Cases

Clark v. Clark 8thCIR 13JUN2019

A principal of a school calls 911 and reports gunshots coming from the direction of nearby woods. Two deputies arrive at a rest area 150 yards from the school to find a person there (Clark) talking on his phone.  Clark voluntarily gave the officers his driver’s license, retired military ID, and concealed carry permit. When asked, Clark indicated he was on his way to Chicago and had not heard any gunfire. The officers ended the encounter and looked around for other people. When the officers returned Clark was driving away and the officers followed him. While behind him, officers noticed he was making movements towards the passenger seat and center console. When Clark realized he was being followed, he first conducted a U-turn.  When the officers turned and continued to follow him, Clark voluntarily pulled over on an exit ramp and put his blinkers on. Clark put both his hands out of the window and the officers approached the vehicle with weapons drawn and ordered Clark out of the car. One officer patted Clark down while another searched inside the vehicle. Clark told the officers that he had a firearm in the center console. Initial checks revealed the gun was reported stolen and Clark was placed into handcuffs. It was then discovered that Clark had mistakenly reported the gun as stolen after he had misplaced it. Upon learning this, the officers removed the handcuffs, returned his firearm, and told Clark he was free to leave.

Clark sued the officer in a 1983 action alleging that he was unlawfully seized at the rest area and at the exit ramp encounter, that excessive force was used when the officers pointed their weapons at him after he had voluntarily pulled over, and that the search of the vehicle was unlawful.  Regarding the rest stop encounter, the court held that the encounter was consensual and therefore presented no Fourth amendment issue.  The court went on to say that even assuming it was a seizure, the officers had the requisite reasonable suspicion to conduct an investigative detention (Terry Stop).  Regarding the exit ramp encounter, the court noted that Clark was not seized initially when he voluntarily pulled over, but Clark was seized when the officers approached with weapons drawn and ordered him out of the vehicle and he complied with that command. The court held that given his movements in the car and the U-turn the officers had a reasonable suspicion that criminal activity might be afoot.  The court further held that the investigative detention was reasonable in scope and duration and that the use of handcuffs upon learning that the firearm was reported stolen did not elevate the detention from a Terry Stop to an arrest.  Regarding the display of weapons, the court held that pointing a firearm at CLARK for a few seconds while they got him out of the car (knowing he was armed) did not constitute excessive force.

Editor’s Note: The circuits are split over when the mere display of a firearm by an LEO constitutes excessive use of force. It is important for you to know the rules for “show of force” in your particular federal circuit.

(Clark also made assertions that other Constitutional rights were violated because he was being racially profiled. There is a good discussion on this in the case if you are interested in the analysis of his Fifth Amendment Due Process and First Amendment retaliation claims.)

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