Threatening a difficult prisoner with a gun is not a clear Fourteenth Amendment violation

The public is not as familiar with qualified immunity as it should be. This immunity means that public officials, including police officers; town, village, county and state employees; and really anyone else working in government, can avoid litigation if they did not violate clearly established case-law. That immunity attaches even if the court says that, in hindsight, the defendant did in fact violate the plaintiff's rights. This gives public employees a layer of protection against lawsuits unless their civil rights violation was clear and obvious. Otherwise, case dismissed. That's what happened in this case.  

The case is Gerard v. City of New York, a summary order issued on February 10. Plaintiff was in pretrial detention when the defendant told him, pursuant to court order, to shave his beard in preparation for a police lineup. Plaintiff had to do this because he had grown the beard since his arrest and it changed his physical appearance. A shouting match followed, with some profanity for good measure. Plaintiff says the officer "took out his gun and threatened to shoot Gerard if he did not cooperate." The district court said there is no clearly-established case law holding that even a disproportionate and unreasonable show of force like this that does not involve physical contact violates the Constitution. The Court of Appeals (Walker, Wesley and Nardini) agrees and the case is over.

The Court of Appeals assumes that Detective Bia "brandished his gun and threatened to shoot Gerard when he volubly refused to comply with the court order." While "The Fourteenth Amendment’s 'Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment,'" and "It is clearly established that the use of deadly  force  against  an  unarmed,  non-dangerous  person  is  unconstitutional," cases also hold that verbal harassment from the police without "any appreciable injury" is not excessive force under the Constitution. Unfortunately for plaintiff, "neither the Supreme Court, nor this Court, has clearly established that a verbal threat combined with a display of a firearm, without any physical contact, constitutes excessive force, much less when it is directed at an uncooperative detainee who is loudly and profanely resisting a court order."

Plaintiff does cite Mills v. Fenger, 216 Fed. Appx. 7 (2d Cir. 2006), which states that "Circuit law could very well support a claim that a gunpoint death threat issued to a restrained and unresisting arrestee represents excessive force." That's good language for plaintiff, but the Second Circuit says it's not enough to save plaintiff's claim, as that language in Mills is non-binding dicta and the case itself is an unpublished summary order, which doesn't count for qualified immunity purposes. The Court of Appeals held in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), that summary orders cannot be cited in support of a qualified immunity argument.

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