Brandishing. Why are some people allowed, and others aren't?

[ATM]

OP starts thread and 4 days later still hasn't returned... me smells a troll.

You smells the remnants of dinner in your mustache

...rbhargan is OK.

 

[VUPDblue]

Bill, for clarification purposes, the use of force continuum is obsolete and has been replaced with the reasonableness standard a la Graham V. Connor.

 

[Bill of Rights]

Bill, for clarification purposes, the use of force continuum is obsolete and has been replaced with the reasonableness standard a la Graham V. Connor.

Thanks, VUPD, I appreciate the info. That also answers one of the questions I asked Denny.

 

[Denny347]

Thank you for posting the relevant SCOTUS case. I read the wiki on it as "cliff notes" into the holdings of the case, and I think I get it. What was the standard prior to 1989? the 14A? 8A?

I don't think there was a single standard. However, I will have to admit that this decision predates my entry into law enforcement by 8 years so I'm not as familiar as I am in other areas.

I also think I understand that this means that if reasonableness is not established under Graham, the officer would be equally liable for his actions as would Cathy or I or anyone else. Please correct if I'm mistaken.
To be unreasonable, the officer must be shown to have violated a specific right, such as entering Cathy's property unbidden and without legitimate cause (Whether or not she was OCing or had a license, she has a right to do so that is not within his purview to question, more especially so in that location.) Further, there would need to be some other cause to enter, such as, for example, she was not simply carrying, but had been taking potshots at moles or groundhogs or the like. (I am not saying Cathy did this, only making an example to illustrate a possible mitigating factor for the officer's actions.) And lastly, the officer's actions would have to be shown to not be simply because he did not personally approve of OC, but that he was maintaining the public peace. He may have his opinion on OC, but not while he is on the public clock.

Maybe this answers it better than I can.
https://www.google.com/url?sa=t&rct...qLgrAH&usg=AFQjCNHdcJTBdRzzLhf8JD7AeFhXKh2SZQ

But one field that has produced enough appellate litigation to achieve a modicum of clarity in the scope of the immunity doctrine is excessive force. In the context of an excessive force case, liability generally depends on the well-established objective reasonableness test established in Graham v. Connor (1989) 490 U.S. 386. But the qualified immunity doctrine protects the individual officer from liability unless the victim can also show that the officer acted in subjective bad faith. This dual burden of proof on an individual claiming excessive force was clarified by the United States Supreme Court in Saucier v. Katz (2001) 533 U.S. 194. Recently, the Supreme Court rendered a broad interpretation of the immunity for excessive force under borderline circumstances in Brosseau v. Haugen (2004) 543 U.S. 194...

The Court recognized that an officer who passed the Graham test of course was free of liability and obviously did not also need to meet a test for qualified immunity. But if the officer fails the Graham test, the facts must still be put through a further test for qualified immunity because the officer may still be relieved of liability if the conduct did not violate the suspect’s clearly established constitutional right, which is an inquiry that is not fully built into the Graham test.

Specifically, the Graham test protects an officer who makes a reasonable mistake of fact. For example, an officer who uses force because he reasonably expected a suspect to fight back would generally be protected from liability even if it turns out the suspect did not have any such intention. Id. at 205. But the qualified immunity test contains “a further dimension” that is not in the Graham test, which protects an officer from a reasonable mistake of law. Id.

In other words, the qualified immunity test protects an officer who reasonably but mistakenly believes a use of a certain degree of force is not condemned by clearly established law. As stated in the opinion, “An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” Id.

Quoting this as I don't want it to drop and be unanswered. Not rushing you, Denny, I'm sure you've had other things going on and haven't had time yet.

 

[rugertoter]

Too many variables and possibilities to answer this question.

 

[rbhargan]

I don't think that there is a simple solution, it is just an interesting dichotomy. Think of the "Good Samaritan" rule. Actions which would place an experience EMT at risk of a civil suit (pulling an injured person out of a vehicle without first ensuring that they were protected from possible spinal injury) are excused in a citizen who is simply doing what they *think* is appropriate (extracting an accident victim from a burning vehicle). When it comes to firearms, it is the "trained/experienced" public servant who is given leeway, while the man on the street is held to a higher standard. I just find it interesting.

 

[Denny347]

Thank you for posting the relevant SCOTUS case. I read the wiki on it as "cliff notes" into the holdings of the case, and I think I get it. What was the standard prior to 1989? the 14A? 8A?

