[Photo Credit: Alan Diaz, Pulitzer winner, for the AP (2000)]
Merriam-Webster (online): “at gunpoint – under a threat of death by being shot.”
Executive Summary: Why are guns pointed at people? On occasion, to shoot them. More often, to compel compliance with the gun pointer’s command (to cease unlawful or threatening activity and/or to initiate directed activity). Gunpoint command/compliance as a “technique” or “tactic” is frequently unsuitable, as a failure to comply (mere flight included) ought not be responded to with the use of deadly force. [Because the MAY and SHOULD (elements of my deadly force paradigm — see related links below) are not satisfied]. For LEOs sued for “excessive force,” the propriety of gun-pointing will increasingly be a jury question. For the non-sworn, gun-pointing is strongly disfavored even when lawful, as it requires significant training, skill, and discipline..
Recent incidents of gun-pointing revived one of my long-held (about 15 years) firearm related observations: Guns are pointed at people way more than they need to or should be pointed — by LEOs and the non-sworn. (For a related MSW post, click: “CONSIDERATIONS FOR THE NON-SWORN : HOLDING SOMEONE AT GUNPOINT.” I touched on the subject for LEOs as well, click: “THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS.” For my thoughts on gun fighting and shooting people (who need to be shot), click: “A SHORT ESSAY : WINNING IS EVERYTHING . . . AND THE ONLY THING,” and “MAY/MUST QUESTIONS ANSWERED CORRECTLY. . .SHOOT FIRST, LIVE”).
Gun-pointing too often engenders a “bad” result. Many of the recent examples which prompted this post clearly involve questionable gun-pointing. As reported, with photos or videos, they include where gun-pointing:
- an LEO or others in public, even if only a “toy” gun, may get you shot. If you are extraordinarily lucky, just arrested. [HERE and HERE and HERE and HERE and HERE and HERE]
- without legal justification (by LEO or non-sworn); can get you prosecuted. [HERE and HERE and HERE]
- without legal justification (by LEO or non-sworn); can result in civil lawsuit/liability under federal/state law. [HERE and HERE and HERE and HERE and HERE and HERE]; suit against the non-sworn can result in an award of damages. [HERE].
- exponentially highlights/complicates an unintended discharge. [HERE and HERE and HERE]
- results in a narrative, photo, or video going internet/media viral which will likely provoke undesired career/social consequences, irrespective of lawsuit or prosecution. [HERE and HERE and HERE and HERE and HERE and HERE and HERE and HERE]
- by a non-sworn in error or when a questionable decision, but lawful, may get a pass from the criminal justice system. Or get one shot by responding LEOs. [HERE and HERE and HERE]
After more than 25 years of studying gun-related subjects and use of force incidents/reports, observing LEOs train and work, and my own gun-toting and shooting, I don’t think I could be convinced that all “ready,” “guard,” “challenge,” or “relaxed” presentation positions (finger off trigger), are meaningfully slower to get on target, or less likely to produce a timely, accurate first shot than actual gunpoint. In fact, I have a nagging thought that focused gun-pointing actually engenders mindset and sensory deficiencies. I am convinced that having more on the CAN (mindset, equipment, skill), diminishes the “need” to go to gunpoint. For command/compliance purposes, I think gripping a holstered handgun or an unholstered handgun presented to a distinct (circumstances dependent) non-gunpoint position is to be preferred in most instances. Of course, retention and movement skills are must-haves whenever a firearm is unholstered or unslung. Several of the above linked examples confirm the absolute necessity for trigger finger discipline whenever at gunpoint.
