Correll Thomas v. C. Dillard ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORRELL L. THOMAS, No. 13-55889
Plaintiff-Appellee,
D.C. No.
v. 3:11-cv-02151-
CAB-NLS
C. DILLARD, Police Officer,
Defendant-Appellant,
ORDER AND
and AMENDED
OPINION
PALOMAR COMMUNITY COLLEGE
DISTRICT,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted
June 2, 2015—Pasadena, California
Filed April 5, 2016
Amended May 5, 2016
Before: Ferdinand F. Fernandez, Raymond C. Fisher
and Carlos T. Bea, Circuit Judges.
2 THOMAS V. DILLARD
Order;
Opinion by Judge Fisher;
Partial Concurrence and Partial Dissent by Judge Bea
SUMMARY*
Civil Rights
The panel reversed the district court’s order on summary
judgment denying qualified immunity to Palomar College
police officer Christopher Dillard and also reversed the
district court’s partial summary judgment in favor of plaintiff
on the issue of liability in an action brought pursuant to
42 U.S.C. § 1983 alleging unlawful seizure and excessive
force under the Fourth Amendment.
Responding to a possible domestic violence call, officer
Dillard demanded that plaintiff submit to a Terry frisk for a
search of weapons. When plaintiff refused to be searched,
officer Dillard tased him.
The panel held that although the domestic violence nature
of a police investigation is a relevant consideration in
assessing whether there is reason to believe a suspect is
armed and dangerous, it is not alone sufficient to establish
reasonable suspicion. The panel therefore held that Dillard
violated plaintiff’s Fourth Amendment rights against
unreasonable seizure by detaining him for the purpose of
performing a Terry frisk. The panel nonetheless held that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
THOMAS V. DILLARD 3
Dillard was entitled to qualified immunity because it was not
clearly established at the time that the initial demand for a
frisk was unlawful. The panel further held that it was not
clearly established at the time that continuing to detain a
noncompliant domestic violence suspect for the purpose of
executing a frisk and tasing him when he refused to comply
were unlawful.
Concurring in part and dissenting in part, Judge Bea
agreed that Officer Dillard was entitled to qualified immunity
on plaintiff’s claims for unlawful seizure and excessive force
under 42 U.S.C. § 1983, and that the district court’s grant of
partial summary judgment to plaintiff must accordingly be
reversed. Judge Bea would hold, however, that the domestic
violence nature of a call requesting police assistance can
alone give rise to reasonable suspicion necessary to justify a
Terry frisk.
COUNSEL
Randall L. Winet, Winet Patrick Gayer Creighton & Hanes,
Vista, California, for Defendant-Appellant.
Eugene G. Iredale (argued), Iredale and Yoo, San Diego,
California; Mervyn S. Lazarus, Law Offices of Mervyn S.
Lazarus, Newport Beach, California, for Plaintiff-Appellee.
4 THOMAS V. DILLARD
ORDER
The opinion filed April 5, 2016 and reported at 2016 WL
1319765 is hereby AMENDED as follows:
At slip opinion page 23, line 8, change to .
At slip opinion page 24, line 1, change to .
At slip opinion page 24, footnote 11, line 1, change
to .
Appellee’s Petition for Rehearing and Suggestion for
Rehearing En Banc, filed April 16, 2016, remains pending.
OPINION
FISHER, Circuit Judge:
Palomar College Police Officer Christopher Dillard
responded to a call to investigate a man pushing a woman in
a public area on the college’s campus. There he found
Correll Thomas, a student at the college who had been
hanging out with and kissing his girlfriend, Amy Husky.
Although Thomas was unarmed and in fact had committed no
act of domestic violence, Dillard demanded Thomas submit
to a search for weapons, believing police officers are free to
conduct a Terry frisk whenever they are investigating a
potential “domestic violence” incident, regardless of the
specific circumstances of the call or the facts encountered at
THOMAS V. DILLARD 5
the scene.1 When Thomas refused to be searched, Dillard
tased him. Thomas sued Dillard under 42 U.S.C. § 1983,
asserting unlawful seizure and excessive force under the
Fourth Amendment. The district court denied Dillard
qualified immunity on summary judgment and granted partial
summary judgment to Thomas on the issue of liability.
Dillard appeals.
We address whether a law enforcement officer has
reasonable suspicion to conduct a Terry frisk, searching a
suspect for weapons, based solely on the perceived domestic
violence nature of the investigation. We hold that, although
the domestic violence nature of a police investigation is a
relevant consideration in assessing whether there is reason to
believe a suspect is armed and dangerous, it is not alone
sufficient to establish reasonable suspicion. We therefore
hold Dillard violated Thomas’ Fourth Amendment rights
against unreasonable seizure by detaining him for the purpose
of performing a Terry frisk. Because it was not clearly
established at the time that the perceived domestic violence
nature of an investigation was insufficient to establish
reasonable suspicion, however, we hold Dillard is entitled to
qualified immunity. We further hold Dillard used excessive
force when he tased Thomas in order to force him to submit
to the Terry frisk against his consent. Given the frisk was
unlawful and unnecessary, Dillard used unreasonable force.
Nonetheless, given the unsettled state of the law regarding the
1
Under the Fourth Amendment to the United States Constitution,
frisking a person for weapons requires reasonable suspicion a suspect “is
armed and presently dangerous to the officer or to others.” Terry v. Ohio,
392 U.S. 1, 24 (1968). To establish reasonable suspicion a suspect is
armed and dangerous, “the police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Id. at 21.
6 THOMAS V. DILLARD
use of Tasers at the time, we again hold Dillard is entitled to
qualified immunity. Given the Supreme Court’s instructions
that we may not define clearly established law at too high a
level of generality, it was not clearly established at the time
of Dillard’s actions that an officer who mistakenly but
reasonably believed he had the right to conduct a Terry frisk
could not deploy a Taser in dart mode to overcome a
suspect’s resistance to the frisk. Accordingly, without in any
way endorsing Dillard’s actions or overlooking the indignities
those actions caused Thomas to suffer, we reverse the order
of the district court and hold Dillard is entitled to summary
judgment on the ground of qualified immunity.
I. BACKGROUND
Because we are reviewing the denial of Dillard’s motion
for summary judgment based on qualified immunity, we
assume Thomas’ version of disputed facts and draw all
reasonable inferences in his favor. See Mattos v. Agarano,
661 F.3d 433, 439 (9th Cir. 2011) (en banc).
At approximately 3:42 pm on September 21, 2010, the
Palomar College Police Department dispatched Officer
Dillard to the college’s Escondido campus to respond to a
domestic violence call involving a black male. Dillard spoke
to a college administrator on the north side of campus, but
was unable to obtain any further details pertaining to the
domestic violence incident that may have prompted the call.
The record contains virtually no information about this call.
We have no description of the suspect other than Dillard’s
belief that the call mentioned a black male, no description of
the what the alleged “domestic violence” may have entailed
and no information about where the incident might have
occurred.
THOMAS V. DILLARD 7
Approximately 40 minutes later, at 4:20 pm, while he was
speaking with the administrator, Dillard received a call to
investigate a male wearing a purple shirt pushing a female
near some storage containers on the south side of the
Escondido campus. A male wearing a purple shirt pushing a
female was the entire scope of the call. There was no further
description of the “suspect,” or of the alleged “pushing,” and
the call made no mention of domestic violence. When
Dillard arrived on the scene, he first encountered a
community service officer who had also responded to the call,
and who would remain present throughout the ensuing
incident.2 Dillard then saw a male with a purple shirt and a
female come out from behind the storage containers.3 These
were Thomas, who is African-American, and his girlfriend,
Husky.4
Dillard got out of his police car, telling Thomas and
Husky as he did so that no one was in trouble. Dillard
stopped about 10 feet away from Thomas and Husky, who
were standing next to each other. Dillard saw no indication
that a crime had occurred. Husky exhibited no signs of
2
The dissent describes the encounter as occurring in “an alley flanked
by large storage containers.” Dissent at 50. As the district court pointed
out, however, there was nothing sinister about the location of the
encounter: “The area to which Officer Dillard was dispatched, although
described as an alley, was an open paved road bordered on one side by a
large parking lot. It was not a restricted or suspicious area.”
3
The dissent includes additional details about Thomas’ appearance that
have no bearing on the issues presented in this case – e.g., that Thomas
was wearing “skater shoes, a neck chain, an earring, and a black beanie.”
Dissent at 50.
4
At the time of the encounter, Dillard and Thomas both stood about five
and a half feet tall and weighed about 160 pounds.
8 THOMAS V. DILLARD
domestic violence. She showed no signs of injury. She had
not been crying. She did not appear distraught. The area was
open to the public. Thomas and Husky looked like normal
college students. Their hands appeared empty. They may
have appeared startled or fidgety, but, as Dillard testified,
these were normal behaviors.
Dillard asked Thomas and Husky whether they had
identification. Thomas responded that he did; Husky said she
did not. Dillard did not ask to see the identification. Instead,
he asked Thomas whether he had any weapons on him.
When Thomas responded that he did not, Dillard asked
Thomas whether he would mind being searched for weapons.
This was approximately 15 seconds into the encounter.
Thomas responded that he did mind.
Dillard approached Thomas and asked again whether he
would consent to a search for weapons. When Thomas
declined, Dillard told Thomas he had received a call “about
a guy in a purple shirt pushing around a girl.” Thomas and
Husky both denied they had seen anything or had done
anything wrong. They both denied they were fighting, or that
Thomas was pushing Husky. Husky told Dillard they had
just been kissing behind the storage containers. Dillard asked
Thomas again for consent to search for weapons, and Thomas
again refused. Dillard moved toward Thomas, attempting to
grab him and place him a controlled hold for the purpose of
conducting a frisk. When Thomas stepped away to avoid
being grabbed, Dillard backed off, pulled out his Taser,
pointed it at Thomas and told Thomas he was going to search
him. This occurred approximately 30 to 40 seconds into the
encounter. Husky, meanwhile, was yelling at Dillard that
Thomas had done nothing wrong.
THOMAS V. DILLARD 9
Thomas continued to respond to Dillard’s questions but
to withhold his consent to being searched. He was not
aggressive or belligerent. Dillard called for backup and kept
his Taser pointed at Thomas. Dillard told Thomas to put his
hands in the air, step forward and drop to his knees. Thomas
refused to do so. In response to the call for backup, a
uniformed Escondido police officer arrived on the scene and
pointed her handgun at Thomas from a distance of 15 feet
away. When the Escondido officer told Thomas to put up his
hands, he did so. Dillard told Thomas that if he did not get
down on his knees by the count of three, Dillard would tase
him. Dillard counted to three, and, when Thomas did not
comply, tased Thomas. Dillard fired the Taser in dart mode,
discharging a set of electrified barbs that lodged in Thomas’
chest and delivered an incapacitating surge of electrical
current to his body. This occurred approximately six minutes
into the encounter. Thomas was handcuffed, searched (no
weapons were found), treated by paramedics, arrested and
charged with unlawfully resisting, delaying or obstructing a
peace officer. See Cal. Penal Code § 148(a)(1). The charges
were dismissed six months later.
Thomas filed suit against Dillard under 42 U.S.C. § 1983,
alleging violations of his Fourth Amendment rights to be free
from unlawful seizure and excessive force. He also alleged
claims under California state law for negligence and violation
of California Civil Code § 52.1. Dillard moved for summary
judgment, and Thomas cross-moved for partial summary
judgment on the issue of liability. The district court denied
Dillard’s motion and granted Thomas’ motion. The court
ruled Dillard lacked reasonable suspicion to believe Thomas
was armed and dangerous, and thus that Dillard unlawfully
seized Thomas for the purpose of conducting a weapons
10 THOMAS V. DILLARD
search. The court also denied qualified immunity for this
seizure, reasoning:
Having determined the existence of a
constitutional violation, the Court considers
whether the right violated was clearly
established at the time of its occurrence. At
the time Officer Dillard tased Thomas to force
his compliance with a weapons’ search, it was
clearly established that such a search is
unreasonable unless supported by the officer’s
reasonable suspicion that the person to be
searched is armed and dangerous. Ramirez [v.
City of Buena Park], 560 F.3d [1012,] 1023
[(9th Cir. 2009)]. There was no objective
evidence to support a reasonable suspicion
that Thomas had a weapon. Officer Dillard’s
explanation, based on his subjective
characterization that this was a domestic
violence call and therefore necessitated a
search without any indication a weapon was
involved, is wholly inadequate to justify his
conduct. It would have been clear to a
reasonable officer that a search of Thomas in
the circumstances presented was unlawful.
Officer Dillard is not entitled to qualified
immunity.
The court further ruled “Dillard’s use of his taser to compel
Thomas’s compliance with the search was excessive force.”
