In the state of Texas, if I point a gun at someone, I have just committed aggravated assault unless the use of deadly force would be justified. IOW, if the situation is bad enough to point a gun, it had better be bad enough to pull the trigger. However, you always see cops draw down on suspects on TV who are not an immediate threat to them and certainly they will draw down on a felony suspect in a traffic stop. I myself have been held at gunpoint by police and I certainly wasn’t threatening them. Why I agree that it is prudent for them to do so, what is the source of authority? When can they do it?
I think the answer will depend at least to some extent on where you live, but in California I know that officers can and will draw on someone if they suspect that they may have a weapon. Once you have been patted down and cuffed then the guns are usually put away. So while they wouldn’t draw on you for a normal traffic stop, they will draw on you for a felony stop of if you are being stopped for a crime in which a weapon might be expected, such as a robbery or carjacking.
The short answer is that until they are sure you aren’t armed I think they have the right to behave as if you might be.
I totally disagree with that statement. I had a loaded 9mm Glock pointed at my head for a the heinous crime of not using my left turn signal on a city street. No felony record, the officer could have easily run my plates at stayed in the car. My real crime, I worked the night shift in a bad neigherhood near downtown Dayton Ohio and was driving around eating my lunch and must have driven past a drug house. I fought the ticket and went to court were the officer refused to answer any questions concerning the incident and the judge threw the ticket out. Nazi Pig MFer. :mad:
I believe a significant component is that your pulling a gun on someone puts them in reasonable fear for their life.
News stories aside, in theory, a cop pulling a gun on you is a trained professional, aware of the situation, and will not shoot without provocation. That is, a gun being pointed at you by the police shouldn’t put you in fear of your life (without cause, that is).
I get that this doesn’t necessarily reflect popular culture (or reality), but since this is GQ, I’m putting this forth as one basis for the distinction.
FTR: I’ve had a cop’s gun pointed at my head, and I did fear for my life badge notwithstanding. But the OP asked about legal realities.
ETA: If we adjust for an undercover officer, then the above is somewhat moot, no?
There are two standard positions for holding a gun on a suspect; low ready (where the arm is pointed in front, at the ground, held with one hand or two as appropriate, ready to bring to bear if a threat is encountered), and ready or Weaver (gun held at eye level with both hands, feet in a staggered “horse” stance, sights on target). The first is the normal position for holding a gun in a potentially threatening situation or when in motion; the latter is used when there is an identified and threatening target. There is no excuse for pointing a gun at someone’s head, at close range, for a traffic stop or another innocuous violation; however, depending on the geometry of the situation, it might be difficult to have the arm held at low ready, so the officer might hold it up higher and pointing away from, but in the general direction of the person in question.
I don’t know how universal the procedure is, but it is my understanding that many major law enforcement agencies require a peace officer to write up a report any time a service weapon is withdrawn from holster or dash holder in the field, under the assumption that the need to do so indicates some significant event. A well-trained police officer won’t be pulling out and brandishing his sidearm at every opportunity, at least, not for long.
I can understand why you are royally pissed but think about the cops perspective.
Four choices
1 - don’t draw on good guy
2 - draw on good guy
3 - don’t draw on bad guy
4 - draw on bad guy
Possible outcomes
1 - Writes ticket - good guy pays fine
2 - Writes ticket - goes to court - looks like an idiot - ticket gets thrown out
3 - He Dies
4 - Has to deal with bad guy but at least has his ass covered
I think he weighed the negative outcome of 2 against the negative outcome of 3,
I looked in my crim law and crim pro books and I couldn’t find much related to a police officer’s right to point his weapon. I assume its more a matter of internal regulations for each police force. There is, however, a lot of law relating to a police officer’s right to use force. So I guess the government is more concerned with cops actually shooting at people than just aiming. Every state is different, but if you want a general guideline the following rules have been adopted by many courts:
[ul]
[li]A police officer may use the amount of non-deadly force that he reasonably believes necessary to effect a lawful arrest.[/li][li]Deadly force may not be used to make an arrest for a misdemeanor. A police officer can use deadly force to prevent the commission of a dangerous felony (or where the officer has a reasonable belief that a dangerous felony was committed).[/li][li]A police officer that holds a reasonable belief that he is in imminent danger of unlawful bodily harm may use the amount of force which is reasonably necessary to prevent such harm.[/li][li]Deadly force may never be used merely to defend property. However, deadly force may be used where unlawful interference with property is accompanied by a threat of deadly force.[/li]The use of non-deadly or deadly force is improper where a request to desist would suffice.[/ul]
A police officer who points his weapon in the normal course of his duties is incapable of committing an assault of any kind. A majority of states define assault as an attempt to commit a battery, and criminal battery is the “unlawful” application of force to the person of another. Police officers are permitted to apply force by statute and common law, thereby negating the required “unlawful” element of the crime.
I can count on one hand the number of times I’ve pointed my service weapon at someone in my years of uniform and undercover work; I don’t have nearly enough fingers, toes and other appendages to count the number of times my weapon was out of its holster as a precaution (several times a week, probably).
The normal legal positions aside, I can envision scenarios where an officer might be charged with aggravated assault. I’m not saying that’s the case in any of the above anecdotes, but I think if there’s a case where the officer A) clearly and convincingly knows the subject is unarmed and poses no threat, and B) sticks a gun in their face for ass-holish reasons, then the district/state attorney may wish to make a point. But, I admit it is unlikely unless an actual battery occurs.
But here’s one case, and the victim of the assault was…another cop!
The crux is they have to say. I cross examined the officer in my case and he stayed silent. He not only drew on me, but made racist comments about the people who lived in the neighborhood. The black judge and black Assistant DA were taken aback by his lack of response. I should have pursued civil charges but was satisfied to just embarrassed him in front of the court.
BTW, the black baliff patted me on the back for standing up to him.