United States v. Marc Willy

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30006
Plaintiff-Appellant,
D.C. Nos.
v. 1:19-cr-02059-SAB-1
1:19-cr-02059-SAB
MARC ANTHONY WILLY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
Argued and Submitted February 7, 2022
Seattle, Washington
Filed July 26, 2022
Before: Jay S. Bybee and Morgan Christen, Circuit Judges,
and James V. Selna,* District Judge.
Opinion by Judge Bybee;
Dissent by Judge Christen
*
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
2 UNITED STATES V. WILLY
SUMMARY**
Criminal Law
The panel affirmed the district court’s order granting
Marc Anthony Willy’s motion to suppress evidence and
statements obtained after his arrest, in a case that required the
panel to determine whether there was probable cause to arrest
Willy for displaying a weapon in a manner that “warrant[ed]
alarm for the safety of other persons.” Wash. Rev. Code
§ 9.41.270(1).
Willy was arrested after two people separately reported
that a man in a truck had displayed a firearm while asking
them questions about an alleged kidnapping in the area. After
his arrest, a search of Willy’s vehicle and person recovered
illegal firearms and a modified CO2 cartridge. He was
charged with making and possessing a destructive device in
violation of the National Firearms Act.
Explaining important context for Willy’s actions, the
panel noted that Washington is an open carry state (i.e., it is
presumptively legal to carry a firearm openly) in which it is
a misdemeanor to carry a concealed pistol without a license,
but also a “shall issue state” meaning that local law
enforcement must issue a concealed weapons license if the
applicant meets certain qualifications. The panel wrote that
the bare fact that Willy displayed a weapon would not be
sufficient to stop Willy, because there is no evidence that
Willy was carrying a concealed weapon. Noting 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.
UNITED STATES V. WILLY 3
Washington courts have narrowed terms in § 9.41.270(1) to
preserve the constitutionality of the statute, the panel
observed that what emerges is a workable standard: The act
must warrant alarm in a reasonable person for the safety of
others.
A sheriff’s deputy’s suspicion that Willy had violated
§ 9.41.270 arose not from his own observations but from the
accounts of the two reporting parties. The panel wrote that it
was reasonable for an officer in the sheriff’s deputy’s position
to rely on the information, but concluded that the deputy did
not, consistent with Washington law and the Fourth
Amendment, have probable cause to arrest Willy without
further inquiry for three reasons. First, it was not clearly
erroneous for the district court to conclude that neither
reporting party indicated to the deputy that Willy displayed
his firearm in a threatening manner. Second, § 9.41.270(1)
requires more than the mere display of a firearm, and at the
time the deputy located Willy, he did not have sufficient
information to reasonably believe Willy had displayed his
gun in a manner that warrants alarm. The panel wrote that
although the reports indicated that Willy displayed the
firearm rather than just carrying it, this distinction does not,
in an open-carry state, create enough of a possibility of
criminal activity that Willy was subject to immediate arrest
without further investigation. Finally, the district court
accurately stated that § 9.41.270(1) both incorporates a
reasonable person standard and does not require that a
person’s actions actively cause alarm.
As the government did not challenge application of the
“fruit of the poisonous tree” doctrine, the panel affirmed the
district court’s application of the exclusionary rule to
4 UNITED STATES V. WILLY
suppress Willy’s statements, the firearms, and the CO2
device.
Dissenting, Judge Christen wrote that the deputy without
question had probable cause to suspect that Willy violated the
second clause of § 9.41.270(1) because the reliability of the
callers’ reports was verified when the details they provided
checked out; and it was the deputy’s perilous duty to arrest
Willy, a man he had good reason to believe to be armed and
mentally compromised, for displaying a firearm “in a manner,
under circumstances, and at a time and place that . . . warrants
alarm for the safety of other persons.”
COUNSEL
Richard C. Burson (argued), Assistant United States
Attorney; Joseph H. Harrington, Acting United States
Attorney; United States Attorney’s Office, Yakima,
Washington; for Plaintiff-Appellant.
Jeremy B. Sporn (argued), Federal Defenders of Eastern
Washington and Idaho, Yakima, Washington, for Defendant-
Appellee.
UNITED STATES V. WILLY 5
OPINION
BYBEE, Circuit Judge:
This case requires us to determine whether there was
probable cause to arrest Marc Anthony Willy for displaying
a weapon in a manner that “warrant[ed] alarm for the safety
of other persons.” Wash. Rev. Code § 9.41.270(1). Willy
was arrested after two people separately reported that a man
in a truck had displayed a firearm while asking them
questions about an alleged kidnapping in the area. After his
arrest, a search of Willy’s vehicle and person recovered
illegal firearms and a modified CO2 cartridge. Willy was
charged with making and possessing a destructive device in
violation of the National Firearms Act, 26 U.S.C. § 5861.
The district court granted Willy’s motion to suppress all
evidence and statements obtained after his arrest because his
arrest was not supported by probable cause. We affirm.
I. BACKGROUND
On May 12, 2019, the Yakima County’s Sheriff’s Office
received a call from a witness (“Reporting Party 1”) stating
that a man had pulled up outside of his home in a vehicle and
displayed a firearm. Dispatch relayed this information to
Deputy Curtis Thaxton, who interviewed Reporting Party 1
at his residence. Reporting Party 1 told Deputy Thaxton that
a white male in a green truck pulled up on the street in front
of his house and began talking about being abducted and kept
somewhere in the area. The man said he was trying to find
the place where he was kept. During the conversation, the
man pulled out a semiautomatic pistol, racked the slide, and
then put it down. Reporting Party 1 expressed concern about
the man’s mental state. He provided Deputy Thaxton with
6 UNITED STATES V. WILLY
the truck’s license plate number, and the vehicle came back
as registered to Marc Willy. Thaxton showed Reporting
Party 1 Willy’s Department of Licensing photo, and he
identified Willy as the man with whom he had spoken.
Reporting Party 1 said that Willy made no threats to him, nor
had Willy pointed the pistol at him at any time.
About ten minutes after leaving Reporting Party 1’s
residence, Deputy Thaxton responded to another report from
dispatch. The second call had come from Reporting Party 2,
who lived about three miles from the previous caller. Deputy
Thaxton spoke to the second witness over the phone because
Reporting Party 2 had already left her residence. Reporting
Party 2 stated that a man with a name like “Willis” pulled up
to her gate in a green truck when she was leaving her house
and told her that he had been kidnapped and held in a
camouflaged trailer or van in the area and that he was trying
to find it. While they were talking, the man told her he was
armed and then displayed a pistol and put it away. Reporting
Party 2 told the man she did not know the place he was
looking for, and he drove away. Reporting Party 2 said that
she was not was not directly threatened, nor was Willy
argumentative or hostile.
Deputy Thaxton resumed patrol and testified that at this
point he was concerned that Willy was “a danger to himself
or others in the area,” because
the way he was rambling on, that things
weren’t completely coherent what was going
on; that he would possibly use it if confronted
with somebody else, that he had made contact
with somebody else; that once the gun’s
out—normal people just don’t walk around
UNITED STATES V. WILLY 7
displaying firearms out to people when they
pull up.
Thaxton believed Willy “had already committed the violation
of carry, exhibit, draw a dangerous weapon or firearm with an
intent to create an affront or alarm to another.” See Wash.
Rev. Code § 9.41.270.1 Deputy Thaxton located the green
truck pulling into a gas station. Once he confirmed the
license plate matched the one given to him by Reporting
Party 1, Deputy Thaxton turned on his emergency lights and
conducted a “high-risk stop.” With his firearm drawn,
Deputy Thaxton ordered Willy out of the vehicle. Willy
complied with all of Deputy Thaxton’s orders. While making
Willy turn around, Deputy Thaxton saw a pistol holstered on
his hip. Deputy Thaxton removed the gun, put Willy in
handcuffs, and escorted him to the back seat of the police
vehicle.
After securing Willy’s pistol in the patrol car, Deputy
Thaxton noticed that the gun had the serial number scratched
off. Deputy Thaxton read Willy his Miranda rights, and
Willy indicated that he was willing to talk to Deputy Thaxton.
1
Section 9.41.270 provides in relevant part:
It shall be unlawful for any person to carry, exhibit,
display, or draw any firearm, dagger, sword, knife or
other cutting or stabbing instrument, club, or any other
weapon apparently capable of producing bodily harm,
in a manner, under circumstances, and at a time and
place that either manifests an intent to intimidate
another or that warrants alarm for the safety of other
persons.
Wash. Rev. Code § 9.41.270(1). Violation of this subsection is a gross
misdemeanor. Id. § 9.41.270(2).
8 UNITED STATES V. WILLY
Willy told Deputy Thaxton that he had been abducted and
kept at a location for several days and that he had escaped but
police had not done anything to help him. When asked about
the scratched off serial number, Willy stated that he bought
the gun already in that condition three or four years
previously at a gun show in Spokane.
Willy consented to a search of his truck and stood by the
patrol car while Deputy Thaxton started the search. As
Deputy Thaxton moved to the passenger-side door, Willy told
him that there was a sawed-off shotgun on the rear floorboard
of the truck. Deputy Thaxton recovered a non-functional
short-barrel shotgun from the vehicle. After the vehicle
search, Deputy Thaxton took Willy to Yakima County Jail for
booking. When Thaxton searched Willy, he recovered a CO2
cartridge that had crimp marks around the neck and two
pieces of fuse coming out of the neck. ATF agents later
determined that the device qualified as a “destructive device”
under 26 U.S.C. § 5845(f).