“Having concluded that Officer Dillard had no reasonable
suspicion to support a search of Thomas for weapons, any
force used to accomplish that search was objectively
THOMAS V. DILLARD 11
unreasonable and tasing Thomas was clearly excessive,” the
court wrote. Dillard timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
Ordinarily, we lack jurisdiction over an appeal from a
denial of summary judgment because it is not a “final”
judgment under 28 U.S.C. § 1291. See Mueller v. Auker,
576 F.3d 979, 987 (9th Cir. 2009). A public official,
however, may immediately appeal the denial of a motion for
summary judgment asserting qualified immunity. See
Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).
Accordingly, we have jurisdiction to review the denial of
qualified immunity to Dillard. Our review is limited to
whether, after construing disputed facts and reasonable
inferences in favor of Thomas, Dillard is entitled to qualified
immunity as a matter of law. See Mattos, 661 F.3d at 439 &
n.2. We review this question de novo. See id. at 439.5
III. DISCUSSION
Qualified immunity shields a police officer from suit
under § 1983 unless (1) the officer violated a statutory or
constitutional right, and (2) the right was clearly established
at the time of the challenged conduct. See Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014); Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2080 (2011). Although we have discretion
5
Under the circumstances of this case, we also have jurisdiction to
review the district court’s grant of partial summary judgment to Thomas
on the issue of Fourth Amendment liability because our holding that
Dillard is entitled to qualified immunity necessarily resolves the issue of
Dillard’s liability. See K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 975
(9th Cir. 2015); Bull v. City & Cty. of San Francisco, 595 F.3d 964, 971,
982 (9th Cir. 2010) (en banc).
12 THOMAS V. DILLARD
in deciding which of these two prongs to address first, here
we elect to follow the order laid out above. See Mattos,
661 F.3d at 440. We evaluate separately the constitutionality
of each distinct Fourth Amendment intrusion: the
investigatory stop, the Terry frisk and the use of the Taser.
See Ramirez, 560 F.3d at 1019.
A. Investigative Stop
The Fourth Amendment protects the “right of the people
to be secure in their persons . . . against unreasonable
searches and seizures” by the government. U.S. Const.
amend. IV. “This inestimable right of personal security
belongs as much to the citizen on the streets of our cities as
to the homeowner closeted in his study to dispose of his
secret affairs.” Terry v. Ohio, 392 U.S. 1, 8–9 (1968).
“Unquestionably [Thomas] was entitled to the protection of
the Fourth Amendment as he walked down the street in
[Escondido],” just as John Terry was entitled to the same
protection on a Cleveland street in 1963. Id. at 9.
Terry permits limited police intrusions on a person’s
freedom of movement and personal security when an officer’s
suspicion falls short of the “probable cause” required to
execute an arrest or a “full” search. See id. at 20–27. To
initiate a brief stop to investigate potential criminal activity,
a stop that does not rise to the level of an arrest, an officer
must have reasonable suspicion to believe “criminal activity
may be afoot.” Id. at 30; United States v. Arvizu, 534 U.S.
266, 273 (2002). This means the officer must have
reasonable suspicion “the person apprehended is committing
or has committed a criminal offense.” Arizona v. Johnson,
555 U.S. 323, 326 (2009).
THOMAS V. DILLARD 13
Thomas does not challenge Dillard’s initial decision to
stop and question him and Husky for a brief period. Campus
police dispatch had informed Dillard that a man wearing the
same color shirt as Thomas had pushed a woman in the very
location Thomas and Husky were found, by the storage
containers. This created a reasonable suspicion Thomas
might have committed a simple assault or battery, possibly in
the context of a domestic relationship. See, e.g., Cal. Penal
Code § 242 (defining battery as “any willful and unlawful use
of force or violence upon the person of another”); id.
§ 243(e)(1) (proscribing simple battery against “a person with
whom the defendant has, or has had, a dating relationship”).6
Dillard was entitled to detain Thomas briefly to investigate
the report of potential criminal activity – a so-called Terry
stop.
In conducting the stop, Dillard also was permitted to ask
Thomas for consent to search for weapons, see United States
v. Drayton, 536 U.S. 194, 207 (2002), known as a Terry frisk,
see United States v. I.E.V., 705 F.3d 430, 433 (9th Cir. 2012).
As the word “consent” implies, however, Thomas was free to
decline Dillard’s request. See Florida v. Bostick, 501 U.S.
429, 437 (1991) (“[A]n individual may decline an officer’s
request [for a consent search] without fearing prosecution.”).
The nature of the interaction between Dillard and Thomas
changed significantly, however, once Dillard unholstered his
Taser, pointed it at Thomas and ordered Thomas to submit to
a frisk for weapons. At that point, he exceeded the
justification and authority for the Terry stop – to investigate
6
Under California law, “the least touching may constitute battery.”
People v. Myers, 71 Cal. Rptr. 2d 518, 522 (Ct. App. 1998) (internal
quotation marks omitted). It need not be violent or severe, and it need not
cause bodily harm or even pain. See id.
14 THOMAS V. DILLARD
a potential battery. See Florida v. Royer, 460 U.S. 491, 500
(1983) (“The scope of the detention must be carefully tailored
to its underlying justification.”); id. (“[A]n investigative
detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop.”); see also
Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015)
(noting the permissible duration of a traffic stop, “[l]ike a
Terry stop,” is determined by the “mission” of the stop).
Once Dillard demanded Thomas submit to a search for
weapons, he needed a reasonable basis for believing Thomas
might be armed and dangerous in order to continue detaining
him for the search. The question, then, is whether Dillard had
such justification.
B. Frisk
Thomas argues Dillard had no justification for ordering
him to submit to a Terry frisk and that detaining him to
perform the frisk violated the Fourth Amendment. He
contends it was clearly established that Dillard’s conduct was
unconstitutional when the events took place in September
2010, and Dillard therefore is not entitled to qualified
immunity. We address these two prongs of the qualified
immunity analysis in turn. We emphasize, again, that for this
purpose we take the facts and inferences drawn from them in
favor of Thomas.
1. Constitutional Violation
Whereas the purpose of a Terry stop is to further the
interests of crime prevention and detection, a Terry frisk is
justified by the concern for the safety of the officer and others
in proximity. See Terry, 392 U.S. at 22–24. Accordingly,
whereas a Terry stop is justified by reasonable suspicion that
THOMAS V. DILLARD 15
criminal activity may be afoot, a frisk of a person for
weapons requires reasonable suspicion that a suspect “is
armed and presently dangerous to the officer or to others.”
Id. at 24; see also Johnson, 555 U.S. at 326–27. “A lawful
frisk does not always flow from a justified stop.” United
States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988). Rather,
“[e]ach element, the stop and the frisk, must be analyzed
separately; the reasonableness of each must be independently
determined.” Id.; see also Terry, 392 U.S. at 22–23.
A frisk for weapons “is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and
arouse strong resentment, and it is not to be undertaken
lightly.” Terry, 392 U.S. at 17; see also id. at 14–17
nn.11–14. As the Supreme Court recognized in fashioning
the stop-and-frisk exception to probable cause, people have
a strong interest in personal security, and routine police
intrusions breed resentment within communities they serve.
Accordingly, Terry was careful to craft a standard for a frisk
that was both protective of law enforcement officers who
confront potentially dangerous individuals and consistent
with the objective, fact-based approach traditionally required
to justify invasions into areas protected by the Fourth
Amendment. See id. at 20–27.7
7
The Court was particularly sensitive to resentment in minority
communities with regard to aggressive stop-and-frisk tactics. See Terry,
392 U.S. at 14–15 & n.11 (citing President’s Commission on Law
Enforcement and Administration of Justice, Task Force Report: The Police
183–84 (1967)); id. at 16–17 & n.14; see also John Q. Barrett, Deciding
the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference,
72 St. John’s L. Rev. 749, 770–72 (1998); Earl C. Dudley Jr., Terry v.
Ohio, the Warren Court and the Fourth Amendment: A Law Clerk’s
Perspective, 72 St. John’s L. Rev. 891, 893 (1998).
16 THOMAS V. DILLARD
To establish reasonable suspicion a suspect is armed and
dangerous, thereby justifying a frisk, “the police officer must
be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry, 392 U.S. at 21. A “mere
‘inchoate and unparticularized suspicion or hunch’” that a
person is armed and dangerous does not establish reasonable
suspicion, Maryland v. Buie, 494 U.S. 325, 332 (1990)
(quoting Terry, 392 U.S. at 27) (some internal quotation
marks omitted), and circumstances suggesting only that a
suspect would be dangerous if armed are insufficient, see
United States v. Flatter, 456 F.3d 1154, 1157 (9th Cir. 2006).
There must be adequate reason to believe the suspect is
armed. See id.
Reasonable suspicion is an objective standard, asking
whether “a reasonably prudent [person] would have been
warranted in believing [the suspect] was armed and thus
presented a threat to the officer’s safety while he was
investigating his suspicious behavior.” Terry, 392 U.S. at 28.
This inquiry requires consideration of all the facts and
circumstances an officer confronts in the encounter; we
consider the totality of the circumstances. See id.; Navarette
v. California, 134 S. Ct. 1683, 1687 (2014); Arvizu, 534 U.S.
at 273; United States v. Sokolow, 490 U.S. 1, 8 (1989); United
States v. Cortez, 449 U.S. 411, 417 (1981); United States v.
Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010). Importantly,
reasonable suspicion must be individualized: “[e]ven in high
crime areas, where the possibility that any given individual is
armed is significant, Terry requires reasonable, individualized
suspicion before a frisk for weapons can be conducted.”
Buie, 494 U.S. at 334 n.2.
THOMAS V. DILLARD 17
In assessing the totality of the circumstances, relevant
considerations may include: observing a visible bulge in a
person’s clothing that could indicate the presence of a
weapon, see Flatter, 456 F.3d at 1157 (citations omitted);
seeing a weapon in an area the suspect controls, such as a car,
see Michigan v. Long, 463 U.S. 1032, 1050 (1983); “sudden
movements” suggesting a potential assault or “attempts to
reach for an object that was not immediately visible,” Flatter,
456 F.3d at 1157 (citing United States v. Flippin, 924 F.2d
163, 164–66 (9th Cir. 1991)); cf. Ybarra v. Illinois, 444 U.S.
85, 93 (1979) (holding reasonable suspicion was lacking
where an individual’s hands were empty and he made “no
gestures or other actions indicative of an intent to commit an
assault”); “evasive and deceptive responses” to an officer’s
questions about what an individual was up to, Burkett,
612 F.3d at 1107; unnatural hand postures that suggest an
effort to conceal a firearm, see id. (suspect opened the
passenger car door with his left hand and kept his right hand
next to his body and appeared to reach for his coat pocket);
and whether the officer observes anything during an
encounter with the suspect that would dispel the officer’s
suspicions regarding the suspect’s potential involvement in a
crime or likelihood of being armed, see Terry, 392 U.S. at 28;
United States v. $109,179 in U.S. Currency, 228 F.3d 1080,
1086 (9th Cir. 2000).
This last point is especially important. Even where
certain facts might support reasonable suspicion a suspect is
armed and dangerous when viewed initially or in isolation, a
frisk is not justified when additional or subsequent facts
dispel or negate the suspicion. Just as a suspicion must be
reasonable and individualized, it must be based on the totality
of the circumstances known to the officer. Officers may not
cherry pick facts to justify the serious Fourth Amendment
18 THOMAS V. DILLARD
intrusion a frisk imposes. See Thomas, 863 F.2d at 626–30
(holding there was reasonable suspicion to stop a driver who
roughly resembled a counterfeiting suspect and was near the
scene of the crime; but once the driver exited his vehicle and
it was clear he did not match the suspect’s description, there
was no reasonable suspicion under the circumstances to
justify further detention or a frisk).
Here, Dillard contends a reasonable officer would have
been justified in believing Thomas was armed and dangerous
based on the following specific facts: (1) Dillard had received
two dispatches regarding potential violence against a female,
Thomas loosely matched the minimal descriptions of the
suspects in both dispatches, and Dillard encountered Thomas
and Husky in the location where the pushing incident had
been reported; (2) Thomas and Husky appeared startled and
fidgety; (3) Thomas was wearing clothing – a T-shirt and
loose-fitting jeans – capable of hiding a weapon; (4) Thomas
refused to consent to a weapons search, even after Dillard
explained the nature of his investigation; and (5) Thomas
stepped away after Dillard approached him and attempted to
place him into a controlled hold. Like the district court, we
conclude these facts, viewed as part of the totality of the
circumstances, did not give Dillard reason to believe Thomas
was armed and dangerous.
(1) Potential Domestic Violence Nature of the Call. The
only fact Dillard seriously presses for suspecting Thomas was
armed at the time he demanded to frisk is the perceived
domestic violence nature of the crime he was investigating.
It is true, of course, that the type of crime a person is
suspected of committing may be highly relevant to the
existence of reasonable suspicion for a weapons frisk. In
Terry, the officer’s suspicion that Terry was armed was
THOMAS V. DILLARD 19
premised largely on his substantiated suspicion that Terry was
planning a daytime store robbery and that such robberies are
“likely to involve the use of weapons.” 392 U.S. at 28.
