Seventh Circuit Finds Terry Stop at Gunpoint Warranted by Circumstances
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Conducting a stop and frisk at gunpoint was reasonable based on officers’ observations of a suspect’s conduct, and did not constitute an arrest, the U.S. Court of Appeals for the Seventh Circuit recently held.
On the second night of civil unrest in Madison, Wisconsin, following the death of George Floyd, Kyle Olson arrived in Madison. That weekend, crowds of hundreds engaged in looting, vandalism, arson, and threatened Madison Police Department (MPD) officers both verbally and with hurled projectiles. In response to those events, the Mayor of Madison declared a state of emergency and imposed a city-wide curfew, and MPD officers were entrenched into near 24-hour service.
The day after the mayor’s orders, curfew fell at 9:30 p.m. An hour and a half later, around 11:00 p.m., three MPD officers from inside a building observed Olson park his car, apparently drink a beer, and “checking a full 360.” One officer believed Olson was preparing to engage in an activity he did not want to be seen or discovered. All three officers then watched Olson take a black pistol from the trunk of his car, tuck it into his waistband, and pull his shirt over the gun.
The officers then went to engage Olson. They exited the building and approached Olson with their service weapons drawn and trained on him. One officer ordered Olson to put his hands on top of the car, and Olson immediately complied. The other two officers then secured Olson’s hands while the first officer proceeded to pat down Olson’s back, where he felt what he believed to be the grip of a pistol. The inspecting officer then lifted Olson’s shirt and pulled a black pistol from Olson’s waistband. Officers then secured the weapon and took Olson into custody.
Federal prosecutors charged Olson with one count of possession of a gun as a felon in the U.S. District Court for the Western District of Wisconsin. Before trial, Olson moved to suppress the pistol as the fruit of an illegal search. He argued his encounter with officers was either an arrest unsupported by probable cause or an unconstitutional Terry stop unsupported by reasonable suspicion. On recommendation from a magistrate, the District Court denied the suppression motion. Olson then appealed to the U.S. Court of Appeals for the Seventh Circuit.
The Seventh Circuit began its analysis by addressing whether MPD officers conducted a Terry stop on Olson, or a de facto arrest. Where law enforcement’s use of force during a Terry stop is disproportionate to the purpose of the stop, “the encounter becomes a formal arrest,” the Court held. The distinction between the two “is subtle” but legally significant because a Terry stop “requires only reasonable suspicion of criminal activity,” while an arrest “demands a probable cause.”
To determine whether the MPD officers’ use of force to stop Olson amounted to a de facto arrest, the Court focused on the evidence to support the officers’ “legitimate fear for personal safety.” The Court considered “the unique and extreme circumstances of the night in question” and the officers’ knowledge that Olson was apparently armed, potentially intoxicated, and in an environment where MPD officers “were a particular target.” Under those circumstances, “it would have been foolish for the officers to treat Olson with anything but the utmost caution.” For those reasons, the Court held Olson’s initial seizure was a Terry stop, not a de facto arrest.
Having determined that MPD officers conducted a Terry stop on Olson, the Seventh Circuit then examined whether they had reasonable suspicion. Based on the information the officer had available about Olson and the circumstances of the night in question, the Court held the officers’ reasonably suspected Olson was engaged or about to engage in criminal activity. The Court specifically cited Wisconsin law criminalizing carrying a gun while under the influence of an intoxicant and noted (but did not rely upon as a basis for its decision) that Olson was out past curfew.
The Seventh Circuit dispensed with Olson’s other arguments and affirmed the District Court’s judgment denying Olson’s motion to suppress.
Read the Seventh Circuit’s full opinion here: United States v. Olson.
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