Correll L. THOMAS, Plaintiff-Appellee, v. C. DILLARD, Police Officer, Defendant-Appellant, and Palomar Community College District, Defendant.
No. 13-55889
United States Court of Appeals, Ninth Circuit
April 5, 2016
Amended May 5, 2016
Argued and Submitted June 2, 2015.
Without any admissible evidence to suggest that the doors to the office suite were closed, the suite illuminated, or a warning not provided, viewing the facts in the light most favorable to Lowry does not change the analysis above. The majority contends, at 856, that a jury might draw different “inferences” from the facts, but it does not actually say what different factual finding might be made—that the door was not open, that the room was not dark, or that warnings had not been given. No evidence supports any of those findings. The “inferences” in question amount to the ultimate question of whether the officer‘s actions were objectively reasonable. That question, even the majority acknowledges, is a pure question of law. Given the facts available to the reviewing court, it is clear that the type and amount of force inflicted was moderate, the City had a strong interest in using force, and the degree of force used was commensurate with the City‘s interest in the use of force. As a result, the officers’ actions were constitutional, and there can be no liability under Monell v. Dep‘t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 98 S.Ct. 2018 (1978).
I would affirm the district court‘s grant of summary judgment.
Eugene G. Iredale (argued), Iredale and Yoo, San Diego, CA; Mervyn S. Lazarus, Law Offices of Mervyn S. Lazarus, Newport Beach, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of California, Cathy Ann Bencivengo, District Judge, Presiding. D.C. No. 3:11-cv-02151-CAB-NLS.
Before: FERDINAND F. FERNANDEZ, RAYMOND C. FISHER and CARLOS T. BEA, Circuit Judges.
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 the scene.1
When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under
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’
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
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.
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 wеre standing next to each other. Dillard saw no indication that a crime had occurred. Husky exhibited no signs of 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
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
Thomas filed suit against Dillard under
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.”
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
III. DISCUSSION
Qualified immunity shields a police officer from suit under
A. Investigative Stop
The
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, 88 S.Ct. 1868. 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, 88 S.Ct. 1868; United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). This means the
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.,
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, 122 S.Ct. 2105, 153 L.Ed.2d 242 (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, 111 S.Ct. 2382, 115 L.Ed.2d 389 (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 a potential battery. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (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, 575 U.S. 348, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (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
1. Constitutional Violation
Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is
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, 88 S.Ct. 1868; see also id. at 14-17 nn. 11-14, 88 S.Ct. 1868. 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
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 inferеnces from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. 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, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868); 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, 88 S.Ct. 1868. 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, 572 U.S. 393, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014); Arvizu, 534 U.S. at 273, 122 S.Ct. 744; United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (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, 110 S.Ct. 1093.
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; seeing a weapon in an area the suspect controls, such as a car, see Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (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, 100 S.Ct. 338, 62 L.Ed.2d 238 (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 involvеment in a crime or likelihood of being armed, see Terry, 392 U.S. at 28, 88 S.Ct. 1868; 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 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 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, 88 S.Ct. 1868. 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 being investigated for a crime that is neither “likely to involve the use of weapons,” Terry, 392 U.S. at 28, 88 S.Ct. 1868, 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)
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 conduct encompassed by the term domestic violence, especially under California law. See
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 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, 110 S.Ct. 1093)). 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, 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 sus-
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, 1994 10); see also Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (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, 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 viоlence 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?fuseaction=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.
Our dissenting colleague also cites studies emphasizing the risks domestic violence poses to victims. Dissent at 896, 900-01. 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 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
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 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 сonstituted 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
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 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
(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 faсt 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, 100 S.Ct. 338 (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 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, 111 S.Ct. 2382. 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 would be left of
(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 visible to the officer and then
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
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 900. 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 900. We 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
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, 88 S.Ct. 1868; 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 thе 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, 88 S.Ct. 1868. 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, 88 S.Ct. 1868; 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 particular suspect is armed. See id., 444 U.S. at 92-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); see also Buie, 494 U.S. at 334 n. 2, 110 S.Ct. 1093. 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, 100 S.Ct. 338.
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, 88 S.Ct. 1868; 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). Al-
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, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (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, 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 сomplete. 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
C. Excessive Force
We next address whether, when Dillard shot Thomas with his Taser, he used excessive force in violation of the
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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Accordingly, law enforcement may use objectively reasonable force to carry out investigatory stops. See Green v. City & Cnty. 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
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’ ..., the facts underlying the seizure are pertinent in judging the overall reasonableness of the seizure for
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 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 Thоmas 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, 804, 805 (9th Cir.1994) (characterizing as passive resistance 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 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
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. 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’
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
I also write separately because I do not subscribe to the majority‘s holding that Dillard violated Thomas’
I.
It is hornbook law that, at the summary judgment stage, courts “are required to view the facts and draw reasonable infer-
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 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 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.
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 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
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 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,
II.
Thomas argues that the
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, 113 S.Ct. 2130, 124 L.Ed.2d 334 (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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[R]easonable suspicion” that a person is armed is enough—and this is “less than probable cause.” Minnesota, 508 U.S. at 373, 113 S.Ct. 2130. 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, 98 S.Ct. 330, 54 L.Ed.2d 331 (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,’ and merely requires ‘a minimal level of objective justification.‘” (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (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 871. 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, 88 S.Ct. 1868)). 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, 88 S.Ct. 1868 (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 оf 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, 37 Colo.App. 317, 546 P.2d 964, 966-67 (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).
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,
Indeed, the majority concedes that some domestic violence calls can be “dangerous,” even deadly, for all parties involved. Maj. Op. at 880. 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 885. 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 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 wеapon 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 883. 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 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
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).
My colleagues in the majority are correct that the evidence in the record appears somewhat to overstate the FBI data it рurports 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 881 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 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 рolice officers feloniously killed in the line of duty were responding to domestic disturbance calls, specifically. Id.
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
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, 88 S.Ct. 1868 (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 descrip-
True, Thomas’ baggy clothing could not alone support a reasonable suspicion that he was armed. See Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (government failed to “articulate any specific fact that would have justified” a reasonable suspicion that Ybarra was armed and dangerous 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.
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 Thomas was not armed. But in the
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 vio-
ARIZONA DREAM ACT COALITION; Christian Jacobo; Alejandra Lopez; Ariel Martinez; Natalia Perez-Gallegos; Carla Chavarria; Jose Ricardo Hinojos, Plaintiffs-Appellees,
v.
Janice K. BREWER, Governor of the State of Arizona, in her official capacity; John S. Halikowski, Director of the Arizona Department of Transportation, in his official capacity; Stacey K. Stanton, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, Defendants-Appellants.
No. 15-15307.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 16, 2015.
Filed April 5, 2016.