Don't Get Punched: Dealing with Police at a Crime Scene

Penn waving at police while holding a pistol

Kevin Penn, a liquor storeowner in Decatur, Alabama has sued a police officer who punched him in the face and broke his jaw during the police response to a robbery on March 2020. The suit in federal court alleges that the officer violated Kevin Penn’s constitutional rights by illegally seizing and falsely arresting him and claims that the incident is an example of the Decatur Police Department’s systemic use of excessive force.

A summary of what allegedly occurred during the incident:

Penn had called police after he trapped an alleged shoplifter with an electronic lock and the individual was laying on the floor with Penn holding him at gunpoint. A surveillance video shows Penn unloading his pistol and placing it on a counter as police approach. The officers told Penn to get away from the pistol; however, Penn very aggressively yelled at them stating, “I am allowed to have my gun.”

During a press conference concerning the incident, Decatur Police played a bodycam video that appeared to show Penn then move his hand over a pistol laying on a counter next to him while holding a magazine with his other hand. In the blurry video, Penn certainly appeared to be reaching for the pistol when Decatur Police officer Justin Rippen punched him, wrestled him to the ground with other officers, and then arrested and charged him with obstructing a robbery investigation.

So how do you avoid a punch in the jaw during a police encounter?

When police arrive at the scene of a crime, the officers are in charge. They must secure the scene, determine what happened, identify who may be a criminal and who may be a victim, collect evidence, and a myriad of other tasks.

In Texas, a private citizen does not have a right to continue to possess a weapon at a crime scene if the police decide to disarm the citizen. Texas law for example provides police with the authority to disarm a person at any time if the officer:

    -- Is discharging the officer’s official duties; and

    -- Reasonably believes disarming the person is necessary for the protection of the person, the officer, or another person. 

The law requires the officer to return the handgun to the person who was disarmed before allowing the person to leave if the officer determines that the person is not a threat to the person, the officer, or others, and if the person is not arrested.” (see the HB 1927 amendment to Article 14.03 of the Texas Code of Criminal Procedure).

It is not clear from my research whether Alabama has a legal provision similar to that of Texas. The 2016 Alabama Code, Title 31 - Military Affairs and Civil Defense, Chapter 9 - Emergency Management, Section 31-9-8 - Emergency powers of Governor does permit a person whom the police have detained to be disarmed under certain circumstances similar to Texas law. However, it is unclear whether this applies to all citizen/police encounters or just those during an emergency.*

Regardless of whether the law technically provides a right to continue to possess a firearm at a crime scene, common sense must apply in these circumstances. Failing to comply with police orders and confronting a police officer who tells you to drop a weapon is a great way to be shot or punched in the jaw. In the picture below Penn is walking away from police with a pistol in his hand. The time to argue your rights comes later—not at the crime scene.

Responding police can see Penn at this point

So what should you do in similar circumstances? As soon as the first identifiable uniformed officer arrives, he or she has command of the situation. Immediately obey the officer’s commands without argument or hesitation.

Before the officer’s arrive, move to a good cover position ideally where you can see the bad guy as well as responding police. If no cover is immediately at hand, put some distance between you and the downed bad guy. If possible, you should chose a position from where you can see the police before they see you.

The ideal circumstance when encountering police responding to a crime scene is to have your hands empty. You want to present a non-threatening appearance to responding officers; you absolutely SHOULD NOT have any type of firearm in your hand as the police arrive at the scene. Police may shoot the second they say “drop the gun!" if you do not instantly comply.

If you have holstered your pistol but feel that you must have your hand on it due to the potential of a continuing threat of deadly force from the bad guy, slowly remove your hand the instant an officer arrives on the scene. If an officer you did not see confronts you and demands you show your hands, tell the officer: “I’m going to lift my hand without the pistol.” This is one reason I prefer carrying concealed is that as you see an approaching officer you can simply remove your hand from your pistol that is now concealed from view. 

Was the officer’s punch in this incident excessive force? That is for the court to decide. Based on the surveillance video, Penn certainly had time to holster his pistol and meet responding police with empty hands. I believe the encounter with police would have unfolded very differently if he had cooperated with the Decatur Police rather than aggressively confronting them.

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*Alabama Code Title 31. Military Affairs and Civil Defense § 31-9-8 d. (2) A law enforcement officer who is acting in the lawful discharge of the officer's official duties may disarm an individual if the officer reasonably believes that it is immediately necessary for the protection of the officer or another individual.  The officer shall return the firearm to the individual before discharging that individual unless the officer arrests that individual for engaging in criminal activity or seizes the firearm as evidence pursuant to an investigation for the commission of a crime or, at the discretion of the officer, the individual poses a threat to himself or herself or to others.