Deputy Thaxton conferred with the prosecutor’s office
and told them his reasons for arresting Willy. The prosecutor
recommended charging Willy with possessing an
altered-number pistol and a short-barrel shotgun. In his
“Declaration of Probable Cause,” in support of those two
charges, Deputy Thaxton wrote that “[Willy] displayed a
black semi auto pistol [to Reporting Witness 1] and loaded it
(racked the slide). [Willy] never threatened anyone with it
and didn’t point it towards him.” He also wrote that
Reporting Witness 2 said “[Willy] told her he was armed and
displayed a black pistol” and that “[Willy] never threatened
her with it or pointed it at her.” Willy was ultimately charged
with violating § 9.41.270 and altering the serial number on
UNITED STATES V. WILLY 9
the pistol. The record does not disclose any resolution of the
state charges.
A federal grand jury in the Eastern District of Washington
returned a three-count indictment charging Willy with
receiving and possessing an improvised explosive
device—the altered CO2 cartridge—in violation of 26 U.S.C.
§ 5861(c), receiving and possessing an improvised explosive
device which was not registered to him in violation of
26 U.S.C. § 5861(d), and making an improvised explosive
device in violation of 26 U.S.C. § 5861(f). Willy filed a
motion to suppress the evidence. A hearing on the motion
was held, during which Deputy Thaxton testified. The
district court granted the motion to suppress, finding that
although Deputy Thaxton had reasonable suspicion to
conduct an investigatory stop, Thaxton lacked probable cause
to make the arrest. The evidence was “tainted by the
illegality of the arrest.” The government filed a timely notice
of appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction pursuant to 18 U.S.C. § 3731 and
28 U.S.C. § 1291. We review de novo the district court’s
ruling on a motion to suppress and for clear error any
underlying findings of historical fact. United States v. Torres,
828 F.3d 1113, 1118 (9th Cir. 2016). We must “give due
weight to inferences drawn from th[e] facts by resident judges
and local law enforcement officers.” Ornelas v. United
States, 517 U.S. 690, 699 (1996). The district court’s
interpretation of state law, including state statutes, is
reviewed de novo. Brunozzi v. Cable Commc’ns, Inc.,
851 F.3d 990, 995 (9th Cir. 2017).
10 UNITED STATES V. WILLY
III. DISCUSSION
The Fourth Amendment, applicable to the United States
and made applicable to the states by the Fourteenth
Amendment, protects the right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures. U.S. Const. amend. IV;
see Terry v. Ohio, 392 U.S. 1, 8 (1968). The Fourth
Amendment provides that a warrant for arrest “shall [not]
issue, but upon probable cause.” In this case, Willy was
arrested for violating § 9.41.270—only later was he charged
with altering the serial number on the pistol (the basis for a
second state charge actually filed against him) or possessing
the crimped CO2 cartridge (the basis for the federal charges).
The evidence supporting the federal charges was seized after
Willy’s arrest during a search at the jail. Thus, the
“constitutional validity of the search . . . depend[s] upon the
constitutional validity of [Willy’s] arrest.” Beck v. Ohio,
379 U.S. 89, 91 (1964). Accordingly,
[w]hether that arrest was constitutionally valid
depends in turn upon whether, at the moment
the arrest was made, [Deputy Thaxton] had
probable cause to make it—whether at that
moment the facts and circumstances within
[his] knowledge and of which [he] had
reasonably trustworthy information were
sufficient to warrant a prudent man in
believing that the petitioner had committed or
was committing an offense.
Id.; see also United States v. Lopez, 482 F.3d 1067, 1072 (9th
Cir. 2007).
UNITED STATES V. WILLY 11
Deputy Thaxton testified that, even before he found Willy
at a service station and activated his light bar, he had
determined that Willy had violated Washington law and that
he was going to arrest Willy. Since Thaxton himself had not
observed any suspicious conduct by Willy, the question is
whether he had probable cause to arrest Willy based only on
the two reports.
“Articulating precisely what ‘reasonable suspicion’ and
‘probable cause’ mean is not possible. They are
commonsense, nontechnical conceptions that deal with ‘the
factual and practical considerations of everyday life on which
reasonable prudent men, not legal technicians, act.’”
Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S.
213, 231 (1983)). We do not have “a neat set of legal rules,”
Gates, 462 U.S. at 232, but must “examine whether the facts
and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person to believe a suspect has
committed, is committing, or is about to commit a crime.”
United States v. Valencia, 24 F.3d 1106, 1108 (9th Cir. 1994).
Although we do not have a precise test, “probable cause” is
a higher standard than the “reasonable suspicion” required to
conduct a Terry stop and make further inquiries. Kansas v.
Glover, 140 S. Ct. 1183, 1187 (2020) (“[T]he level of
suspicion the [Terry stop] standard requires is . . . obviously
less than is necessary for probable cause.” (quoting Navarette
v. California, 572 U.S. 393, 397 (2014))).
We thus turn to Washington law to determine whether
Deputy Thaxton had grounds under § 9.41.270 for arresting
Willy. See United States v. Bontemps, 977 F.3d 909, 914 (9th
Cir. 2020), cert. denied, 141 S. Ct. 2874 (2021).
12 UNITED STATES V. WILLY
A. The Scope of Washington Revised Code § 9.41.270
We begin with important context for Willy’s actions.
Washington is an open carry state. That means that it is
presumptively legal to carry a firearm openly. As we recently
observed in United States v. Brown, 925 F.3d 1150 (9th Cir.
2019), it is a misdemeanor to carry a concealed pistol without
a license, but “Washington is a ‘shall issue state,’ meaning
that local law enforcement must issue a concealed weapons
license if the applicant meets certain qualifications.” Id. 1154(emphasis in original). The bare fact that Willy displayed a
weapon would not be sufficient to stop Willy, because there
is no evidence that he was carrying a concealed weapon. The
reporting parties’ statements that Willy was carrying a gun
“created at most a very weak inference that he was unlawfully
carrying the gun [concealed] without a license, and certainly
not enough to alone support a Terry stop.” Id. Moreover,
Thaxton acquired no additional reasons for arresting Willy
until after he stopped him: When Thaxton ordered Willy to
leave his truck and turn around slowly, Willy was openly
carrying his pistol, in a holster on his hip.
As we have observed, notwithstanding that Washington
is an open carry state, it is a gross misdemeanor in
Washington for a person to “carry, exhibit, display, or draw
any firearm . . . in a manner, under circumstances, and at a
time and place that either manifests an intent to intimidate
another or that warrants alarm for the safety of other
persons.” Wash. Rev. Code § 9.41.270(1). The Washington
courts have construed critical terms in the statute, narrowing
them to preserve the constitutionality of the statute. Two
cases are of particular note.
UNITED STATES V. WILLY 13
In the first, State v. Maciolek, 676 P.2d 996 (Wash. 1984),
the Washington Supreme Court addressed a void-for-
vagueness challenge to § 9.41.270. Maciolek involved two
separate convictions under § 9.41.270, consolidated for the
appeal. In the first case, Maciolek was convicted of violating
§ 9.41.270 after he became angry when his doctor would not
renew his prescription for Percodan. Maciolek “deliberately
pulled back his jacket to reveal a handgun . . . . The doctor,
alarmed and intimidated by this display, immediately wrote
out a prescription for Percodan.” Id. at 997. In the second
case, Johnson was a 13-year old who had an altercation with
a pair of 9-year olds. He fired his BB gun at them and then
took one of their bikes. Id. The Washington Supreme Court
held that the statute was not void for vagueness and upheld
both convictions.2 The cases challenged the statute on two
grounds: the vagueness in the phrase “a knife or other cutting
or stabbing instrument” and in the phrase “in a manner, under
circumstances and at a time and place that either manifests an
intent to intimidate another or that warrants alarm for the
safety of other persons.” Only the latter phrase is in play
here. The court began with the definition of “intimidate,”
which it said was “defined very narrowly” as to “inspire or
affect with fear . . . (as by threats).” Id. at 999 (quoting
Webster’s Third New Int’l Dictionary 1184 (1961)). In a
lengthy footnote, the court stated that the phrase “warrants
2
The court also affirmed a third case, in which the defendant was
seen chasing a woman up the center of the street with a knife. The
defendant was convicted under a Seattle municipal statute similar to
§ 9.41.270. Maciolek, 676 P.2d at 997.
14 UNITED STATES V. WILLY
alarm for the safety of other[s]” was sufficiently qualified by
other language to “giv[e] the statute a narrow scope”:
If a weapon is displayed in a manner, under
circumstances and at a time and place so that
it poses a threat to another person, such a
display would warrant alarm for the safety of
another. Thus, narrowly construing the phrase
to apply to only conduct that poses a threat to
others gives the phrase a narrow and definite
focus and saves it from vagueness. Such a
construction is also consistent with the
statute’s purpose, which is to prevent
someone from displaying dangerous weapons
so as to reasonably intimidate members of the
public.
Id. at 1001 n.3 (citations omitted).
The second is a decision of the Washington Court of
Appeals, State v. Spencer, 876 P.2d 939, 943 (Wash. Ct. App.
1994), upholding the statute against a challenge under
Washington’s equivalent of the Second Amendment.3
Spencer was convicted under § 9.41.270 when he was seen by
multiple people walking with his dog at night in an urban area
3
The Washington Constitution provides:
The right of the individual citizen to bear arms in
defense of himself, or the state, shall not be impaired,
but nothing in this section shall be construed as
authorizing individuals or corporations to organize,
maintain or employ an armed body of men.
Wash. Const. art. 1, § 24.
UNITED STATES V. WILLY 15
with an AK-47S, with the magazine attached, on his shoulder.
