This article was published by the International Association of Law Enforcement Firearms Instructors in their magazine, "The Firearms Instructor," Issue 54. Please note: revisions to this blog article have been made to reflect changes in the case law that was in force at the time of the original writing.
Police officers have been armed with firearms almost since the inception of law enforcement in the US. Since equipping officers with handguns, shotguns, submachineguns, and rifles, officers have pointed those weapons at suspects whom those officers believed to be a reasonable threat. It is inarguable that many shootings have been prevented as a result. Is that practice of pointing handguns at suspects without the present intent to immediately shoot wrong?
In the last few years, some well-known gun writers and police trainers have been urging officers, agencies, and law enforcement in general, to consider that unless the officer immediately fires, the pointing of a firearm at a suspect is a “violation” of safety rules. Pointing a gun, according to them, is therefore an inappropriate, unreasonable tactic. What is the basis of their beliefs? Range Safety Rule Number 2: “Never let the muzzle cover anything you are not willing to destroy.” This new idea will be referred as the “Rule 2 Negligence Standard.”
One trainer wrote that “while not a violation of law,” pointing a gun at a suspect and not shooting is a violation of the safety rules of gunhandling and should subject the officer to discipline by his agency. This action should be considered as “causing” the officer and agency to be civilly liable.
It is important to understand why these well-intentioned individuals are mistaken in their beliefs, and how to argue against the inevitable accusations by plaintiffs and the media (as well as those in your own agency) who will take up the chorus in claiming that any pointing of a firearm at a suspect without firing it is a violation that should be subject to sanction and/or judgment. These people are, in effect, attempting to create a new negligence standard for American law enforcement—one which is unnecessary and impractical.
As law enforcement trainers, there really are consequences to everything we do and say—often resulting in life-or-death. If this misunderstanding of range rules in the street is permitted to grow and become “normalized” as part of training, the courts will sooner or later incorporate it into their understanding of “proper” police work and prevent any officer from muzzling someone without shooting. From that moment on, any officer who points his or her weapon at a suspect and fails to fire will likely be guilty of excessive force. The result? More officers hesitating to draw guns, and more police shootings with suspects who thought they could beat the cop to the draw. More suspects will be shot with a corresponding drastic increase in liability exposure. And more officers are going to be shot down.
When addressing an issue with a “new interpretation” of an existing concept, care must be taken to extrapolate the possible consequences. While well-intentioned, this concept has not been well thought out. The old adage applies—be careful what you wish for, you may get it.
Bottom line: When an officer has a reasonable belief that a suspect or situation might be dangerous or threatening, he or she may presently point a firearm at a suspect in order to ensure their safety. It is lawful to do so. And it is NOT in any way a safety violation of “range” safety rules to point a gun at a suspect(s) who may be armed, violent, or outnumber officers.
Tactical Reminder: As I pointed out in an article entitled, “The Proper Weapon Hold on a Suspect” (The Police Marksman, November/December 1993), the proper method of holding a suspect at gunpoint is to keep the weapon pointed at the suspect’s waistband. This permits observation of the suspect’s waistband and hands, allowing the officer to see threat cues, predatory positioning, and aggressive movement while still “on-target.”
POINTING A GUN CAN BE EXCESSIVE FORCE
An officer can now be subject to discipline and liability by pointing his weapon at an individual or group when the officer is unable to articulate the threat he or she felt existed at the time. In the federal court's denial for a motion for summary judgment, the court stated that pointing a firearm (in this case, a submachinegun) at a subject is “excessive force” when there is no legal reason to do so is Baird v. Renbarger (7th Cir., 576 F.3d 346, January, 2010). From the facts of the case it would be apparent to any reasonable officer that pointing a firearm at a person in this situation might be unreasonable:
An officer who was verifying a VIN during a visit to an auto shop believed the VIN had been tampered with.
Returning the next day with a search warrant, the officer pointed a subgun at the occupants of the business, and forced them at gunpoint to sit on the floor together.
The officer then detained the occupants of adjacent shops at gunpoint, including a group of Amish men, requiring them to sit with the others who were detained.
