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Pointing Firearms: Range Safety vs. Reality

by George on August 29, 2010 02:50

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.  Many shootings have been prevented as a result.

Is that practice 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 the pointing of a firearm at a suspect that the officer does not intend to immediately shoot as a “violation” of safety rules.  The basis of their beliefs?  Number 2 of the Range Safety Rules as codified by Jeff Cooper and taught at Gunsite Ranch:  “Never let the muzzle cover anything you are not willing to destroy.”

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.  This, he reasoned, should subject the officer to discipline by his agency, and “could” cause the officer and agency to be civilly liable.

It is vitally 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 claim that any pointing of a firearm at a suspect without firing it is a violation and should be subject to sanction and/or civil judgment. 

Bottom line:  When an officer has a reasonable belief that a suspect or situation might be dangerous or threatening, he or she may 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 in many situations to point a gun at a suspect who may be armed, violent, or outnumber officers.

As trainers, there 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 doctrine, the courts will sooner rather than later incorporate it into their understanding of “proper” police work.  From that moment on, any officer who points his or her weapon at a suspect and fails to fire will be guilty of excessive force.  The result?  More officers hesitating to draw guns, more police shootings with suspects who thought they could beat the cop to the draw or that the officer was not serious about the threat to shoot because the gun isn't pointing at him/her.  And more officers shot down.

Be careful what you wish for—you may get it.

POINTING A GUN CAN BE EXCESSIVE FORCE

Officers can be subject to discipline and liability when they point their weapons at individuals or groups when the officer is then unable to articulate the threat he or she believed existed at the time.  The latest case where a federal court stated that pointing a firearm (in this case, a handgun) 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 gun in this situation might be unreasonable:

  • An officer who was verifying a VIN during a visit to an auto shop reasonably believed the VIN had been tampered with.
  • Returning the next day with a search warrant, the officer pointed a 9mm subgun at the occupants of the business, forcing them at gunpoint to sit on the floor together.
  • The officer then detained the occupants of other businesses 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 not “objectively unreasonable” in these circumstances to aim a submachinegun at wholly compliant and non-threatening subjects.  The 7th Circuit Court of Appeals used the factors within the totality of the facts known to the officer at the time of Graham v. Connor in its analysis:

  • 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 of them immediately complied with his and other officers’ orders.
  • The active resistance or attempt at flight:  None of the detained subjects resisted or attempted to escape.

Other courts have ruled 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 are:

  • Even though they were investigating a crime of illegally shooting dogs, it was excessive force to point a gun at a handcuffed, searched prisoner for an extended period of time.
  • Detaining a 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 people. 

Another bottom line:  Point a firearm at a person only when you can articulate the danger this person poses to you, whether it is through their acts or their connection to the dangerous circumstances you are investigating.  Failing to explain why you needed to point your weapon at someone can create huge problems for you. 

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 routinely have ruled that officers may hold people at gunpoint when the circumstances reasonably create the fear of violence.  Even the 9th Circuit in 2002, in the case, Duran v. City of Maywood 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 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 not prohibited. 

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 needless tragedy by preventing unintentional discharge.

Range rules were developed through hard won wisdom.  A moment’s inattention or distraction and someone is injured or killed.  As these 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 components:  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 while hunting non-dangerous game, or while shooting recreationally on a cold range where weapons remain unloaded until directed otherwise by a range safety officer.  However, a hot range is more suitable for law enforcement training purposes.

Jeff Cooper of the American Pistol Institute at Gunsite Ranch in Arizona developed a version of these rules, one that most officers have been trained in.  The four “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 stated (which should certainly be up for discussion).  Rather, their application and intention, especially where Safety Rule Number Two is concerned will be discussed.

THE “RULE 2 STANDARD?”

The trainers and writers who are promulgating the “Rule 2 Standard” (essentially, “Never point a firearm at a suspect unless you intend to immediately shoot”) 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 say that while having your handgun (or shoulder weapon) in your hands early in dangerous circumstances is a good thing (because, as we all know, the fastest drawn gun is the one that is already in your hand), actually pointing it without the immediate intention to shoot is not.  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 or all of their reasoning for why they believe an officer should not point guns at people they do not intend to shoot may be true, the purpose of an officer possessing a firearm is not about civil liability prevention.  It is, rather, about defense of life and creating compliance.  The “Rule 2 Standard” is a misapplication of something that is true in one context but is wholly incorrect in another.  Officers carry handguns, and are permitted to employ shoulder weapons for the following reasons:

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 proven method of quickly stopping life-threatening behavior.