The responding officer saw Spencer “in ‘a hostile, assaultive
type manner with the weapon ready.’” Id. at 940. The
Washington Court of Appeals rejected the constitutional
challenge. It found that “the statute does not prevent a person
from carrying weapons in self-defense” and “[i]f there is no
present threat, weapons must be carried in a manner that does
not warrant alarm in others.” Id. at 941. The court explained
that § 9.41.270
only prohibits the carrying or displaying of
weapons when objective circumstances would
warrant alarm in a reasonable person. Thus,
the restriction applies only in a limited
number of situations. . . . In the vast majority
of situations, a person of common intelligence
would be able to ascertain when the carrying
of a particular weapon would reasonably
warrant alarm in others.
Id. at 942 (footnote omitted). In a pair of footnotes, the court
added that “[t]hese circumstances may include, as in
[Spencer’s] case, the fact that the weapon is being carried in
a residential neighborhood, the time of day, the urban
environment, the manner in which the weapon is carried, the
size and type of weapon, and the fact that the weapon has a
clip visibly attached. . . . [Spencer’s case] does not fall
anywhere near a potential ‘grey area’ in the statute.” Id. at
942 nn.4–5. The court then visited the question raised in
Maciolek, whether the statute was void for vagueness. The
Court of Appeals held that the statute had “a sufficiently
narrow scope.” Id. at 943. It also adopted a lower court’s
reading that “a reasonable person standard is incorporated
into the phrase ‘warrants alarm.’” Id.; see id. at 943 n.7
16 UNITED STATES V. WILLY
(“[T]here must be a sufficient objective basis for the alarm,
i.e., circumstances must be such that a reasonable person
would be alarmed.”). “When viewed with these two
limitations in mind, it is clear that the statute is sufficiently
definite to (1) provide defendants with adequate notice of
prohibited conduct and (2) provide adequate enforcement
standards.” Id. at 943. In Spencer’s case, the court repeated,
“[a]ny reasonable person would feel alarmed upon seeing, on
a residential street at night, a man carrying a visibly loaded
AK-47 assault rifle in an assaultive manner. . . . [A] person of
common intelligence would realize that carrying an assault
rifle under such circumstances and in such a manner would
warrant alarm in others.” Id. at 943–44.
If we consider Maciolek and Spencer together, what
emerges is a workable standard for judges and juries to
evaluate: The act must warrant alarm in a reasonable person
for the safety of others. Maciolek, 676 P.2d at 1001 n.3;
Spencer, 876 P.2d at 943 & n.7. A broader construction,
Washington courts have suggested, might well run afoul of
void-for-vagueness principles or the right under the
Washington Constitution “to bear arms in defense of
himself.”
The dissent insists on reading the phrase “warrants alarm
for the safety of other persons” in isolation. Dissenting Op.
at 34. This approach expands § 9.41.270(1) beyond its
intended scope. As the Washington courts have explained,
“narrowly construing the phrase [‘warrants alarm for the
safety of other[s]’] to apply to only conduct that poses a
threat to others gives the phrase a narrow and definite focus
and saves it from vagueness” and is consistent with the
statute’s purpose. Maciolek, 676 P.2d at 1001 n.3. Although
Willy’s conduct could only arguably violate the “warrants
UNITED STATES V. WILLY 17
alarm” portion of the statute, the rest of the statute is not
irrelevant—it gives us the proper context and respects
Washington’s decision to interpret § 9.41.270(1) to avoid
constitutional problems. The preceding phrase, “manifests an
intent to intimidate another,” indicates that the Washington
legislature did not intend “warrants alarm for the safety of
other persons” to apply broadly to all conduct that might raise
concern—a reading that swallows the first portion of the
statute.4 Rather, the “warrants alarm” portion is best read as
capturing the scenarios where someone is not directly
threatening a person who is present, but is handling their
firearm in such a way that it presents a danger to others. See
State v. Workman, 584 P.2d 382, 386 (Wash. 1978) (holding
that even though no one saw the firearm, the defendants
handling of a gun while attempting to commit attempted
armed robbery “warrant[ed] alarm for the safety of anyone
who may chance to be nearby”). We choose to take the
Washington courts’ lead and read “warrants alarm” to refer
to conduct that a reasonable person would believe poses a
threat to themselves or other persons.
We have reviewed Washington cases involving charges
or convictions under § 9.41.270. These cases have addressed
a variety of circumstances, but all have involved palpable
threats with a weapon and did not approach what the Spencer
court termed “a potential ‘grey area’ in the statute.” Spencer,
876 P.2d at 942 n.5. For example, in State v. Baggett,
4
Indeed, under the dissent’s expansive reading, it is hard to imagine
conduct that would “manifest[] an intent to intimidate” without also
“warrant[ing] alarm for the safety of other persons.” Dissenting Op.
42–44. We must avoid rendering the first prohibition superfluous. See
Rivard v. State, 231 P.3d 186, 190 (Wash. 2010). Instead, we should
assume that the second portion of the statute attempts to capture related
but not overlapping conduct.
18 UNITED STATES V. WILLY
13 P.3d 659 (Wash. Ct. App. 2000), a police officer saw
Baggett leaning out of the passenger window of a parked car
with a rifle, evidently about to shoot a cat on the side of the
road. When Baggett saw the patrol car, he ordered his wife
to drive away, but she stopped when the officer activated his
siren. The officer instructed Baggett to drop his rifle, and
Baggett pointed the rifle at the officer. The Washington
Court of Appeals had no difficulty concluding that “[t]he
manner in which he held the rifle warranted alarm for the
safety of [the officer].” Id. at 662.
In State v. Glenn, 166 P.3d 1235 (Wash. Ct. App. 2007),
a seven-year old boy reported that a man in a passing car had
pointed a gun at him. His mother called 911 with the license
plate of a car matching the boy’s description. As the officers
interviewed the boy, the car passed by and the boy again
identified the car. The officers conducted a high-risk stop.
The driver, Glenn, was ordered out of the car, handcuffed,
and read his Miranda rights. The officers found $1,100 on
Glenn and marijuana in his car; they never found a gun. The
Washington Court of Appeals nevertheless upheld Glenn’s
conviction on the marijuana charge. The court held that the
officers had “received a legitimate citizen’s report that a
driver had pointed a gun from his vehicle . . . . Pointing a gun
at a victim is serious criminal conduct.” Id. at 1239.
Other cases are consistent with these principles. See State
v. Evans, 179 Wash. App. 1015 (2014) (upholding a search
based on a 911 complaint that a man was “waving a gun at
her daughter”); State v. Hoston, 175 Wash. App. 1073 (2013)
(upholding a search based on a report by three men in an area
known for gang activity who saw a man flash a handgun and
then put it in his waistband in the context of a “rolling fight”);
State v. Owens, 324 P.3d 757, 759 (Wash. Ct. App. 2014)
UNITED STATES V. WILLY 19
(upholding a § 9.41.270 conviction when after a verbal
altercation which prompted a 911 call, Owens advised that he
was going to get his gun since the cops were coming, ignored
officers’ orders, and continued approaching with a rifle);
State v. Smith, 93 P.3d 877, 878 (Wash. Ct. App. 2003)
(upholding § 9.41.270 conviction where Smith threatened,
“I’m going to get my 45, and we’ll take care of business,”
before returning and swinging his gun in the air, threatening
with a pipe, and throwing a hammer); State v. M.T., 97 Wash.
App. 1067, at *3 (1999) (upholding a conviction based on a
seven-year old’s report that a man had approached her with
a closed pocketknife which he thrust in the air; she had
previously seen the man “pierce his own hand with the
knife”; and “a reasonable person would be intimidated by
M.T.’s display of the knife, even though the knife was
closed”); see also United States v. Caraang, 2018 WL
2216103, at *1–3 (W.D. Wash. 2018) (holding that an officer
had reasonable suspicion to stop Caraang where he was
reported to have waved a gun in a bar parking lot in the
presence of five to ten people, racked the slide, and yelled
“anybody want some?”); Hill v. Ramsdell, 2016 WL 1304847(W.D. Wash. 2016) (holding that police had probable cause
to arrest Hill on § 9.41.270 charges when he attended a city
council meeting wearing what appeared to be brass knuckles);
State v. Mitchell, 906 P.2d 1013 (Wash. Ct. App. 1995)
(holding that an officer had reasonable suspicion to stop
Mitchell when he was carrying a semi-automatic weapon in
an urban, residential area at night, he tucked the gun in his
waistband when he saw the officer, and tossed the gun when
the officer ordered him to put his hands up).5
5
The dissent argues that Mitchell cannot be squared with our reading
of § 9.41.270. Dissenting Op. at 43–44. First, we note that the Mitchell
court only determined that the officers had reasonable suspicion to
20 UNITED STATES V. WILLY
Just as important to our analysis, Washington courts have
refused to enforce § 9.41.270 when the threats are not
sufficiently direct or imminent. For example, in State v.
Cardenas-Muratalla, 319 P.3d 811 (Wash. Ct. App. 2014),
police received a 911 call reporting a man with a gun in a
high crime area of downtown Seattle. Police saw a man
answering the description—Cardenas-Muratalla—and
thought that he “fluffed” his sweatshirt when he saw the
approaching patrol car. When Cardenas-Muratalla did not
stop in response to the officers’ instructions, the officers tased
and shot him. Cardenas-Muratalla was carrying an unloaded
pistol in his waistband. The Washington Superior Court
refused to suppress the evidence of the gun, but the
Washington Court of Appeals reversed. The court held that
the 911 call had not reported any criminal activity: “Carrying
a firearm is a crime if it is carried or displayed in a manner
that either manifests an intent to intimidate another or that
warrants alarm for the safety of other persons.” Id. at 816(footnote omitted; citing § 9.41.270). In Cardenas-
Muratalla, “[t]here [was] no evidence in the record that the
911 caller reported being intimidated or alarmed when the
suspect showed him the gun or that the suspect discharged the
conduct a Terry stop based on § 9.41.270. 906 P.2d at 1016. Mitchell
was arrested for being a minor in possession of a handgun only after the
officers learned of his identity and criminal record. Id. at 1015. Second,
when officers passed Mitchell, who was walking in an urban residential
neighborhood at night, he tucked the firearm into his waistband,
concealing the weapon from view. We agree that openly carrying a
firearm under unusual circumstances, which might include the time of day,
neighborhood, manner of carry, and type of firearm, see Spencer, 876 P.2d
at 949 nn.4–5, could constitute a violation of § 9.41.270(1). And as in
Mitchell, the officers here could have stopped Willy to inquire further.