The federal district court determined that it was “objectively unreasonable” in these circumstances to aim a submachinegun at wholly compliant and non-threatening subjects. The 7th Circuit Court of Appeals used the major factors within the totality of the facts known to the officer at the time of Graham v. Connor (1989):
The severity of the crime at issue: The crime of altering a VIN is one that is not associated with violence. The court remarked, “…this is a far cry from crimes that contain the use of force as an element, crimes involving the possession of illegal weapons, or drug crimes, all of which are associated with violence.”
The threat of the subject to officers or others: This officer had been to the auto shop the day before, but articulated no belief that the occupants were threatening in any way. On the day of the warrant service, all immediately complied with his and other officers’ orders.
The active resistance or attempt to flee: None of the detained subjects resisted at all or attempted to escape.
Other courts have weighed in on this subject, ruling that an officer pointing a gun at a suspect absent indications of threat is excessive force, including the 9th Circuit in Robinson v. County of Solano (2002) and 3rd Circuit in Baker v. Monroe Township (2005). Some of the facts in these and other cases leading to a finding of excessive force or summary judgment motion(s) are:
While investigating a crime of illegally shooting dogs, officers pointed a gun at a handcuffed, searched prisoner for an extended period of time.
Detaining an infant/child/children at gunpoint.
Pointing a gun at the head of an elderly man after he had been handcuffed.
Generally it is not justified to point any firearm at a compliant individual when the circumstances are not threatening. Even if the circumstances were threatening a few moments ago, as soon as that changes, officers must reflect those changes in their behavior and stop pointing guns at compliant or restrained people.
Bottom line: Point a firearm at a person only when you can articulate your reasonable perception of danger this person poses to you or others, whether it is through their acts or their connection to the dangerous circumstances in which you find yourself. Failing to be able to explain why you needed to point your weapon at someone can create huge problems for you.
Note: After the submission of this article, the juries in Baird and in Robinson decided in favor of the officers, their verdicts were that there was no excessive force in these cases. That said, the federal circuits are weighing in, and officers should take note that pointing firearms at a person whom the officer does not reasonably perceive as threatening is considered to be excessive force.
THE COURTS SUPPORT OFFICERS POINTING GUNS AT PEOPLE WHEN JUSTIFIED
The US Supreme Court has always held that it is permissible for the police to point guns at people suspected of violent or weapon-related crimes. This includes those who are suspected of a non-violent crime but who are known to have carried weapons in the past. Federal Circuit Courts and Courts of Appeal routinely have ruled that officers may hold people at gunpoint when the circumstances reasonably create the fear of violence. Even the 9th Circuit in Duran v. City of Maywood (2002) stated that two officers moving toward the location of a shots-fired call with their handguns drawn did not increase the likelihood of a shooting.
When an officer reasonably believes the circumstances could be possibly threatening or violent, especially those involving drugs, weapons, or violent individuals, the drawing and pointing of a weapon is wholly permitted.
TOOLS OF INTIMIDATION?
Proponents of this “Rule 2 Negligence Standard” argue that the police firearm is not intended to be “tool of intimidation.” I would argue that every police tool, from “command presence” to OC Spray, the Taser, baton, Police Service Dog, and every firearm is a tool of intimidation. The very presence of a police officer who is confronting a criminal suspect is inherently intimidating. The uniform, bearing, and the weapons the officer carries are designed to be so.
The US Supreme Court in Graham supports this concept of intimidation of suspects, stating, “The right to make an arrest or investigatory stop necessarily carries with it the right to use some form of physical coercion or threat thereof to effect it” (emphasis added). The Court recognizes that intimidation is part of law enforcement. It is hard to argue that there is a higher level of intimidation other than directing a muzzle directly at a person and telling them to stop their behavior or they will be shot. The realization of their mortal vulnerability as well as the officers’ intent causes most suspects to comply to avert a shooting.
VIOLATING “RANGE RULES”?
There can be little question that a firearm is a dangerous tool. It is designed and intended to harm a living being in defense of life (or hunting for meat). Its carry and display must be regulated and training imposed upon officers in order to reasonably minimize the chance for tragedy by preventing unintentional discharges.
Range rules were developed through hard won wisdom. A moment’s inattention or distraction and someone is needlessly injured or killed. As the range rules have been promulgated and enforced, injuries from firearms accidents have steadily decreased. Firing ranges are generally safe places to be as a result.
