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LU Ref# CAI00036
July 17, 2023
Author Ref. No: Vol. 28 Ref 7
LU Ref# CAI00036
July 17, 2023
Author Ref. No:   Vol. 28 Ref 7

Robert Phillips
Deputy District Attorney (Retired)

“I felt uncomfortable driving into a cemetery when my GPS blurted out: ‘You have reached your final destination.’”
New Appellate Decision Clarifies Legal Use of Cuffs and Firearm During a Detention
COURT CASE REFERENCE: Hopson v. Alexander (9th Cir. June 16, 2023) __ F.4th __ [2023 U.S.App. LEXIS 15033]

A police officer’s use of his or her firearm and handcuffs in the detention of a person suspected of preparing to commit a dangerous felony isn’t necessarily unconstitutional.   An officer’s reasonable suspicion that “criminal activity is afoot” allows that officer to conduct a temporary detention for investigation. A reasonable suspicion that the suspected criminal activity might be a dangerous felony (e.g., a robbery) allows the detaining officer to use reasonable force in conducting a detention. Such force may include the use of firearms and handcuffs. The prior case authority for these rules is sufficiently vague to allow for the qualified immunity in a subsequent lawsuit alleging that officers illegally detained a plaintiff and used excessive force in doing so.  
Gilbert, Az., Detective Jason Alexander stopped at a gas station/convenience store on Jan. 25, 2018, for something to drink. While sitting in his unmarked police vehicle, he noticed an individual (later identified as Tommy Jones) in a vehicle already backed into another parking spot. Watching Jones, Alexander observed that he “cran[ed] his neck” and “nervously” looked around, repeating this behavior several times. Jones was also observed moving his car several times, each time backing into a new parking space as he “turn(ed) his body 180 degrees in the vehicle to get a good look at his surroundings.” Because Jones never got out of his car, Alexander surmised that he was not there to make a purchase at the convenience store. It also appeared to Alexander, based on his training and decade-plus of law enforcement experience, that an “abnormally nervous” Jones was scouting around for police officers, video cameras or other means by which he could be detected, and that he was trying to find a parking spot that would allow for a hasty exit.   Alexander concluded that Jones was “casing” the gas station and that “an armed robbery was about to occur.” After watching Jones’ suspicious actions for about 15 minutes, Alexander observed another subject, later identified as the plaintiff, DeJuan Hopson, drive into the parking lot and part alongside Jones. Jones then got out of his car and into Hopson’s. As Alexander watched, Jones and Hopson conversed while appearing to exchange unknown items. At one point, Jones went back to his car to retrieve something and then returned to Hopson’s. Believing that Jones and Hopson were about to embark on criminal activity (e.g., a robbery), Alexander called for backup. Detective Brandon Grissom responded, parking behind Hopson’s car. Four other officers also responded.   Accepting Hopson’s version of the facts as true (as an appellate court must do at this stage of an appeal), the court described how Alexander – in plain clothes and with his gun drawn –  approached Hopson sitting in the driver’s seat of his car and opened the door, “forcefully remov(ing)” Hopson from the vehicle. Alexander yanked on Hopson’s left arm with “enough force to put [him] in a state of shock and make [him] think that [he] was being robbed.” Alexander then “forcefully” handcuffed Hopson while “verbally dar[ing]” him to make a move. Per Hopson’s account, Alexander never announced that he was a police officer. Grissom stood nearby as he kept his gun pointed at Hopson. Another officer pulled Jones out of the passenger side of the vehicle as the other three officers stood by with their guns drawn. As a result of this experience, Hopson claimed in his subsequent lawsuit that he experienced “depression, anxiety, loss of sleep, nervous[ness], and a fear of retaliation.”  Meanwhile, back at the scene, a records check – conducted while Hopson was being questioned about the smell of marijuana emanating from his car – resulted in the discovery that he had felony convictions for aggravated assault and several weapons-related offenses, that he was on probation for another crime, and that his driver’s license was suspended. Based on the marijuana odor coming from the car and Hopson’s inability to demonstrate that he was allowed use marijuana for medical purposes, plus the fact that he had been driving on a suspended license, the detectives undertook a search of his car. They first found marijuana and then discovered a Glock handgun with an extended magazine between the driver’s seat and the center console. Hopson was arrested for being a felon in possession of a firearm. He was later charged in Maricopa County Superior Court with the illegal possession of both marijuana and a firearm.  Hopson filed a motion to suppress the evidence found in his car, arguing that there was insufficient justification for an investigatory stop, i.e., that he had been illegally detained. The trial court judge determined that there was insufficient reasonable suspicion to justify the detention and Hopson’s motion was granted and dismissed all charges against him (Author’s note: a questionable decision).   More than two years later, Hopson filed a civil suit in federal court, pursuant to 42 U.S.C. § 1983, alleging that the detectives violated his Fourth (illegal search and excessive force) and Fourteenth (due process) Amendment rights. The detectives’ legal representatives responded with a motion for summary judgment, arguing that at the very least, they were entitled to “qualified immunity” from civil liability. The federal district (trial) court ruled that the detectives were entitled to qualified immunity on the detention issue, but denied it as to the alleged use of excessive force. The detectives appealed.