The difference is Thaxton arrested Willy on the spot whereas the officers
in Mitchell conducted a Terry stop and then discovered an independent
ground for arrest.
UNITED STATES V. WILLY 21
gun or pointed it at anyone. In fact, “the caller told the 911
operator, ‘He didn’t threaten me. It’s just that he showed me.
I seen it. . . . Just calling to tell you, just calling to tell you.’”
Id. The court held that the 911 call did not even “rais[e] a
reasonable suspicion of criminal activity.” Id.
Similarly, in State v. Casad, 139 Wash. App. 1032 (Wash.
Ct. App. 2007), a 911 caller reported seeing a man walking
down a public street with a rifle in a towel. When the police
saw Casad, it was 2 p.m. in the afternoon, and he was walking
with two rifles pointed downward and partially covered with
a towel. Police stopped Casad, and he told them he did not
have a car and was taking the rifles to a pawn shop. The
rifles were unloaded. Casad had a felony record and was
arrested for unlawful possession of a firearm. The
Washington Superior Court held that police lacked grounds
to conduct a Terry stop, and the Washington Court of
Appeals affirmed the suppression of the evidence as fruit of
an unlawful detention. The court of appeals held that Casad
could not be stopped even to investigate potential violation of
§ 9.41.270. Given the time of day, the location, and the
manner in which Casad was carrying the rifles, “[i]t [was] not
unlawful for a person to responsibly walk down the street
with a visible firearm, even if this action would shock some
people.” Id. at *5.
Our recent decision in a Washington case involving
§ 9.41.270 is consistent with these rulings. In United States
v. Brown, 925 F.3d 1150 (9th Cir. 2019), we held that a report
of a gun did not even constitute reasonable suspicion to stop
Brown. Seattle police received a 911 call reporting that an
unidentified person saw a young, black man with a gun. An
officer spotted Brown, who matched the description, and
“drove behind him for several blocks before turning on his
22 UNITED STATES V. WILLY
patrol lights and driving the wrong direction down a one-way
street to follow Brown.” Id. at 1152. When the officer turned
on his lights and began following Brown, he ran. We held
that the officers lacked reasonable suspicion even to stop
Brown. Id. at 1153–56; see id. at 1154 (“The anonymous tip
that Brown had a gun thus created at most a very weak
inference that was unlawfully carrying the gun without a
license, and certainly not enough to alone support a Terry
stop.”). We pointed to the fact that Washington is a “shall
issue state” and that there was no evidence that Brown was
carrying without a license. Nor was there anything in the
manner in which Brown was carrying that would have
implicated § 9.41.270: “No evidence shows that the resident
was alarmed at the time she reported seeing the gun. There
is no report that she yelled, screamed, ran, was upset, or
otherwise acted as though she was distressed.” Id. at 1154.
Thus, “[c]onsidering . . . the presumptive legality of carrying
a concealed firearm in Washington, the ‘tip’ alone did not
create reasonable suspicion that Brown was engaged in any
criminal activity.” Id.6
The dissent dismisses these cases as involving “innocuous
conduct.” Dissenting Op. at 44. But part of the significance
of those cases lies in the fact that the defendants were arrested
by police and charged by prosecutors. Obviously those
entities did not consider the defendants’ conduct “innocuous.”
These cases are part of a dialogue between police and
6
In contrast, we have consistently found reports that a defendant is
carrying a concealed weapon sufficient to give rise to reasonable suspicion
of potential illegal activity in California, where carrying a concealed
firearm is presumptively a crime. See e.g., Bontemps, 977 F.3d at 914;
United States v. Vandergroen, 964 F.3d 876, 881 (9th Cir. 2020); Foster
v. City of Indio, 908 F.3d 1204, 1215 (9th Cir. 2018).
UNITED STATES V. WILLY 23
prosecutors on the one hand, and the courts on the other, to
establish the boundaries for lawful and unlawful carrying and
display of weapons. Moreover, in two of the cases, Brown
and Casad, the courts concluded that not only did the police
lack probable cause to arrest, they lacked reasonable
suspicion to conduct a Terry stop. See Brown, 925 F.3d
at 1154; Casad, 139 Wash. App. 1032 at *5.
The question for us, of course, is which side of the line
drawn by the Washington courts does Willy’s conduct fall
on? We turn to that question.
B. Applying These Principles to Willy
Deputy Thaxton’s suspicion that Willy had violated
§ 9.41.270 arose not from his own observations but from the
accounts of two reporting parties. For our purposes, we will
assume that the information was reliable, but we are confident
the circumstances will bear out the assumption. See Florida
v. J.L., 529 U.S. 266, 270–74 (2000); Vandergroen, 964 F.3d
at 879–80. The parties identified themselves, provided
Deputy Thaxton with detailed reports, and provided
consistent details of their very recent encounters with Willy.
It was reasonable for an officer in Deputy Thaxton’s position
to rely on the information. See Foster, 908 F.3d at 1214.
The more difficult question is not whether Deputy
Thaxton should have investigated further, but whether, on the
basis of the two reports, he had probable cause to arrest Willy
without further inquiry. If Thaxton had probable cause, it
means he could have arrested Willy at his home or place of
employment; it means he could have procured a warrant and
then arrested Willy the following day or the following week.
Although the reports Deputy Thaxton received were reliable,
24 UNITED STATES V. WILLY
under Washington law, they did not describe conduct that a
reasonable officer would believe violated § 9.41.270. We
conclude that Deputy Thaxton did not have probable cause to
arrest Willy for three reasons.
First, the district court’s key factual findings were based
on the in-court testimony of Deputy Thaxton. The court
found that both reporting parties indicated that Willy did not
display the gun in a threatening manner and did not indicate
that Willy threatened any individual, including his alleged
kidnappers, or pointed the gun at anyone. These findings are
not “illogical, implausible, or without support in the record.”
See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir.
2010). Deputy Thaxton testified that he understood Willy’s
interactions with the reporting parties were not lengthy or
“especially hostile,” and that neither party indicated Willy
was argumentative. Both reporting parties told Deputy
Thaxton that Willy had not pointed the gun at them or made
any demands of them. Willy appeared to only want any
information the reporting parties might have about his alleged
kidnapping, and when the parties indicated they knew
nothing, Willy left “peacefully.” Deputy Thaxton testified
that neither reporting party seemed to be “overly concerned,”
but that he inferred from the fact that they called police that
“they were concerned enough that they did call in about it.”
Deputy Thaxton indicated that he interpreted Reporting Party
1’s concern that Willy was “rambling on” as a worry that
“something wasn’t completely correct with [Willy].” From
that, Thaxton surmised—without direct statements from
either of the reporting parties— that “[Willy] would possibly
use [the gun] if confronted with somebody else” because
“normal people just don’t walk around displaying firearms
out to people when they pull up.” At the same time, Deputy
UNITED STATES V. WILLY 25
Thaxton confirmed “[t]here was no direct threat with a
firearm, to my knowledge.”
The strongest fact for the government is that Willy racked
the slide of his gun in the presence of Reporting Party 1. In
context, however, that fact does not demonstrate that Willy
was acting in manner that warrants alarm. Reporting Party 1
told Deputy Thaxton that Willy had “picked the firearm up,
racked it, and then put it back down.” Deputy Thaxton
testified that it was his understanding that the gun was in the
seat of Willy’s truck, and Willy remained in his truck during
his interactions with both reporting parties. On this record, it
was not clearly erroneous for the district court to conclude
that neither reporting party indicated to Deputy Thaxton that
Willy displayed his firearm in a threatening manner.
The dissent takes the district court’s statement—that
“Deputy Thaxton had a particularized and objective basis for
suspecting that Willy ‘was either armed and delusional or
armed and seeking to possibly avenge his alleged kidnaping
and abduction’”—out of context. Dissenting Op. at 32, 45.
The discussion preceding and following this sentence
supports our view. The district court stated:
In the Court’s mind, Deputy Thaxton had
reasonable suspicion to conduct a Terry stop.
After speaking with the reporting persons, he
learned that Defendant was armed and was
trying to find the place where he had been
kidnapped and abducted. These facts
provided Deputy Thaxton with a
“particularized and objective basis” for
suspecting that Defendant was either armed
and delusional or armed and seeking to
26 UNITED STATES V. WILLY
possibly avenge his alleged kidnapping and
abduction. Thus, Deputy Thaxton could have
briefly detained Defendant and asked him
questions about the two incidents in question.
The district court found a sufficient factual basis for a
reasonable officer to suspect that Willy might be either
delusional or seeking to avenge his kidnapping. However,
the court did not “posit[]” that those were the only possible
scenarios or that suspicion that Willy might commit a crime
in the future bears on whether he violated § 9.41.270 in his
interactions with the reporting parties. See Dissenting Op.
at 45. Rather, the district court found, and we agree, that
Deputy Thaxton had reasonable suspicion to detain Willy to
inquire further whether his unusual interactions with the
reporting parties amounted to a criminal violation or were an
indication that he was about to commit a crime.
