Correll Thomas v. C. Dillard

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORRELL L. THOMAS, No. 13-55889

Plaintiff-Appellee,

D.C. No.

v. 3:11-cv-02151-

CAB-NLS

C. DILLARD, Police Officer,

Defendant-Appellant,

OPINION

and

PALOMAR COMMUNITY COLLEGE

DISTRICT,

Defendant.

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted

June 2, 2015—Pasadena, California

Filed April 5, 2016

Before: Ferdinand F. Fernandez, Raymond C. Fisher

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Fisher;

Partial Concurrence and Partial Dissent by Judge Bea

2 THOMAS V. DILLARD

SUMMARY*

Civil Rights

The panel reversed the district court’s order on summary

judgment denying qualified immunity to Palomar College

police officer Christopher Dillard and also reversed the

district court’s partial summary judgment in favor of plaintiff

on the issue of liability in an action brought pursuant to

42 U.S.C. § 1983 alleging unlawful seizure and excessive

force under the Fourth Amendment.

Responding to a possible domestic violence call, officer

Dillard demanded that plaintiff submit to a Terry frisk for a

search of weapons. When plaintiff refused to be searched,

officer Dillard tased him.

The panel held that although the domestic violence nature

of a police investigation is a relevant consideration in

assessing whether there is reason to believe a suspect is

armed and dangerous, it is not alone sufficient to establish

reasonable suspicion. The panel therefore held that Dillard

violated plaintiff’s Fourth Amendment rights against

unreasonable seizure by detaining him for the purpose of

performing a Terry frisk. The panel nonetheless held that

Dillard was entitled to qualified immunity because it was not

clearly established at the time that the initial demand for a

frisk was unlawful. The panel further held that it was not

clearly established at the time that continuing to detain a

noncompliant domestic violence suspect for the purpose of

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

THOMAS V. DILLARD 3

executing a frisk and tasing him when he refused to comply

were unlawful.

Concurring in part and dissenting in part, Judge Bea

agreed that Officer Dillard was entitled to qualified immunity

on plaintiff’s claims for unlawful seizure and excessive force

under 42 U.S.C. § 1983, and that the district court’s grant of

partial summary judgment to plaintiff must accordingly be

reversed. Judge Bea would hold, however, that the domestic

violence nature of a call requesting police assistance can

alone give rise to reasonable suspicion necessary to justify a

Terry frisk.

COUNSEL

Randall L. Winet, Winet Patrick Gayer Creighton & Hanes,

Vista, California, for Defendant-Appellant.

Eugene G. Iredale (argued), Iredale and Yoo, San Diego,

California; Mervyn S. Lazarus, Law Offices of Mervyn S.

Lazarus, Newport Beach, California, for Plaintiff-Appellee.

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

4 THOMAS V. DILLARD

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 42 U.S.C. § 1983,

asserting unlawful seizure and excessive force under the

Fourth Amendment. The district court denied Dillard

qualified immunity on summary judgment and granted partial

summary judgment to Thomas on the issue of liability.

Dillard appeals.

We address whether a law enforcement officer has

reasonable suspicion to conduct a Terry frisk, searching a

suspect for weapons, based solely on the perceived domestic

violence nature of the investigation. We hold that, although

the domestic violence nature of a police investigation is a

relevant consideration in assessing whether there is reason to

believe a suspect is armed and dangerous, it is not alone

sufficient to establish reasonable suspicion. We therefore

hold Dillard violated Thomas’ Fourth Amendment rights

against unreasonable seizure by detaining him for the purpose

of performing a Terry frisk. Because it was not clearly

established at the time that the perceived domestic violence

nature of an investigation was insufficient to establish

reasonable suspicion, however, we hold Dillard is entitled to

1

Under the Fourth Amendment to the United States Constitution,

frisking a person for weapons requires reasonable suspicion a suspect “is

armed and presently dangerous to the officer or to others.” Terry v. Ohio,

392 U.S. 1, 24 (1968). To establish reasonable suspicion a suspect is

armed and dangerous, “the police officer must be able to point to specific

and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” Id. at 21.

THOMAS V. DILLARD 5

qualified immunity. We further hold Dillard used excessive

force when he tased Thomas in order to force him to submit

to the Terry frisk against his consent. Given the frisk was

unlawful and unnecessary, Dillard used unreasonable force.

Nonetheless, given the unsettled state of the law regarding the

use of Tasers at the time, we again hold Dillard is entitled to

qualified immunity. Given the Supreme Court’s instructions

that we may not define clearly established law at too high a

level of generality, it was not clearly established at the time

of Dillard’s actions that an officer who mistakenly but

reasonably believed he had the right to conduct a Terry frisk

could not deploy a Taser in dart mode to overcome a

suspect’s resistance to the frisk. Accordingly, without in any

way endorsing Dillard’s actions or overlooking the indignities

those actions caused Thomas to suffer, we reverse the order

of the district court and hold Dillard is entitled to summary

judgment on the ground of qualified immunity.

I. BACKGROUND

Because we are reviewing the denial of Dillard’s motion

for summary judgment based on qualified immunity, we

assume Thomas’ version of disputed facts and draw all

reasonable inferences in his favor. See Mattos v. Agarano,

661 F.3d 433, 439 (9th Cir. 2011) (en banc).

At approximately 3:42 pm on September 21, 2010, the

Palomar College Police Department dispatched Officer

Dillard to the college’s Escondido campus to respond to a

domestic violence call involving a black male. Dillard spoke

to a college administrator on the north side of campus, but

was unable to obtain any further details pertaining to the

domestic violence incident that may have prompted the call.

The record contains virtually no information about this call.

6 THOMAS V. DILLARD

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

2

The dissent describes the encounter as occurring in “an alley flanked

by large storage containers.” Dissent at 49. As the district court pointed

out, however, there was nothing sinister about the location of the

encounter: “The area to which Officer Dillard was dispatched, although

described as an alley, was an open paved road bordered on one side by a

large parking lot. It was not a restricted or suspicious area.”

3

The dissent includes additional details about Thomas’ appearance that

have no bearing on the issues presented in this case – e.g., that Thomas

was wearing “skater shoes, a neck chain, an earring, and a black beanie.”

Dissent at 49.

4

At the time of the encounter, Dillard and Thomas both stood about five

and a half feet tall and weighed about 160 pounds.

THOMAS V. DILLARD 7

Dillard got out of his police car, telling Thomas and

Husky as he did so that no one was in trouble. Dillard

stopped about 10 feet away from Thomas and Husky, who

were standing next to each other. Dillard saw no indication

that a crime had occurred. Husky exhibited no signs of

domestic violence. She showed no signs of injury. She had

not been crying. She did not appear distraught. The area was

open to the public. Thomas and Husky looked like normal

college students. Their hands appeared empty. They may

have appeared startled or fidgety, but, as Dillard testified,

these were normal behaviors.

Dillard asked Thomas and Husky whether they had

identification. Thomas responded that he did; Husky said she

did not. Dillard did not ask to see the identification. Instead,

he asked Thomas whether he had any weapons on him.

When Thomas responded that he did not, Dillard asked

Thomas whether he would mind being searched for weapons.

This was approximately 15 seconds into the encounter.

Thomas responded that he did mind.

Dillard approached Thomas and asked again whether he

would consent to a search for weapons. When Thomas

declined, Dillard told Thomas he had received a call “about

a guy in a purple shirt pushing around a girl.” Thomas and

Husky both denied they had seen anything or had done

anything wrong. They both denied they were fighting, or that

Thomas was pushing Husky. Husky told Dillard they had

just been kissing behind the storage containers. Dillard asked

Thomas again for consent to search for weapons, and Thomas

again refused. Dillard moved toward Thomas, attempting to

grab him and place him a controlled hold for the purpose of

conducting a frisk. When Thomas stepped away to avoid

being grabbed, Dillard backed off, pulled out his Taser,

8 THOMAS V. DILLARD

pointed it at Thomas and told Thomas he was going to search

him. This occurred approximately 30 to 40 seconds into the

encounter. Husky, meanwhile, was yelling at Dillard that

Thomas had done nothing wrong.

Thomas continued to respond to Dillard’s questions but

to withhold his consent to being searched. He was not

aggressive or belligerent. Dillard called for backup and kept

his Taser pointed at Thomas. Dillard told Thomas to put his

hands in the air, step forward and drop to his knees. Thomas

refused to do so. In response to the call for backup, a

uniformed Escondido police officer arrived on the scene and

pointed her handgun at Thomas from a distance of 15 feet

away. When the Escondido officer told Thomas to put up his

hands, he did so. Dillard told Thomas that if he did not get

down on his knees by the count of three, Dillard would tase

him. Dillard counted to three, and, when Thomas did not

comply, tased Thomas. Dillard fired the Taser in dart mode,

discharging a set of electrified barbs that lodged in Thomas’

chest and delivered an incapacitating surge of electrical

current to his body. This occurred approximately six minutes

into the encounter. Thomas was handcuffed, searched (no

weapons were found), treated by paramedics, arrested and

charged with unlawfully resisting, delaying or obstructing a

peace officer. See Cal. Penal Code § 148(a)(1). The charges

were dismissed six months later.

Thomas filed suit against Dillard under 42 U.S.C. § 1983,

alleging violations of his Fourth Amendment rights to be free

from unlawful seizure and excessive force. He also alleged

claims under California state law for negligence and violation

of California Civil Code § 52.1. Dillard moved for summary

judgment, and Thomas cross-moved for partial summary

judgment on the issue of liability. The district court denied

THOMAS V. DILLARD 9

Dillard’s motion and granted Thomas’ motion. The court

ruled Dillard lacked reasonable suspicion to believe Thomas

was armed and dangerous, and thus that Dillard unlawfully

seized Thomas for the purpose of conducting a weapons

search. The court also denied qualified immunity for this

seizure, reasoning:

Having determined the existence of a

constitutional violation, the Court considers

whether the right violated was clearly

established at the time of its occurrence. At

the time Officer Dillard tased Thomas to force

his compliance with a weapons’ search, it was

clearly established that such a search is

unreasonable unless supported by the officer’s

reasonable suspicion that the person to be

searched is armed and dangerous. Ramirez [v.