Similarly, we have held it is reasonable for an officer to
assume a suspected narcotics trafficker is likely armed. See
$109,179 in U.S. Currency, 228 F.3d at 1086–87. The same
is true for a suspected bank robber, see United States v.
Johnson, 581 F.3d 994, 1000 (9th Cir. 2009), someone
suspected of involvement in a large-scale marijuana growing
operation, see United States v. Davis, 530 F.3d 1069,
1082–83 (9th Cir. 2008), and a suspect in certain nighttime
burglaries, see United States v. Mattarolo, 209 F.3d 1153,
1158 (9th Cir. 2000).8 On the other hand, when a person is
8
Of course, suspicion of a crime likely to involve weapons is not the end
of the matter. Under the totality-of-the-circumstances analysis, additional
facts may sufficiently dispel an officer’s suspicion. See Thomas, 863 F.2d
at 628–29 (holding a frisk was unlawful where, after the suspects were
stopped and exited their vehicle, their clothing did not match the
description of the reported perpetrators); 4 Wayne R. LaFave, Search &
Seizure § 9.6(a) (5th ed. 2015) (“[I]t should not be assumed that whatever
might happen between the initiation of the stop and the initiation of the
frisk is of no relevance, for this is not the case. If by investigation or
happenstance the quantum of evidence needed to justify a forcible stop has
dissipated during this interval, then it is not permissible to frisk.”); cf.
Terry, 392 U.S. at 28, 30 (noting nothing dispelled the officer’s suspicions
that Terry was armed). Even where the type of crime is likely to involve
weapons, we consider the totality of the circumstances to determine
whether the suspicion is actually justified in context and whether any
suspicion was dispelled by other facts known to the officer. See, e.g.,
Johnson, 581 F.3d at 1000 (officers personally observed many tell-tale
signs of a bank robbery plan unfolding before them); Davis, 530 F.3d at
1082 (distinguishing a suspect who had access to a private residence
growing marijuana on a large scale from one who was in a public place
and had only a loose association with drug dealers); $109,179 in U.S.
Currency, 228 F.3d at 1085–87 (drug trafficking suspect failed to identify
himself, provided inconsistent answers to an officer’s questions and was
20 THOMAS V. DILLARD
being investigated for a crime that is neither “likely to
involve the use of weapons,” Terry, 392 U.S. at 28, nor
“frequently associated with weapons,” Flatter, 456 F.3d at
1158, suspicion of such a crime does not provide reason to
suspect a person is armed. See id. (suspicion of mail theft is
insufficient); Thomas, 863 F.2d at 629 (same with passing
counterfeit money); Ramirez v. City of Buena Park, 560 F.3d
1012, 1022 (9th Cir. 2009) (same with illicit drug use). We
have not previously addressed whether domestic violence is
the type of crime that is likely to involve weapons, such that
the nature of the crime itself may provide suspicion a suspect
is armed. We address that issue now, and hold domestic
violence is not a crime such as bank robbery or trafficking in
large quantities of drugs that is, as a general matter, likely to
involve the use of weapons. Thus, officers may not rely
solely on the domestic violence nature of a call to establish
reasonable suspicion for a frisk. See 4 Wayne R. LaFave,
Search & Seizure § 9.6(a) (5th ed. 2015) (describing a “minor
assault without weapons” as the type of crime that does not,
absent other circumstances, give rise to a reasonable
suspicion a suspect is armed).9
Dillard’s argument, accepted by our dissenting colleague,
that the mere fact an officer is responding to a perceived
domestic violence call establishes reasonable suspicion a
suspect is armed and dangerous ignores the broad scope of
confronted in a confined hotel room); Mattarolo, 209 F.3d at 1158 (after
being stopped on a remote stretch of road, a nighttime burglary suspect got
out of his car and quickly approached the officer’s squad car).
9
We likewise have found no case law to suggest the California courts
would presume a suspect is armed and dangerous based solely on the
domestic violence nature of a call.
THOMAS V. DILLARD 21
conduct encompassed by the term domestic violence,
especially under California law. See Cal. Penal Code
§ 13700(b) (defining “domestic violence” to include any
“abuse committed against an adult or a minor who is a
spouse, former spouse, cohabitant, former cohabitant, or
person with whom the suspect has had a child or is having or
has had a dating or engagement relationship”); id. § 13700(a)
(defining “abuse” to include “intentionally or recklessly
causing or attempting to cause bodily injury, or placing
another person in reasonable apprehension of imminent
serious bodily injury to himself or herself, or another”).
Domestic violence comes in widely varying degrees of
dangerousness. It “is a term of art encompassing acts that one
might not characterize as ‘violent’ in a nondomestic context.”
United States v. Castleman, 134 S. Ct. 1405, 1411 (2014). It
can involve conduct as minor as squeezing another’s arm to
create a bruise, see id. at 1412, or as serious as rape, see
People v. Poplar, 83 Cal. Rptr. 2d 320, 326 (Ct. App. 1999),
or homicide, see Castleman, 134 S. Ct. at 1408–09.
As a general category of crime, therefore, domestic
violence is clearly distinguishable from the more specific
crimes the Supreme Court and this court have held are likely
to involve the use of weapons, such as the daytime store
robbery in Terry, bank robbery or narcotics trafficking.
Although mail theft and bank robbery both fall under the
category of theft offenses, only the latter gives rise to
suspicion a suspect is armed. Compare Flatter, 456 F.3d at
1158, with Johnson, 581 F.3d at 1000. Likewise, illicit drug
use, large-scale marijuana cultivation and narcotics
trafficking are all drug offenses, but only the latter two give
rise to reasonable suspicion for a Terry frisk. Compare
Ramirez, 560 F.3d at 1022, with Davis, 530 F.3d at 1082–83,
and $109,179 in U.S. Currency, 228 F.3d at 1086–87. As
22 THOMAS V. DILLARD
with the general categories of theft and drug offenses,
domestic violence encompasses too broad an array of crimes
to categorically justify reasonable suspicion under Terry and
its progeny.
Given the breadth of domestic violence, the specific
circumstances of a call must be factored into the reasonable
suspicion analysis. Some domestic violence calls may pose
serious threats to officers, such as those requiring an officer
to enter a suspect’s home and intervene in the middle of a
heated fight or vicious attack. See Mattos, 661 F.3d at 457
(Kozinski, C.J., concurring in part and dissenting in part)
(noting that by entering the home, officers may “become
targets of fear and anger” and are “in close quarters, ‘at the
disadvantage of being on [their] adversary’s turf’” (quoting
Buie, 494 U.S. at 333)). Other examples are those involving
a suspect angrily threatening a responding officer to get off
his property, see Reed v. Hoy, 909 F.2d 324, 325 (9th Cir.
1989), overruled on other grounds by Edgerly v. City & Cty.
of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010), or
a report of a suspect wielding a gun, see George v. Morris,
736 F.3d 829, 832 (9th Cir. 2013). But not all domestic
violence calls present such risks. Reasonable suspicion must
be based on “specific and articulable facts” regarding the
suspect and the “particular circumstances,” rather than
“unparticularized suspicion.” Terry, 392 U.S. at 21, 27.
“This demand for specificity in the information upon which
police action is predicated is the central teaching of [the
Supreme] Court’s Fourth Amendment jurisprudence.” Id. at
21 n.18. We reject the notion there is a blanket “domestic
violence” exception to Terry’s requirement for particularized
suspicion.
THOMAS V. DILLARD 23
Our Fourth Amendment jurisprudence in the areas of
warrantless entry and excessive force confirms that domestic
violence suspects are not presumed to be armed. We have
recognized, of course, that some domestic violence calls are
dangerous and some domestic violence suspects are armed.
In United States v. Martinez, 406 F.3d 1160 (9th Cir. 2005),
for example, we noted “the combustible nature of domestic
disputes,” id. at 1165 (quoting Tierney v. Davidson, 133 F.3d
189, 197 (2d Cir. 1998)), explaining:
The volatility of situations involving
domestic violence make them particularly
well-suited for an application of the
emergency doctrine. When officers respond
to a domestic abuse call, they understand that
“violence may be lurking and explode with
little warning.” Fletcher v. Clinton, 196 F.3d
41, 50 (1st Cir. 1999). Indeed, “more officers
are killed or injured on domestic violence
calls than on any other type of call.” Hearings
before Senate Judiciary Committee, 1994 WL
530624 (F.D.C.H.) . . . .
Id. at 1164 (quoting congressional testimony by Sam Baca,
then Chief of Police of Lakeland, Florida, Sept. 29, 199410);
see also Hiibel v. Sixth Judicial Dist. Court of Nevada,
542 U.S. 177, 186 (2004) (“Officers called to investigate
domestic disputes need to know whom they are dealing with
in order to assess the situation, the threat to their own safety,
and possible danger to the potential victim.”); Mattos,
10
Although Martinez suggests this testimony was offered “on behalf of
National Task Force on Domestic Violence,” that does not appear to have
been the case. See 1994 WL 530624.
24 THOMAS V. DILLARD
661 F.3d at 450 (“We take very seriously the danger that
domestic disputes pose to law enforcement officers . . . .”).
We accept the proposition that domestic violence calls
present a significant risk to police officers’ safety, but to
create a new category of crime justifying automatic frisks
requires more than a showing that some domestic violence
calls are dangerous.
Dillard and the dissent, moreover, appear to overstate the
threats domestic violence calls as a category pose to police
officers. See Shannon Meyer, PhD, Victim Specialist, Seattle
Division, Federal Bureau of Investigation, & Randall H.
Carroll, Chief of Police (Retired), Bellingham, Washington,
Police Department and President, Profectus Consulting,
When Officers Die: Understanding Domestic Violence
Calls for Service, The Police Chief 78 (May 2011),
http://www.policechiefmagazine.org/magazine/index.cfm?f
useaction=display_arch&article_id=2378&issue_id=52011
(last visited Dec. 29, 2015) (although “it is widely believed
that domestic violence calls pose the greatest threat to police
officers’ safety and that law enforcement officers are most
likely to be injured or killed responding to this category of
call . . . , the bulk of research does not actually support this
perspective”; “when examined in context, domestic violence
calls for service account for a relatively small proportion of
the overall rate of police officers murders”); Joel Garner &
Elizabeth Clemmer, National Institute of Justice, U.S.
Department of Justice, Danger to Police in Domestic
Disturbances – A New Look, Research in Brief 2–3 (Nov.
1986), http://files.eric.ed.gov/fulltext/ED295090.pdf (last
visited Dec. 29, 2015) (finding no officer injuries or deaths in
a study of 1,446 family disputes in Los Angeles). Creating a
new class of presumptively armed and dangerous suspects
THOMAS V. DILLARD 25
requires more than the dubious data Dillard and the dissent
invoke.11
Our dissenting colleague also cites studies emphasizing
the risks domestic violence poses to victims. Dissent at 57,
65–66. See Callie Marie Renninson, Ph.D., Intimate Partner
Violence and Age of Victim, 1993–99, Bureau of Justice
Statistics Special Report (rev. 11/28/01), at 7 (“An average of
15% of intimate partner violence victims were involved in a
victimization in which the offender had a weapon.”); Susan
B. Sorenson, Ph.D., & Douglas J. Wiebe, Ph.D., Weapons in
the Lives of Battered Women, 94 Am. J. Pub. Health 1413
(2004) (36.7 percent of residents of California battered
women’s shelters reported that, at some point during their
lives, an intimate partner used a firearm to hurt, threaten or
scare them); When Men Murder Women: An Analysis of
2011 Homicide Data, Violence Policy Center (September
2013), at 6 (“Of the females killed with a firearm, nearly two-
thirds were murdered by male intimates.”). These risks are
undeniable and immensely serious, but the breadth of police
11
Relying on FBI data, for example, Dillard’s expert asserts that 31.7
percent of officer assaults and 12.7 percent of officer deaths occurred
while answering domestic violence calls in 2011. But the actual FBI data
belie these claims. In fact, 2.7 percent – not 12.7 percent – of officer
deaths occurred while responding to “domestic disturbance” calls, and this
type of call includes a variety of domestic disturbances, not merely
domestic violence calls. See FBI, Law Enforcement Officers Killed &
Assaulted 2011, tbl. 19, https://www.fbi.gov/about-us/cjis/ucr/leoka/2011/
tables/table-19 (last visited Dec. 29, 2015). Similarly, although 33 percent
of officer assaults occurred when responding to “disturbance calls,” see id.
at tbl. 69, https://www.fbi.gov/about-us/cjis/ucr/leoka/2011/tables/table-69
(last visited Dec. 29, 2015), that broad category of calls includes not only
domestic violence but also bar fights, gang calls, general disturbances,
incidents where a citizen is brandishing a firearm and other types of
domestic disturbances. See Garner & Clemmer, supra, at 2.