Second, § 9.41.270(1) requires more than the mere
display of a firearm, and at the time Deputy Thaxton located
Willy, he did not have sufficient information to reasonably
believe that Willy had displayed his gun in a manner that
warrants alarm. Willy’s conduct differs from violations of
§ 9.41.270 that have been upheld by the Washington courts
such that a reasonable officer would have needed additional
information before believing a violation of the statute had
occurred. The type of weapon—a semi-automatic pistol—is
the type of weapon a person might keep in their car or on
their person for self-defense. Willy was in what Deputy
Thaxton described as a “rural community,” where firearms
were common. And, as the district court found, Willy did not
point the gun at anyone or manifest an intent to harm anyone.
Indeed, Willy told both reporting parties what he was looking
for—a trailer—and introduced himself by name to Reporting
UNITED STATES V. WILLY 27
Party 2. Although Willy’s conduct, including his fantastical
account of his kidnapping, was strange and might have
warranted further investigation, in Washington, where it is
presumptively lawful to possess a firearm, it did not warrant
his immediate arrest.7
Although the government is correct that the reports here
indicated that Willy displayed the firearm rather than just
carrying it, this distinction does not create enough of a
possibility of criminal activity that Willy was subject to
immediate arrest without further investigation. In a state in
which carrying a firearm openly is lawful, there is very little
room between “carrying” a firearm and “displaying” it. We
read the Washington cases as “narrowly construing the phrase
to apply to only conduct that poses a threat to others” as a
means of “giv[ing] the phrase a narrow and definite focus and
sav[ing] it from vagueness.” Maciolek, 676 P.2d at 1001 n.3.
The threat must follow from “objective circumstances [that]
7
We agree with the dissent that Willy’s conduct does not fit neatly
into either category of cases, those with clearly threatening conduct, like
Baggett and Glenn, or those with lawful conduct, like Brown, Cardenas-
Muratalla, or Casad. Dissenting Op. at 44–45. But we respectfully
disagree with the dissent’s suggestion that what separates Willy’s case
from those in which there was neither a manifestation of intent to
intimidate or conduct that warranted alarm is “the concern that Willy was
mentally ill or experiencing some sort of psychological disturbance.”
Dissenting Op. at 45. Section 9.41.270 was not designed as a mechanism
for dealing with people who have a mental disorder or who are
experiencing a mental health crisis. Washington has extensive procedures
for identifying and detaining persons with behavioral health disorders who
“present[] a likelihood of serious harm,” see Wash. Rev. Code
§§ 71.05.150, .153; see generally Wash. Rev. Code ch. 71.05, including
a six-month suspension of the right to possess a firearm for anyone
detained for evaluation and treatment on the grounds that they present a
likelihood of serious harm, Wash. Rev. Code § 71.05.128.
28 UNITED STATES V. WILLY
would warrant alarm in a reasonable person.” Spencer,
876 P.2d at 942 (footnote omitted). If the circumstances in
Cardenas-Muratalla, Casad, and in our decision in Brown do
not add up to reasonable suspicion, we are hard pressed to
conclude that the 911 calls here add up to probable cause to
arrest.
Finally, the government argues that the district court erred
in its interpretation of state law by effectively requiring the
presence of subjective harm for a violation of § 9.41.270(1).
Although the district court found that neither of the reporting
parties “manifested any physical characteristics associated
with ‘alarm,’” it did not misapply the requirements of
§ 9.41.270(1). The district court accurately stated that
§ 9.41.270(1) both incorporates a reasonable person standard
and does not require that a person’s actions actively cause
alarm. The reporting parties’ accounts of what happened and
their demeanor as they did so were “facts and circumstances
within [Deputy Thaxton’s] knowledge,” and directly relevant
to whether Deputy Thaxton had probable cause to arrest
Willy. Valencia, 24 F.3d at 1108. The district court properly
considered the reporting parties’ descriptions of their
encounters with Willy, explaining that “[b]oth [witnesses]
indicated that Defendant did not display the gun in a
threatening manner” and “neither one indicated that
Defendant was threatening any other persons, including his
alleged kidnappers.” We find no error in the district court’s
mention of the subjective reactions of the reporting parties, as
the court properly weighed whether Willy’s conduct, as
relayed to Deputy Thaxton, would warrant alarm in a
UNITED STATES V. WILLY 29
reasonable person.8 See Spencer, 876 P.2d at 944 (stating that
the court’s conclusion that the defendant’s conduct warranted
alarm was supported by the actual alarm induced in several
witnesses).
The dissent makes much of the fear that whether or not
Willy was truly abducted, he would seek to harm either his
actual captors or innocent strangers he perceived to be part of
his “imagined abduction.” Dissenting Op. at 45. But Deputy
Thaxton did not purport to arrest Willy because he believed
Willy was about to commit a battery or other violent crime
against his alleged kidnappers, nor does the government
advance such an argument. Deputy Thaxton arrested Willy
because of what Willy had already done. Thaxton testified
that at the time he arrested Willy, Willy had already violated
§ 9.41.270(1) in his interactions with Reporting Parties 1
and 2.
Section 9.41.270 criminalizes the act of displaying a
firearm in a manner that warrants alarm, not displaying a
firearm reasonably but creating a separate impression that
you might seek to harm persons not present at some
unspecified future time. We are not asked to decide whether
Willy “warrant[ed] alarm for the safety of others,” we must
8
The government argues that the district court’s statement during the
hearing that, if he were in Reporting Party 1’s shoes, he “would be very
intimidated” contradicts the eventual finding that a reasonable person
would not have been alarmed. We disagree. First, the district court’s
written decision supercedes any statements during the hearing. See White
v. Wash. Pub. Power Supply Sys., 692 F.2d 1286, 1289 n.1 (9th Cir. 1982)
(“[T]he rule in this circuit is that the formal findings of fact and
conclusions of law supersede the oral decision.”). And second, the district
court prefaced its statement with “ I know [this is] not really the standard
the Court needs to look at, but just bear with me for this example.”
30 UNITED STATES V. WILLY
ask only whether a reasonable officer would believe that
Willy displayed his firearm “in a manner, under
circumstances, and at a time and place that . . . warrants alarm
for the safety of other persons.” More information was
required to answer that question.
We do not take lightly Deputy Thaxton’s concern that
Willy could have been a danger to himself or others and that
he did not want to “place [him]self in possible jeopardy” by
approaching Willy’s vehicle to gather more information. In
these circumstances, we fully respect that Deputy Thaxton
had reasonable suspicion to stop Willy and make further
inquiries. But Deputy Thaxton had a range of options short
of arrest for inquiring whether Willy had violated or was
about to violate § 9.41.270 or another criminal statute.
Deputy Thaxton could have stopped Willy’s vehicle, see
United States v. Chaudhry, 461 F.3d 1097, 1100 (9th Cir.
2006), ordered Willy out of the vehicle, see Arizona v.
Johnson, 555 U.S. 323, 331–32 (2009), drawn his own
weapon, see Allen v. City of Los Angeles, 66 F.3d 1052,
1056–57 (9th Cir. 1995), patted Willy down for weapons, see
United States v. Terry-Crespo, 356 F.3d 1170, 1173–77 (9th
Cir. 2004), and even handcuffed Willy during the detention
if he felt it was necessary for his safety, see United States v.
Edwards, 761 F.3d 977, 981–82 (9th Cir. 2014). We thus
agree with the dissent that Thaxton “could not afford to
ignore [the surrounding] context, in the interest of his own
safety, Willy’s safety, and the safety of anyone else in the
vicinity.” Dissenting Op. at 49. But that just emphasizes
why Thaxton should have conducted a Terry stop to see
whether Willy posed a potential threat to Willy’s own safety,
Thaxton’s safety, or the safety of others. Instead, Thaxton
decided that Willy had already posed such a threat to
Reporting Parties 1 and 2. That judgment is not supported by
UNITED STATES V. WILLY 31
the record. We conclude that Deputy Thaxton could not,
consistent with Washington law and the Fourth Amendment,
arrest Willy on the spot without further inquiry into whether
a violation of § 9.41.270 had taken or was about to take place.
C. Exclusionary Rule
Under the “fruits of the poisonous tree” doctrine,
evidence seized subsequent to a violation of the Fourth
Amendment is tainted by the illegality and subject to
exclusion, unless it has been sufficiently “purged of the
primary taint.” Wong Sun v. United States, 371 U.S. 471,
485–88 (1963). The district court held that all evidence
obtained and statements made after the illegal arrest were
subject to exclusion. The government has not challenged the
application of the “fruit of the poisonous tree” doctrine to the
two firearms, CO2 cartridge, or Willy’s statement. Thus, we
affirm the district court’s application of the exclusionary rule
to suppress Willy’s statements, the altered handgun, short-
barrel shotgun, and CO2 device as the fruits of the illegal
arrest. See United States v. Washington, 490 F.3d 765,
774–77 (9th Cir. 2007); United States v. Patzer, 277 F.3d
1080, 1084–85 (9th Cir. 2002); United States v. Shephard,
21 F.3d 933, 938–40 (9th Cir. 1994).
IV. CONCLUSION
We affirm the district court’s order granting the
defendant’s motion to suppress.
AFFIRMED.
32 UNITED STATES V. WILLY
CHRISTEN, Circuit Judge, dissenting:
The only question our court needs to decide is whether
Deputy Thaxton had probable cause to suspect that Willy
violated the second clause in RCW 9.41.270(1) by displaying
a firearm “in a manner, under circumstances, and at a time
and place that . . . warrants alarm for the safety of other
persons.” Without question he did, and Deputy Thaxton
lawfully arrested him.