City of Buena Park], 560 F.3d [1012,] 1023

[(9th Cir. 2009)]. There was no objective

evidence to support a reasonable suspicion

that Thomas had a weapon. Officer Dillard’s

explanation, based on his subjective

characterization that this was a domestic

violence call and therefore necessitated a

search without any indication a weapon was

involved, is wholly inadequate to justify his

conduct. It would have been clear to a

reasonable officer that a search of Thomas in

the circumstances presented was unlawful.

Officer Dillard is not entitled to qualified

immunity.

The court further ruled “Dillard’s use of his taser to compel

Thomas’s compliance with the search was excessive force.”

10 THOMAS V. DILLARD

“Having concluded that Officer Dillard had no reasonable

suspicion to support a search of Thomas for weapons, any

force used to accomplish that search was objectively

unreasonable and tasing Thomas was clearly excessive,” the

court wrote. Dillard timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

Ordinarily, we lack jurisdiction over an appeal from a

denial of summary judgment because it is not a “final”

judgment under 28 U.S.C. § 1291. See Mueller v. Auker,

576 F.3d 979, 987 (9th Cir. 2009). A public official,

however, may immediately appeal the denial of a motion for

summary judgment asserting qualified immunity. See

Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).

Accordingly, we have jurisdiction to review the denial of

qualified immunity to Dillard. Our review is limited to

whether, after construing disputed facts and reasonable

inferences in favor of Thomas, Dillard is entitled to qualified

immunity as a matter of law. See Mattos, 661 F.3d at 439 &

n.2. We review this question de novo. See id. at 439.5

III. DISCUSSION

Qualified immunity shields a police officer from suit

under § 1983 unless (1) the officer violated a statutory or

constitutional right, and (2) the right was clearly established

5

Under the circumstances of this case, we also have jurisdiction to

review the district court’s grant of partial summary judgment to Thomas

on the issue of Fourth Amendment liability because our holding that

Dillard is entitled to qualified immunity necessarily resolves the issue of

Dillard’s liability. See K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 975

(9th Cir. 2015); Bull v. City & Cty. of San Francisco, 595 F.3d 964, 971,

982 (9th Cir. 2010) (en banc).

THOMAS V. DILLARD 11

at the time of the challenged conduct. See Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014); Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2080 (2011). Although we have discretion

in deciding which of these two prongs to address first, here

we elect to follow the order laid out above. See Mattos,

661 F.3d at 440. We evaluate separately the constitutionality

of each distinct Fourth Amendment intrusion: the

investigatory stop, the Terry frisk and the use of the Taser.

See Ramirez, 560 F.3d at 1019.

A. Investigative Stop

The Fourth Amendment protects the “right of the people

to be secure in their persons . . . against unreasonable

searches and seizures” by the government. U.S. Const.

amend. IV. “This inestimable right of personal security

belongs as much to the citizen on the streets of our cities as

to the homeowner closeted in his study to dispose of his

secret affairs.” Terry v. Ohio, 392 U.S. 1, 8–9 (1968).

“Unquestionably [Thomas] was entitled to the protection of

the Fourth Amendment as he walked down the street in

[Escondido],” just as John Terry was entitled to the same

protection on a Cleveland street in 1963. Id. at 9.

Terry permits limited police intrusions on a person’s

freedom of movement and personal security when an officer’s

suspicion falls short of the “probable cause” required to

execute an arrest or a “full” search. See id. at 20–27. To

initiate a brief stop to investigate potential criminal activity,

a stop that does not rise to the level of an arrest, an officer

must have reasonable suspicion to believe “criminal activity

may be afoot.” Id. at 30; United States v. Arvizu, 534 U.S.

266, 273 (2002). This means the officer must have

reasonable suspicion “the person apprehended is committing

12 THOMAS V. DILLARD

or has committed a criminal offense.” Arizona v. Johnson,

555 U.S. 323, 326 (2009).

Thomas does not challenge Dillard’s initial decision to

stop and question him and Husky for a brief period. Campus

police dispatch had informed Dillard that a man wearing the

same color shirt as Thomas had pushed a woman in the very

location Thomas and Husky were found, by the storage

containers. This created a reasonable suspicion Thomas

might have committed a simple assault or battery, possibly in

the context of a domestic relationship. See, e.g., Cal. Penal

Code § 242 (defining battery as “any willful and unlawful use

of force or violence upon the person of another”); id.

§ 243(e)(1) (proscribing simple battery against “a person with

whom the defendant has, or has had, a dating relationship”).6

Dillard was entitled to detain Thomas briefly to investigate

the report of potential criminal activity – a so-called Terry

stop.

In conducting the stop, Dillard also was permitted to ask

Thomas for consent to search for weapons, see United States

v. Drayton, 536 U.S. 194, 207 (2002), known as a Terry frisk,

see United States v. I.E.V., 705 F.3d 430, 433 (9th Cir. 2012).

As the word “consent” implies, however, Thomas was free to

decline Dillard’s request. See Florida v. Bostick, 501 U.S.

429, 437 (1991) (“[A]n individual may decline an officer’s

request [for a consent search] without fearing prosecution.”).

The nature of the interaction between Dillard and Thomas

changed significantly, however, once Dillard unholstered his

6

Under California law, “the least touching may constitute battery.”

People v. Myers, 71 Cal. Rptr. 2d 518, 522 (Ct. App. 1998) (internal

quotation marks omitted). It need not be violent or severe, and it need not

cause bodily harm or even pain. See id.

THOMAS V. DILLARD 13

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

(1983) (“The scope of the detention must be carefully tailored

to its underlying justification.”); id. (“[A]n investigative

detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop.”); see also

Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015)

(noting the permissible duration of a traffic stop, “[l]ike a

Terry stop,” is determined by the “mission” of the stop).

Once Dillard demanded Thomas submit to a search for

weapons, he needed a reasonable basis for believing Thomas

might be armed and dangerous in order to continue detaining

him for the search. The question, then, is whether Dillard had

such justification.

B. Frisk

Thomas argues Dillard had no justification for ordering

him to submit to a Terry frisk and that detaining him to

perform the frisk violated the Fourth Amendment. He

contends it was clearly established that Dillard’s conduct was

unconstitutional when the events took place in September

2010, and Dillard therefore is not entitled to qualified

immunity. We address these two prongs of the qualified

immunity analysis in turn. We emphasize, again, that for this

purpose we take the facts and inferences drawn from them in

favor of Thomas.

1. Constitutional Violation

Whereas the purpose of a Terry stop is to further the

interests of crime prevention and detection, a Terry frisk is

14 THOMAS V. DILLARD

justified by the concern for the safety of the officer and others

in proximity. See Terry, 392 U.S. at 22–24. Accordingly,

whereas a Terry stop is justified by reasonable suspicion that

criminal activity may be afoot, a frisk of a person for

weapons requires reasonable suspicion that a suspect “is

armed and presently dangerous to the officer or to others.”

Id. at 24; see also Johnson, 555 U.S. at 326–27. “A lawful

frisk does not always flow from a justified stop.” United

States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988). Rather,

“[e]ach element, the stop and the frisk, must be analyzed

separately; the reasonableness of each must be independently

determined.” Id.; see also Terry, 392 U.S. at 22–23.

A frisk for weapons “is a serious intrusion upon the

sanctity of the person, which may inflict great indignity and

arouse strong resentment, and it is not to be undertaken

lightly.” Terry, 392 U.S. at 17; see also id. at 14–17

nn.11–14. As the Supreme Court recognized in fashioning

the stop-and-frisk exception to probable cause, people have

a strong interest in personal security, and routine police

intrusions breed resentment within communities they serve.

Accordingly, Terry was careful to craft a standard for a frisk

that was both protective of law enforcement officers who

confront potentially dangerous individuals and consistent

with the objective, fact-based approach traditionally required

to justify invasions into areas protected by the Fourth

Amendment. See id. at 20–27.7

7

The Court was particularly sensitive to resentment in minority

communities with regard to aggressive stop-and-frisk tactics. See Terry,

392 U.S. at 14–15 & n.11 (citing President’s Commission on Law

Enforcement and Administration of Justice, Task Force Report: The Police

183–84 (1967)); id. at 16–17 & n.14; see also John Q. Barrett, Deciding

the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference,

72 St. John’s L. Rev. 749, 770–72 (1998); Earl C. Dudley Jr., Terry v.

THOMAS V. DILLARD 15

To establish reasonable suspicion a suspect is armed and

dangerous, thereby justifying a frisk, “the police officer must

be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion.” Terry, 392 U.S. at 21. A “mere

‘inchoate and unparticularized suspicion or hunch’” that a

person is armed and dangerous does not establish reasonable

suspicion, Maryland v. Buie, 494 U.S. 325, 332 (1990)

(quoting Terry, 392 U.S. at 27) (some internal quotation

marks omitted), and circumstances suggesting only that a

suspect would be dangerous if armed are insufficient, see

United States v. Flatter, 456 F.3d 1154, 1157 (9th Cir. 2006).

There must be adequate reason to believe the suspect is

armed. See id.

Reasonable suspicion is an objective standard, asking

whether “a reasonably prudent [person] would have been

warranted in believing [the suspect] was armed and thus

presented a threat to the officer’s safety while he was

investigating his suspicious behavior.” Terry, 392 U.S. at 28.

This inquiry requires consideration of all the facts and

circumstances an officer confronts in the encounter; we

consider the totality of the circumstances. See id.; Navarette

v. California, 134 S. Ct. 1683, 1687 (2014); Arvizu, 534 U.S.

at 273; United States v. Sokolow, 490 U.S. 1, 8 (1989); United

States v. Cortez, 449 U.S. 411, 417 (1981); United States v.

Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010). Importantly,

reasonable suspicion must be individualized: “[e]ven in high

crime areas, where the possibility that any given individual is

armed is significant, Terry requires reasonable, individualized

Ohio, the Warren Court and the Fourth Amendment: A Law Clerk’s

Perspective, 72 St. John’s L. Rev. 891, 893 (1998).

16 THOMAS V. DILLARD

suspicion before a frisk for weapons can be conducted.”

Buie, 494 U.S. at 334 n.2.

In assessing the totality of the circumstances, relevant

considerations may include: observing a visible bulge in a

person’s clothing that could indicate the presence of a

weapon, see Flatter, 456 F.3d at 1157 (citations omitted);

seeing a weapon in an area the suspect controls, such as a car,

see Michigan v. Long, 463 U.S. 1032, 1050 (1983); “sudden

movements” suggesting a potential assault or “attempts to

reach for an object that was not immediately visible,” Flatter,

456 F.3d at 1157 (citing United States v. Flippin, 924 F.2d

163, 164–66 (9th Cir. 1991)); cf. Ybarra v. Illinois, 444 U.S.