26 THOMAS V. DILLARD
calls falling under the rubric of “domestic violence” is so
great that the perceived “domestic violence” nature of a call
cannot, in every case and without more, establish a
reasonable suspicion a particular suspect is armed. Nothing
in these studies gave Dillard reason to suspect that Thomas,
in particular, was armed and dangerous.
Plainly, domestic violence calls vary widely in the actual
threats they pose to officers and others. An officer therefore
must consider the specific factual circumstances of an
encounter to justify a particular search or seizure, as our
jurisprudence in the areas of warrantless entry and excessive
force bear out. In Martinez, for example, we considered
whether it was reasonable for an officer to enter a house
without a warrant during an ongoing, volatile domestic
dispute. In upholding the warrantless entry, we did not
simply rely on the fact that the officer was responding to a
domestic violence call or the generalized risk such calls can
pose to officer safety. We looked to the specific
circumstances the officer encountered: he was responding to
an interrupted 911 call reporting a man who was “out of
control,” he had previously been called to the residence for
domestic violence, where he noticed the woman’s “fat lip,”
and when he arrived at the scene he saw a woman crying in
the front yard and a man yelling angrily from inside the
residence. See Martinez, 406 F.3d at 1162–63. The highly
charged and rapidly developing situation in Martinez stands
in stark contrast to this case, in which Thomas was neither
aggressive nor confrontational, there was no sign of ongoing
(or completed) domestic violence and Thomas stood virtually
motionless for six minutes while Dillard trained his Taser on
him. There was minimal objective risk here that violence
would “explode with little warning.” Id. at 1164.
THOMAS V. DILLARD 27
Two years later, in United States v. Black, 482 F.3d 1035
(9th Cir. 2007), we once again “stopped short of holding that
‘domestic abuse cases create a per se exigent need for
warrantless entry,’” explaining that we evaluate, “on a case-
by-case basis, whether the ‘total circumstances, presented to
the law officer before a search . . . relieved the officer of the
customary need for a prior warrant.’” Id. at 1040 (alteration
in original) (quoting United States v. Brooks, 367 F.3d 1128,
1136 (9th Cir. 2004)). We held a warrantless entry into a
man’s apartment was justified in the interest of the welfare of
a domestic abuse victim who had called 911 and reported that
the man had beaten her up that morning in the apartment and
that he had a gun, and the police reasonably believed she
might be inside and badly injured. See id. at 1039. As with
Martinez, the scene in Black was much more dangerous and
uncertain than it was in this case.
Our en banc court held in the context of an excessive
force challenge that mere suspicion of domestic violence did
“not reveal any basis” for believing a suspect was armed.
Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en
banc). There, the suspect’s wife had placed an emergency
call reporting her husband was hitting her and had grabbed
her breast very hard, but did not have a gun. See id. at 693,
702. When officers arrived, the suspect initially refused to
take his hands out of his pockets, entered and exited his
home, shouted expletives at the officers, but then eventually
took his hands out of his pockets and remained in plain view
of the officers. See id. Though acknowledging the
“seriousness and reprehensibility of domestic abuse,” we
concluded on these facts “[t]he record does not reveal any
basis for believing that Smith was armed or that he posed an
immediate threat to anyone’s safety.” Id. at 702 (emphasis
added). In contrast to the suspect in Smith, Thomas was not
28 THOMAS V. DILLARD
aggressive to the police, he kept his hands and body in plain
view at all times and Husky vehemently denied he had abused
her.12
In the years since we decided Smith, Martinez and Black,
our decisions have continued to demonstrate that Fourth
Amendment challenges in the context of domestic violence
turn on the specific facts of the case, considered in their
totality. We have never suggested that a suspicion of
“domestic violence” alone provides sufficient justification for
a given police intrusion. See George, 736 F.3d at 839
(acknowledging the safety concerns arising from domestic
violence calls but holding such concerns are diminished when
the dispute appears to have concluded by the time the officers
arrive on scene); Mattos, 661 F.3d at 451 (holding the use of
a Taser on a woman intervening to discourage officers from
arresting her abusive husband constituted excessive force in
part because there was “no threat that either spouse ha[d] a
weapon”). The mere fact that Dillard was responding to a
perceived domestic violence call, therefore, did not establish
reasonable suspicion to believe Thomas was armed and
dangerous.
Nor did the specific facts of this “domestic violence” call
do so. On the facts presented here, the perceived domestic
violence nature of the call provided scant reason to believe
Thomas was armed and dangerous. Campus police dispatch
12
Although the dissent says Thomas “refused to move his hands from
his waistline” (Dissent at 53), in fact Thomas stood facing Dillard with his
“hands hanging at [his] sides, in a manner that would be considered
normal if [he] was standing and making casual conversation with
someone.” He “never made any overt movements with [his] hands at any
time in relation to [his] waistline.”
THOMAS V. DILLARD 29
had reported that a person matching Thomas’ description, a
man with a purple shirt, was seen pushing a woman on a
public street on campus. Forty minutes earlier, Dillard had
received a vague report of “domestic violence” at no
particular location on campus. Combining the inferences
Dillard could have reasonably drawn from these two calls, at
most he had particularized suspicion that Thomas and Husky
were in a domestic relationship and Thomas had been
pushing Husky. The specific type of “domestic violence” call
Dillard thought he was responding to, then, was a simple
battery within a domestic relationship. See Cal. Penal Code
§ 243(e)(1). Dillard’s questioning of Thomas and Husky
confirms this was the full extent of his suspicion. He asked
Husky and Thomas if they had been “fighting or arguing” or
whether Thomas was “pushing her around.” There were no
facts suggesting to a reasonable officer that any specific
physical contact beyond pushing was occurring, and the
couple strongly denied that even that had occurred, with the
supposed victim professing she and her boyfriend had instead
been kissing.
Even assuming a reasonable officer could still reasonably
suspect Thomas had pushed Husky despite the denials, no
reasonable officer could assume all persons involved in a
simple domestic battery are, as a categorical matter, likely to
be armed and dangerous. An inference that Thomas was
armed could be drawn only in the presence of other
circumstances that were not present here. As discussed
below, Thomas’ appearance and behavior gave no suggestion
he was armed. Thomas was in a location where he was
entitled to be, answered Dillard’s questions forthrightly, faced
Dillard with his hands fully visible in the afternoon sunlight
and made no overt movements suggesting he was arming
30 THOMAS V. DILLARD
himself. There were no suspicious bulges in the T-shirt or
any other item of Thomas’ clothing.
Moreover, even if Dillard reasonably could have feared
at the time he received the call that the most toxic and volatile
sort of domestic dispute might await him at the scene, these
fears should have been dispelled by what he encountered at
the scene. There were no signs Thomas had attacked Husky,
she vehemently and repeatedly denied Thomas was fighting
with her (much less abusing her), she insisted she and
Thomas had been kissing and Thomas was reasonably
cooperative and nonthreatening.13
13
The dissent mentions law review articles reporting that domestic
violence victims often decline to cooperate with police and prosecutors.
Dissent at 53–54. This is an important point, but it does not render
Husky’s statements and vigorous defense of Thomas irrelevant. The
articles upon which the dissent relies, moreover, emphasize that “[v]ictims
of domestic violence are more prone than other crime victims to recant or
refuse to cooperate after initially providing information to police.” Tom
Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768
(2005) (emphasis added). “In a typical case, these various factors do not
deter cooperation with law enforcement in the immediate aftermath of the
abuse, but they begin to bear heavily on the victim in a matter of days.”
Id. at 771 (emphasis added); cf. Lisa Marie De Sanctis, Bridging the Gap
Between the Rules of Evidence and Justice for Victims of Domestic
Violence, 8 Yale J.L. & Feminism 359, 367–68 (1996) (noting “[m]any
victims are uncooperative from the initial filing of the case,” but citing
only a 1995 telephone interview with a single assistant district attorney in
one city for this proposition). Here, although Dillard may have been
justified in viewing Husky’s defense of Thomas with some skepticism, we
do not see how it would have been reasonable to entirely discount her
statements, especially when they were fully consistent with the other facts
Dillard encountered at the scene, none of which suggested that domestic
violence had occurred or was about to occur or that Thomas was armed
and dangerous.
THOMAS V. DILLARD 31
In sum, we hold the perceived domestic violence nature
of the call did not automatically and categorically give
Dillard reason to believe Thomas was armed and dangerous.
Nor did the particular circumstances of this domestic violence
call in particular, including the content of the call and the
circumstances Dillard confronted on the scene, which we
discuss in further detail below.
(2) Appearing Startled or Fidgety. As one additional
reason to believe Thomas was armed, Dillard points to
Thomas’ demeanor, suggesting Thomas appeared “startled
and fidgety.” We do not see how either of these observations
support even minimally the inference that Thomas was
armed, however. Although Dillard testified Thomas and
Husky may have appeared “a little startled” when he first
confronted them, he also explained that this was “a common
reaction . . . when a police officer arrives on the scene.” By
fidgety, Dillard meant only that Thomas and Husky exhibited
normal hand movements, noting that it is not natural for
people to stand in a perfectly still, statuesque form. Thomas
and Husky, in other words, behaved normally. Such behavior
does not give rise to reasonable suspicion to believe a suspect
is armed and dangerous.
(3) Thomas’ Clothing. As further reason to believe
Thomas was armed, Dillard points to the fact that Thomas
was wearing an untucked T-shirt and jeans, “clothing capable
of hiding a weapon.” We acknowledge that such clothing
would do nothing to dispel the notion that Thomas was
armed, but neither does it suggest that he was armed. See
Ybarra, 444 U.S. at 93 (holding there was no reason to
believe a bar patron was armed where “the most [the officer]
could point to was that [the patron] was wearing a 3/4-length
lumber jacket, clothing which the State admits could be
32 THOMAS V. DILLARD
expected on almost any tavern patron in Illinois in early
March”); Flatter, 456 F.3d at 1158 (holding there was no
reasonable suspicion a suspected mail thief was armed even
though his “vest obscured his waistline”). That a person is
normally dressed does not give rise to reasonable suspicion
the person is armed and dangerous. Otherwise, innumerable
college students everywhere could be frisked for weapons on
appearance alone.
(4) Withholding Consent to Search. As further reason to
believe Thomas was armed, Dillard points to Thomas’ refusal
to consent to a weapons search, even after Dillard explained
the nature of his investigation. This fact too gave Dillard
little or no reason to believe Thomas was armed. Thomas
was free to decline Dillard’s request. See Bostick, 501 U.S.
at 437. As the district court explained:
An individual’s steadfast refusal to
consent to a search cannot become the basis
for reasonable suspicion, absent any other
specific facts, to justify a forced search of that
individual. If that were the case, the Fourth
Amendment would have no effect. An officer
without reasonable suspicion that an
individual was armed, could simply generate
reasonable suspicion by asking an otherwise
non-threatening suspect to submit to a search
and if he declined the officer would then have
unfettered discretion to force him to submit.
See also United States v. Santos, 403 F.3d 1120, 1125–26
(10th Cir. 2005) (“A refusal to consent to a search cannot
itself form the basis for reasonable suspicion . . . . If refusal
of consent were a basis for reasonable suspicion, nothing
THOMAS V. DILLARD 33
would be left of Fourth Amendment protections.”); United
States v. Boyce, 351 F.3d 1102, 1110 (11th Cir. 2003) (“The
police cannot base their decision to prolong a traffic stop on
the detainee’s refusal to consent to a search. Such a refusal
may only be considered when the police have already
observed, before asking for permission to search, facts
sufficient to raise a reasonable suspicion.”); United States v.
Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001)
(“The mere fact that a person refuses to consent to search
cannot be used as evidence in support of reasonable
suspicion.”); cf. Graves v. City of Coeur D’Alene, 339 F.3d
828, 842 (9th Cir. 2003) (“[T]hat [the suspect] refused to
consent to search cannot be used to establish probable
cause.”), abrogated on other grounds by Hiibel, 542 U.S.
177.