Two concerned citizens called their local sheriff’s office
on May 12, 2019 to report their separate encounters with
Willy, who had approached both of them near their respective
residences that evening to ask for their help in locating the
place where he had been held against his will by unidentified
abductors. Willy was a stranger to the callers, and his bizarre
tale and behavior motivated both of them to contact the
sheriff’s office. He professed to be driving around looking
for the place where he had been held captive for several days
near a camouflaged trailer and van. Willy told Reporting
Party 1 that the police had refused to help him and he made
clear that he had armed himself and was searching for the
camouflaged trailer and van on his own. In the course of
explaining to the first caller that he was looking for the place
where the alleged kidnappers held him captive, Willy picked
up a firearm, racked the slide, and then set it back down at his
side. Willy told the same story, and again displayed his semi-
automatic firearm, when he stopped to talk to the second
caller. The district court conducted an evidentiary hearing
and found that Deputy Thaxton had a particularized and
objective basis for suspecting that Willy “was either armed
and delusional or armed and seeking to possibly avenge his
alleged kidnapping and abduction.”
UNITED STATES V. WILLY 33
Washington criminalizes displaying a firearm under
circumstances that either: (1) manifest an intent to intimidate
another; or (2) warrant alarm for the safety of other persons.
See RCW 9.41.270(1). It is the statute’s second clause that is
at issue here. RCW 9.41.270(1) requires us to consider the
manner, circumstances, and time and place in which the
weapon was displayed. I see no room for debate about
whether Willy’s conduct objectively warranted alarm for the
safety of others. It is uncontested that Willy displayed a
firearm to both callers, i.e., the majority agrees he displayed
it and was not simply carrying it. Majority Op. 5–6. And the
surrounding circumstances support the district court’s finding
that Deputy Thaxton had a particularized and objective basis
for suspecting that Willy “was either armed and delusional,
or armed and seeking to possibly avenge his alleged
kidnapping and abduction.” No one argues that the court’s
findings of historical fact were clearly erroneous. On this
record, Willy’s separate violations of RCW 9.41.270(1) were
complete when he drove away from the encounters with
Reporting Party 1 and Reporting Party 2 (collectively, “the
reporting witnesses”).
Deputy Thaxton had probable cause to arrest Willy for
violating the second clause of RCW 9.41.270(1), even though
Willy’s actions occurred outside Deputy Thaxton’s presence,
because the reliability of the callers’ reports was verified
when the details they provided checked out: both reporting
witnesses described the same green truck and said they were
approached by a man who told the same extraordinary story,
and the green truck’s license plate number correlated to a
photograph of the registered owner that one of the callers
positively identified as the person who had approached her in
her driveway. Deputy Thaxton spotted the green truck with
a matching license plate number that same evening,
34 UNITED STATES V. WILLY
approached it, and directed the driver (Willy) to exit but keep
his hands visible. In doing so, Deputy Thaxton effectuated an
arrest in a way that minimized the risk to Willy and to others.
It was Deputy Thaxton’s perilous duty to arrest Willy, a man
he had good reason to believe to be armed and mentally
compromised, for displaying a firearm “in a manner, under
circumstances, and at a time and place, that . . . warrants
alarm for the safety of other persons.” See RCW 9.41.270(1).
The majority affirms the district court’s order granting
Willy’s motion to suppress. Because probable cause so
clearly justified his arrest, I respectfully dissent.
I.
On the night of May 12, 2019 at approximately 8:37 p.m.,
the Yakima County Sheriff’s Office received a call from
Reporting Party 1 that a stranger driving a green Chevrolet
truck had pulled over to speak with him outside of his home.
Reporting Party 1 stated that the driver displayed a firearm
and began “rambling on and not making sense about being
previously abducted in this area and was looking for the
place” where he had been held. As the driver of the green
truck recounted his bizarre tale, he picked up a black semi-
automatic gun and racked the slide before returning it to rest
on the passenger seat of the truck. Reporting Party 1 then
contacted the Yakima County Sheriff’s Office and relayed the
truck’s licence plate number to dispatch. When Deputy
Thaxton responded about twenty minutes later, he showed
Reporting Party 1 a photo of Willy, the vehicle’s registered
owner. Reporting Party 1 “looked at it and immediately said,
yeah, that’s the guy that was in the truck.” As the majority
recognizes, Reporting Party 1 “expressed concern about
[Willy’s] mental state.” Majority Op. 5.
UNITED STATES V. WILLY 35
About ten minutes after meeting with this first witness,
Deputy Thaxton responded to a call from a second, unrelated
witness reporting a similar encounter about three miles away.
This caller said that a man in a green truck waved her down
as she was pulling out of her driveway. Reporting Party 2
had never met this man before but she recalled that he
introduced himself using a name that was something like
“Willis.” The man told Reporting Party 2 the same story
about being kidnapped and held in a camouflaged trailer and
van. Like Reporting Party 1, Reporting Party 2 did not feel
personally threatened, but Reporting Party 2 was clear that
the man told her he was armed. Willy remained in his truck
as he talked to the reporting witnesses, but he displayed a
black gun and declared his intention to find the location
where he had been held. The man drove off when Reporting
Party 2 told him she could not help him find the camouflaged
trailer and van.
After following up with both reporting witnesses, Deputy
Thaxton located the green Chevrolet truck as it turned into a
gas station later that night. The deputy activated his
emergency lights, pulled his vehicle behind the truck, and
conducted a “high-risk stop” by drawing his firearm and
ordering the truck driver to exit and keep his hands visible.
Willy complied and Deputy Thaxton ordered him to turn
360 degrees. As Willy was turning around, Deputy Thaxton
observed a black semi-automatic pistol holstered on Willy’s
right hip. Thaxton then directed Willy to place his hands
above his head, approached him and removed the pistol from
its holster, and seated Willy in the backseat of his patrol car.
Thaxton noticed that the serial number had been filed off the
black pistol and he read Willy Miranda warnings. Willy
agreed to speak with the deputy and he told the same story
about being kidnapped and held for several days at a location
36 UNITED STATES V. WILLY
with a camouflaged trailer and van. He also said that he
eventually escaped his captors and reported that the police
had done nothing about his abduction. Willy consented to a
search of his truck, and Deputy Thaxton retrieved a sawed-off
shotgun from the right rear floor bed.
At the Yakima County jail, Willy was searched with a
metal detector wand. A modified CO2 cartridge was
discovered concealed in the groin area of Willy’s pants, along
with pellets, gunpowder, and a fuse. Willy explained that
these items comprised a non-functioning pipe bomb.
II.
Deputy Thaxton initially stopped Willy for unlawfully
displaying the semi-automatic pistol during his encounters
with the two witnesses, and the State of Washington
ultimately charged Willy with violating its statute prohibiting
the unlawful display of a firearm. See RCW 9.41.270(1). A
federal grand jury in the Eastern District of Washington
returned a three count indictment against Willy for receiving
and possessing an improvised explosive device, in violation
of 26 U.S.C. § 5861(c); receiving and possessing an
improvised explosive device that was not registered to him,
in violation of 26 U.S.C. § 5861(d); and making an
improvised explosive device, in violation of 26 U.S.C.
§ 5861(f).
Willy argued that Deputy Thaxton lacked probable cause
to arrest him, and he moved to suppress the semi-automatic
pistol, shotgun, pipe bomb, and the statements made after his
arrest. The district court granted his motion. The court
concluded that Willy was under arrest as soon as Deputy
Thaxton ordered him to exit his truck because the deputy
UNITED STATES V. WILLY 37
approached Willy’s truck with his firearm drawn and ordered
Willy to exit the vehicle. In granting Willy’s motion to
suppress, the district court concluded that Deputy Thaxton
had reasonable suspicion to conduct an investigative stop, but
not probable cause to effectuate an arrest without probing
more fully the circumstances surrounding Willy’s interactions
with the two reporting witnesses who had called the sheriff’s
office. The district court ruled that the challenged evidence
was the fruit of an illegal arrest and suppressed the evidence
pursuant to the exclusionary rule.1
In the district court and on appeal, the government relied
on its position that Willy’s arrest was lawful because it was
supported by probable cause. The government did not rely on
the good faith exception,2 the inevitable discovery exception,3
or the admonition that the exclusionary rule is intended to
deter Fourth Amendment violations and should be applied as
“our last resort, not our first impulse . . . applicable only . . .
1
Willy separately argues that his arrest violated the Fourth
Amendment because Washington law prohibits officers from arresting
suspects for misdemeanors committed outside their presence. See Wash.
Rev. Code. § 10.31.100. This argument is foreclosed by our precedent.
See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (“The requirement
that a misdemeanor must have occurred in the officer’s presence to justify
a warrantless arrest is not grounded in the Fourth Amendment.”); see also
Alford v. Haner, 446 F.3d 935, 937 n.2 (9th Cir. 2006) (citing Barry and
holding that an arrest in violation of a Washington statute prohibiting
arrests for misdemeanors committed outside officer’s presence did not run
afoul of the Fourth Amendment).
2
See, e.g., Davis v. United States, 564 U.S. 229, 238–40 (2011).
3
See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984).
38 UNITED STATES V. WILLY
where its deterrence benefits outweigh its substantial social
costs.”4
III.
Determinations of reasonable suspicion and probable
cause are generally reviewed de novo, and the Supreme Court
has cautioned that reviewing courts “should take care both to
review findings of historical fact only for clear error and to
give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.”5 Here,
the district court’s findings of historical fact are not disputed.
The sticking point is whether the established facts amounted
to probable cause to suspect that Willy had violated RCW
9.41.270, Washington’s law prohibiting displaying a firearm
with intent to intimidate or in a manner that warrants alarm.