85, 93 (1979) (holding reasonable suspicion was lacking

where an individual’s hands were empty and he made “no

gestures or other actions indicative of an intent to commit an

assault”); “evasive and deceptive responses” to an officer’s

questions about what an individual was up to, Burkett,

612 F.3d at 1107; unnatural hand postures that suggest an

effort to conceal a firearm, see id. (suspect opened the

passenger car door with his left hand and kept his right hand

next to his body and appeared to reach for his coat pocket);

and whether the officer observes anything during an

encounter with the suspect that would dispel the officer’s

suspicions regarding the suspect’s potential involvement in a

crime or likelihood of being armed, see Terry, 392 U.S. at 28;

United States v. $109,179 in U.S. Currency, 228 F.3d 1080,

1086 (9th Cir. 2000).

This last point is especially important. Even where

certain facts might support reasonable suspicion a suspect is

armed and dangerous when viewed initially or in isolation, a

frisk is not justified when additional or subsequent facts

dispel or negate the suspicion. Just as a suspicion must be

THOMAS V. DILLARD 17

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

18 THOMAS V. DILLARD

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.

Similarly, we have held it is reasonable for an officer to

assume a suspected narcotics trafficker is likely armed. See

$109,179 in U.S. Currency, 228 F.3d at 1086–87. The same

is true for a suspected bank robber, see United States v.

Johnson, 581 F.3d 994, 1000 (9th Cir. 2009), someone

suspected of involvement in a large-scale marijuana growing

operation, see United States v. Davis, 530 F.3d 1069,

1082–83 (9th Cir. 2008), and a suspect in certain nighttime

burglaries, see United States v. Mattarolo, 209 F.3d 1153,

1158 (9th Cir. 2000).8 On the other hand, when a person is

8

Of course, suspicion of a crime likely to involve weapons is not the end

of the matter. Under the totality-of-the-circumstances analysis, additional

facts may sufficiently dispel an officer’s suspicion. See Thomas, 863 F.2d

at 628–29 (holding a frisk was unlawful where, after the suspects were

stopped and exited their vehicle, their clothing did not match the

description of the reported perpetrators); 4 Wayne R. LaFave, Search &

Seizure § 9.6(a) (5th ed. 2015) (“[I]t should not be assumed that whatever

might happen between the initiation of the stop and the initiation of the

frisk is of no relevance, for this is not the case. If by investigation or

happenstance the quantum of evidence needed to justify a forcible stop has

dissipated during this interval, then it is not permissible to frisk.”); cf.

Terry, 392 U.S. at 28, 30 (noting nothing dispelled the officer’s suspicions

that Terry was armed). Even where the type of crime is likely to involve

weapons, we consider the totality of the circumstances to determine

whether the suspicion is actually justified in context and whether any

suspicion was dispelled by other facts known to the officer. See, e.g.,

Johnson, 581 F.3d at 1000 (officers personally observed many tell-tale

signs of a bank robbery plan unfolding before them); Davis, 530 F.3d at

1082 (distinguishing a suspect who had access to a private residence

growing marijuana on a large scale from one who was in a public place

THOMAS V. DILLARD 19

being investigated for a crime that is neither “likely to

involve the use of weapons,” Terry, 392 U.S. at 28, nor

“frequently associated with weapons,” Flatter, 456 F.3d at

1158, suspicion of such a crime does not provide reason to

suspect a person is armed. See id. (suspicion of mail theft is

insufficient); Thomas, 863 F.2d at 629 (same with passing

counterfeit money); Ramirez v. City of Buena Park, 560 F.3d

1012, 1022 (9th Cir. 2009) (same with illicit drug use). We

have not previously addressed whether domestic violence is

the type of crime that is likely to involve weapons, such that

the nature of the crime itself may provide suspicion a suspect

is armed. We address that issue now, and hold domestic

violence is not a crime such as bank robbery or trafficking in

large quantities of drugs that is, as a general matter, likely to

involve the use of weapons. Thus, officers may not rely

solely on the domestic violence nature of a call to establish

reasonable suspicion for a frisk. See 4 Wayne R. LaFave,

Search & Seizure § 9.6(a) (5th ed. 2015) (describing a “minor

assault without weapons” as the type of crime that does not,

absent other circumstances, give rise to a reasonable

suspicion a suspect is armed).9

Dillard’s argument, accepted by our dissenting colleague,

that the mere fact an officer is responding to a perceived

and had only a loose association with drug dealers); $109,179 in U.S.

Currency, 228 F.3d at 1085–87 (drug trafficking suspect failed to identify

himself, provided inconsistent answers to an officer’s questions and was

confronted in a confined hotel room); Mattarolo, 209 F.3d at 1158 (after

being stopped on a remote stretch of road, a nighttime burglary suspect got

out of his car and quickly approached the officer’s squad car).

9

We likewise have found no case law to suggest the California courts

would presume a suspect is armed and dangerous based solely on the

domestic violence nature of a call.

20 THOMAS V. DILLARD

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 Cal. Penal Code

§ 13700(b) (defining “domestic violence” to include any

“abuse committed against an adult or a minor who is a

spouse, former spouse, cohabitant, former cohabitant, or

person with whom the suspect has had a child or is having or

has had a dating or engagement relationship”); id. § 13700(a)

(defining “abuse” to include “intentionally or recklessly

causing or attempting to cause bodily injury, or placing

another person in reasonable apprehension of imminent

serious bodily injury to himself or herself, or another”).

Domestic violence comes in widely varying degrees of

dangerousness. It “is a term of art encompassing acts that one

might not characterize as ‘violent’ in a nondomestic context.”

United States v. Castleman, 134 S. Ct. 1405, 1411 (2014). It

can involve conduct as minor as squeezing another’s arm to

create a bruise, see id. at 1412, or as serious as rape, see

People v. Poplar, 83 Cal. Rptr. 2d 320, 326 (Ct. App. 1999),

or homicide, see Castleman, 134 S. Ct. at 1408–09.

As a general category of crime, therefore, domestic

violence is clearly distinguishable from the more specific

crimes the Supreme Court and this court have held are likely

to involve the use of weapons, such as the daytime store

robbery in Terry, bank robbery or narcotics trafficking.

Although mail theft and bank robbery both fall under the

category of theft offenses, only the latter gives rise to

suspicion a suspect is armed. Compare Flatter, 456 F.3d at

1158, with Johnson, 581 F.3d at 1000. Likewise, illicit drug

use, large-scale marijuana cultivation and narcotics

trafficking are all drug offenses, but only the latter two give

rise to reasonable suspicion for a Terry frisk. Compare

THOMAS V. DILLARD 21

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)). Other examples are those involving

a suspect angrily threatening a responding officer to get off

his property, see Reed v. Hoy, 909 F.2d 324, 325 (9th Cir.

1989), overruled on other grounds by Edgerly v. City & Cty.

of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010), or

a report of a suspect wielding a gun, see George v. Morris,

736 F.3d 829, 832 (9th Cir. 2013). But not all domestic

violence calls present such risks. Reasonable suspicion must

be based on “specific and articulable facts” regarding the

suspect and the “particular circumstances,” rather than

“unparticularized suspicion.” Terry, 392 U.S. at 21, 27.

“This demand for specificity in the information upon which

police action is predicated is the central teaching of [the

Supreme] Court’s Fourth Amendment jurisprudence.” Id. at

21 n.18. We reject the notion there is a blanket “domestic

violence” exception to Terry’s requirement for particularized

suspicion.

22 THOMAS V. DILLARD

Our Fourth Amendment jurisprudence in the areas of

warrantless entry and excessive force confirms that domestic

violence suspects are not presumed to be armed. We have

recognized, of course, that some domestic violence calls are

dangerous and some domestic violence suspects are armed.

In United States v. Martinez, 406 F.3d 1160 (9th Cir. 2005),

for example, we noted “the combustible nature of domestic

disputes,” id. at 1165 (quoting Tierney v. Davidson, 133 F.3d

189, 197 (2d Cir. 1998)), explaining:

The volatility of situations involving

domestic violence make them particularly

well-suited for an application of the

emergency doctrine. When officers respond

to a domestic abuse call, they understand that

“violence may be lurking and explode with

little warning.” Fletcher v. Clinton, 196 F.3d

41, 50 (1st Cir. 1999). Indeed, “more officers

are killed or injured on domestic violence

calls than on any other type of call.” Hearings

before Senate Judiciary Committee, 1994 WL

530624 (F.D.C.H.) . . . .

Id. at 1164 (quoting congressional testimony by Sam Baca,

then Chief of Police of Lakeland, Florida, Sept. 29, 199410);

see also Hiibel v. Sixth Judicial Dist. Court of Nevada,

542 U.S. 177, 186 (2004) (“Officers called to investigate

domestic disputes need to know whom they are dealing with

in order to assess the situation, the threat to their own safety,

and possible danger to the potential victim.”); Mattos,

10

Although Martinez suggests this testimony was offered “on behalf of

National Task Force on Domestic Violence,” that does not appear to have

been the case. See 1994 WL 530624.

THOMAS V. DILLARD 23

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.

Thomas and the dissent, moreover, appear to overstate the

threats domestic violence calls as a category pose to police

officers. See Shannon Meyer, PhD, Victim Specialist, Seattle

Division, Federal Bureau of Investigation, & Randall H.

Carroll, Chief of Police (Retired), Bellingham, Washington,

Police Department and President, Profectus Consulting,

When Officers Die: Understanding Domestic Violence

Calls for Service, The Police Chief 78 (May 2011),

http://www.policechiefmagazine.org/magazine/index.cfm?f

useaction=display_arch&article_id=2378&issue_id=52011

(last visited Dec. 29, 2015) (although “it is widely believed

that domestic violence calls pose the greatest threat to police

officers’ safety and that law enforcement officers are most

likely to be injured or killed responding to this category of

call . . . , the bulk of research does not actually support this

perspective”; “when examined in context, domestic violence

calls for service account for a relatively small proportion of

the overall rate of police officers murders”); Joel Garner &

Elizabeth Clemmer, National Institute of Justice, U.S.