(5) Stepping Back. The one sudden movement Thomas
made, to step back in response to Dillard’s reaching for
Thomas to put him in a “controlled hold” to frisk him, also
did not suggest Thomas was armed. A reactive, instinctive
movement in response to an officer’s own aggressive
movement differs significantly from the unprovoked, sudden
movements we have held may factor into reasonable
suspicion. The latter type of movement has a volitional
quality, indicating a suspect’s “attempt[] to take advantage of
the situation by arming [him]self.” Flippin, 924 F.2d at
164–66 (holding a suspect’s sudden grabbing of a make-up
bag while under investigative detention by an officer in her
hotel room, coupled with the officer’s knowledge that her
companion had been carrying a large knife, suggested an
attempt to arm herself); see Burkett, 612 F.3d at 1107
(holding an officer was justified in frisking a car passenger
where the driver took a suspiciously long time to pull over
while the passenger was making furtive movements not
34 THOMAS V. DILLARD
visible to the officer and then kept one hand in an unnatural
position on his body when he exited the vehicle); United
States v. Taylor, 716 F.2d 701, 708–09 (9th Cir. 1983)
(during a stop of a methamphetamine manufacturing suspect,
a passenger refused to show his hands, making furtive
movements inside a truck as officers approached). In
response to Dillard’s reaching for him, Thomas stepped back
a couple feet, stopped, remained facing Dillard, and made no
movement with his hands or any other part of his body. In
judging the significance of this interaction, we are mindful
that Dillard had no justification to put Thomas in a controlled
hold to search him to begin with, as the remainder of our
reasonable suspicion analysis makes clear. See Thomas,
863 F.2d at 630 (“The way [an officer] conduct[s] his
investigation . . . cannot be used to bootstrap a justification
for the detention and frisk of [a suspect].”). This movement,
when considered in context, does not suggest Thomas was
arming himself.
To summarize, none of the circumstances at the scene of
this encounter justified a reasonable suspicion Thomas was
armed and dangerous. Even if Dillard reasonably believed he
was investigating a potential domestic violence incident, that
did not automatically give him the right to frisk Thomas.
Domestic violence encompasses too many criminal acts of
varying degrees of seriousness for an officer to form
reasonable suspicion a suspect is armed from that label alone.
“Unless an officer can point to specific facts that demonstrate
reasonable suspicion that the individual is armed and
dangerous, the Fourth Amendment tolerates no frisk.”
Ramirez, 560 F.3d at 1022 (citing Knowles v. Iowa, 525 U.S.
113, 117–19 (1998)). From the facts he knew once he
actually confronted Thomas at the scene, Dillard could not
reasonably suspect Thomas was armed and dangerous.
THOMAS V. DILLARD 35
Dillard violated the Fourth Amendment by detaining Thomas,
under threat of a Taser, to conduct a suspicionless frisk.14
Our dissenting colleague would hold that “the nature of
a domestic violence call justifies an officer’s formulation of
a reasonable suspicion that a suspect may be armed (in the
absence of mitigating circumstances).” Dissent at 65.
According to the dissent, our opinion “requires a law
enforcement officer to face potential liability unless he leaves
a domestic violence scene without any assurance that the
abuser is not armed and will not again inflict violence on the
victim – only next time, with a gun.” Dissent at 65. We
14
Because we focus on the objective question of whether a reasonable
officer would have been justified in believing Thomas was armed, see
Terry, 392 U.S. at 21–22; Delaware v. Prouse, 440 U.S. 648, 654 (1979),
we have not considered Dillard’s subjective decisionmaking.
Nonetheless, we note Dillard’s decisionmaking was troubling in several
respects. Dillard testified he believed Thomas was armed and decided to
search him solely because of the perceived domestic violence nature of the
call. As we explain in text, these assumptions were unreasonable given
the wide range of conduct classified as “domestic violence” and the need
to consider the totality of the circumstances. In addition, Dillard testified
he decided he would search Thomas even before he arrived on the scene,
making clear that he would have conducted the search even if the facts he
encountered on the scene dispelled any reason he may have had to believe
Thomas was armed. As the district court pointed out, “[b]y his own
account, Officer Dillard gave no consideration to the actual facts he
observed; he was on a mission to search Thomas no matter what.” These
actions were not consistent with the Fourth Amendment. Even if Dillard
reasonably could presume Thomas was armed from the perceived
domestic violence nature of the call alone (and he could not), he could not
reasonably decide to follow that preconceived plan irrespective of the
suspicion-negating facts he encountered at the scene. An officer is not
free to ignore the actual circumstances he encounters in favor of a
personal policy that he will execute a patdown frisk whenever he responds
to a call concerning a perceived domestic dispute.
36 THOMAS V. DILLARD
respectfully disagree. The domestic violence nature of a call
is certainly relevant to an officer’s assessment of whether to
conduct a search for weapons. Indeed, “[e]rring on the side
of caution is exactly what we expect of conscientious police
officers” confronting domestic violence. Black, 482 F.3d at
1040. But reasonable suspicion is not established merely
because an officer perceives a call as falling under the broad
rubric of “domestic violence.” The officer’s decision to
conduct a frisk must be based on the totality of the
circumstances, including the full nature and context of the
call and the facts the officer actually observes on the scene.
A vague call about an unarmed man pushing a woman in a
public place on a college campus, without more, does not
give rise to a conclusive reasonable suspicion that the man is
armed and dangerous. Nor did the facts Dillard became
aware of when he actually confronted Thomas. He saw no
evidence that an assault had occurred, and Husky vehemently
denied that it had. Nothing in our decision prevents a law
enforcement officer from conducting a frisk when the
circumstances call for it. The circumstances here did not.
2. Clearly Established Law
We next address whether Thomas’ constitutional right to
be free from an unlawful detention for the purpose of
conducting a suspicionless frisk was “‘clearly established in
light of the specific context of the case’ at the time of the
events in question.” Mattos, 661 F.3d at 440 (quoting
Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). “An
officer cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that
any reasonable official in his shoes would have understood
that he was violating it. . . .” City & Cty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1774 (2015) (brackets and internal
THOMAS V. DILLARD 37
quotation marks omitted). Qualified immunity “gives
government officials breathing room to make reasonable but
mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law.”
Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (internal quotation
marks omitted). “We do not require a case directly on point,
but existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011).
The case law has defined with some specificity the types
of circumstances that give rise to reasonable suspicion for a
Terry frisk, as well as those that do not. At the time at issue,
September 2010, it was clearly established that a frisk for
weapons, on less suspicion than probable cause for a search,
was authorized only when an officer had reasonable suspicion
a suspect was “armed and presently dangerous to the officer
or to others.” Terry, 392 U.S. at 24; Ramirez, 560 F.3d at
1023 (“[I]t was clearly established [in 2003] that every
patdown is unreasonable unless it is supported by the
officer’s reasonable suspicion that the person to be frisked is
armed and dangerous.” (emphasis added)). It was clearly
established that an officer must rely on “specific and
articulable facts” and “rational inferences from those facts”
that provide such suspicion, and may not rely on “inchoate
and unparticularized suspicion or [a] ‘hunch.’” Terry,
392 U.S. at 21, 27. It was clearly established that an officer
must consider the totality of the circumstances, including
whether the facts of a particular encounter serve to dispel any
preexisting suspicion. See id. at 28; United States v. Thomas,
863 F.2d 622, 628–29 (9th Cir. 1988).
Ybarra clearly established that reasonable suspicion
requires an officer to point to specific facts indicating a
38 THOMAS V. DILLARD
particular suspect is armed. See 444 U.S. 85, 92–94 (1979);
see also Buie, 494 U.S. at 334 n.2. Ybarra and a number of
subsequent controlling cases we have already cited identified
the many behaviors and physical characteristics of an
individual that can provide a reason to believe someone is
armed. None of these suspicious circumstances applied to
Thomas. Based on appearance and observation alone,
Thomas posed no more of a threat than the bar patron the
Supreme Court held should not have been frisked in Ybarra.
See 444 U.S. at 93–94.
Nonetheless, despite the many cases that have given
shape to the contours of the reasonable suspicion requirement
for a Terry frisk, given the Supreme Court’s demanding
standard we are compelled to conclude it would not have
been clear to “any reasonable official” in Dillard’s position
that demanding to frisk a person suspected of domestic
violence was unlawful. See Sheehan, 135 S. Ct. at 1774. The
cases had established that reasonable suspicion for a Terry
frisk may arise when the crime an individual is suspected of
committing is “likely to involve the use of weapons.” Terry,
392 U.S. at 28; see Flatter, 456 F.3d at 1158. Although no
court had held domestic violence was such a crime, there was
some language in our cases suggesting domestic violence
might qualify. In Martinez, for example, we said, “[w]hen
officers respond to a domestic abuse call, they understand that
violence may be lurking and explode with little warning.”
406 F.3d at 1164 (internal quotation marks omitted).
Although we had held that domestic violence provided
insufficient justification on its own to authorize entering a
home without a warrant, see Black, 482 F.3d at 1040, we had
never specifically applied that principle to Terry frisks, which
are justified on less suspicion than the probable cause
required for a warrant. Similarly, although we held in Smith
THOMAS V. DILLARD 39
that suspicion of domestic violence provided no reason to
believe a suspect was armed (at least where the suspect’s wife
had informed the police that he had no guns or weapons in the
house), that was in the context of an excessive force claim,
see 394 F.3d at 702–03.
An officer in Dillard’s shoes, who would certainly be
aware of the potential dangers involved in domestic violence
calls, cannot be said to have been “plainly incompetent” for
believing suspicion of domestic violence provided reason to
believe a suspect is armed and dangerous. See Stanton,
134 S. Ct. at 5. Although this view was mistaken, it was not
unreasonably mistaken. See id. Dillard is therefore entitled
to qualified immunity on Thomas’ claim that Dillard
unlawfully detained him for the purpose of a suspicionless
frisk.
The district court denied qualified immunity because,
“[a]t the time Officer Dillard tased Thomas to force his
compliance with a weapons’ search, it was clearly established
that such a search is unreasonable unless supported by the
officer’s reasonable suspicion that the person to be searched
is armed and dangerous.” The Supreme Court, however, has
“repeatedly told courts not to define clearly established law
at a high level of generality, since doing so avoids the crucial
question whether the official acted reasonably in the
particular circumstances that he or she faced.” Plumhoff v.
Rickard, 134 S. Ct. 2012, 2023 (2014) (alteration, citation and
internal quotation marks omitted). Before today, we had
never squarely held that domestic violence is not a crime such
as bank robbery or drug trafficking that is, as a general
matter, likely to involve the use of weapons. In light of cases
such as $109,179 in U.S. Currency, 228 F.3d at 1086, holding
that some crimes are strongly associated with armed suspects,
40 THOMAS V. DILLARD
as well as cases such as Martinez, 406 F.3d at 1164–65,
acknowledging the danger posed by at least some domestic
violence calls, whether all domestic violence crimes
presumptively justify a weapons frisk was not, until now,
beyond debate.
3. The Continued Detention
Once Dillard initiated Thomas’ detention for the purpose
of a weapons frisk, the constitutional violation was complete.
Nonetheless, Dillard highlights an event subsequent to his
initiation of the detention that he argues provided reasonable
suspicion Thomas was armed. After Dillard had drawn his
Taser, he ordered Thomas to put his hands up, step forward
and drop to his knees to permit a search for weapons; but
Thomas refused to do so, multiple times, until the Escondido
officer pointed her gun at him, at which point he raised his
hands. Assuming without deciding that an officer’s conduct
in executing an unlawful detention can prompt a suspicious
reaction in the detainee that makes the continued detention
lawful, but see Thomas, 863 F.2d at 630, Thomas’ refusal to
comply with Dillard’s commands failed to justify the
continued detention here.
Although noncompliant behavior can contribute to
reasonable suspicion a suspect is armed, see Burkett, 612 F.3d
at 1107, here it provided no basis for believing Thomas was
armed. Although Thomas refused to raise his hands and
kneel, he stood still and his hands were empty and plainly
visible throughout the entire six minutes he was being
detained under threat of Dillard’s Taser. Again, he had no
suspicious bulges suggesting he had a weapon, there had been
no report he had a weapon and the crime for which he was
being investigated was not likely to involve the use of
THOMAS V. DILLARD 41
weapons. Thomas had been forthright with Dillard from the
beginning, providing his identity and answering his questions
directly. Husky was adamant that Thomas had done nothing
wrong. In context, Thomas’ steadfast, passive resistance to
Dillard’s insistence that he offer himself to be searched does
not tip the balance in favor of reasonable suspicion to frisk.
See Smith, 394 F.3d at 702 (holding there was “not . . . any
basis” for suspecting a domestic violence suspect was armed
– even after he had initially refused officers’ order to take his
hands out of his pockets, had gone in and out of his house and
had yelled expletives at officers – in part because his hands
were plainly visible when the officers used force to detain
him). Thomas’ refusal to raise his hands and kneel for an
unlawful frisk did not make the remainder of the detention
lawful. Nonetheless, because we hold it was not clearly
established that Dillard’s initial demand for a frisk was
unlawful, neither was it clearly established that continuing to
detain a noncompliant domestic violence suspect for the
purpose of executing a frisk was unlawful. Dillard is entitled
to qualified immunity for that portion of the detention as well.
C. Excessive Force
We next address whether, when Dillard shot Thomas with
his Taser, he used excessive force in violation of the Fourth
Amendment, and if so, whether that violation was clearly
established in 2010.
1. Constitutional Violation
“[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). Accordingly, law
42 THOMAS V. DILLARD
enforcement may use objectively reasonable force to carry
out investigatory stops. See Green v. City & Cty. of San
Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014). Under
Graham, “[d]etermining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.”
