need proposition. that ineluctable join, concurring: Judges, Circuit go quite deeply not into the literature. I only. Although I concur in the result “[a]ny Black’s do as well. Assault is will qual- are agree that the officers entitled injury or to inflict attempt willful threat because, in my I immunity, ified do so another, person coupled when upon the view, excessive force. there was no use of ability apparent present an so ” simple. I do not My quite reason is Dictionary Black’s Law do.... ed.1979). points Battery applica- an officer who unlawful believe that is “the another....” person seizure tion of force to the making proper an otherwise while Id. at 139. can found to violated suspect of a have by using excessive
the Fourth Amendment
hoary
distinc-
should adhere to
suspect,
when no force
upon
in this area and refuse to find exces-
tion
applied.
Rob-
whatsoever
been
While
another when there
upon
use of force
sive
into a realm
like to lure us
inson would
not
has been
gun pointing, but there has
second-guess
must dissect and
where we
view,
my
In
when the
touching.4
been
an officer’s
every
instance of
each
proper the mere
seizure itself is otherwise
(or
person
pointing
weapon
of a
at another
use
force cannot be an excessive
threat of
so),
meaning
to do
of the Fourth
perhaps when he even threatens
of force
within
course, if
seizure
Of
that Amendment.5
grave
I
it is a
mistake to enter
believe
ed.1955).
Prosser,
(2d
Connor,
Law of Torts 34
S.Ct.
490 U.S.
Graham
(1989),
per-
does
devi-
Battery
unprivileged
use
of a whole
Similarly, in
Nagle,
Collins v.
unnecessary
improper
course of
con
Cir.1989),
rejected
the court
In
just
duct.
another
had
claim that an officer violated an individu-
appellant’s dog. They
point
slain the
then
rights
al’s Fourth Amendment
when he
appellant’s
ed a
head and pointed gun
at the individual. Id. at 497.
“
”
morgue.’
threatened to send him ‘to the
noted,
As the court
there is a vast differ-
Fuller, 36 F.3d at
Appellant
68.
wished to
ence
between
“show of force” and “the
complaint
allege
amend his
actual
expressed
use of force.” Id. It
con-
“
officers’ actions as
him
‘were not
second-guessing
cern about
an officer’s de-
objectively reasonable and constituted the
cision
gun,
opined
to draw a
use of excessive
resorting
may
violation
to second-guessing
well lead
Sunn,
Gaut v.
distinguished
7. The court
an earlier case
Cf.
1987)
curiam) (a
(per
Cir.
mere threat to do an
where it had found a Fourteenth Amendment
prohibited by
process
act
the Constitution was not a
substantive due
violation. Id. at 821—
wrong).
constitutional
*12
In
the Fourth Amendment when a seizure is
dangers to citizens. Id.
greater
to even
Fifth
relied on a
Circuit
I
doing,
proper,
disagree.9
the court
otherwise
That same
so
case,
that a
turned aside a claim
has, however,
which also
indicated “that
court
an
right was violated when
constitutional
pointing
gun
action of a
officer in
a
gun
a
at a citizen. See
pointed
officer
not,
itself,
person
at a
is
and of
action-
Terrell,
1223,
F.2d
City
v.
834
Hinojosa
May,
v.
872 F.2d
194
of
able.” Wilkins
Cir.1988).
(5th
There, too,
appel-
1230
(7th Cir.1989).
on,
Earlier
the court had
touched;
only intimi-
he was
lant was not
determined that when officers made an
noted, however,
Id. It should be
dated.
force,”10
“unnecessary display of
but
considering a
court was not
that
injury,
physical
bodily
caused no
or
claim; was, instead,
it
Amendment
Fourth
process
substantive due
demands of the
due
considering a Fourteenth Amendment
not violated.
Fourteenth Amendment were
claim. Id. at 1228-29.8
process
Gumz,
threat to use force violate the sus- Dean pect’s rights. Perhaps Wade, constitutional he Marcia E. on behalf of them- put gun. cannot even his hand on his similarly selves and all others situat- Hereafter, supposed officer is wait ed, Plaintiffs-Appellees, suspect danger- until he is sure that the *13 ous; attempt poten- he cannot to “abort a
tially Hinojosa, violent situation.” COLORADO, State of Defendant- Rather, F.2d at 1231. must he “wait until Appellant. the situation escalates further before drawing gun.” his Id. That is even true America, United States of Intervener. (the where, here, shooting as violence dogs shotgun, patrolling with No. 99-1045. neighborhood shotgun with that same Appeals, United States Court of one)
find preceded a wounded Tenth Circuit. officers’ suspect. encounter with the It is though true even it is admitted that the Aug. legal. seizure itself was otherwise Hence- forth, are ignoring we committed to the As Rehearing Amended on Denial of basic difference between the display mere En Rehearing Banc Oct. of force and the use of force I itself. fear vastly opportuni- we will increase the ties litigation against society’s front
line, heighten legal noise level officers, good which distracts who wish to protect rights everyone our soci-
ety. my colleagues, I
Like do not relish the unnecessarily idea officers point- ing guns personally, I find that to be — Nevertheless, unnerving. I do it not see as
the use of excessive I because do not read the serious commands of our Consti-
tution enacting all-purpose as code of
civility. give When we officers their dan-
gerous jobs, restraint; expect we can expect sangfroid.
cannot Thus, I respectfully concur the result only.11 disagree majority
11. I do not County on the automatically and the officers are state tort I opinion issue because read the as immune under state law. doing rejecting no more than the notion that