Department of Justice, Danger to Police in Domestic

Disturbances – A New Look, Research in Brief 2–3 (Nov.

1986), http://files.eric.ed.gov/fulltext/ED295090.pdf (last

visited Dec. 29, 2015) (finding no officer injuries or deaths in

a study of 1,446 family disputes in Los Angeles). Creating a

new class of presumptively armed and dangerous suspects

24 THOMAS V. DILLARD

requires more than the dubious data Thomas and the dissent

invoke.11

Our dissenting colleague also cites studies emphasizing

the risks domestic violence poses to victims. Dissent at 56,

64–65. See Callie Marie Renninson, Ph.D., Intimate Partner

Violence and Age of Victim, 1993–99, Bureau of Justice

Statistics Special Report (rev. 11/28/01), at 7 (“An average of

15% of intimate partner violence victims were involved in a

victimization in which the offender had a weapon.”); Susan

B. Sorenson, Ph.D., & Douglas J. Wiebe, Ph.D., Weapons in

the Lives of Battered Women, 94 Am. J. Pub. Health 1413

(2004) (36.7 percent of residents of California battered

women’s shelters reported that, at some point during their

lives, an intimate partner used a firearm to hurt, threaten or

scare them); When Men Murder Women: An Analysis of

2011 Homicide Data, Violence Policy Center (September

2013), at 6 (“Of the females killed with a firearm, nearly two-

thirds were murdered by male intimates.”). These risks are

undeniable and immensely serious, but the breadth of police

11

Relying on FBI data, for example, Thomas’ expert asserts that 31.7

percent of officer assaults and 12.7 percent of officer deaths occurred

while answering domestic violence calls in 2011. But the actual FBI data

belie these claims. In fact, 2.7 percent – not 12.7 percent – of officer

deaths occurred while responding to “domestic disturbance” calls, and this

type of call includes a variety of domestic disturbances, not merely

domestic violence calls. See FBI, Law Enforcement Officers Killed &

Assaulted 2011, tbl. 19, https://www.fbi.gov/about-us/cjis/ucr/leoka/2011/

tables/table-19 (last visited Dec. 29, 2015). Similarly, although 33 percent

of officer assaults occurred when responding to “disturbance calls,” see id.

at tbl. 69, https://www.fbi.gov/about-us/cjis/ucr/leoka/2011/tables/table-69

(last visited Dec. 29, 2015), that broad category of calls includes not only

domestic violence but also bar fights, gang calls, general disturbances,

incidents where a citizen is brandishing a firearm and other types of

domestic disturbances. See Garner & Clemmer, supra, at 2.

THOMAS V. DILLARD 25

calls falling under the rubric of “domestic violence” is so

great that the perceived “domestic violence” nature of a call

cannot, in every case and without more, establish a

reasonable suspicion a particular suspect is armed. Nothing

in these studies gave Dillard reason to suspect that Thomas,

in particular, was armed and dangerous.

Plainly, domestic violence calls vary widely in the actual

threats they pose to officers and others. An officer therefore

must consider the specific factual circumstances of an

encounter to justify a particular search or seizure, as our

jurisprudence in the areas of warrantless entry and excessive

force bear out. In Martinez, for example, we considered

whether it was reasonable for an officer to enter a house

without a warrant during an ongoing, volatile domestic

dispute. In upholding the warrantless entry, we did not

simply rely on the fact that the officer was responding to a

domestic violence call or the generalized risk such calls can

pose to officer safety. We looked to the specific

circumstances the officer encountered: he was responding to

an interrupted 911 call reporting a man who was “out of

control,” he had previously been called to the residence for

domestic violence, where he noticed the woman’s “fat lip,”

and when he arrived at the scene he saw a woman crying in

the front yard and a man yelling angrily from inside the

residence. See Martinez, 406 F.3d at 1162–63. The highly

charged and rapidly developing situation in Martinez stands

in stark contrast to this case, in which Thomas was neither

aggressive nor confrontational, there was no sign of ongoing

(or completed) domestic violence and Thomas stood virtually

motionless for six minutes while Dillard trained his Taser on

him. There was minimal objective risk here that violence

would “explode with little warning.” Id. at 1164.

26 THOMAS V. DILLARD

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

THOMAS V. DILLARD 27

aggressive to the police, he kept his hands and body in plain

view at all times and Husky vehemently denied he had abused

her.12

In the years since we decided Smith, Martinez and Black,

our decisions have continued to demonstrate that Fourth

Amendment challenges in the context of domestic violence

turn on the specific facts of the case, considered in their

totality. We have never suggested that a suspicion of

“domestic violence” alone provides sufficient justification for

a given police intrusion. See George, 736 F.3d at 839

(acknowledging the safety concerns arising from domestic

violence calls but holding such concerns are diminished when

the dispute appears to have concluded by the time the officers

arrive on scene); Mattos, 661 F.3d at 451 (holding the use of

a Taser on a woman intervening to discourage officers from

arresting her abusive husband constituted excessive force in

part because there was “no threat that either spouse ha[d] a

weapon”). The mere fact that Dillard was responding to a

perceived domestic violence call, therefore, did not establish

reasonable suspicion to believe Thomas was armed and

dangerous.

Nor did the specific facts of this “domestic violence” call

do so. On the facts presented here, the perceived domestic

violence nature of the call provided scant reason to believe

Thomas was armed and dangerous. Campus police dispatch

12

Although the dissent says Thomas “refused to move his hands from

his waistline” (Dissent at 52), in fact Thomas stood facing Dillard with his

“hands hanging at [his] sides, in a manner that would be considered

normal if [he] was standing and making casual conversation with

someone.” He “never made any overt movements with [his] hands at any

time in relation to [his] waistline.”

28 THOMAS V. DILLARD

had reported that a person matching Thomas’ description, a

man with a purple shirt, was seen pushing a woman on a

public street on campus. Forty minutes earlier, Dillard had

received a vague report of “domestic violence” at no

particular location on campus. Combining the inferences

Dillard could have reasonably drawn from these two calls, at

most he had particularized suspicion that Thomas and Husky

were in a domestic relationship and Thomas had been

pushing Husky. The specific type of “domestic violence” call

Dillard thought he was responding to, then, was a simple

battery within a domestic relationship. See Cal. Penal Code

§ 243(e)(1). Dillard’s questioning of Thomas and Husky

confirms this was the full extent of his suspicion. He asked

Husky and Thomas if they had been “fighting or arguing” or

whether Thomas was “pushing her around.” There were no

facts suggesting to a reasonable officer that any specific

physical contact beyond pushing was occurring, and the

couple strongly denied that even that had occurred, with the

supposed victim professing she and her boyfriend had instead

been kissing.

Even assuming a reasonable officer could still reasonably

suspect Thomas had pushed Husky despite the denials, no

reasonable officer could assume all persons involved in a

simple domestic battery are, as a categorical matter, likely to

be armed and dangerous. An inference that Thomas was

armed could be drawn only in the presence of other

circumstances that were not present here. As discussed

below, Thomas’ appearance and behavior gave no suggestion

he was armed. Thomas was in a location where he was

entitled to be, answered Dillard’s questions forthrightly, faced

Dillard with his hands fully visible in the afternoon sunlight

and made no overt movements suggesting he was arming

THOMAS V. DILLARD 29

himself. There were no suspicious bulges in the T-shirt or

any other item of Thomas’ clothing.

Moreover, even if Dillard reasonably could have feared

at the time he received the call that the most toxic and volatile

sort of domestic dispute might await him at the scene, these

fears should have been dispelled by what he encountered at

the scene. There were no signs Thomas had attacked Husky,

she vehemently and repeatedly denied Thomas was fighting

with her (much less abusing her), she insisted she and

Thomas had been kissing and Thomas was reasonably

cooperative and nonthreatening.13

13

The dissent mentions law review articles reporting that domestic

violence victims often decline to cooperate with police and prosecutors.

Dissent at 52–53. This is an important point, but it does not render

Husky’s statements and vigorous defense of Thomas irrelevant. The

articles upon which the dissent relies, moreover, emphasize that “[v]ictims

of domestic violence are more prone than other crime victims to recant or

refuse to cooperate after initially providing information to police.” Tom

Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768

(2005) (emphasis added). “In a typical case, these various factors do not

deter cooperation with law enforcement in the immediate aftermath of the

abuse, but they begin to bear heavily on the victim in a matter of days.”

Id. at 771 (emphasis added); cf. Lisa Marie De Sanctis, Bridging the Gap

Between the Rules of Evidence and Justice for Victims of Domestic

Violence, 8 Yale J.L. & Feminism 359, 367–68 (1996) (noting “[m]any

victims are uncooperative from the initial filing of the case,” but citing

only a 1995 telephone interview with a single assistant district attorney in

one city for this proposition). Here, although Dillard may have been

justified in viewing Husky’s defense of Thomas with some skepticism, we

do not see how it would have been reasonable to entirely discount her

statements, especially when they were fully consistent with the other facts

Dillard encountered at the scene, none of which suggested that domestic

violence had occurred or was about to occur or that Thomas was armed

and dangerous.

30 THOMAS V. DILLARD

In sum, we hold the perceived domestic violence nature

of the call did not automatically and categorically give

Dillard reason to believe Thomas was armed and dangerous.

Nor did the particular circumstances of this domestic violence

call in particular, including the content of the call and the

circumstances Dillard confronted on the scene, which we

discuss in further detail below.

(2) Appearing Startled or Fidgety. As one additional

reason to believe Thomas was armed, Dillard points to

Thomas’ demeanor, suggesting Thomas appeared “startled

and fidgety.” We do not see how either of these observations

support even minimally the inference that Thomas was

armed, however. Although Dillard testified Thomas and

Husky may have appeared “a little startled” when he first

confronted them, he also explained that this was “a common

reaction . . . when a police officer arrives on the scene.” By

fidgety, Dillard meant only that Thomas and Husky exhibited

normal hand movements, noting that it is not natural for

people to stand in a perfectly still, statuesque form. Thomas

and Husky, in other words, behaved normally. Such behavior

does not give rise to reasonable suspicion to believe a suspect

is armed and dangerous.

