Excessive Force and Stops of Armed Civilians by Out-of-Uniform Sheriff’s Deputies in Unmarked Vehicles

In Judge James Browning’s yesterday opinion Rosales v. Bradshaw (D.N.M.(D.N.M.

[Mario]Rosales asserts that [David]Bradshaw used too much force to stop Rosales from returning home. He (i), drove Rosales back in an unmarked van and blocked Rosales driveway. (ii) “yell[ed]Cursive[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 with a threatening tone” and (iv). “Positionally raised his gun at Rosales so that he feared he would 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 or deadly force” should be considered and “should not be predicated upon any perceived injury to officers or anyone else.” … “[T]He argued that Bradshaw’s intrusion on Rosales’ Fourth Amendment rights was “very severe” because Rosales was in danger of losing his life. Bradshaw had driven Rosales home from work in an unmarked car and pointed a gun at Rosales in a frightening manner.

In accordance with the Supreme Court Graham v. ConnorThe Tenth Circuit examines three elements to decide whether an officer uses force objectively. These are: (i), the severity of the crime; (ii), whether the suspect is an immediate danger to safety or others; and (iii). Whether the suspect is actively resisting arrest or trying to avoid 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 stated that Rosales was following him home from Rosales’ house to hand out a reckless driving ticket. Rosales claims that Bradshaw “decided” to pass Bradshaw and that Bradshaw then started turning without his turn signals after realizing Bradshaw was following. According to the Court, officers can’t use the same amount of force to “arrest a submissive offensenant” than they might use to “apprehend fleeing felons.” …

According to the Tenth Circuit, “the second” is explained. GrahamFactor, “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.” To assess a suspect’s threat level, the Tenth Circuit considers a variety of factors. These include: (1) whether officers directed the suspect to give up his gun, (2) whether hostile gestures towards officers were made, (3) how far the suspect is from officers, and (4) what the suspect’s intentions are. … 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]Mr. Bradshaw was “advised to leave his vehicle equipped with a weapon and approached the vehicle of Mr. Bradshaw with a gun.” … The Court concludes that Rosales’ intentions were not hostile; rather, “Rosales attempted to speak reasonably with Bradshaw”; “ke[pt]His hands were clear of the firearm.” He continued to “try.”[]With this, you can reason [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 was calm through the entire encounter, even when Bradshaw escalated it by “purposefully raising”[ing] his gun at Rosales in a manner that made him fear he was about to be shot by Bradshaw” …. Bradshaw’s actions should have not been unexpected.[d]Rosales chose to arm himself after an unmarked vehicle followed him home, and blocked 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.” Rosales took his gun out of his pocket, but it was still within the reach of an unidentified, unofficial follower when he exited from his car. Rosales was able to act prudently and rationally in order to discover why an unknown and aggressive individual had been following him home. The Court concludes, therefore, that the fourth factor weighs heavily against Bradshaw….

Evaluation of 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. After Rosales left his vehicle, Bradshaw started cursing and yelling at Rosales in a loud, threatening, and abusive manner. He did not identify himself as an officer.[,] … Bradshaw continued to yell at Rosales in an angry and threatening manner.” Bradshaw escalated conflict again, disregarding the possibility that Rosales might respond. Rosales “walked” after Bradshaw’s actions.[] a little closer to … Bradshaw’s truck in an attempt to talk in a normal tone of voice.” Therefore, the Court concluded that Rosales’s actions were a reasonably serious threat to Bradshaw. 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….

The third Graham v. ConnorFactor, the Court examines how Rosales resists or attempts to evade 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….