Shooting a person necessarily requires the muzzle to be pointed at him.  Proponents of the “Don’t Violate the Rule” are not against officers shooting people who earn getting shot.  Their concerns are how and when that muzzle is brought on target.  Their focus is on unintentional discharges.  That is the center of this discussion, and a misunderstanding of the second purpose for pointing weapons at people who are just about to be shot if they don’t change their behavior NOW.  

Creating Compliance.  Many, if not most, 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 weapon held by a very determined and focused officer.  While many suspects know that an officer isn’t going to shoot them even when a gun is pointed at them, all but the mentally ill and those under-the-influence 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 immediate fear of being shot.  The mere presence of a handgun in a police confrontation is universal—officers carry handguns at all times.  The presence of a handgun on the officer’s hip does not stop fights or gunfights.  Even when that gun is in an officer’s hand, it is still simply present in the situation—it is only a matter of degree of the threat that all officers carry with them. 

This changes when the officer points his handgun directly at the suspect.  Confrontations with armed suspects result in compliance because that suspect knows that if he tries to outdraw a handgun pointing at him, he will lose—and non-suicidal suspects know that “ties go to the cops.”  Simply put, many, many shootings are prevented because officers muzzle suspects. 

HOW DO WE TRAIN IT OUT OF COPS?

So let’s say we do adopt the “Rule 2 Standard,” and declare that pointing a gun without shooting is a violation of policy, tactics, safety, and law.  What will be the result?

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 today.  I submit that officers will be slower to draw and fire their weapons than they are even today.  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 especially be true in court, both criminal and civil.  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 shooting for fear of being falsely accused of brandishing their weapons.

In certain circumstances, officers will point their guns anyway due to their own fear and desire to stop a shooting from occurring.  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 them, but didn’t for some reason.  Universally, these incidents were emotionally startling in their intensity and focus.  I would submit that having a weapon in one’s hand and not threatening a dangerous person with it before shooting, if given time, would be a very difficult training issue and one that cannot be prevented.

Yes, many instances could be modified to be “Rule 2 Standard” compliant where officers believe there to be “reasonably threatening” circumstances in which officers now legally point guns at people.  Of course, there will be an attendant increase of shootings, and the resultant increase in suspect and officer injuries and death.

However, in those immediately threatening instances not yet meeting the imminent threat to life or safety threshold demanded for deadly force, where an officer is frightened by the suspect’s behavior, and desperately wanting to avoid being forced to shoot the suspect, I would submit that it is natural to point a gun at a perceived threat, and is something we cannot “train out of officers.”

Pointing a gun is the highest level of threat—short of actually shooting—an officer has.

Humans who feel threatened and are, in turn, threatening the other person, tend to naturally point the most dangerous weapon at their adversary before any blows are exchanged.  This intimidation is designed to avoid physical conflict.  When posturing, unarmed combatants will point with their fingers or shake their fist(s).  If armed with a knife, the knife will be displayed as a warning.  A club will be ominously swung in the direction of the threat.  Guns are pointed as a display of warning and threat. 

How is something this instinctive trained out of an officer?  It can’t be.  The result of “Rule 2 Standard” requirements will be that many officers will be disciplined and lose their jobs as a result of their natural and instinctive responses to great danger.  Citizen complaints will increase.  False accusations of brandishing by criminal defendants and civil plaintiffs will become the norm, forcing officers to argue in the negative (arguing about something they didn’t do).  The civil liability exposure for “excessive force” will dramatically increase, resulting in more lawsuits and increased litigation costs.

MUZZLING A SUSPECT IS 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-only rule when taken literally. 

A police officer who muzzles a suspect is conveying his 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 close:  that decision is now up to the suspect and his actions.

The law as interpreted by the courts permits officers to point guns at suspects in justified circumstances.  An officer who points a gun at a suspect is blatantly 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.” 

It is a misunderstanding of the gun safety rules intended to increase range safety and safer gun-handling.  Officers have a context of not only shooting to protect life, but to attempt to protect life by reasonably intimidating a threatening suspect by pointing a weapon at him in hopes of preventing a shooting.

By following the “Shall not point guns unless shooting” concept, it will likely be sooner rather than later that officers will be prohibited by the courts from 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 will attempt to fight their way out of an arrest when confronted by an officer hamstrung in his ability will be out of proportion to the limited number of injuries from unintentional discharges.  Often, this is the only chance an officer has to prevent a shooting is to point a gun at the subject and convince that suspect that the only way out alive is to comply.

Adopting this misinterpretation of “Rule 2” will increase civil liability beyond anything now seen from the few unintentional discharges that occur in US law enforcement.  Many more suspects will be shot and injured and killed.  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. 

Let’s really think about the very real consequences of this before incorporating it into our legal and tactical doctrine.