The Volokh Conspiracy
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From Judge James Browning's opinion yesterday in Rosales v. Bradshaw (D.N.M.), which held that the sheriff's deputy used unconstitutionally excessive force (though ultimately rules that the force wasn't clearly unreasonable, and thus the deputy is protected by qualified immunity):
[Mario] Rosales alleges that [David] Bradshaw used excessive force when Bradshaw: (i) followed Rosales home in an unmarked vehicle and blocked Rosales in his driveway; (ii) "yell[ed] and curs[ed] at … Rosales in a loud, threatening, and abusive manner"; (iii) "identified himself as Officer Bradshaw and threatened Rosales with a reckless driving citation"; (iv) drew his revolver and "point[ed] it at Rosales in a threatening manner"; and (iv) "purposefully raised his gun at Rosales in a manner that made him fear he was about to be shot by Bradshaw." Bradshaw argues that his actions were objectively reasonable, because Rosales had a visible gun in his pocket and walked down his driveway towards Bradshaw until Bradshaw drew his gun and told him to stop….
Bradshaw's actions … "inescapably involve the immediate threat of deadly force," and thus "should be predicated on at least a perceived risk of injury or danger to the officers or others." … "[T]he 'nature and quality'" of Bradshaw's "intrusion" on Rosales' Fourth Amendment protections "was quite severe," because Rosales had good reason to fear for his life when Bradshaw, who had followed him home in an unmarked vehicle and was not in uniform, pointed a revolver at him in a threatening manner.
Consistent with the Supreme Court in Graham v. Connor, the Tenth Circuit analyzes three factors to determine whether an officer's use of force is objectively reasonable: (i) the crime's severity; (ii) whether the suspect poses an immediate threat to the safety of the officers or of others; and (iii) whether the suspect actively is resisting arrest or is attempting to evade arrest by flight. The Court concludes that all three factors weigh against Bradshaw and that Bradshaw's decision to point a firearm at Rosales in a threatening manner is objectively unreasonable, because: (i) Rosales' alleged crime is only a petty misdemeanor; (ii) Rosales' initial approach towards Bradshaw's vehicle with a gun in his pocket did not pose a reasonable threat under the circumstances; and (iii) at no point was Rosales resisting or evading arrest….
The first factor, the severity of Rosales' crime—a petty misdemeanor—weighs heavily against the use of anything more than minimal force or any force at all. Bradshaw states that he followed Rosales to his home to give him a citation for reckless driving. Rosales alleges that he "decided to pass Bradshaw to which Bradshaw apparently took great offense" and he started making turns without using his turn signal after he realized Bradshaw was following him. As the Court has noted, officers may not use the same level of force "to arrest a submissive misdemeanant" as they "may use to apprehend a fleeing felon." …
The Tenth Circuit explains that "the second Graham factor, 'whether the suspect pose[s] an immediate threat to the safety of the officers or others,' … , is undoubtedly the 'most important' and fact intensive factor in determining the objective reasonableness of an officer's use of force." The Tenth Circuit uses a number of non-exclusive factors to evaluate a suspect's threat level, including: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." … The Court concludes these factors weigh heavily against the reasonableness of Bradshaw's perception that Rosales posed a threat under the second factor of Graham v. Connor….
Rosales did not fail to comply with Bradshaw's commands at any point during the incident…. Rosales made no hostile motions, because he kept his hands away from his firearm, and he did not touch his firearm until Bradshaw ordered him to put it in his vehicle…. The third factor—the distance separating the officers and the suspect—weighs slightly in Bradshaw's favor ….
Under the fourth factor—assessing the suspect's manifest intentions—Bradshaw contends that Rosales posed a reasonable threat of danger or violence to him, because he "emerge[d] from his vehicle with a weapon" and "approached Mr. Bradshaw's vehicle with a firearm." … The Court concludes that Rosales' intentions were not hostile; rather, "Rosales attempted to speak reasonably with Bradshaw"; "ke[pt] his hands clear of his firearm"; continued to "try to reason with [Bradshaw]"; and "walked a little closer to … Bradshaw's truck in an attempt to talk in a normal tone of voice." Rosales also deliberately "explained … that New Mexico is an open carry state and he simply was exercising his rights and that he was on his own private property," and "remain[ed] in his driveway." Rosales stayed calm throughout the encounter even though Bradshaw dramatically escalated the situation by "purposefully rais[ing] his gun at Rosales in a manner that made him fear he was about to be shot by Bradshaw" …. Further, Bradshaw should not have been "surprise[d]" that Rosales decided to arm himself, after an unmarked car followed him home and blocked him in his driveway.
Bradshaw's first indication that Rosales was not treating the incident like a normal traffic stop, but rather was evading an unknown pursuer in fear, was after "Bradshaw began to follow Rosales," and "Rosales … made a series of turns without using his turn signal to determine if Bradshaw was following him." When Rosales put his gun in his pants pocket and exited his vehicle, it was still in the context of an unknown, unofficial pursuer. If the Court views the evidence in the light most favorable to Rosales, Rosales acted cautiously and reasonably, and not hostilely, and his intentions were to learn why an unidentified and aggressive person had followed him home, and blocked his driveway. The Court concludes, therefore, that the fourth factor weighs heavily against Bradshaw….
When evaluating the second Graham v. Connor factor, the Tenth Circuit also considers … the degree to which an officer's conduct leading to the use of force that provoked a suspect's defensive actions and thus created the need to use force.
Here, in response to only a suspected misdemeanor traffic violation, Bradshaw: (i) while off-duty; (ii) in an unmarked personal vehicle; (iii) and not in uniform; (iv) followed Rosales; (v)even after "Rosales … made a series of turns without using his tum signal to determine if Bradshaw was following him"; (vi) blocked Rosales in his driveway with his vehicle; and (vii) when Rosales exited his vehicle, "Bradshaw immediately started yelling and cursing at … Rosales in a loud, threatening, and abusive manner." Bradshaw's "prior conduct … is 'immediately connected' to" Rosales taking precautions against an unknown pursuer who followed him home, because, right after Bradshaw blocked Rosales' exit from his driveway, "Rosales became afraid to exit his vehicle and before he did so, he grabbed his handgun from his car and tucked the barrel of his handgun in his pants pocket leaving the handle of the gun visible and openly displayed."
Next, after Rosales' exited his vehicle, "Bradshaw immediately started yelling and cursing at … Rosales in a loud, threatening, and abusive manner," without identifying himself as an officer. Then, when "Rosales attempted to speak reasonably with Bradshaw[,] … Bradshaw continued to yell at Rosales in an angry and threatening manner." By escalating the conflict, Bradshaw again disregarded a substantial risk that Rosales could respond in kind. Bradshaw's conduct therefore led Rosales to then "walk a little closer to … Bradshaw's truck in an attempt to talk in a normal tone of voice." The Court concludes, therefore, that, even if Rosales' actions posed a reasonable threat to Bradshaw, the second Graham v. Connor factor still would weigh against Bradshaw, because his own conduct prompted Rosales to put his firearm in his pocket and walk down his driveway….
Under the third Graham v. Connor factor, the Court considers the extent to which Rosales was resisting or evading arrest. The Court concludes that Rosales neither was "actively resisting arrest" nor was "attempting to evade arrest by flight"; rather Rosales stayed calm, remained in his driveway, and, after Bradshaw identified himself as an officer, complied with Bradshaw's commands….