James F. Robinson v. Solano County Brian Cauwells, Solano County Sheriff's Deputy Officer Gary Faulkner, Solano County Sheriff's Deputy Officer

Opinion by Chief Judge SCHROEDER; Concurrence by Judge FERNANDEZ.

We took this case en banc in order to clarify the law of the circuit regarding excessive force that violates the Fourth Amendment’s protections against unreasonable searches and seizures, and to clarify the law of the circuit on the scope of qualified immunity for excessive force claims. The case arises out of a police seizure at gunpoint of an apparently unarmed individual suspected of having earlier used a shotgun to shoot two dogs.

The Fourth Amendment guarantees citizens the right “to be secure in their persons ... against unreasonable ... seizures.” U.S. Const, amend. IV. In Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), the U.S. Supreme Court held that all claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other seizure of an individual should be analyzed under the Fourth Amendment’s “objective reasonableness” standard. The Court also cautioned, however, that the “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments— in circumstances…

with whom RYMER and T.G. NELSON, Circuit Judges, join, concurring:

I concur in the result only. Although I agree that the officers are entitled to qualified immunity, I do so because, in my view, there was no use of excessive force.

My reason is quite simple. I do not believe that an officer who points a gun while making an otherwise proper seizure of a suspect can be found to have violated the Fourth Amendment by using excessive force upon the suspect, when no force whatsoever has been applied. While Robinson would like to lure us into a realm where we must dissect and second-guess each and every instance of an officer’s pointing of a weapon at another person (or perhaps when he even threatens to do so), I believe it is a grave mistake to enter that realm. It will vastly expand, even trivialize, the concerns about the use of force to accomplish a seizure which drove the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 9-12 , 105 S.Ct. 1694, 1700-01 , 85 L.Ed.2d 1 (1985). 1

The difference between a threat of force and the actual use of force upon a person can seem slight at times, but it is rarely, if ever, difficult to distinguish between the two. It is simply the ancient…

278 F.3d 1007 James F. ROBINSON, Plaintiff-Appellant, v. SOLANO COUNTY; Brian Cauwells, Solano County Sheriff's Deputy officer; Gary Faulkner, Solano County Sheriff's Deputy Officer, Defendants-Appellees. No. 99-15225. United States Court of Appeals, Ninth Circuit. Panel Decision Filed July 12, 2000. En Banc Argument March 22, 2001. Submission Deferred April 23, 2001. Resubmitted September 26, 2001. Filed February 4, 2002. COPYRIGHT MATERIAL OMITTED William M. Simpich, Oakland, CA, for the plaintiff-appellant. Terence J. Cassidy, Porter, Scott, Weibert & Delehant, Sacramento, CA, for the defendants-appellees. Appeal from the United States District Court for the Eastern District of California; Peter A. Nowinski, Magistrate Judge, Presiding. D.C. No. CV-96-01362-PAN. Before: SCHROEDER, Chief Judge, and HUG, B. FLETCHER, CANBY, REINHARDT, FERNANDEZ, RYMER, T.G. NELSON, KLEINFELD, GOULD, and PAEZ, Circuit Judges. Opinion by Chief Judge SCHROEDER; Concurrence by Judge FERNANDEZ. SCHROEDER, Chief Judge. 1 We took this case en banc in order to clarify the law of the circuit regarding excessive force that violates the Fourth Amendment's protections against unreasonable searches and…