(3) Thomas’ Clothing. As further reason to believe

Thomas was armed, Dillard points to the fact that Thomas

was wearing an untucked T-shirt and jeans, “clothing capable

of hiding a weapon.” We acknowledge that such clothing

would do nothing to dispel the notion that Thomas was

armed, but neither does it suggest that he was armed. See

Ybarra, 444 U.S. at 93 (holding there was no reason to

believe a bar patron was armed where “the most [the officer]

could point to was that [the patron] was wearing a 3/4-length

lumber jacket, clothing which the State admits could be

THOMAS V. DILLARD 31

expected on almost any tavern patron in Illinois in early

March”); Flatter, 456 F.3d at 1158 (holding there was no

reasonable suspicion a suspected mail thief was armed even

though his “vest obscured his waistline”). That a person is

normally dressed does not give rise to reasonable suspicion

the person is armed and dangerous. Otherwise, innumerable

college students everywhere could be frisked for weapons on

appearance alone.

(4) Withholding Consent to Search. As further reason to

believe Thomas was armed, Dillard points to Thomas’ refusal

to consent to a weapons search, even after Dillard explained

the nature of his investigation. This fact too gave Dillard

little or no reason to believe Thomas was armed. Thomas

was free to decline Dillard’s request. See Bostick, 501 U.S.

at 437. As the district court explained:

An individual’s steadfast refusal to

consent to a search cannot become the basis

for reasonable suspicion, absent any other

specific facts, to justify a forced search of that

individual. If that were the case, the Fourth

Amendment would have no effect. An officer

without reasonable suspicion that an

individual was armed, could simply generate

reasonable suspicion by asking an otherwise

non-threatening suspect to submit to a search

and if he declined the officer would then have

unfettered discretion to force him to submit.

See also United States v. Santos, 403 F.3d 1120, 1125–26

(10th Cir. 2005) (“A refusal to consent to a search cannot

itself form the basis for reasonable suspicion . . . . If refusal

of consent were a basis for reasonable suspicion, nothing

32 THOMAS V. DILLARD

would be left of Fourth Amendment protections.”); United

States v. Boyce, 351 F.3d 1102, 1110 (11th Cir. 2003) (“The

police cannot base their decision to prolong a traffic stop on

the detainee’s refusal to consent to a search. Such a refusal

may only be considered when the police have already

observed, before asking for permission to search, facts

sufficient to raise a reasonable suspicion.”); United States v.

Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001)

(“The mere fact that a person refuses to consent to search

cannot be used as evidence in support of reasonable

suspicion.”); cf. Graves v. City of Coeur D’Alene, 339 F.3d

828, 842 (9th Cir. 2003) (“[T]hat [the suspect] refused to

consent to search cannot be used to establish probable

cause.”), abrogated on other grounds by Hiibel, 542 U.S.

177.

(5) Stepping Back. The one sudden movement Thomas

made, to step back in response to Dillard’s reaching for

Thomas to put him in a “controlled hold” to frisk him, also

did not suggest Thomas was armed. A reactive, instinctive

movement in response to an officer’s own aggressive

movement differs significantly from the unprovoked, sudden

movements we have held may factor into reasonable

suspicion. The latter type of movement has a volitional

quality, indicating a suspect’s “attempt[] to take advantage of

the situation by arming [him]self.” Flippin, 924 F.2d at

164–66 (holding a suspect’s sudden grabbing of a make-up

bag while under investigative detention by an officer in her

hotel room, coupled with the officer’s knowledge that her

companion had been carrying a large knife, suggested an

attempt to arm herself); see Burkett, 612 F.3d at 1107

(holding an officer was justified in frisking a car passenger

where the driver took a suspiciously long time to pull over

while the passenger was making furtive movements not

THOMAS V. DILLARD 33

visible to the officer and then kept one hand in an unnatural

position on his body when he exited the vehicle); United

States v. Taylor, 716 F.2d 701, 708–09 (9th Cir. 1983)

(during a stop of a methamphetamine manufacturing suspect,

a passenger refused to show his hands, making furtive

movements inside a truck as officers approached). In

response to Dillard’s reaching for him, Thomas stepped back

a couple feet, stopped, remained facing Dillard, and made no

movement with his hands or any other part of his body. In

judging the significance of this interaction, we are mindful

that Dillard had no justification to put Thomas in a controlled

hold to search him to begin with, as the remainder of our

reasonable suspicion analysis makes clear. See Thomas,

863 F.2d at 630 (“The way [an officer] conduct[s] his

investigation . . . cannot be used to bootstrap a justification

for the detention and frisk of [a suspect].”). This movement,

when considered in context, does not suggest Thomas was

arming himself.

To summarize, none of the circumstances at the scene of

this encounter justified a reasonable suspicion Thomas was

armed and dangerous. Even if Dillard reasonably believed he

was investigating a potential domestic violence incident, that

did not automatically give him the right to frisk Thomas.

Domestic violence encompasses too many criminal acts of

varying degrees of seriousness for an officer to form

reasonable suspicion a suspect is armed from that label alone.

“Unless an officer can point to specific facts that demonstrate

reasonable suspicion that the individual is armed and

dangerous, the Fourth Amendment tolerates no frisk.”

Ramirez, 560 F.3d at 1022 (citing Knowles v. Iowa, 525 U.S.

113, 117–19 (1998)). From the facts he knew once he

actually confronted Thomas at the scene, Dillard could not

reasonably suspect Thomas was armed and dangerous.

34 THOMAS V. DILLARD

Dillard violated the Fourth Amendment by detaining Thomas,

under threat of a Taser, to conduct a suspicionless frisk.14

Our dissenting colleague would hold that “the nature of

a domestic violence call justifies an officer’s formulation of

a reasonable suspicion that a suspect may be armed (in the

absence of mitigating circumstances).” Dissent at 64.

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 64. We

14

Because we focus on the objective question of whether a reasonable

officer would have been justified in believing Thomas was armed, see

Terry, 392 U.S. at 21–22; Delaware v. Prouse, 440 U.S. 648, 654 (1979),

we have not considered Dillard’s subjective decisionmaking.

Nonetheless, we note Dillard’s decisionmaking was troubling in several

respects. Dillard testified he believed Thomas was armed and decided to

search him solely because of the perceived domestic violence nature of the

call. As we explain in text, these assumptions were unreasonable given

the wide range of conduct classified as “domestic violence” and the need

to consider the totality of the circumstances. In addition, Dillard testified

he decided he would search Thomas even before he arrived on the scene,

making clear that he would have conducted the search even if the facts he

encountered on the scene dispelled any reason he may have had to believe

Thomas was armed. As the district court pointed out, “[b]y his own

account, Officer Dillard gave no consideration to the actual facts he

observed; he was on a mission to search Thomas no matter what.” These

actions were not consistent with the Fourth Amendment. Even if Dillard

reasonably could presume Thomas was armed from the perceived

domestic violence nature of the call alone (and he could not), he could not

reasonably decide to follow that preconceived plan irrespective of the

suspicion-negating facts he encountered at the scene. An officer is not

free to ignore the actual circumstances he encounters in favor of a

personal policy that he will execute a patdown frisk whenever he responds

to a call concerning a perceived domestic dispute.

THOMAS V. DILLARD 35

respectfully disagree. The domestic violence nature of a call

is certainly relevant to an officer’s assessment of whether to

conduct a search for weapons. Indeed, “[e]rring on the side

of caution is exactly what we expect of conscientious police

officers” confronting domestic violence. Black, 482 F.3d at

1040. But reasonable suspicion is not established merely

because an officer perceives a call as falling under the broad

rubric of “domestic violence.” The officer’s decision to

conduct a frisk must be based on the totality of the

circumstances, including the full nature and context of the

call and the facts the officer actually observes on the scene.

A vague call about an unarmed man pushing a woman in a

public place on a college campus, without more, does not

give rise to a conclusive reasonable suspicion that the man is

armed and dangerous. Nor did the facts Dillard became

aware of when he actually confronted Thomas. He saw no

evidence that an assault had occurred, and Husky vehemently

denied that it had. Nothing in our decision prevents a law

enforcement officer from conducting a frisk when the

circumstances call for it. The circumstances here did not.

2. Clearly Established Law

We next address whether Thomas’ constitutional right to

be free from an unlawful detention for the purpose of

conducting a suspicionless frisk was “‘clearly established in

light of the specific context of the case’ at the time of the

events in question.” Mattos, 661 F.3d at 440 (quoting

Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). “An

officer cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite that

any reasonable official in his shoes would have understood

that he was violating it. . . .” City & Cty. of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774 (2015) (brackets and internal

36 THOMAS V. DILLARD

quotation marks omitted). Qualified immunity “gives

government officials breathing room to make reasonable but

mistaken judgments, and protects all but the plainly

incompetent or those who knowingly violate the law.”

Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (internal quotation

marks omitted). “We do not require a case directly on point,

but existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011).

The case law has defined with some specificity the types

of circumstances that give rise to reasonable suspicion for a

Terry frisk, as well as those that do not. At the time at issue,

September 2010, it was clearly established that a frisk for

weapons, on less suspicion than probable cause for a search,

was authorized only when an officer had reasonable suspicion

a suspect was “armed and presently dangerous to the officer

or to others.” Terry, 392 U.S. at 24; Ramirez, 560 F.3d at

1023 (“[I]t was clearly established [in 2003] that every

patdown is unreasonable unless it is supported by the

officer’s reasonable suspicion that the person to be frisked is

armed and dangerous.” (emphasis added)). It was clearly

established that an officer must rely on “specific and

articulable facts” and “rational inferences from those facts”

that provide such suspicion, and may not rely on “inchoate

and unparticularized suspicion or [a] ‘hunch.’” Terry,

392 U.S. at 21, 27. It was clearly established that an officer

must consider the totality of the circumstances, including

whether the facts of a particular encounter serve to dispel any

preexisting suspicion. See id. at 28; United States v. Thomas,

863 F.2d 622, 628–29 (9th Cir. 1988).

Ybarra clearly established that reasonable suspicion

requires an officer to point to specific facts indicating a

THOMAS V. DILLARD 37

particular suspect is armed. See 444 U.S. 85, 92–94 (1979);

see also Buie, 494 U.S. at 334 n.2. Ybarra and a number of

subsequent controlling cases we have already cited identified

the many behaviors and physical characteristics of an

individual that can provide a reason to believe someone is

armed. None of these suspicious circumstances applied to

Thomas. Based on appearance and observation alone,

Thomas posed no more of a threat than the bar patron the

Supreme Court held should not have been frisked in Ybarra.