To decide whether Deputy Thaxton had probable cause to
arrest Willy, “we examine the events leading up to the arrest,
and then decide whether these historical facts, viewed from
the standpoint of an objectively reasonable police officer,
amount to ‘probable cause.’”6 Our review is de novo because
the question here is one of law, not fact, and we are in as
4
Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations and
internal quotation marks omitted); see United States v. Dreyer, 804 F.3d
1266, 1278 (9th Cir. 2015) (en banc).
5
Ornelas v. United States, 517 U.S. 690, 699 (1996).
6
District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (citation
and internal quotation marks omitted).
UNITED STATES V. WILLY 39
good a position as the district court to make this
determination independently.7
“Probable cause to arrest exists when officers have
knowledge or reasonably trustworthy information sufficient
to lead a person of reasonable caution to believe that an
offense has been or is being committed by the person being
arrested.”8 This “requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.”9 The Supreme Court has repeatedly made clear that
probable cause “is not a high bar: It requires only the kind of
fair probability on which reasonable and prudent [people,] not
legal technicians, act.”10
Deputy Thaxton had probable cause to arrest Willy
because two concerned citizens separately called the police
dispatcher to report that Willy, a stranger to both of them,
was driving around at approximately 8:30 in the evening
looking for a camouflaged trailer and van where he claimed
to have been abducted and kept for several days. Willy’s
7
See Ornelas, 517 U.S. at 697 (citing Miller v. Fenton, 474 U.S. 104,
114, (1985)); see also United States v. Johnson, 903 F.2d 1219, 1221 (9th
Cir. 1990) (“The district court’s finding of historical facts is reviewed
under the clearly erroneous standard, but the ultimate determination of
whether those facts amount to an unlawful seizure is a matter of law that
we review de novo.”).
8
United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing
Beck v. Ohio, 379 U.S. 89, 91 (1964)).
9
Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).
10
Kaley v. United States, 571 U.S. 320, 338 (2014) (citations and
internal quotation marks omitted).
40 UNITED STATES V. WILLY
conduct warranted alarm for the safety of others because he
went out of his way to display his semi-automatic pistol to
both witnesses as he explained the reason he was out
searching for the camouflaged trailer and van. He does not
contest that the Reporting Witness 1 described him as
“rambling,” that he repeatedly claimed to have escaped from
kidnappers, that he complained the police had not done
anything to help him, that he picked up a black semi-
automatic pistol from the seat of his truck while talking to
both local residents, nor that he racked the gun’s slide while
he was explaining to Reporting Party 1 that he was looking
for the location where he had been held for several days
against his will. Though the reporting witnesses expressed
concern about Willy’s mental state, the majority nevertheless
concludes that the historical facts do not amount to probable
cause to suspect that Willy had displayed a firearm in a
manner, under circumstances, and at a time and place that
warranted alarm for the safety of other persons. See RCW
9.41.270(1). I strongly disagree.
IV.
It is presumptively lawful to openly carry a firearm in
Washington, United States v. Brown, 925 F.3d 1150, 1154
(9th Cir. 2019), but RCW 9.41.270 declares it a gross
misdemeanor to “carry, exhibit, display, or draw any firearm
. . . in a manner, under circumstances, and at a time and
place that either manifests an intent to intimidate another or
that warrants alarm for the safety of other persons.” RCW
9.41.270(1) (emphasis added). The majority agrees that
Willy displayed a firearm to the witnesses, i.e., the majority
agrees he was not merely carrying one, but the majority
concludes that the manner, circumstances, and time and place
did not warrant alarm for the safety of other persons.
UNITED STATES V. WILLY 41
The meaning of the phrase “warrants alarm for the safety
of other persons” in RCW 9.41.270(1) is central to this
appeal, but whether the concerned citizens who called the
sheriff’s office subjectively felt threatened is not. The second
statutory clause is at issue, not the first, and Washington case
law is clear that the objective “reasonable person” standard
applies. See State v. Spencer, 876 P.2d 939, 942–43 (Wash.
Ct. App. 1994). Accordingly, neither Willy’s intent, nor the
subjective responses of the first two callers, dictates the
outcome of Willy’s motion to suppress:
The unlawful display statute recognizes that
display of a weapon, without any required
intent, could be done in a manner to cause
reasonable apprehension, fear, or alarm.
There is no necessary nexus between
reasonable apprehension and the defendant’s
actual intent. Under some circumstances,
apprehension could be reasonable at the mere
sight of a firearm, while the defendant’s intent
could be completely innocent.
State v. Byrd, 868 P.2d 158, 162 (Wash. Ct. App. 1994),
aff’d, 887 P.2d 396 (Wash. 1995) (emphasis added). “The
statute only requires that the circumstances [w]arrant alarm
for the safety of others. They need not actively [c]ause such
alarm.” State v. Workman, 584 P.2d 382, 386 (Wash. 1978).
The majority reviews Washington case law, but comes up
short in finding support for its conclusion that Deputy
Thaxton lacked probable cause to arrest Willy for violating
Washington’s unlawful display statute. In State v. Maciolek,
676 P.2d 996 (Wash. 1984) and Spencer, 876 P.2d 939,
Washington courts considered and rejected void for
42 UNITED STATES V. WILLY
vagueness challenges to the statute. In the majority’s words,
the two cases together yield only the rule that a defendant’s
“act must warrant alarm in a reasonable person for the safety
of others.” Majority Op. 16.
Citing Maciolek, 676 P.2d at 999, the majority suggests
it is incorrect to view the two clauses of RCW 9.41.270(1)
separately. Majority Op. 16–17. Maciolek rejected the
challenger’s vagueness argument by reasoning that the
specific list of weapons in the first clause calls for a narrow
construction of the second clause “to apply to only conduct
that poses a threat to others.” See Maciolek, 676 P.2d at
999–1001. The court decided that persons of common
intelligence would not have to guess at the meaning of the
statute, id. at 999, and nothing in Maciolek suggests that
RCW 9.41.270(1)’s two clauses must be read as one. In fact,
in State v. Baggett, another decision cited by the majority and
decided sixteen years after Maciolek, the Washington
appellate court affirmed the defendant’s conviction for
“violat[ing] the second portion of RCW 9.41.270(1).”
13 P.3d 659, 660 (Wash. Ct. App. 2000); see State v. M.T.,
97 Wash. App. 1067, at *3 (1999) (noting that “the final
element of this statute is stated in the disjunctive: the action
must either manifest an intent to intimidate another or it must
warrant alarm”).
The majority concludes that RCW 9.41.270 is “best read
as capturing the scenarios where someone is not directly
threatening a person who is present, but is handling their
firearm in such a way that it presents a danger to others.”
Majority Op. 17. This is wrong for two reasons.
First, we cannot re-write RCW 9.41.270(1). The
Washington legislature criminalized conduct that warrants
UNITED STATES V. WILLY 43
alarm for the safety of others—not conduct that “presents a
danger” to others. Because Willy’s words and conduct were
a thinly veiled threat of actions he would take if he located his
alleged abductors, it plainly warranted alarm for their safety.
Second, the majority’s interpretation of the statute cannot
be squared with State v. Mitchell, 906 P.2d 1013 (Wash. Ct.
App. 1995), a decision the majority cites with approval.
Majority Op. 19. In that case, the Washington court decided
that an officer had reasonable suspicion to stop Mitchell for
violating RCW 9.41.270 when he personally observed
Mitchell carrying a semi-automatic weapon in an urban,
residential area at night. Mitchell, 906 P.2d 1013. Mitchell
tucked the gun in his waistband when the officer passed him.
Contrary to the majority’s interpretation of RCW 9.41.270(1),
Mitchell was “not directly threatening a person who [was]
present,” and there is no indication that he was handling his
“firearm in such a way that it presents a danger to others”
when the officer stopped him. See id. at 1014–15. The court
emphasized the “warrants alarm for the safety of other
persons” portion of RCW 9.41.270(1), and held that “openly
carrying a semi-automatic weapon while walking down a
street in an urban, residential area at night” was sufficient to
warrant reasonable suspicion that this statute was being
violated. Id. at 1016.
Like Mitchell, Willy displayed a semi-automatic firearm
in residential areas at night. Unlike Mitchell, Willy also
racked the slide of his firearm, appeared mentally unstable,
and made it known that he was actively searching for other
persons he believed to be his abductors. The statute’s plain
text shows the Washington’s legislature criminalized conduct
that either manifests an intent to intimidate another or that
warrants alarm for the safety of other persons. Willy’s
44 UNITED STATES V. WILLY
combined actions, words, and gestures fall squarely within
Maciolek’s construction of RCW 9.41.270(1)’s core because
the manner and circumstances in which he displayed his
firearm “pose[d] a threat to others” and objectively
“warrant[ed] alarm” for their safety. See RCW 9.41.270(1);
Maciolek, 676 P.2d at 1001 n.3.
The other Washington cases surveyed by the majority can
be divided into two categories. The first category includes
cases in which the defendants displayed very obviously
threatening conduct. For example, the defendant in Baggett
pointed a rifle at a police officer and was charged with second
degree assault but convicted of RCW 9.41.270 as a lesser
included offense. 13 P.3d 659. State v. Glenn involved a
legitimate citizen report that a driver had pointed a gun at a
child from a vehicle—justifying the belief that the
defendant’s suspected misconduct endangered the safety of
the officers. 166 P.3d 1235 (Wash. Ct. App. 2007).
The second category of cases includes those in which
defendants simply carried firearms openly, as the law in
Washington permits, and the surrounding circumstances
neither “manifest[ed] an intent to intimidate another,” in
violation of RCW 9.41.270(1)’s first clause, nor “warrant[ed]
alarm for the safety of other persons,” in violation of the
statute’s second clause. The majority cites Brown, 925 F.3d
1150, Majority Op. 12, 21–22, 28, but that decision is a prime
example of a case that does not aid the majority’s cause
because it falls into the second category of cases involving
innocuous conduct. Our court had no trouble reversing the
district court’s denial of Brown’s motion to suppress because
the circumstances in that case were entirely mundane, and
gave no reason for alarm for anyone’s safety. See Brown,
925 F.3d at 1154. The police acted on an unverified tip that
UNITED STATES V. WILLY 45
Brown, an African American man, was simply walking on a
street in downtown Seattle and “had a gun.” Id. at 1152–54.