The National Rifle Association’s “Gun Safety Rules” include only three parts: 1. Always keep the gun pointed in a safe direction; 2. Always keep your finger off the trigger until ready to shoot; 3. Always keep the gun unloaded until ready to use. This is a good start for gun safety, especially on a cold range where weapons remain unloaded until directed.
The late Jeff Cooper of the American Pistol Institute at Gunsite Ranch in Arizona developed a version of these rules, one that many officers have been trained in. The four so-called “inviolate” Firearms Safety Rules are: 1. All guns are always loaded; 2. Never let the muzzle cover anything you are not willing to destroy; 3. Keep your finger off the trigger until your sights are on the target; 4. Always be sure of your target. This article is not intended to discuss the efficacy of these range rules as they are generally stated (which should certainly be up for discussion). Rather, the application and intention of Safety Rule Number Two will be discussed.
The trainers and writers who are promulgating the “never point a firearm at a suspect unless you intend to shoot” negligence standard explain that while it is legal to point a firearm at a person in limited cases, it is a “violation” of the safety rules. It is therefore unsafe and should be prohibited. They agree that having your handgun (or shoulder weapon) in your hands early is a good thing in possibly dangerous circumstances (because, as we all know, the fastest drawn gun is the one that is already in your hand). They argue the in-hand weapon should be held in a low-ready or off the line of the suspect until the decision to shoot is made. Additionally they note that there is little difference in reaction-response times between a properly positioned weapon that is held off-target and one that is held on-target. This, they reason, will reduce or eliminate the possibility of injury due to unintentional discharge and resulting civil liability.
While some of their reasoning for why they believe an officer should not point guns at people they do not intend to shoot may be useful in limiting liability, the purpose of an officer possessing a firearm is not about civil liability prevention. It is rather about defense of life and creating compliance.
Defense of life. The main purpose for carrying a firearm is to shoot another person to save life. Stopping a suspect’s imminent or actual threat to life by shooting bullets through their body is the only reliable and proven method of quickly stopping life-threatening behavior. Shooting a person necessarily requires the muzzle to be pointed at them. Proponents of the “Rule 2 Negligence Standard” are not against officers shooting people who earn getting shot. Their concerns are how and when that muzzle is brought on target. That is the center of this discussion.
Creating Compliance. Many, if not a universal experience, officers have had the experience of a non-compliant suspect in a dangerous situation, or possibly armed, suddenly become compliant when confronted by the muzzle of a police weapon. Almost all people understand there is a fine line between a gun being pointed at you and that gun being fired at you.
What creates compliance when muzzling a suspect? The fear of being shot. The presence of a handgun in police confrontations is universal—officers carry handguns at all times. A handgun in an officer’s hand is an increase in the degree of the threat to the suspect. The suspect’s perception of the threat posed by an officer’s handgun muzzle pointing directly at him is dramatic. A pistol in-hand is cautionary, a firearm pointing at you is a whole other universe of reality—that’s imminent and real. Confrontations with an armed suspect results in compliance because that suspect knows that if he tries to outdraw a handgun pointing at him, he’ll lose. Simply put, many, many shootings are prevented because officers muzzle suspects.
SO HOW DO WE TRAIN IT OUT OF COPS?
So let’s say we do adopt the “Rule 2 Negligence Standard” and declare that pointing a gun without shooting to be a violation of policy, tactics, safety, and, eventually, law. What will the result be?
Slower response to deadly threats. Most will agree that officers today are much slower to respond with force than their forbearers. This reflects our society at this time. It must be considered that by adopting the “Rule 2 Negligence Standard,” officers will likely be even slower to draw and fire their weapons than they are today. Of course, there will be an attendant increase in shootings, and the resultant increase in both suspect and officer injuries and death.
increased allegations of misconduct. Due to more sophisticated offenders who already take advantage of the system, the allegations (both true and false) of “the officer pointed his weapon at me” will increase. This will be especially true in both criminal and civil courts. The “he said/she said” nature of many of these complaints will cast a pall across law enforcement, causing many to leave their handguns in their holsters until the last possible moment before a shooting for fear of being falsely accused of brandishing.