Mattos, 661 F.3d at 441 (alteration in original) (quoting
Graham, 490 U.S. at 396) (internal quotation marks omitted).
“We apply Graham by first considering the nature and quality
of the alleged intrusion; we then consider the governmental
interests at stake by looking at (1) how severe the crime at
issue is, (2) whether the suspect posed an immediate threat to
the safety of the officers or others, and (3) whether the
suspect was actively resisting arrest or attempting to evade
arrest by flight.” Id. These factors are not exclusive; “we
examine the totality of the circumstances and consider
whatever specific factors may be appropriate in a particular
case, whether or not listed in Graham.” Id. (quoting Bryan v.
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)) (internal
quotation marks omitted). The most important factor is
whether the suspect posed an immediate threat to the safety
of the officers or others. See id.
To determine whether officers used excessive force to
carry out an unlawful frisk, we do not, as the Tenth Circuit
has suggested, ask whether the officers used greater force
than would have been reasonably necessary to effect a lawful
frisk. See Cortez v. McCauley, 478 F.3d 1108, 1127 (10th
Cir. 2007) (en banc). As we explained in Velazquez v. City of
Long Beach, 793 F.3d 1010, 1024–26 (9th Cir. 2015), that
approach would be contrary to Graham. Because “‘it is the
need for force which is at the heart of the Graham factors’
THOMAS V. DILLARD 43
. . . , the facts underlying the seizure are pertinent in judging
the overall reasonableness of the seizure for Fourth
Amendment purposes, including the reasonableness of the
force used to effectuate the seizure.” Id. at 1025 (quoting
Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir.
2007)). Thus, that Dillard had no reason to believe Thomas
was armed and dangerous, and hence no need to conduct a
frisk, is relevant – indeed, highly relevant – to the excessive
force analysis.
We first consider the nature of the force applied. Using
a Taser in dart mode constitutes an “intermediate, significant
level of force.” Bryan, 630 F.3d at 826.
The pain is intense, is felt throughout the
body, and is administered by effectively
commandeering the victim’s muscles and
nerves. Beyond the experience of pain, tasers
result in immobilization, disorientation, loss
of balance, and weakness, even after the
electrical current has ended. Moreover,
tasering a person may result in serious injuries
when intense pain and loss of muscle control
cause a sudden and uncontrolled fall.Id. at 825
(citations and internal quotation marks
omitted). The experience of being shot with
a Taser is a “painful and frightening blow.”
Id. at 826 (quoting Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008)).
Turning to the governmental interests at stake, we first
consider the severity of the crime at issue. Any form of
domestic violence is serious, but the allegation in this case
44 THOMAS V. DILLARD
was not particularly severe. Thomas was stopped for
suspicion of pushing a woman. Dillard observed no signs
Husky was injured or distressed. She vehemently denied
Thomas had abused her and instead insisted they were kissing
behind the storage containers before Dillard arrived.
Regarding the second Graham factor, Dillard had scant
reason to believe Thomas posed an immediate threat to him
or anyone else. From the moment Dillard approached
Thomas and Husky, Thomas stood facing the officer with his
hands at his sides. He had been cooperative, aside from
refusing to raise his hands, kneel and be frisked, and he never
acted aggressively or belligerently toward the officer. He
stepped backward at one point when Dillard tried to grab his
arm. But as we noted before, Dillard had no justification for
grabbing him, it was a brief reaction to Dillard’s own sudden
movement and Thomas remained facing Dillard with his
hands at his sides and in full view. In addition, as noted,
Dillard had no reason to believe Thomas was armed.
Regarding the third Graham factor, Thomas gave no
indication he was going to flee, and his resistance was mostly
passive. He stood facing Dillard with his hands by his sides
for approximately six minutes as Dillard sought his
compliance in carrying out the frisk. Although Thomas
resisted Dillard’s commands to permit a frisk, by refusing to
raise his hands and kneel, he did so “passively” and not
“actively.” See Forrester v. City of San Diego, 25 F.3d 804,
805 (9th Cir. 1994) (characterizing as passive resistence
protestors “remaining seated, refusing to move, and refusing
to bear weight” despite police orders to the contrary). Had
there been a bona fide need to frisk Thomas for weapons,
then some force may have been justified in compelling
Thomas’ compliance. As we have explained, however, there
THOMAS V. DILLARD 45
was no justification for conducting a frisk, so Thomas’
peaceful resistance to what he correctly perceived to be an
unlawful search did not justify this use of force. Although
Dillard argues the force used was reasonable, he does so
solely on the flawed premise that the frisk was
“constitutionally sound,” arguing he “had an urgent need to
ensure [his] safety . . . by conducting a weapons’ search.” He
does not argue the use of force was reasonable even if the
frisk was unjustified. Accordingly, the use of force was
objectively unreasonable, violating Thomas’ Fourth
Amendment rights against excessive force. See Graham,
490 U.S. at 397.
2. Clearly Established Law
Dillard argues that at the time of his encounter with
Thomas, the law in this circuit was unsettled as to what
circumstances constituted an excessive use of a Taser and,
therefore, it would not have been clear to an officer
confronting a suspect who was unwilling to submit to what he
perceived to be a lawful weapons search that he could not use
his Taser to carry out the search. We must agree.
Although we conclude Dillard’s use of the Taser
constituted excessive force, the facts of the cases existing at
the time are not so closely analogous to this case such that
Dillard’s mistaken view of the law was unreasonable. See
Stanton, 134 S. Ct. at 5. It is true that in Smith we held the
use of force on a more threatening and noncompliant suspect
than Thomas was unjustified. See 394 F.3d at 702–03. The
level of force used in that case, however, was more severe
than Dillard’s use of a Taser. The officers repeatedly sicced
police dogs on Smith, blasted him with pepper spray four
times, tackled him and dragged him face down off his porch.
46 THOMAS V. DILLARD
See id. at 703–04. Smith would not have made clear just how
much of a threat a suspect must pose to justify the less severe
level of force of a Taser.
Bryan was also distinguishable because, unlike Thomas,
the suspect in that case was suspected of a traffic infraction,
not domestic violence. See 630 F.3d at 822. Thomas also
repeatedly rebuffed Dillard’s attempt to frisk him, so he was
less compliant than the suspect in Bryan, who got out of his
car, contrary to the officer’s order, and stood still. See id.
Furthermore, although we hold Dillard had no justification
for the frisk, and therefore Thomas’ efforts to avoid the
unlawful frisk provide little, if any, justification for the use of
the Taser, we also hold Dillard was reasonably mistaken
regarding his entitlement to frisk Thomas. His reasonable but
mistaken belief regarding the frisk makes his application of
force to perform the frisk more reasonable than that of the
officer who used a Taser in Bryan with no such justification.
Thomas offers no other authority holding the use of a Taser
in an analogous situation was excessive.
Under the controlling case law in September 2010,
therefore, it would not have been apparent to an officer in
Dillard’s shoes that using a Taser on a domestic violence
suspect refusing to allow a frisk – whom the officer
reasonably but mistakenly believed could be frisked –
constituted excessive force. Dillard is therefore entitled to
qualified immunity on Thomas’ excessive force claim as
well.
IV. CONCLUSION
Viewing the evidence in the light most favorable to
Thomas, the district court properly concluded Dillard violated
THOMAS V. DILLARD 47
Thomas’ Fourth Amendment rights against unlawful seizure
and excessive force. We hold the domestic violence nature
of a police investigation is not alone enough to establish
reasonable suspicion a suspect is armed. We nonetheless
hold Dillard is entitled to qualified immunity. Because
Dillard is entitled to qualified immunity, we also reverse the
partial summary judgment granted to Thomas on the issue of
liability. See Bull v. City & Cty. of San Francisco, 595 F.3d
964, 982 (9th Cir. 2010); Marks v. Clarke, 102 F.3d 1012,
1018 (9th Cir. 1996).
REVERSED. Costs on appeal are awarded to Thomas.
***
Thomas’ motion to dismiss the appeal for lack of
jurisdiction, filed November 13, 2014, is DENIED.
BEA, Circuit Judge, concurring in part and dissenting in part:
I concur in my colleagues’ determination that Officer
Dillard was entitled to qualified immunity on Correll
Thomas’ claims for unlawful seizure and excessive force
under 42 U.S.C. § 1983, and that the district court’s grant of
partial summary judgment to Thomas must accordingly be
reversed. I write separately, however, because we have
repeatedly (and correctly) recognized the unique dangers law
enforcement officers face when responding to domestic
violence calls—including the inherent volatility of a domestic
violence scene, the unique dynamics of battered victims
seeking to protect the perpetrators of abuse, the high rate of
assaults on officers’ person, and the likelihood that an abuser
48 THOMAS V. DILLARD
may be armed. I would therefore hold that the domestic
violence nature of the call can alone give rise to reasonable
suspicion necessary to justify a Terry frisk.
I also write separately because I do not subscribe to the
majority’s holding that Dillard violated Thomas’ Fourth
Amendment right by detaining him for purposes of
performing a Terry frisk. See Maj. Op. at 5. My colleagues
reach this conclusion by ignoring the axiomatic rule that, at
the qualified immunity stage, we review “the objective
reasonableness of a particular seizure under the Fourth
Amendment . . . . from the perspective ‘of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.’” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020
(2014). Here, Officer Dillard responded to not one, but two,
domestic violence radio calls, both reported in the span of 33
minutes. The first call reported domestic violence by a black
male on the Escondido campus. The second indicated that a
man wearing a purple shirt was being observed on a live
video feed “pushing” a woman in a secluded part of campus.
Officer Dillard encountered a black male wearing a purple
shirt—a person matching the description of the suspect of
both calls—in the area where at least one of the reported
incidents of violence had been observed, with a female who
identified herself as Thomas’ girlfriend. These facts
supported a reasonable inference of continuous domestic
abuse lasting upwards of half an hour—a situation that the
majority (incorrectly, in my view) minimizes as a “simple
battery.” See Maj. Op. at 29. True, there is evidence in the
record that Thomas’ girlfriend, Amy Husky, claimed that
Thomas was just “playing around” when he concededly
pushed Husky against the storage containers, but a reasonable
officer operating without the benefit of hindsight and with the
knowledge of the overwhelming frequency with which
THOMAS V. DILLARD 49
domestic violence victims seek to protect their abusers, see
discussion, infra at pp. 53–54, could have believed himself to
be confronting a suspect capable of significant violence who
might be armed. By analyzing the circumstances confronting
Officer Dillard through a rosy-hued lens of hindsight, the
majority opinion deprives future law enforcement officers
faced with domestic violence disputes of an important tool for
protecting themselves and the citizens with whose safety they
are entrusted.
I.
It is hornbook law that, at the summary judgment stage,
courts “are required to view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing
the [summary judgment] motion.’” Scott v. Harris, 550 U.S.
372, 378 (2007) (“In qualified immunity cases, this usually
means adopting . . . the plaintiff’s version of the facts.”). But
it is equally axiomatic that, in determining whether a police
officer is entitled to qualified immunity, we view the facts
“from the perspective ‘of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.’” Plumhoff v.
Rickard, 134 S. Ct. 2012, 2020 (2014). My colleagues accept
Thomas’ version of the facts, but fail to consider how those
facts would have looked to a reasonable officer on the scene.
Properly viewed, the facts confronting Officer Dillard
supported his formulation of a reasonable suspicion that
Thomas may have been armed.
Officer Dillard received two police dispatches on the
afternoon in question. The first reported “domestic violence
involving a black male” at the Escondido campus.
Approximately thirty minutes later, and within minutes of
Officer Dillard’s arrival at the campus, a second police
50 THOMAS V. DILLARD
dispatch came in, this time advising Officer Dillard that a
male wearing a purple shirt was being observed on live
security video pushing a female by some containers in the
campus’ biohazard storage area. Thus, both dispatches
reported potential domestic violence by a male on a female on
the Escondido campus.1 Viewing the facts “from the
perspective of a reasonable officer at the scene,” the
undisputed similarity between the calls gave rise to a
reasonable inference that the reported domestic violence may
have been occurring continuously from the time the first call
came in through the time of the second (more than thirty
minutes later). Officer Dillard, equipped with only this
limited information, approached the location where the
observed violence had occurred—an alley flanked by large
storage containers. Officer Dillard testified that, given the
nature of the call, the possibility of weapons was the “most
important question on [his] mind.” His training had taught
him that “a domestic violence call can be a very dangerous
call to a police officer” and that he stood a good likelihood of
“getting seriously hurt or injured.”
At first, Dillard could not locate the suspect. Only after
reversing his car and driving down the alley a second time did
Dillard spot Thomas and Husky emerging from behind some
biohazard storage containers. Thomas, a black male, was
wearing a long purple shirt, baggy jeans, skater shoes, a neck
chain, an earring, and a black beanie. Thomas therefore
matched perfectly the description of both dispatches.