I also think I understand that this means that if reasonableness is not established under Graham, the officer would be equally liable for his actions as would Cathy or I or anyone else. Please correct if I'm mistaken.

To be unreasonable, the officer must be shown to have violated a specific right, such as entering Cathy's property unbidden and without legitimate cause (Whether or not she was OCing or had a license, she has a right to do so that is not within his purview to question, more especially so in that location.) Further, there would need to be some other cause to enter, such as, for example, she was not simply carrying, but had been taking potshots at moles or groundhogs or the like. (I am not saying Cathy did this, only making an example to illustrate a possible mitigating factor for the officer's actions.) And lastly, the officer's actions would have to be shown to not be simply because he did not personally approve of OC, but that he was maintaining the public peace. He may have his opinion on OC, but not while he is on the public clock.

Relevant quote from Wiki below:

I don't think that there is a simple solution, it is just an interesting dichotomy. Think of the "Good Samaritan" rule. Actions which would place an experience EMT at risk of a civil suit (pulling an injured person out of a vehicle without first ensuring that they were protected from possible spinal injury) are excused in a citizen who is simply doing what they *think* is appropriate (extracting an accident victim from a burning vehicle). When it comes to firearms, it is the "trained/experienced" public servant who is given leeway, while the man on the street is held to a higher standard. I just find it interesting.

How so? In Indiana you have the pointing the firearm law that citizens are governed by. In my 18 years of LE I have never seen a victim charged with pointing a firearm. I have never seen a good samaritan charged either. I have charged lots of criminals with it. When I pull my handgun, rather than look to a clear law (pointing a firearm, it is rather cut and dry) we have to look at the case law and USSC decisions to determine legality, far from clear cut and often open to interpretation. Add to that is the frequency of this occurring. I have to point my firearm at people on a nearly daily basis, so the odds of making a mistake go up. A non-LEO having to point their handgun at someone is quite rare.

 

[rbhargan]

Interesting points, Denny. I am not sure how much of this is perception, shaped by media reporting, and how much is reality. It is also dependant on location. Drawing a firearm in self defense in Indiana may be far less likely to bring down the wrath of the authorities than it would in, say, San Francisco.

But getting back to my point, I can't help but wonder how many people are actually fearful of defending themselves because of potential legal liabilities, both criminal and civil? It seems that, as a society, we are discouraging people from defending themselves and the people around them.

 

[pitbulld45]

I have been a LEO since 1998 and have arrested one person on the misdemeanor. He was the drunk aggressor. I have seen people who feared for their lives pull guns, most justified a few scared over nothing. None were arrested even the one maybe two that were scared over nothing. Why? Because I believed they were really in fear for their and or others lives.

 

[rbhargan]

And that is how most people hope LEO's (and DA's) will conduct themselves. Kudos to you.

 

[Denny347]

I remember about 10 years ago, a gas station was robbed. The suspect ran out and a good Samaritan proceeded to pistol whip him with a 1911 .45 until we showed up. Was it overboard? I dono, maybe if we dissected his actions enough we would have found something. However, we got his info as a witness for the report and shook his hand for doing a good deed. We weren't going to jam him up. We appreciate citizens getting involved when they don't have to and give them a wide berth to do so. There is no an officer I work with who would jam a witness or a victim up for trying to do the right think and protecting themselves or someone else (within reason of course).

 

[Kirk Freeman]

I remember about 10 years ago, a gas station was robbed. The suspect ran out and a good Samaritan proceeded to pistol whip him with a 1911 .45 until we showed up.

Pistol whipping robber with a 1911?

Going out on a limb and say westside of Indy?

 

[Denny347]

Pistol whipping robber with a 1911?

Going out on a limb and say westside of Indy?

East.

 

[HoughMade]

Pistol whipping robber with a 1911?

Going out on a limb and say westside of Indy?

According to what I saw on TV in the '70s, a pistol whip is only properly performed with a 1911 or a J-frame S&W....and then works similarly to the Vulcan nerve pinch, rendering the pistol whippee instantly unconscious, leaving no sequellae other than a headache.

 

[68_F100]

Pistol whip?

[video=youtube;MFZG8KQJni8]https://www.youtube.com/watch?v=MFZG8KQJni8[/video]

 

[Denny347]

Pistol whip?

[video=youtube;MFZG8KQJni8]https://www.youtube.com/watch?v=MFZG8KQJni8[/video]

What? Beat the suspect in the head with the butt of the 1911 he showed me. Am I missing something?

 

[TaunTaun]

SHENANIGANS!!!