See 444 U.S. at 93–94.

Nonetheless, despite the many cases that have given

shape to the contours of the reasonable suspicion requirement

for a Terry frisk, given the Supreme Court’s demanding

standard we are compelled to conclude it would not have

been clear to “any reasonable official” in Dillard’s position

that demanding to frisk a person suspected of domestic

violence was unlawful. See Sheehan, 135 S. Ct. at 1774. The

cases had established that reasonable suspicion for a Terry

frisk may arise when the crime an individual is suspected of

committing is “likely to involve the use of weapons.” Terry,

392 U.S. at 28; see Flatter, 456 F.3d at 1158. Although no

court had held domestic violence was such a crime, there was

some language in our cases suggesting domestic violence

might qualify. In Martinez, for example, we said, “[w]hen

officers respond to a domestic abuse call, they understand that

violence may be lurking and explode with little warning.”

406 F.3d at 1164 (internal quotation marks omitted).

Although we had held that domestic violence provided

insufficient justification on its own to authorize entering a

home without a warrant, see Black, 482 F.3d at 1040, we had

never specifically applied that principle to Terry frisks, which

are justified on less suspicion than the probable cause

required for a warrant. Similarly, although we held in Smith

38 THOMAS V. DILLARD

that suspicion of domestic violence provided no reason to

believe a suspect was armed (at least where the suspect’s wife

had informed the police that he had no guns or weapons in the

house), that was in the context of an excessive force claim,

see 394 F.3d at 702–03.

An officer in Dillard’s shoes, who would certainly be

aware of the potential dangers involved in domestic violence

calls, cannot be said to have been “plainly incompetent” for

believing suspicion of domestic violence provided reason to

believe a suspect is armed and dangerous. See Stanton,

134 S. Ct. at 5. Although this view was mistaken, it was not

unreasonably mistaken. See id. Dillard is therefore entitled

to qualified immunity on Thomas’ claim that Dillard

unlawfully detained him for the purpose of a suspicionless

frisk.

The district court denied qualified immunity because,

“[a]t the time Officer Dillard tased Thomas to force his

compliance with a weapons’ search, it was clearly established

that such a search is unreasonable unless supported by the

officer’s reasonable suspicion that the person to be searched

is armed and dangerous.” The Supreme Court, however, has

“repeatedly told courts not to define clearly established law

at a high level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the

particular circumstances that he or she faced.” Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014) (alteration, citation and

internal quotation marks omitted). Before today, we had

never squarely held that domestic violence is not a crime such

as bank robbery or drug trafficking that is, as a general

matter, likely to involve the use of weapons. In light of cases

such as $109,179 in U.S. Currency, 228 F.3d at 1086, holding

that some crimes are strongly associated with armed suspects,

THOMAS V. DILLARD 39

as well as cases such as Martinez, 406 F.3d at 1164–65,

acknowledging the danger posed by at least some domestic

violence calls, whether all domestic violence crimes

presumptively justify a weapons frisk was not, until now,

beyond debate.

3. The Continued Detention

Once Dillard initiated Thomas’ detention for the purpose

of a weapons frisk, the constitutional violation was complete.

Nonetheless, Dillard highlights an event subsequent to his

initiation of the detention that he argues provided reasonable

suspicion Thomas was armed. After Dillard had drawn his

Taser, he ordered Thomas to put his hands up, step forward

and drop to his knees to permit a search for weapons; but

Thomas refused to do so, multiple times, until the Escondido

officer pointed her gun at him, at which point he raised his

hands. Assuming without deciding that an officer’s conduct

in executing an unlawful detention can prompt a suspicious

reaction in the detainee that makes the continued detention

lawful, but see Thomas, 863 F.2d at 630, Thomas’ refusal to

comply with Dillard’s commands failed to justify the

continued detention here.

Although noncompliant behavior can contribute to

reasonable suspicion a suspect is armed, see Burkett, 612 F.3d

at 1107, here it provided no basis for believing Thomas was

armed. Although Thomas refused to raise his hands and

kneel, he stood still and his hands were empty and plainly

visible throughout the entire six minutes he was being

detained under threat of Dillard’s Taser. Again, he had no

suspicious bulges suggesting he had a weapon, there had been

no report he had a weapon and the crime for which he was

being investigated was not likely to involve the use of

40 THOMAS V. DILLARD

weapons. Thomas had been forthright with Dillard from the

beginning, providing his identity and answering his questions

directly. Husky was adamant that Thomas had done nothing

wrong. In context, Thomas’ steadfast, passive resistance to

Dillard’s insistence that he offer himself to be searched does

not tip the balance in favor of reasonable suspicion to frisk.

See Smith, 394 F.3d at 702 (holding there was “not . . . any

basis” for suspecting a domestic violence suspect was armed

– even after he had initially refused officers’ order to take his

hands out of his pockets, had gone in and out of his house and

had yelled expletives at officers – in part because his hands

were plainly visible when the officers used force to detain

him). Thomas’ refusal to raise his hands and kneel for an

unlawful frisk did not make the remainder of the detention

lawful. Nonetheless, because we hold it was not clearly

established that Dillard’s initial demand for a frisk was

unlawful, neither was it clearly established that continuing to

detain a noncompliant domestic violence suspect for the

purpose of executing a frisk was unlawful. Dillard is entitled

to qualified immunity for that portion of the detention as well.

C. Excessive Force

We next address whether, when Dillard shot Thomas with

his Taser, he used excessive force in violation of the Fourth

Amendment, and if so, whether that violation was clearly

established in 2010.

1. Constitutional Violation

“[T]he right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Graham v.

Connor, 490 U.S. 386, 396 (1989). Accordingly, law

THOMAS V. DILLARD 41

enforcement may use objectively reasonable force to carry

out investigatory stops. See Green v. City & Cty. of San

Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014). Under

Graham, “[d]etermining whether the force used to effect a

particular seizure is reasonable under the Fourth Amendment

requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.”

Mattos, 661 F.3d at 441 (alteration in original) (quoting

Graham, 490 U.S. at 396) (internal quotation marks omitted).

“We apply Graham by first considering the nature and quality

of the alleged intrusion; we then consider the governmental

interests at stake by looking at (1) how severe the crime at

issue is, (2) whether the suspect posed an immediate threat to

the safety of the officers or others, and (3) whether the

suspect was actively resisting arrest or attempting to evade

arrest by flight.” Id. These factors are not exclusive; “we

examine the totality of the circumstances and consider

whatever specific factors may be appropriate in a particular

case, whether or not listed in Graham.” Id. (quoting Bryan v.

MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)) (internal

quotation marks omitted). The most important factor is

whether the suspect posed an immediate threat to the safety

of the officers or others. See id.

To determine whether officers used excessive force to

carry out an unlawful frisk, we do not, as the Tenth Circuit

has suggested, ask whether the officers used greater force

than would have been reasonably necessary to effect a lawful

frisk. See Cortez v. McCauley, 478 F.3d 1108, 1127 (10th

Cir. 2007) (en banc). As we explained in Velazquez v. City of

Long Beach, 793 F.3d 1010, 1024–26 (9th Cir. 2015), that

approach would be contrary to Graham. Because “‘it is the

need for force which is at the heart of the Graham factors’

42 THOMAS V. DILLARD

. . . , the facts underlying the seizure are pertinent in judging

the overall reasonableness of the seizure for Fourth

Amendment purposes, including the reasonableness of the

force used to effectuate the seizure.” Id. at 1025 (quoting

Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir.

2007)). Thus, that Dillard had no reason to believe Thomas

was armed and dangerous, and hence no need to conduct a

frisk, is relevant – indeed, highly relevant – to the excessive

force analysis.

We first consider the nature of the force applied. Using

a Taser in dart mode constitutes an “intermediate, significant

level of force.” Bryan, 630 F.3d at 826.

The pain is intense, is felt throughout the

body, and is administered by effectively

commandeering the victim’s muscles and

nerves. Beyond the experience of pain, tasers

result in immobilization, disorientation, loss

of balance, and weakness, even after the

electrical current has ended. Moreover,

tasering a person may result in serious injuries

when intense pain and loss of muscle control

cause a sudden and uncontrolled fall.Id. at 825

(citations and internal quotation marks

omitted). The experience of being shot with

a Taser is a “painful and frightening blow.”

Id. at 826 (quoting Orem v. Rephann, 523 F.3d 442, 448 (4th

Cir. 2008)).

Turning to the governmental interests at stake, we first

consider the severity of the crime at issue. Any form of

domestic violence is serious, but the allegation in this case

THOMAS V. DILLARD 43

was not particularly severe. Thomas was stopped for

suspicion of pushing a woman. Dillard observed no signs

Husky was injured or distressed. She vehemently denied

Thomas had abused her and instead insisted they were kissing

behind the storage containers before Dillard arrived.

Regarding the second Graham factor, Dillard had scant

reason to believe Thomas posed an immediate threat to him

or anyone else. From the moment Dillard approached

Thomas and Husky, Thomas stood facing the officer with his

hands at his sides. He had been cooperative, aside from

refusing to raise his hands, kneel and be frisked, and he never

acted aggressively or belligerently toward the officer. He

stepped backward at one point when Dillard tried to grab his

arm. But as we noted before, Dillard had no justification for

grabbing him, it was a brief reaction to Dillard’s own sudden

movement and Thomas remained facing Dillard with his

hands at his sides and in full view. In addition, as noted,

Dillard had no reason to believe Thomas was armed.

Regarding the third Graham factor, Thomas gave no

indication he was going to flee, and his resistance was mostly

passive. He stood facing Dillard with his hands by his sides

for approximately six minutes as Dillard sought his

compliance in carrying out the frisk. Although Thomas

resisted Dillard’s commands to permit a frisk, by refusing to

raise his hands and kneel, he did so “passively” and not

“actively.” See Forrester v. City of San Diego, 25 F.3d 804,

805 (9th Cir. 1994) (characterizing as passive resistence

protestors “remaining seated, refusing to move, and refusing

to bear weight” despite police orders to the contrary). Had

there been a bona fide need to frisk Thomas for weapons,

then some force may have been justified in compelling

Thomas’ compliance. As we have explained, however, there

44 THOMAS V. DILLARD

was no justification for conducting a frisk, so Thomas’

peaceful resistance to what he correctly perceived to be an

unlawful search did not justify this use of force. Although

Dillard argues the force used was reasonable, he does so

solely on the flawed premise that the frisk was

“constitutionally sound,” arguing he “had an urgent need to

ensure [his] safety . . . by conducting a weapons’ search.” He

does not argue the use of force was reasonable even if the

frisk was unjustified. Accordingly, the use of force was

objectively unreasonable, violating Thomas’ Fourth

Amendment rights against excessive force. See Graham,

490 U.S. at 397.

2. Clearly Established Law

Dillard argues that at the time of his encounter with

Thomas, the law in this circuit was unsettled as to what

circumstances constituted an excessive use of a Taser and,

therefore, it would not have been clear to an officer

confronting a suspect who was unwilling to submit to what he

perceived to be a lawful weapons search that he could not use

his Taser to carry out the search. We must agree.