Moreover, Dillard found Thomas with Amy Husky, who
shortly after encountering Officer Dillard yelled that Thomas
1
As the majority points out, pushing a woman would qualify as
domestic violence if the perpetrator and the victim were in a dating
relationship. See Maj. Op. at 20–21.
THOMAS V. DILLARD 51
was her “f***ing boyfriend” (establishing a domestic
relationship).
Officer Dillard, who stands only five feet, six inches tall
and weighs 155 pounds, exited his vehicle and walked
approximately four steps, stopping ten feet away from the
place where Thomas and Husky were standing. Officer
Dillard concedes that he did not observe any visible injuries
to Husky’s person. Nor did Amy appear “distraught.”
Nevertheless, Dillard had been taught that a domestic
violence scene, by its nature, is “very volatile”; people can
“suddenly become violent or angry,” making it important to
secure the scene as quickly as possible, regardless of whether
the officer encounters active violence upon arrival.
Officer Dillard initiated contact with the couple by telling
Thomas and Husky, “No one is in trouble here.” He asked
the pair for identification and told them he was “investigating
suspicious activity.” Dillard then asked Thomas whether he
had any weapons on him, and Thomas said “no.” Officer
Dillard asked Thomas if he would “mind” if Dillard
nonetheless searched him for weapons—a “common question
when investigating a possible domestic violence.”2 Thomas
responded that he “did mind.” Dillard tried to “deescalate”
the situation, explaining that Thomas was not under arrest,
but that Dillard was “investigating a male wearing a purple
shirt pushing a girl around” and just needed to check Thomas
for weapons to make sure the scene was safe. Thomas
continued to say “no” in response to Officer Dillard’s
repeated requests that Thomas consent to a weapons search.
2
Despite believing he had a right to conduct a Terry frisk, Officer
Dillard asked Thomas for consent in efforts to avoid a physical altercation
and to resolve the investigation peacefully.
52 THOMAS V. DILLARD
For the next six minutes, Officer Dillard continued trying
to elicit cooperation without resorting to force. When verbal
commands did not work, Dillard stepped forward in an
attempt to put Thomas in a control hold, but Thomas retreated
closer to the “recessed” area by the storage containers where
the couple had previously been concealed. Officer Dillard
“backed off,” afraid that Thomas might try to fight him in the
“small, confined space,” and withdrew his taser. Dillard told
Thomas to put his hands in the air, to step forward, and to
drop to his knees slowly. Thomas said “no.” Dillard
repeatedly commanded Thomas to raise his hands, but
Thomas refused. Officer Dillard repeatedly commanded
Thomas to move his hands away from his waistline—the area
Dillard was concerned might conceal a weapon—but Thomas
ignored that command, too. After this went on for six
minutes, Dillard deployed his taser, feeling like that was the
“final and only option” left to him.
These facts are undisputed. Indeed, the parties’
recollection as to the encounter differs only slightly. Dillard
testified that Husky did not say that the pair had been kissing
until after the incident, at which point she also admitted that
Thomas had pushed her. Thomas, on the other hand, declares
that Husky told Dillard within the first moments of the
encounter that the pair had “just [been] kissing” behind the
containers. Thomas also recalls that Husky started “yelling”
at some point during the stand-off that Thomas had “done
nothing wrong.” Finally, Thomas insists that at no time
during the encounter did he act “belligerent[ly]” or
“aggressive[ly]” toward Officer Dillard or anyone else.
But even crediting Thomas’ version of events, we must
consider how a reasonable officer would perceive this scene,
armed only with the limited information available to Officer
THOMAS V. DILLARD 53
Dillard. Officer Dillard encountered an individual suspected
of significant domestic violence, who “appeared to be hiding
behind the biohazard storage area” (a relatively secluded area
of campus where even Thomas admits the couple had gone
“for privacy”). Thomas and Husky appeared “startled” by
Officer Dillard’s presence. Officer Dillard perceived Thomas
as “standoffish,” in part because Thomas spoke in a low,
serious tone. Contrary to my colleagues’ suggestion, neither
Thomas’ statement that he was not “belligerent” nor any
other evidence in the record contradicts Officer Dillard’s
perception of Thomas’ manner. The majority opinion points
out that, according to Thomas, Officer Dillard appeared
“surprised” and then “angry and agitated” after Thomas
refused to consent to a weapons search. But such a reaction
would be a natural response to a confrontation with a suspect
an officer reasonably suspects to be armed, who is refusing to
permit the officer to conduct a weapons search.
It is also undisputed that Thomas refused to move his
hands from his waistline, despite numerous requests. Thomas
characterizes his hand placement as “normal if I was standing
and making casual conversation with someone.” But in light
of Dillard’s repeated requests that Thomas move his hands
away from his waistline, a reasonable officer in Officer
Dillard’s position could well have perceived the natural
“fidgeting” of Thomas’ hands by his sides as an attempt to
conceal a weapon. Of course, we know now that Thomas was
not concealing a weapon in his waistband. But Officer
Dillard—who reasonably believed he was dealing with a
demonstrably violent, domestic violence suspect—had no
way of knowing that.
The majority opinion makes much of Husky’s statement
to Dillard that the couple had just been “kissing.” But it is
54 THOMAS V. DILLARD
well-documented that victims of domestic violence—even
those who initially report their abusers to police—more often
than not “recant or refuse to cooperate” with the police
seeking to help them. See, e.g., Tom Lininger, Prosecuting
Batterers After Crawford, 91 Va. L. Rev. 747, 751 (2005)
(“Approximately 80 percent of victims decline to assist the
government in prosecutions of domestic violence cases.”);
Lisa Marie De Sanctis, Bridging the Gap Between the Rules
of Evidence and Justice for Victims of Domestic Violence,
8 Yale J.L. & Feminism 359, 367–68 (1996) (“[V]ictims of
domestic violence are uncooperative in approximately eighty
to ninety percent of cases. Many victims are uncooperative
from the initial filing of the case . . . .”). Thus, even assuming
that Husky was yelling at Officer Dillard that Thomas had
done nothing wrong, a reasonable officer in Dillard’s position
could have discounted those statements as an effort by the
victim of violence to protect her abuser. Thus, contrary to the
majority’s suggestion, the resolution of this factual
discrepancy in Thomas’ favor does not negate Dillard’s
reasonable belief that Thomas was a perpetrator of potentially
severe and/or continuous domestic violence. Only with the
benefit of hindsight do we know otherwise. Under these
circumstances, Dillard reasonably believed that he had a duty,
as a community caretaker, not to leave a domestic violence
victim in the care of a demonstrably violent person without
conducting a weapons search.
II.
Thomas argues that the Fourth Amendment precluded
Dillard from frisking Thomas for weapons under the
circumstances presented here. Thomas additionally argues
that this conclusion was clearly established as of September
2010, and thus Officer Dillard was not entitled to qualified
THOMAS V. DILLARD 55
immunity. The qualified immunity inquiry is two-fold: It
requires a violation of a constitutional right, and a finding that
such right was clearly established at the time the violation
occurred. Pearson v. Callahan, 555 U.S. 223, 231 (2009).3
I agree with the majority’s holding that it was not clearly
established in September 2010 that Dillard’s conduct was
unconstitutional. However, I disagree with the majority’s
holding that Thomas has demonstrated a violation of his
Fourth Amendment right, because I would find that a
reasonable officer in Dillard’s position could have formulated
a reasonable suspicion that Thomas might be armed based on
the facts available to Dillard here.
In determining whether Dillard’s frisk violated a
constitutional right, this court should bear in mind that a
Terry frisk is a “protective search—permitted without a
warrant and on the basis of reasonable suspicion.” Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993). Unlike a full-blown
arrest, “[t]he protective search for weapons . . . constitutes a
brief, though far from inconsiderable, intrusion upon the
sanctity of the person.” Terry v. Ohio, 392 U.S. 1, 26 (1968).
“[R]easonable suspicion” that a person is armed is
enough—and this is “less than probable cause.” Minnesota,
508 U.S. at 373. In other words, we must merely find that
under “the facts available to the officer at that moment” a
“man of reasonable caution” “might” believe that a person
was “armed and presently dangerous.” Pennsylvania v.
Mimms, 434 U.S. 106, 111–12 (1977) (internal quotation
marks omitted); see also Gallegos v. City of Los Angeles,
308 F.3d 987, 990 (9th Cir. 2002) (“The reasonable suspicion
standard ‘is a less demanding standard than probable cause,’
3
Courts of appeal have discretion to address either prong first. Pearson,
555 U.S. at 236.
56 THOMAS V. DILLARD
and merely requires ‘a minimal level of objective
justification.’” (quoting Illinois v. Wardlow, 528 U.S. 119,
123 (2000))).
The majority today holds that, “although the domestic
violence nature of a police investigation is a relevant
consideration in assessing whether there is reason to believe
a suspect is armed and dangerous, it is not alone sufficient to
establish reasonable suspicion.” Maj. Op. at 5. I disagree.
It is well-established that the nature of a suspected crime
can alone support a reasonable suspicion that a suspect might
be armed—even where the officer does not observe any
“physical indication” of a weapon. See, e.g., United States v.
Post, 607 F.2d 847, 851 (9th Cir. 1979) (“[D]espite the fact
that he had not observed a weapon or any physical indication
of a weapon, it was reasonable to assume, from the nature of
the offense contemplated [drug trafficking], that [the
defendant] was armed and dangerous.” (citing Terry,
392 U.S. at 28)). Indeed, courts have routinely upheld a right
to frisk on the basis that the officer has legitimately stopped
a person suspected of a crime, like domestic violence, that is
frequently committed with the use of weapons. See, e.g.,
Terry, 392 U.S. at 28 (finding it reasonable to assume that
men whose behavior suggests they are casing a building for
a “daytime robbery” might be armed because of the nature of
the crime); United States v. Mattarolo, 209 F.3d 1153, 1158
(9th Cir. 2000) (Terry frisk of nighttime burglary suspect was
constitutional); People v. Shackelford, 546 P.2d 964, 966–67
(Colo. App. 1976) (police could lawfully frisk an individual
who was found in the immediate vicinity of the area from
which a rape victim had fled because the individual “matched
the description of a suspect who had allegedly committed an
act of violence”—rape).
THOMAS V. DILLARD 57
Like burglary and robbery, domestic violence is
frequently committed with a firearm or other weapon. For
example, 36.7 percent of female domestic violence shelter
residents in California reported having at some point been
threatened or harmed with a firearm during a domestic
dispute. See Susan B. Sorenson, Ph.D., & Douglas J. Wiebe,
Ph.D., Weapons in the Lives of Battered Women, 94 Am. J.
Pub. Health 1413 (2004). Another study by the Department
of Justice found that roughly 15 percent of all incidents of
domestic violence involve a weapon. See Callie Marie
Rennison, Ph.D., U.S. Dep’t of Justice, Report No. NCJ
187635, Bureau of Justice Statistics Special Report: Intimate
Partner Violence and Age of Victim (1993–99) 7 (Oct. 2001).
And in 2011, domestic violence assaults involving a firearm
accounted for nearly two-thirds of all fatal shootings of
female victims. See Voilence Pol’y Ctr., When Men Murder
Women: An Analysis of 2011 Homicide Data 6 (Sept. 2013).
Indeed, the majority concedes that some domestic
violence calls can be “dangerous,” even deadly, for all parties
involved. Maj. Op. at 23. However, the majority emphasizes
that domestic violence encompasses a broad spectrum of
“criminal acts of varying degrees of seriousness” to support
its holding that the domestic violence nature of a call cannot
justify a Terry frisk. Maj. Op. at 34. But the majority’s
argument ignores the practical reality that an officer often
does not know what part of that spectrum of criminal acts he
will confront when he arrives at the scene of a domestic
dispute. Indeed, this is what distinguishes domestic violence
from other “broad categories” of crimes—like theft. Whereas
there is little risk that an officer investigating a suspected
mail thief will instead encounter an armed bank robber, cf.
United States v. Flatter, 456 F.3d 1154, 1158 (9th Cir. 2006)
(cited by the majority) (“Mail theft by postal employees is not
58 THOMAS V. DILLARD
a crime that is frequently associated with weapons. . . .”), an
officer investigating a report of “simple battery” may well
find that the domestic violence has escalated to assault with
a deadly weapon by the time the police arrive.4
The majority also reiterates that Thomas was observed
committing only a “simple battery” (referring to the second
dispatch). See, e.g., Maj. Op. at 29. But in fact, there were
two reports of domestic violence, and Thomas matched the
description of both reports. The first report did not specify
the precise behavior it characterized as “domestic
violence”—it could well have involved more severe abuse,
including with a weapon.5 And in any event, even a “simple
battery” can quickly escalate into something far more
dangerous. Unless an officer has credible evidence that a
domestic violence suspect is not armed, a reasonably cautious
officer would assume that a domestic violence suspect
“might” be armed—and that is all that is required here. The
4
Given the demonstrated danger to police officers associated with
domestic violence calls, the majority’s citation to cases involving non-
violent crimes not associated with weapons misses the point. See Maj.