A natural response to great threat. In highly threatening circumstances, officers will point their guns at a suspect due to their own fear and desire to prevent a shooting. Many officers, if not most, have had the experience of facing a suspect whose actions were so intense and threatening that the officer could have legally shot him but didn’t for one reason or another. Universally, these incidents were emotionally startling in their intensity and focus. Having a weapon in one’s hand and, if given time, NOT threatening a dangerous person with it before a shooting is not natural. It would be a very difficult training issue and a behavior that could not be prevented.
Pointing a firearm at a suspect in a dangerous, possibly imminently threatening situation is something that we cannot “train out of officers.”
Hard-wired response. It is a hard-wired human behavior to throw our hands and arms forward and up between that which we perceive as suddenly threatening and ourselves when startled. This action has been termed the “startle reflex.”
Posturing to prevent violence. Humans who feel threatened but are not yet engaged in combat, tend to “posture” in an attempt to intimidate their adversary. They point the most dangerous weapon they have at that other person before blows are exchanged in hopes that the other person will become discouraged and demoralized, and desist or submit. This intimidation is designed to avoid physical conflict. When posturing, unarmed combatants will point their fingers or shake their fists. If armed with a knife, it will be displayed between the two parties and pointed at the other person as a warning. A club will be ominously swung in the direction of threat, or struck against an object as an example of the consequences of engaging in physical conflict. Guns are pointed as a display of warning and threat.
A threat of last resort. Pointing a gun is the highest level of threat—short of actually shooting the suspect—an officer has. A pointed gun and a yelling officer are wholly intended to transmit the message that “There is nothing left except to shoot you, so comply with my orders.”
How is something this instinctive to be trained out of an officer? It can’t be. The result of the “Rule 2 Negligence Standard” requirements will be that many officers will be disciplined and possibly lose their jobs as a result of their natural and instinctive response to their perception of great danger. Citizen complaints will increase. False accusations of officers brandishing will become the norm by criminal defendants and civil plaintiffs. Officers will be forced to defend the negative—arguing that something did not occur. The civil liability exposure for “excessive force” will dramatically increase, resulting in more lawsuits and increased litigation costs, settlements, and adverse judgments.
REASONABLY MUZZLING A SUSPECT IS SIMPLY NOT A “VIOLATION”
There is no “violation” of range safety rules when pointing a weapon at a suspect when the situation is sufficiently threatening. Rule #2 states: “Never let the muzzle cover anything you are not willing to destroy.” It says, “…willing to destroy,” not going to destroy. This is a paper target rule when taken literally.
A police officer who muzzles a suspect, as discussed, is conveying the willingness to shoot that person. However, that officer is communicating to that individual that he simply has not made the decision to shoot him yet, but is very, very close. The decision as to whether or not the suspect will be shot is now up to the suspect and his actions.
The law as interpreted by the courts permits officers to point guns at suspects in circumstances that justify it. An officer who points a gun at a suspect is implicitly telling that suspect to change his behavior immediately or he’ll be shot. As Clint Smith says, “The muzzle of a .45 pretty much means ‘go away’ in any language.”
The “Rule 2 Negligence Standard” is a misunderstanding of the rules intended to increase range safety and safer gun-handling. Officers in the street work under a different context. They not only shoot to protect life, but attempt to protect life by reasonably intimidating a threatening suspect by pointing a weapon at him.
By adopting the “Rule 2 Negligence Standard,” it will likely be sooner rather than later that officers will be prohibited by the courts from employing this important safety practice. Yes, unintentional discharges occur, but not at a greater frequency than before. And when they happen, agencies will settle with the plaintiff to compensate for the loss. But the shooting of more suspects who attempt to fight their way out of an arrest when confronted by an officer who is hamstrung in their last-ditch ability to convince a suspect that the only way out without risking serious injury or death is to comply will be out of proportion to the very limited number of injuries from unintentional discharges. Sometimes pointing a gun at a suspect is the only chance an officer has to prevent a shooting.
Adopting this misinterpretation of “Safety Rule 2” will increase civil liability beyond anything now seen from the few unintentional discharges that occur annually in the US. Many more suspects will be shot, injured, and killed as a result of its adoption. More to the point will be the needless loss of police officers in the line of duty because of a misinterpretation of something that was originally designed to keep them and all gun owners safer.
Instructors and administrators: Let’s really think about the very real consequences of this before incorporating it into our legal and tactical doctrine.