We reasoned: “With no reliable tip, no reported criminal
activity, no threat of harm, no suggestion that the area was
known for high crime or narcotics, no command to stop, and
no requirement to even speak with the police,” the officers
did not have reasonable suspicion to stop Brown. Id. at
1151–52.
The circumstances in Willy’s case were vastly different
because the reports called in to dispatch gave rise to the
concern that Willy was mentally ill or experiencing some sort
of psychological disturbance. Deputy Thaxton had reports
describing Willy as “rambling on” about being abducted, and
he very reasonably understood from the callers’ reports that
“something wasn’t completely correct with [Willy].” On this
record, the district court was persuaded that Deputy Thaxton
had a particularized and objective basis for suspecting that
Willy “was either armed and delusional or armed and seeking
to possibly avenge his alleged kidnapping and abduction.”
Both scenarios posited by the district court objectively
warranted alarm for the safety of others. If Willy was armed
and experiencing delusional thinking, it was reasonable to be
concerned that he might falsely believe that innocent
strangers had been complicit in his imagined abduction, and
equally reasonable to expect that he would engage in violent
self-help because he was under the impression that the police
had failed him. On the other hand, if Willy had actually
escaped from a kidnapping, believed the police were
unwilling or unable to help him, and was seeking out the
location where he had been held against his will, any
reasonable person would similarly be alarmed for the safety
of those who he thought had kidnapped him and fearful for
46 UNITED STATES V. WILLY
the consequences if Willy managed to find his captors—or
anyone in a camouflaged trailer and van—that he believed to
be the one where he had been held.
In short, regardless of whether he had actually been
kidnapped, the credible reports of the actions Willy took to
show the reporting witnesses his semi-automatic pistol and to
rack its slide as he described his abduction were either
threatening gestures themselves, or intended to convey the
message to the reporting witnesses that the weapon was
loaded and ready for use once he located the camouflaged
trailer and van.11 These circumstances easily support Deputy
Thaxton’s conclusion that Willy had violated RCW 9.41.270
by the time he left the reporting witnesses, i.e., Willy’s
actions and words objectively gave rise to concern for the
safety of others.
Willy and the majority make much of the fact that the
witnesses indicated they did not feel personally threatened,
but the statute’s text and Washington case law are in accord
that the callers need not have felt subjectively threatened in
order for Willy’s conduct to objectively “warrant[] alarm for
the safety of other persons.” See RCW 9.41.270(1);
Workman, 584 P.2d at 385–86. The statute is judged from an
11
See generally What Should America Do About Gun Violence?:
Hearing Before the S. Comm. on the Judiciary, 113th Cong. (2013)
(written testimony of David B. Kopel, Research Director,
Independence Institute) (citation omitted), available at
https://www.judiciary.senate.gov/imo/media/doc/1-30-13KopelTestimo
ny.pdf (“If the final round from the last magazine has been fired, the first
round from the new magazine must be chambered before the gun will fire.
Chambering a round involves ‘racking’ the gun by manually operating the
gun’s slide mechanism, a process that typically takes fractions of a
second.”).
UNITED STATES V. WILLY 47
objective, reasonable person standard, but Washington courts
sometimes consider witness perceptions to decide whether a
defendant’s actions gave objective cause for alarm. See, e.g.,
Spencer, 876 P.2d at 944 (“[O]ur conclusion that [the
defendant’s] conduct warranted alarm is supported by the
kinds of people who were alarmed in this case, including
several firefighters, a police officer, and a passing motorist.”).
In Willy’s case, the district court notably expressed that
even it would have been alarmed by Willy’s actions: “If I was
Reporting Party No. 1 and a person showed up and spoke like
this and showed me his gun and racked it, I would be very
intimidated.” Although the court acknowledged “that’s not
really the standard the Court needs to look at,” in the words
of the Washington Supreme Court, the “conclusion that
[Willy’s] conduct warranted alarm is supported by the kinds
of people who were alarmed in this case,” see id., i.e., a
federal district court judge and a deputy sheriff. The district
court’s own reaction was strong support for the conclusion
that Willy’s actions objectively warranted alarm.
Willy’s violations of RCW 9.41.270 were committed
outside Deputy Thaxton’s presence, but this does not change
the fact that Deputy Thaxton had probable cause to arrest
Willy, because the reports he received from dispatch were
consistent and strongly corroborated when Deputy Thaxton
followed up with the reporting witnesses. Both of the
reporting witnesses who contacted the Yakima County’s
Sheriff’s Office reported being approached by Willy and they
described the same troubling behavior, bizarre story, and
rambling countenance.
Though the reporting witnesses were separated temporally
and geographically, both described the same stranger in a
48 UNITED STATES V. WILLY
green truck driving up to their homes after 8:30 p.m. Both
expressed concern for Willy’s mental state. Both described
his story about being kidnapped, held for several days, and
escaping. Both said that he was looking for the camouflaged
trailer and van where he had been held, that he complained
the police did nothing to help him, and that he gratuitously
picked up a gun in the course of telling his story. The first
caller described Willy racking the gun while explaining that
he was looking for his abductors. The truck’s license plate
correlated to a photo of the registered owner that the first
caller readily identified, and neither witness asked to remain
anonymous. These reports had all of the indicia of
“veracity,” “reliability,” and the solid “basis of knowledge”
that the Supreme Court has instructed “are all highly relevant
in determining the value of [a witness’s] report . . . . [and]
that may usefully illuminate the commonsense, practical
question whether there is probable cause.” See Gates,
462 U.S. at 230. It was not necessary for Deputy Thaxton to
obtain additional corroborating information to establish
probable cause. Common sense answered that practical
question and, as our nation has learned after enduring a tragic
number of shootings perpetrated by mentally ill assailants,
delay may have turned a dangerous situation into a deadly
one.
Despite its acknowledgment that Willy displayed his
firearm to the reporting witnesses, the majority decides “it
was not clearly erroneous for the district court to conclude
that neither reporting party indicated to Deputy Thaxton that
Willy displayed his firearm in a threatening manner.”
Majority Op. 25. But this answers the wrong question. The
second clause of RCW 9.41.270(1) requires that we ask
whether Willy’s actions objectively warranted alarm for the
safety of others. We must consider the surrounding
UNITED STATES V. WILLY 49
circumstances when we answer that question. See RCW
9.41.270(1); Spencer, 876 P.2d at 942 n.4. The majority
never grapples with the fact that Deputy Thaxton had good
reason to fear that Willy was mentally ill, and the significance
of that fact cannot be overstated. The majority decides that
Willy’s chilling act of racking the gun while looking for the
spot where likely imaginary abductors had held him captive
is “[t]he strongest fact for the government,” but it considers
that fact in isolation and pivots, in its very next breath, to the
conclusion that the first clause of the statute was not violated:
“In context, . . . that fact does not demonstrate that Willy was
acting in a manner that warrants alarm.” Majority Op. 25.
But the surrounding context is precisely what established
that Willy violated the second clause of the statute because
the circumstances included compelling reasons to be
concerned for the safety of others. Deputy Thaxton could not
afford to ignore that context, in the interest of his own safety,
Willy’s safety, and the safety of anyone else in the vicinity.
Our court should not ignore that context either, because RCW
9.41.270(1) dictates that the manner, circumstances, and time
and place must be considered. Here, Willy’s manner of
displaying a firearm included recitation of a fantastical and
rambling tale of abduction. The time and place in which he
displayed it was during his nighttime search for the location
of the camouflage trailer and van in a residential area.
Willy’s approach of the reporting witnesses at their homes,
his insistence that the police had not helped him, and the fact
that he had armed himself to search for his abductors on his
own must also be considered.
Respectfully, under these circumstances the court is
remiss in failing to recognize that Willy’s very peculiar
conduct objectively warranted alarm for the safety of others.
50 UNITED STATES V. WILLY
The majority’s 20/20 hindsight observation that the deputy
had a “range of options short of arrest,” Majority Op. 30, or
that he might have opted to take the time necessary to explore
the possibility of obtaining a mental health commitment, see
Majority Op. 27 n.7, might make sense when applied to a
person who had merely displayed a firearm while stopping to
chat or to ask for directions. But given the overall
circumstances relayed in the callers’ verified reports, Deputy
Thaxton did not have a duty to put his own safety at even
greater risk by frisking Willy rather than conducting a high
risk stop and arresting him. See generally Terry v. Ohio, 392
U.S. 1, 23 (1968) (“Certainly it would be unreasonable to
require that police officers take unnecessary risks in the
performance of their duties.”); Washington v. Lambert,
98 F.3d 1181, 1186 (9th Cir. 1996) (“[T]hose who serve the
public by taking on the dangerous job of enforcing the
criminal laws are not required by the Fourth Amendment to
take unreasonable risks.”). In the end, the majority concedes
that “we must ask only whether a reasonable officer would
believe that Willy displayed his firearm ‘in a manner, under
circumstances, and at a time and place that . . . warrants alarm
for the safety of other persons.’” Majority Op. 29–30.
Deputy Thaxton needed no more information to answer that
question, and he was free to arrest Willy.
Because Deputy Thaxton plainly had probable cause to
believe that Willy had violated RCW 9.41.270 before
approaching him at the gas station, the district court erred. I
would reverse the district court’s order granting Willy’s
motion to suppress.