Non-Contact Excessive Force by Police: Is That Really a Thing?

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to that question is yes. The context of such alleged excessive force is usually a detention of someone by police at gunpoint. A plaintiff may claim that the pointing of the gun is unreasonable and in violation of the plaintiff’s rights. However, the federal circuits are not uniform on this issue, and the United States Supreme Court has yet to squarely address such a claim. This article’s purpose is to survey the law in the federal circuits to assist practitioners and courts in understanding the factors used by the federal circuits in analyzing whether a plaintiff has a colorable claim when no physical contact or injury results