IS THE “DISPLAY” OF A WEAPON A USE OF FORCE?

By: Max Rieker, OPBA Attorney

In the course of their employment, law enforcement officers often find themselves deciding whether to use force and, if so, how much force to use.  What is a use of force and what is not?

In its periodic study, Police Use of Force in America, the International Association of Chiefs of Police (IACP) defines the use of force as “[t]he amount of effort required by police to compel compliance by an unwilling subject.”  These studies identify five components of force:  physical, chemical, electronic, impact, and firearm.  The IACP studies specifically do not take into consideration the “display” of a firearm when analyzing law enforcement use of force, however, some individual law enforcement agencies do.

The analysis required to make use of force decisions is critical to all involved and its importance cannot be overemphasized.  The “use of force continuum” is a concept that gained prevalence in American law enforcement agencies in the 1980’s.  Similar to the rules of engagement in a military context, use of force continua are guidelines that illustrate how much force a law enforcement officer ought to use in response to specific situations.  An officer should escalate or de-escalate appropriate levels of force in response to a subject’s actions.  Levels of force on some continua begin with mere “presence” of an officer or verbal commands, and continue all the way up to the use of deadly force.

Use of force continua are agency specific.  They may be so formal as to be incorporated into an agency’s policy and procedure manual.  Some are excruciatingly specific while others are somewhat vague.  One of these vague areas is whether “force” in the technical sense, is used when an officer displays his or her duty weapon in response to the actions or inactions of a subject.

Law enforcement employers are split as to whether the “display” of a firearm is an actual use of force.  Some hold that drawing one’s service weapon is absolutely a use of force and should be placed at least at the middle of the agency’s continuum.  Other agencies view drawing, but not using, a deadly weapon as a routine practice that ought not to be highly discouraged.  These latter agencies argue that regularly discouraging officers from displaying their weapons has two negative consequences.  First, causing officers to second guess drawing their weapon may put them at greater risk of personal harm.  Second, discouraging or disciplining officers for drawing their weapons may have an unintended chilling effect upon the entire agency, thus reducing the agency’s effectiveness.

Aside from the practical analysis in which both employers and employees engage, there is also a legal analysis that should be considered.  Any use of force must be justified in order for an employee to avoid adverse consequences. (i.e., disciplinary action, civil action, and even criminal action.)  However, the Federal 6^th Circuit Court of Appeals has held that merely drawing one’s weapon and displaying it is a show of force or a threat of force, but not actually a “use of force.”[1]  The 6^th Circuit reasoned that law enforcement professionals are sometimes called upon to use “techniques of intimidation and force.”[2]  Such displays are better than actually having to use force.[3]  This Federal Circuit Court, which has geographical jurisdiction over Ohio, has made a distinction between the display of a service weapon (threat of force) and the use of force (firing the weapon or otherwise using it on another as a weapon).  The 5^th Circuit Court of Appeals seems to concur with the analysis of its sister court when it reasoned:

By giving [an officer] the ability to pull out and point a service revolver at someone without risking tort liability, he may be able to abort a potentially violent situation.  Conversely, to subject such displays of force to second guessing by a jury may increase the likelihood that the officer will wait until the situation escalates further before drawing his gun, and there end up having to (or believing he has to) shoot to protect himself or others.[4]

Courts analyze an officer’s actions according to the “reasonable officer standard.”  In other words, what would an ordinary, reasonable, appropriately trained, law enforcement officer do under the same or a similar circumstance?  The real question is whether the officer acted reasonably considering the facts available to him or her at the time that a decision is made.

With all of this in mind, should the “display” of a firearm be a component of a law enforcement agency’s use of force continuum?  The cases discussed would seem to indicate that it should not.  Rather, the display of a weapon is a threat of force.  With this in mind, it is important to understand how your individual department views the display of a service weapon.  It is also important to understand that, while a department may view a situation as a use of force, courts and arbitrators may view the facts and the law differently than the employer.  Most importantly, if any use of force question arises, always consult with your OPBA representative for further advice and guidance on the matter.

[1] Collins v. Nagle, 892 F.2d 489 (6^th Cir. 1989).

[2] See Gaddis v. Redford Township, 364 F.3d 764 (6^th Cir. 2004).

[3] Collins supra.

[4] Hinojosa v. Terrel, 834 F.2d 1223 (5^th Cir. 1988).