Is Pointing a Gun at a Child Excessive Force?

Depending on the circumstance, pointing a gun at a child can constitute excessive force, even where the person holding the gun never put their hands on the child, and where the child suffered no physical injury.

The Tenth Circuit Court of Appeals addressed this issue in Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001).  In that case, SWAT officers held several children at gun point for 10-15 minutes during a raid, despite having no reason to believe that any of them posed a threat.

The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time.

Id. at 1192.

The Court recognized two factors that made pointing a loaded weapon at children objectively unreasonable, including (1) where a person has submitted to the officers’ show of force without resistance; (2) where the officer has no reasonable cause to believe that person poses a danger to the officer or to others; and (3) in cases involving children, there exists a greater sensitivity to what may be justified or what may be excessive under all the circumstances. Id. at 1193.

The Court also rejected the contention that the children could not file a lawsuit because they did not suffer any actual physical injury.

Physical injury may be the most obvious injury that flows from the use of excessive force. Yet the interests protected by the Fourth Amendment are not confined to the right to be secure against physical harm; they include liberty, property and privacy interests — a person’s “sense of security” and individual dignity.

Id. at 1195.

By adopting a more expansive view of protections secured by the Fourth Amendment, the Court declined “to adopt a ‘bright-line’ standard dictating that force cannot be ‘excessive’ unless it leaves visible cuts, bruises, abrasions or scars.” Id.

If you have questions about excessive force, police misconduct or the Fourth Amendment, contact the Tulsa personal injury attorneys at Bryan and Terrill Law, 918-935-2777.