Although we conclude Dillard’s use of the Taser

constituted excessive force, the facts of the cases existing at

the time are not so closely analogous to this case such that

Dillard’s mistaken view of the law was unreasonable. See

Stanton, 134 S. Ct. at 5. It is true that in Smith we held the

use of force on a more threatening and noncompliant suspect

than Thomas was unjustified. See 394 F.3d at 702–03. The

level of force used in that case, however, was more severe

than Dillard’s use of a Taser. The officers repeatedly sicced

police dogs on Smith, blasted him with pepper spray four

times, tackled him and dragged him face down off his porch.

THOMAS V. DILLARD 45

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

46 THOMAS V. DILLARD

Thomas’ Fourth Amendment rights against unlawful seizure

and excessive force. We hold the domestic violence nature

of a police investigation is not alone enough to establish

reasonable suspicion a suspect is armed. We nonetheless

hold Dillard is entitled to qualified immunity. Because

Dillard is entitled to qualified immunity, we also reverse the

partial summary judgment granted to Thomas on the issue of

liability. See Bull v. City & Cty. of San Francisco, 595 F.3d

964, 982 (9th Cir. 2010); Marks v. Clarke, 102 F.3d 1012,

1018 (9th Cir. 1996).

REVERSED. Costs on appeal are awarded to Thomas.

***

Thomas’ motion to dismiss the appeal for lack of

jurisdiction, filed November 13, 2014, is DENIED.

BEA, Circuit Judge, concurring in part and dissenting in part:

I concur in my colleagues’ determination that Officer

Dillard was entitled to qualified immunity on Correll

Thomas’ claims for unlawful seizure and excessive force

under 42 U.S.C. § 1983, and that the district court’s grant of

partial summary judgment to Thomas must accordingly be

reversed. I write separately, however, because we have

repeatedly (and correctly) recognized the unique dangers law

enforcement officers face when responding to domestic

violence calls—including the inherent volatility of a domestic

violence scene, the unique dynamics of battered victims

seeking to protect the perpetrators of abuse, the high rate of

assaults on officers’ person, and the likelihood that an abuser

THOMAS V. DILLARD 47

may be armed. I would therefore hold that the domestic

violence nature of the call can alone give rise to reasonable

suspicion necessary to justify a Terry frisk.

I also write separately because I do not subscribe to the

majority’s holding that Dillard violated Thomas’ Fourth

Amendment right by detaining him for purposes of

performing a Terry frisk. See Maj. Op. at 4. My colleagues

reach this conclusion by ignoring the axiomatic rule that, at

the qualified immunity stage, we review “the objective

reasonableness of a particular seizure under the Fourth

Amendment . . . . from the perspective ‘of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.’” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020

(2014). Here, Officer Dillard responded to not one, but two,

domestic violence radio calls, both reported in the span of 33

minutes. The first call reported domestic violence by a black

male on the Escondido campus. The second indicated that a

man wearing a purple shirt was being observed on a live

video feed “pushing” a woman in a secluded part of campus.

Officer Dillard encountered a black male wearing a purple

shirt—a person matching the description of the suspect of

both calls—in the area where at least one of the reported

incidents of violence had been observed, with a female who

identified herself as Thomas’ girlfriend. These facts

supported a reasonable inference of continuous domestic

abuse lasting upwards of half an hour—a situation that the

majority (incorrectly, in my view) minimizes as a “simple

battery.” See Maj. Op. at 28. True, there is evidence in the

record that Thomas’ girlfriend, Amy Husky, claimed that

Thomas was just “playing around” when he concededly

pushed Husky against the storage containers, but a reasonable

officer operating without the benefit of hindsight and with the

knowledge of the overwhelming frequency with which

48 THOMAS V. DILLARD

domestic violence victims seek to protect their abusers, see

discussion, infra at pp. 52–53, could have believed himself to

be confronting a suspect capable of significant violence who

might be armed. By analyzing the circumstances confronting

Officer Dillard through a rosy-hued lens of hindsight, the

majority opinion deprives future law enforcement officers

faced with domestic violence disputes of an important tool for

protecting themselves and the citizens with whose safety they

are entrusted.

I.

It is hornbook law that, at the summary judgment stage,

courts “are required to view the facts and draw reasonable

inferences ‘in the light most favorable to the party opposing

the [summary judgment] motion.’” Scott v. Harris, 550 U.S.

372, 378 (2007) (“In qualified immunity cases, this usually

means adopting . . . the plaintiff’s version of the facts.”). But

it is equally axiomatic that, in determining whether a police

officer is entitled to qualified immunity, we view the facts

“from the perspective ‘of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.’” Plumhoff v.

Rickard, 134 S. Ct. 2012, 2020 (2014). My colleagues accept

Thomas’ version of the facts, but fail to consider how those

facts would have looked to a reasonable officer on the scene.

Properly viewed, the facts confronting Officer Dillard

supported his formulation of a reasonable suspicion that

Thomas may have been armed.

Officer Dillard received two police dispatches on the

afternoon in question. The first reported “domestic violence

involving a black male” at the Escondido campus.

Approximately thirty minutes later, and within minutes of

Officer Dillard’s arrival at the campus, a second police

THOMAS V. DILLARD 49

dispatch came in, this time advising Officer Dillard that a

male wearing a purple shirt was being observed on live

security video pushing a female by some containers in the

campus’ biohazard storage area. Thus, both dispatches

reported potential domestic violence by a male on a female on

the Escondido campus.1 Viewing the facts “from the

perspective of a reasonable officer at the scene,” the

undisputed similarity between the calls gave rise to a

reasonable inference that the reported domestic violence may

have been occurring continuously from the time the first call

came in through the time of the second (more than thirty

minutes later). Officer Dillard, equipped with only this

limited information, approached the location where the

observed violence had occurred—an alley flanked by large

storage containers. Officer Dillard testified that, given the

nature of the call, the possibility of weapons was the “most

important question on [his] mind.” His training had taught

him that “a domestic violence call can be a very dangerous

call to a police officer” and that he stood a good likelihood of

“getting seriously hurt or injured.”

At first, Dillard could not locate the suspect. Only after

reversing his car and driving down the alley a second time did

Dillard spot Thomas and Husky emerging from behind some

biohazard storage containers. Thomas, a black male, was

wearing a long purple shirt, baggy jeans, skater shoes, a neck

chain, an earring, and a black beanie. Thomas therefore

matched perfectly the description of both dispatches.

Moreover, Dillard found Thomas with Amy Husky, who

shortly after encountering Officer Dillard yelled that Thomas

1

As the majority points out, pushing a woman would qualify as

domestic violence if the perpetrator and the victim were in a dating

relationship. See Maj. Op. at 19–20.

50 THOMAS V. DILLARD

was her “f***ing boyfriend” (establishing a domestic

relationship).

Officer Dillard, who stands only five feet, six inches tall

and weighs 155 pounds, exited his vehicle and walked

approximately four steps, stopping ten feet away from the

place where Thomas and Husky were standing. Officer

Dillard concedes that he did not observe any visible injuries

to Husky’s person. Nor did Amy appear “distraught.”

Nevertheless, Dillard had been taught that a domestic

violence scene, by its nature, is “very volatile”; people can

“suddenly become violent or angry,” making it important to

secure the scene as quickly as possible, regardless of whether

the officer encounters active violence upon arrival.

Officer Dillard initiated contact with the couple by telling

Thomas and Husky, “No one is in trouble here.” He asked

the pair for identification and told them he was “investigating

suspicious activity.” Dillard then asked Thomas whether he

had any weapons on him, and Thomas said “no.” Officer

Dillard asked Thomas if he would “mind” if Dillard

nonetheless searched him for weapons—a “common question

when investigating a possible domestic violence.”2 Thomas

responded that he “did mind.” Dillard tried to “deescalate”

the situation, explaining that Thomas was not under arrest,

but that Dillard was “investigating a male wearing a purple

shirt pushing a girl around” and just needed to check Thomas

for weapons to make sure the scene was safe. Thomas

continued to say “no” in response to Officer Dillard’s

repeated requests that Thomas consent to a weapons search.

2

Despite believing he had a right to conduct a Terry frisk, Officer

Dillard asked Thomas for consent in efforts to avoid a physical altercation

and to resolve the investigation peacefully.

THOMAS V. DILLARD 51

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

52 THOMAS V. DILLARD

Dillard. Officer Dillard encountered an individual suspected

of significant domestic violence, who “appeared to be hiding

behind the biohazard storage area” (a relatively secluded area

of campus where even Thomas admits the couple had gone

“for privacy”). Thomas and Husky appeared “startled” by

Officer Dillard’s presence. Officer Dillard perceived Thomas

as “standoffish,” in part because Thomas spoke in a low,

serious tone. Contrary to my colleagues’ suggestion, neither

Thomas’ statement that he was not “belligerent” nor any

other evidence in the record contradicts Officer Dillard’s

perception of Thomas’ manner. The majority opinion points

out that, according to Thomas, Officer Dillard appeared

“surprised” and then “angry and agitated” after Thomas

refused to consent to a weapons search. But such a reaction

would be a natural response to a confrontation with a suspect

an officer reasonably suspects to be armed, who is refusing to

permit the officer to conduct a weapons search.

It is also undisputed that Thomas refused to move his

hands from his waistline, despite numerous requests. Thomas

characterizes his hand placement as “normal if I was standing

and making casual conversation with someone.” But in light

of Dillard’s repeated requests that Thomas move his hands

away from his waistline, a reasonable officer in Officer

Dillard’s position could well have perceived the natural

“fidgeting” of Thomas’ hands by his sides as an attempt to

conceal a weapon. Of course, we know now that Thomas was

not concealing a weapon in his waistband. But Officer

Dillard—who reasonably believed he was dealing with a

demonstrably violent, domestic violence suspect—had no

way of knowing that.