Some general legal propositions — as always, check your state statutes and cases, together with jury instructions derived therefrom, but note, different principles may apply to LEOs and the non-sworn. So, legally speaking, what is gun-pointing? A threat to use deadly force; it may be considered the actual use of non-deadly force. If not legally justified, an armed or deadly weapon assault, and/or a lesser “endangerment,” “reckless display,” “brandishing,” or specific gun-pointing crime (misdemeanor or felony). If other criminal conduct elements are present, possibly a prima facie false arrest/imprisonment, kidnapping, or armed robbery. If by an LEO, gun-pointing is likely a Fourth Amendment “seizure,” invoking civil liability concerns for use of “excessive force.” Because gun-pointing is a defined “thing” even absent negligence or criminal intent, a WML should not be used for administrative tasks, to conduct a generalized search, as a pointer, or for non-target illumination. Threatening someone at gunpoint may be privileged under state law when in defense of self and/or others, to make a lawful “arrest,” prevent criminal escape or effect recapture, or to stop the imminent or in-progress commission of specified crimes. (One’s “reasonable belief” of the propriety or necessity to gunpoint and correct legal assessment of the situation may matter). The precise elements to find lawful justification may or may not be set out in state statutes. There may or may not be (by statute or case law) a legal difference between threats by actual gun-pointing and non-gunpoint display. For some examples of express gun-pointing and related statutes, including both misdemeanor and felony, see: Georgia Code §16-11-102; Arizona Revised Statutes, §§13-1201,13-1202,13-411,13-421; South Carolina Code of Laws, §16-23-410; Nevada Revised Statutes §202.290; Florida Statutes §§776.012, 790.10; Wisconsin Statutes §941.20(1)(c); Vermont Statutes §4011; New York Penal Code §265.35(3); Oregon Revised Statutes §166.190; Oklahoma Statutes §§21-1279, 21-1289.16; Texas Penal Code §22.05. A statute may by express language criminalize/permit the threatening of deadly force.
LEOs routinely gunpoint in unknown risk interactions, out of concern for “officer safety.” The decision to gunpoint someone is left to individual LEO discretion, receiving thereafter, the legal/procedural/tactics review which arises from a self-generated or supervisor’s use of force report. (Civilian review may be part of the process). Court decisions on “excessive force” recognize there is no precise formula for, nor can there be mechanical application of, a one size fits all rule for LEO discretion. The decision process is to balance the nature and quality of the Fourth Amendment intrusion against the countervailing governmental interests. Considerations which will apply to gunpoint include the severity of crime, immediacy of any threat, age of subject, whether a subject has complied with verbal commands or is actively resisting or fleeing, and whether the subject is known or suspected to own weapons, be armed, or to have been carrying a weapon immediately prior to contact. The time a subject is held at gunpoint matters, as does disparity of numbers (going both ways) and whether innocents are in immediate risk of harm.
My lawyer’s take — in purely “investigatory stops,” when there is no known or reasonably suspected weapon on hand, or recent serious crime, or articulable circumstances of real danger, gunpoint will be strongly disfavored. Unnecessarily close and head gunpoints are generally disfavored. Baseline reading for LEOs (general principles and search warrant execution) is Baird v. Renbarger (HERE) and cases mentioned therein. For Terry based interactions, a later case (Stiegel v. Collins, HERE) is instructive and includes an overview of federal appellate case law to 2014. If you are wondering if there is a universal “manhunt” or “checkpoint” exception which relaxes gunpoint analysis; there isn’t. (HERE and HERE)
I try not to second-guess a gunpoint SHOULD decision made in good faith, following good training, which is arguably within the law. For LEOs, I readily acknowledge some leeway is appropriate in “tense, uncertain and rapidly evolving and dangerous circumstances.” But, the old rule — never point a gun at anything you are not “prepared to kill or destroy” — remains a worthy guidepost for LEOs and the non-sworn. “Street” experience certainly aids in making a good gunpoint decision. For sure, there are situations when gripping a holstered handgun or drawing to a position other than gunpoint will pass the MAY and SHOULD, but actual gun-pointing will not.
A common incident involving the non-sworn which invokes consideration of the SHOULD: Defense of real property generally allows one to expel a trespasser by the use of non-deadly force. Threatening deadly force by gun-pointing may be lawful. However, I think the SHOULD will not be met in such circumstances without consideration of the above noted factors used by courts when reviewing LEO gun-pointing. The same is true for a non-sworn effecting a common law or statute approved “arrest” or intervening in a crime. The MAY will likely allow for gunpoint in such circumstances. But the SHOULD deserves consideration of the LEO factors. See an example, HERE.
Some full-time trainers I respect urge: Never gunpoint someone you will not actually shoot when your gunpoint plus verbal challenge falls on deaf ears. I think that is good advice for all. It is not, however, how LEOs are trained, nor how they think about surviving the extraordinarily mean streets of the 21st century’s second decade.
Lessons Learned: Spend some time reviewing the linked stories (above, in bullet points) and analyze in your own context the pros and cons of each gunpoint incident. For another recent (2014) federal case with instructive discussion on LEO gun-pointing, see Green v. City and County of San Francisco, et al. (HERE).
Hat tip: The best on screen gun-pointer of all time. I was going to use this picture instead of the one above, but I decided his numerous movie gunpoints could not easily be criticized:
Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.