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Police officer not entitled to qualified immunity

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The 7th Circuit Court of Appeals affirmed a police officer isn't entitled to qualified immunity in a suit claiming excessive force because the officer didn't have a reason to point a submachine gun at the plaintiffs during the execution of a search warrant.

In Joe Baird, et al. v. John Renbarger,  No. 08-2436, Joe Baird and others who had been held temporarily during the search of Baird's industrial park filed a suit against the police involved, including John Renbarger, for excessive force. The District Court granted summary judgment for the defendants but denied Renbarger's motion for summary judgment on the basis of qualified immunity.

The police got a search warrant for a 1937 Lincoln Zephyr that belonged to Baird. Baird had a police officer verify the car's vehicle identification number, which an officer signed an affidavit verifying it. Later, that officer obtained the search warrant for the car because he thought the VIN may have been altered.

During the search of the industrial park, Renbarger carried a 9-millimeter submachine gun and pointed it at everyone he rounded up in the various buildings. Everyone cooperated and was released two hours later. The officers concluded the VIN wasn't altered.

The 7th Circuit used the two-step inquiry from Saucier v. Katz, 533 U.S. 194, 201 (2001), to determine when Renbarger should be shielded from liability: if a constitutional right has been violated, and if so, whether the right was clearly established at the time the officer acted. It also relied on Graham v. Connor, 490 U.S. 386, 397 (1989), to conclude the use of the submachine gun was objectively unreasonable in the setting Renbarger faced. The situation involved the alteration of a VIN, not a crime involving possession of drugs or illegal weapons, wrote Judge Diane Wood. There was also no reason to suspect there was any threat to the officers' safety nor had anyone attempted to resist or flee.

Renbarger argued that he didn't know who may be in the industrial park at the time of the search, but his subjective concerns don't transform the setting into one calling for such a heavy-handed use of force, wrote the judge.

"Renbarger urges this court to view his behavior at a high level of generality; he sees it as the mere pointing of a gun. We decline to take this perspective," she wrote. "Renbarger pointed a submachine gun at various people when there was no suggestion of danger, either from the alleged crime that was being investigated or the people he was targeting. The Fourth Amendment protects against this type of behavior by the police."

A reasonable jury could conclude he violated the plaintiffs' clearly established right to be free from excessive force when he seized and held them by pointing a firearm at them when there wasn't any danger, so he isn't entitled to qualified immunity.

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