Op. at 16, 19–20, 38–39 (citing, e.g., United States v. Flatter, 456 F.3d
1154, 1158 (9th Cir. 2006); Ramirez v. City of Buena Park, 560 F.3d
1012, 1016 (9th Cir. 2009) (suspicion that a person found sleeping in his
car was under the influence of drugs did not give rise to a reasonable
suspicion that suspect was armed)). As the majority recognizes, see Maj.
Op. at 23, domestic violence can be very “dangerous[]” and can involve
crimes clearly associated with weapons—like assault with a deadly
weapon or homicide. Thus domestic violence is of a fundamentally
different character than the crimes that we have found do not justify a
Terry frisk.
5
Because Thomas matched the description of both reports, and because
both reports involved domestic violence occurring on the Escondido
campus, Dillard reasonably believed the dispatches were related.
THOMAS V. DILLARD 59
majority’s analysis is thus impermissibly infused with the
benefit of hindsight.
Further undermining the majority’s view is our circuit’s
repeated observation that “[t]he volatility of situations
involving domestic violence” makes them particularly
dangerous. Marquez v. City of Phoenix, 693 F.3d 1167, 1175
(9th Cir. 2012), as amended on denial of reh’g (Oct. 4, 2012)
(alteration in original) (quoting Mattos v. Agarano, 661 F.3d
433, 450 (9th Cir. 2011)). We have also said that “[w]hen
officers respond to a domestic abuse call, they understand that
‘violence may be lurking and explode with little warning.’”
United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.
2004) (quoting Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir.
1999)) (“[M]ore officers are killed or injured on domestic
violence calls than on any other type of call.” (quoting
Hearings before Senate Judiciary Committee, 1994 WL
530624 (F.D.C.H.) (Sept. 13, 1994) (statement on behalf of
National Task Force on Domestic Violence))); see also
Hopkins v. Bonvicino, 573 F.3d 752, 766 (9th Cir. 2009)
(stating the same).
Consistent with our precedent, Officer Dillard’s training
had taught him that “a domestic violence call can be a very
dangerous call to a police officer.” The undisputed evidence
in the record (a declaration by a police procedures expert)
indicates that 31.7 percent of assaults on police officers in
2011 occurred “while answering domestic violence type radio
calls,” and 12.7 percent of the 72 officers killed in 2011 were
answering domestic violence calls (citing the Federal Bureau
of Investigation’s (“FBI’s”) 2011 annual publication on
police assaults and deaths).
60 THOMAS V. DILLARD
My colleagues in the majority are correct that the
evidence in the record appears somewhat to overstate the FBI
data it purports to summarize, because the figures cited in fact
encompass assaults and deaths attributable to all kinds of
“disturbance calls”—not just domestic violence calls. See
Maj. Op. at 25 n.11. But the majority ignores that the FBI
data nevertheless supports our circuit’s oft-stated conclusion
that domestic violence is frequently associated with weapons
and is one of the more dangerous calls an officer can receive.
For example, the FBI’s 2011 statistics show that
approximately 33 percent of the assaults on police officers in
2011 (18,216 out of 54,774 assaults) were committed while
police were responding to “disturbance call[s],” a category
which includes domestic violence calls. FBI, Law
Enforcement Officers Assaulted: Circumstances at Scene of
Incident by Type of Weapon and Percent Distribution, 2011
(last visited Feb. 17, 2016), https://www.fbi.gov/about-
us/cjis/ucr/leoka/2011/tables/table-73 [hereinafter “Table
73”]. And of these 18,216 assaults, 17.3 percent (3,155
assaults annually) were committed with a weapon. Id.
Indeed, there is reason to think that domestic violence
calls are more dangerous to police officers than calls relating
to other crimes which we have already deemed to give rise,
by their very nature, to a reasonable suspicion that a suspect
might be armed. In United States v. Mattarolo, 209 F.3d
1153 (9th Cir. 2000), for example, we held that a Terry frisk
of a nighttime burglary suspect was constitutional, based on
the dangerous nature of the crime. Id. at 1158. But the FBI’s
data shows that two of the 72 police officers killed in 2011
were responding to a “domestic disturbance,” while zero
officers were killed in 2011 while responding to a “burglary
in progress” or the “pursuing a burglary suspect.” See FBI,
Law Enforcement Officers Feloniously Killed: Circumstance
THOMAS V. DILLARD 61
at Scene of Incident, 2002–2011 (last visited Feb. 17, 2016),
available at https://www.fbi.gov/about-us/cjis/ucr/leoka/
2011/tables/table-19 [hereinafter “Table 19”]. In fact, from
2002 to 2011, more than three times as many police officers
were killed while responding to domestic violence calls than
while responding to burglary calls. Id. (showing that 36
officers were “feloniously killed” while responding to
domestic violence calls, as compared to only 11 officers
responding to active burglary calls). And in 2004, 16 percent
(9 out of 57) of the police officers feloniously killed in the
line of duty were responding to domestic disturbance calls,
specifically. Id.
Instead of looking at this hard data or following our own
precedent, however, the majority credits a recent article and
the findings of one researcher whose study was limited to the
Los Angeles area, which suggest that robbery and burglary
calls are actually more dangerous than domestic violence
calls. See Maj. Op. at 24–25 & n.11.6 Even assuming,
arguendo, that robbery and burglary calls are more frequently
associated with weapons than domestic violence calls, it does
not follow that domestic violence calls do not also pose a
substantial threat to a police officer’s safety. In holding that
a “daylight robbery . . . would be likely to involve the use of
weapons,” Terry made no suggestion that robbery represented
6
For example, the majority credits the opinion of the author of an article
appearing in the May 2011 edition of The Police Chief, which (like the
majority) editorializes on the FBI’s statistics presented herein, but does
not actually present any contrary evidence to support its conclusion. In
any event, I find it odd that the majority chooses to credit this article over
the well-supported conclusions reached by at least two Ninth Circuit
cases. See, e.g., Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009);
United States v. Martinez, 406 F.3d 1160 (9th Cir. 2004), discussed supra,
at 59.
62 THOMAS V. DILLARD
the outer limit of crimes thought to be sufficiently dangerous
to support a reasonable inference on the part of the officer
that a person suspected of that crime might be armed. See
Terry v. Ohio, 392 U.S. 1, 28 (1968). Rather, Terry
recognized that even where an officer does not have the
probable cause necessary to make an arrest, it would “be
clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the person is in fact
carrying a weapon and to neutralize the threat of physical
harm,” as long as the “officer is justified in believing that the
individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officer or
to others.” Id. at 24.
The FBI data referenced in the record shows that
thousands of police officers are assaulted every year while
responding to domestic violence disputes. One in every five
of these assaults involves a deadly weapon (a firearm, a knife,
or another “dangerous weapon”). See Table 73. And every
year, these assaults result in deaths to law enforcement
officers. See Table 19. Given these statistics, I would find
that domestic violence calls are associated with weapons
frequently enough that an officer can form a reasonable
suspicion that a suspect might be armed based on the
domestic violence nature of the call.7
7
The warrantless entry cases cited by the majority for the proposition
that “domestic abuse cases [do not] create a per se exigent need for
warrantless entry,” do not resolve whether a frisk—which, unlike
warrantless entry, is necessitated by safety concerns—may be justified by
the domestic violence nature of the call. See Maj. Op. at 27 (citing United
States v. Black, 482 F.3d 1035 (9th Cir. 2007), and United States v.
Martinez, 406 F.3d 1160 (9th Cir. 2005)). Moreover, both cases cited by
the majority upheld the constitutionality of the officers’ warrantless entry
in response to a domestic violence call. See Black, 482 F.3d at 1040–41;
THOMAS V. DILLARD 63
Of course, an officer’s reasonable suspicion could in
some circumstances be dispelled by other facts known to the
officer. See Terry, 392 U.S. at 28 (suggesting that, under
certain circumstances, a suspect’s response to an officer’s
approach might dispel reasonable suspicion that suspect is
armed). But at the time he encountered Thomas, Dillard was
aware of no such facts. Dillard encountered an individual
matching the description of a suspect of two reports of
domestic abuse, who emerged “suspiciously” from a
concealed area where the violence had allegedly occurred
with a woman. Thomas was wearing baggy clothes and a
long shirt that could conceal weapon. Thomas acted
“standoffish.” He refused to consent to a weapons search.
More importantly, he refused even to raise his hands or to
move them away from his waistline, where Dillard was
reasonably concerned a weapon might be concealed.8
True, Thomas’ baggy clothing could not alone support a
reasonable suspicion that he was armed. See Ybarra v.
Illinois, 444 U.S. 85, 93 (1979) (government failed to
“articulate any specific fact that would have justified” a
reasonable suspicion that Ybarra was armed and dangerous
Martinez, 406 F.3d at 1165. Thus, these cases hardly support the
majority’s conclusion that Officer Dillard violated Thomas’ Fourth
Amendment rights in conducting a Terry frisk of an individual matching
the description of two reports of domestic violence on the Escondido
campus.
8
The mere fact that Thomas provided answers to Officer Dillard’s
questions (i.e. refusals to cooperate) did not “negate” Dillard’s
“reasonable hypothesis” that he might be armed. See Terry, 392 U.S. at
5, 28 (defendant’s “mumble” in response to officer’s question did not
“negate” a reasonable hypothesis that the defendant might be armed where
the officer had observed suspicious activity that led him to believe the
defendant intended to commit a crime involving weapons).
64 THOMAS V. DILLARD
when “the most” the officer “could point to was that Ybarra
was wearing a 3/4-length lumber jacket, clothing which the
State admits could have been expected on almost any tavern
patron” at that time of year). But where an officer is
confronting the suspect of a violent crime frequently
committed with weapons, the fact that the suspect’s clothing
could conceal a weapon is relevant to determining whether
reasonable suspicion that the suspect might be armed is
dispelled.9
The majority focuses on the lack of active violence when
Officer Dillard arrived. But even if the initial violence has
subsided, it is not uncommon for the perpetrator, or even the
victim, to erupt into sudden violence or anger at an officer
responding to a domestic violence call. See Martinez,
406 F.3d at 1164; cf. Lininger and Marie De Sanctis, supra.
If that occurs, the seemingly calm scene can turn dangerous
or deadly (if weapons are present) in a matter of seconds.
Given this volatility, a reasonably cautious police officer will
start by securing the domestic violence scene to ensure there
are no weapons on hand if someone does become
violent—exactly what Officer Dillard tried to do here. In
fact, an officer has a duty as a “community caretak[er]” to
take reasonable steps to protect the victim of reported
domestic violence, and Officer Dillard’s “failure to do so
would have amounted to a dereliction of duty.” United States
v. Willis, 431 F.3d 709, 713 (9th Cir. 2005).
Perhaps with the benefit of “20/20 . . . hindsight” we
might say that Officer Dillard should have realized that
9
For example, reasonable suspicion that a suspect was armed might be
dispelled if the suspect’s clothing made clear he would have nowhere to
hide a weapon.
THOMAS V. DILLARD 65
Thomas was not armed. But in the Fourth Amendment
context we judge the reasonableness of an officer’s conduct
“from the perspective of a reasonable officer on the scene.”
Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Terry,
392 U.S. at 20–22 (1968)); cf. Mattarolo, 209 F.3d at 1158
(“The officer must choose between being sure that the suspect
is not armed and jeopardizing his own safety.”).
In my view, the nature of a domestic violence call
justifies an officer’s formulation of a reasonable suspicion
that a suspect may be armed (in the absence of mitigating
circumstances). Indeed, a law enforcement officer should
feel a moral duty to protect victims of domestic violence.
And while an officer of course cannot shadow an abuser
forever to ensure no future violence befalls the victim, he can
at least make sure that the “scene is secure” from possible
violence with weapons before he leaves the victim with an
abuser. Given that domestic violence assaults account for
nearly two-thirds of all fatal shootings of female victims in
the United States, see Violence Pol’y Ctr. Report, supra, I
would find that the relatively small incursion on bodily
dignity of permitting a Terry frisk based on the domestic
violence nature of a police call is far outweighed by the
strong law enforcement interest—indeed, the broader societal
interest—in saving the lives of domestic violence victims.
We achieve this interest by assuring that abusers are not
armed before the police officer leaves the scene of a domestic
violence encounter. Yet the majority today requires a law
enforcement officer to face potential liability unless he leaves
a domestic violence scene without any assurance that the
abuser is not armed and will not again inflict violence on the
victim—only next time, with a gun. I cannot endorse a legal
rule that places law enforcement officers in such a stressful
dilemma. Thus, while I agree with the result reached by the
66 THOMAS V. DILLARD
majority today, I cannot join my colleagues to the extent they
deny law enforcement officers a tool—the Terry frisk—vital
for ensuring their own safety, as well as the safety of the
domestic violence victims they have a duty to protect.