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4/10/2015 Volume 21 Issue 1
In this Issue
Message From the Chair
Message From the Program Chair
Joint Message From the Community Co­Chairs:
Use Our Community
Can There Be Excessive Force without Physical
Contact?
Asserting Qualified Immunity for Private Party
Defendants After Filarsky v. Delia
Free Speech Rights and the Public Sector
Workplace: A Primer for Public Employers
The Constitutionality of Surveillance in the Modern
Age
Second Circuit Cases of Note
Sixth Circuit Cases of Note
Seventh Circuit Cases of Note
Seventh Circuit Cases of Note
Eighth Circuit Cases of Note
Ninth Circuit Cases of Note
Thomson Reuters Expert Witness Services
expands your network to make researching and
connecting with qualified expert witnesses easy
and cost effective.
Can There Be Excessive Force without Physical Contact?
by Dale Conder, Jr.
A seizure occurs whenever a police officer interferes with an
individual’s freedom to walk away. Terry v. Ohio, 392 U.S. 1, 16
(1968). And this can be done without physical contact. See, e.g.,
Cortez v. McCauley, 478 F.3d 1108, 1131 (10th Cir. 2007) (citing
Martin v. Cnty. of Pueblo, 909 F.2d 402, 406 (10th Cir. 1990)). The
test is whether the officer acted reasonably under the
circumstances in seizing the individual. Graham v. Connor, 490
U.S. 386, 394­95 (1989); see Cortez v. McCauley, 478 F.3d at 1131 (“Physical
contact is not required for an excessive force claim—patently unreasonable
conduct is.”). The objective analysis takes into consideration “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
Although in some cases the display of a weapon is sufficient to support a claim
of excessive force (see Baird v. Renbarger, 576 F.3d 340 (7th Cir. 2009)), that is
not always the case. It depends on the circumstances confronting the officer.
In United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993), the officers executed a
search warrant on property where they knew guns had been found. The
property was in a rural area and “set back from the road.” When Perdue drove
up to the property, the officers—with weapons drawn—ordered Perdue out of
the car and made him lie down on the ground. The court held this was
reasonable because the circumstances gave the officers reason to be
concerned about their safety. Id. at 1463­64.
Similarly, in Collins v. Nagle, 892 F.2d 489 (6th Cir. 1989), the officers were
arresting two persons when a third person arrived on the scene. Id. at 497. One
of the officers pointed his weapon at the third person because the officer was
unsure of his intentions. Id. The court concluded that under the circumstances
the officer’s pointing his weapon was not unreasonable. Id. Similarly, in Mejia v.
City of Sacramento, 177 Fed. Appx. 661 (9th Cir. 2006), the court held that
handcuffing and pointing weapons at a resident while searching the house for a
probationer with a record for violence was not unreasonable.
In Wright v. Depew, 2010 WL 2594398 (E.D. Tenn.), the officers ordered the
plaintiff out of his car while pointing their weapons at the plaintiff. The plaintiff’s
driving caused one of the officers to believe that the plaintiff might be driving
under the influence of drugs or alcohol. (As it turned out, the erratic driving was
caused by a container of Catawba worms spilling in the cab of his truck.) The
plaintiff, however, had told the officers he did not have a gun, but as he reached
for his registration one of the officers saw a gun in the truck. So, the court held
that the Graham factors weighed in favor of the officers drawing their weapons.
The court also concluded that one officer’s cursing and threatening to blow the
plaintiff’s brains out did not constitute excessive force. Although unprofessional,
the court held that “plaintiff’s ‘asserted fear from [threats] . . . is not an actual
infringement of a constitutional right . . . .’” Id. at *5.
But drawing a weapon is not always reasonable. In Davis v. Bergeron, 1999 WL
591448 (6th Cir.), a plainclothes detective had checked the women’s restroom
in a bar. When she came out, she saw Davis trying to enter the men’s restroom.
Without any reason to suspect Davis of anything, she drew her weapon and
ordered him to lie down. Davis objected because he didn’t want to get his white
shirt dirty by lying down on the floor outside the restroom. The officer charged

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R. Jeffrey Lowe
Kightlinger & Gray
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Vice Chair
Casey C. Stansbury
Fowler Bell PLLC
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Udall Law Firm
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Yoder Ainlay Ulmer &
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Davis with disorderly conduct, and he later sued claiming her drawing of her
weapon was excessive force. The Sixth Circuit agreed because the officer had
no reasonable basis for drawing her weapon and ordering Davis to the floor. In
reaching this conclusion, the Sixth Circuit relied on Martin v. Cnty. of Pueblo for
the proposition that “‘[p]hysical contact is . . . not required to demonstrate the
unreasonableness of the force used’” in seizing a person. Id. at *5.
In Baird, the officers were executing a search warrant based on the alteration of
a VIN. The officers had no indication that anyone at the location was armed or
dangerous. During the search, there was no indication that anyone presented a
threat to the officers; but Renbarger decided “to wield a 9­millimeter submachine
gun, which he used to detain various people at the search site.” Once the
officers determined that the VIN had not been altered, they left.
The individuals detained by Renberger filed suit, alleging their seizure was
unreasonable. Based on the Graham factors, the Seventh Circuit affirmed the
district court’s denial of qualified immunity. There simply was no objective basis
to justify Renberger’s use of his weapon to detain these individuals. The crime
at issue was not a violent crime, the individuals did not pose a threat, and the
individuals were not resisting the search. The result could have been different if
Renberger had a reasonable basis for concluding there was a threat. For
example, if the officers knew that one of the suspects possessed a weapon or if
they had been searching for weapons, Renberger’s behavior might have been
found to be reasonable. See Los Angeles Cnty., Cal. v. Rettele, 550 U.S. 609
(2007); Muehler v. Mena, 544 U.S. 93 (2005).
Even when officers are justified in drawing their weapons, they cannot continue
to point a weapon at a person who is not a threat and who is not the person for
whom they are looking. In Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir.
2000), the officers executed a search warrant based on information that a 30­
year­old male was selling cocaine base out of one of the apartments. While 60­
year­old Jacobs was convalescing in his apartment following surgery, the
officers kicked in the door and held a gun to Jacobs’ head. They continued to
hold a gun to Jacobs’ head even after realizing that he was not the 30­year­old
suspect they sought. This was an unreasonable seizure.
Conclusion
Physical contact is not a prerequisite for pursuing an excessive force claim. The
question is whether the officer acted reasonably in seizing the individual. If the
circumstances justified the officer’s conduct, then the seizure was reasonable.
But if the circumstances did not justify the officer’s conduct, the officer might be
liable for an excessive force claim even if there was no physical contact.
Dale Conder, Jr., is a member of the law firm Rainey, Kizer, Reviere & Bell,
P.L.C., with offices in Memphis and Jackson, Tennessee. He practices in the
areas of employment law, defense of municipalities and their employees,
particularly police officers in § 1983 litigation. Mr. Conder has published and
lectured in the areas of trial practice, civil procedure, and civil rights litigation. He
is a member of DRI­The Voice of the Defense Bar and the Tennessee Defense
Lawyers Association. You can reach him at dconder@raineykizer.com.
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