The majority opinion makes much of Husky’s statement

to Dillard that the couple had just been “kissing.” But it is

THOMAS V. DILLARD 53

well-documented that victims of domestic violence—even

those who initially report their abusers to police—more often

than not “recant or refuse to cooperate” with the police

seeking to help them. See, e.g., Tom Lininger, Prosecuting

Batterers After Crawford, 91 Va. L. Rev. 747, 751 (2005)

(“Approximately 80 percent of victims decline to assist the

government in prosecutions of domestic violence cases.”);

Lisa Marie De Sanctis, Bridging the Gap Between the Rules

of Evidence and Justice for Victims of Domestic Violence,

8 Yale J.L. & Feminism 359, 367–68 (1996) (“[V]ictims of

domestic violence are uncooperative in approximately eighty

to ninety percent of cases. Many victims are uncooperative

from the initial filing of the case . . . .”). Thus, even assuming

that Husky was yelling at Officer Dillard that Thomas had

done nothing wrong, a reasonable officer in Dillard’s position

could have discounted those statements as an effort by the

victim of violence to protect her abuser. Thus, contrary to the

majority’s suggestion, the resolution of this factual

discrepancy in Thomas’ favor does not negate Dillard’s

reasonable belief that Thomas was a perpetrator of potentially

severe and/or continuous domestic violence. Only with the

benefit of hindsight do we know otherwise. Under these

circumstances, Dillard reasonably believed that he had a duty,

as a community caretaker, not to leave a domestic violence

victim in the care of a demonstrably violent person without

conducting a weapons search.

II.

Thomas argues that the Fourth Amendment precluded

Dillard from frisking Thomas for weapons under the

circumstances presented here. Thomas additionally argues

that this conclusion was clearly established as of September

2010, and thus Officer Dillard was not entitled to qualified

54 THOMAS V. DILLARD

immunity. The qualified immunity inquiry is two-fold: It

requires a violation of a constitutional right, and a finding that

such right was clearly established at the time the violation

occurred. Pearson v. Callahan, 555 U.S. 223, 231 (2009).3

I agree with the majority’s holding that it was not clearly

established in September 2010 that Dillard’s conduct was

unconstitutional. However, I disagree with the majority’s

holding that Thomas has demonstrated a violation of his

Fourth Amendment right, because I would find that a

reasonable officer in Dillard’s position could have formulated

a reasonable suspicion that Thomas might be armed based on

the facts available to Dillard here.

In determining whether Dillard’s frisk violated a

constitutional right, this court should bear in mind that a

Terry frisk is a “protective search—permitted without a

warrant and on the basis of reasonable suspicion.” Minnesota

v. Dickerson, 508 U.S. 366, 373 (1993). Unlike a full-blown

arrest, “[t]he protective search for weapons . . . constitutes a

brief, though far from inconsiderable, intrusion upon the

sanctity of the person.” Terry v. Ohio, 392 U.S. 1, 26 (1968).

“[R]easonable suspicion” that a person is armed is

enough—and this is “less than probable cause.” Minnesota,

508 U.S. at 373. In other words, we must merely find that

under “the facts available to the officer at that moment” a

“man of reasonable caution” “might” believe that a person

was “armed and presently dangerous.” Pennsylvania v.

Mimms, 434 U.S. 106, 111–12 (1977) (internal quotation

marks omitted); see also Gallegos v. City of Los Angeles,

308 F.3d 987, 990 (9th Cir. 2002) (“The reasonable suspicion

standard ‘is a less demanding standard than probable cause,’

3

Courts of appeal have discretion to address either prong first. Pearson,

555 U.S. at 236.

THOMAS V. DILLARD 55

and merely requires ‘a minimal level of objective

justification.’” (quoting Illinois v. Wardlow, 528 U.S. 119,

123 (2000))).

The majority today holds that, “although the domestic

violence nature of a police investigation is a relevant

consideration in assessing whether there is reason to believe

a suspect is armed and dangerous, it is not alone sufficient to

establish reasonable suspicion.” Maj. Op. at 4. I disagree.

It is well-established that the nature of a suspected crime

can alone support a reasonable suspicion that a suspect might

be armed—even where the officer does not observe any

“physical indication” of a weapon. See, e.g., United States v.

Post, 607 F.2d 847, 851 (9th Cir. 1979) (“[D]espite the fact

that he had not observed a weapon or any physical indication

of a weapon, it was reasonable to assume, from the nature of

the offense contemplated [drug trafficking], that [the

defendant] was armed and dangerous.” (citing Terry,

392 U.S. at 28)). Indeed, courts have routinely upheld a right

to frisk on the basis that the officer has legitimately stopped

a person suspected of a crime, like domestic violence, that is

frequently committed with the use of weapons. See, e.g.,

Terry, 392 U.S. at 28 (finding it reasonable to assume that

men whose behavior suggests they are casing a building for

a “daytime robbery” might be armed because of the nature of

the crime); United States v. Mattarolo, 209 F.3d 1153, 1158

(9th Cir. 2000) (Terry frisk of nighttime burglary suspect was

constitutional); People v. Shackelford, 546 P.2d 964, 966–67

(Colo. App. 1976) (police could lawfully frisk an individual

who was found in the immediate vicinity of the area from

which a rape victim had fled because the individual “matched

the description of a suspect who had allegedly committed an

act of violence”—rape).

56 THOMAS V. DILLARD

Like burglary and robbery, domestic violence is

frequently committed with a firearm or other weapon. For

example, 36.7 percent of female domestic violence shelter

residents in California reported having at some point been

threatened or harmed with a firearm during a domestic

dispute. See Susan B. Sorenson, Ph.D., & Douglas J. Wiebe,

Ph.D., Weapons in the Lives of Battered Women, 94 Am. J.

Pub. Health 1413 (2004). Another study by the Department

of Justice found that roughly 15 percent of all incidents of

domestic violence involve a weapon. See Callie Marie

Rennison, Ph.D., U.S. Dep’t of Justice, Report No. NCJ

187635, Bureau of Justice Statistics Special Report: Intimate

Partner Violence and Age of Victim (1993–99) 7 (Oct. 2001).

And in 2011, domestic violence assaults involving a firearm

accounted for nearly two-thirds of all fatal shootings of

female victims. See Voilence Pol’y Ctr., When Men Murder

Women: An Analysis of 2011 Homicide Data 6 (Sept. 2013).

Indeed, the majority concedes that some domestic

violence calls can be “dangerous,” even deadly, for all parties

involved. Maj. Op. at 22. 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 33. 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

THOMAS V. DILLARD 57

a crime that is frequently associated with weapons. . . .”), an

officer investigating a report of “simple battery” may well

find that the domestic violence has escalated to assault with

a deadly weapon by the time the police arrive.4

The majority also reiterates that Thomas was observed

committing only a “simple battery” (referring to the second

dispatch). See, e.g., Maj. Op. at 28. But in fact, there were

two reports of domestic violence, and Thomas matched the

description of both reports. The first report did not specify

the precise behavior it characterized as “domestic

violence”—it could well have involved more severe abuse,

including with a weapon.5 And in any event, even a “simple

battery” can quickly escalate into something far more

dangerous. Unless an officer has credible evidence that a

domestic violence suspect is not armed, a reasonably cautious

officer would assume that a domestic violence suspect

“might” be armed—and that is all that is required here. The

4

Given the demonstrated danger to police officers associated with

domestic violence calls, the majority’s citation to cases involving non-

violent crimes not associated with weapons misses the point. See Maj.

Op. at 15, 18–19, 37–38 (citing, e.g., United States v. Flatter, 456 F.3d

1154, 1158 (9th Cir. 2006); Ramirez v. City of Buena Park, 560 F.3d

1012, 1016 (9th Cir. 2009) (suspicion that a person found sleeping in his

car was under the influence of drugs did not give rise to a reasonable

suspicion that suspect was armed)). As the majority recognizes, see Maj.

Op. at 22, domestic violence can be very “dangerous[]” and can involve

crimes clearly associated with weapons—like assault with a deadly

weapon or homicide. Thus domestic violence is of a fundamentally

different character than the crimes that we have found do not justify a

Terry frisk.

5

Because Thomas matched the description of both reports, and because

both reports involved domestic violence occurring on the Escondido

campus, Dillard reasonably believed the dispatches were related.

58 THOMAS V. DILLARD

majority’s analysis is thus impermissibly infused with the

benefit of hindsight.

Further undermining the majority’s view is our circuit’s

repeated observation that “[t]he volatility of situations

involving domestic violence” makes them particularly

dangerous. Marquez v. City of Phoenix, 693 F.3d 1167, 1175

(9th Cir. 2012), as amended on denial of reh’g (Oct. 4, 2012)

(alteration in original) (quoting Mattos v. Agarano, 661 F.3d

433, 450 (9th Cir. 2011)). We have also said that “[w]hen

officers respond to a domestic abuse call, they understand that

‘violence may be lurking and explode with little warning.’”

United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.

2004) (quoting Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir.

1999)) (“[M]ore officers are killed or injured on domestic

violence calls than on any other type of call.” (quoting

Hearings before Senate Judiciary Committee, 1994 WL

530624 (F.D.C.H.) (Sept. 13, 1994) (statement on behalf of

National Task Force on Domestic Violence))); see also

Hopkins v. Bonvicino, 573 F.3d 752, 766 (9th Cir. 2009)

(stating the same).

Consistent with our precedent, Officer Dillard’s training

had taught him that “a domestic violence call can be a very

dangerous call to a police officer.” The undisputed evidence

in the record (a declaration by a police procedures expert)

indicates that 31.7 percent of assaults on police officers in

2011 occurred “while answering domestic violence type radio

calls,” and 12.7 percent of the 72 officers killed in 2011 were

answering domestic violence calls (citing the Federal Bureau

of Investigation’s (“FBI’s”) 2011 annual publication on

police assaults and deaths).

THOMAS V. DILLARD 59

My colleagues in the majority are correct that the

evidence in the record appears somewhat to overstate the FBI

data it purports to summarize, because the figures cited in fact

encompass assaults and deaths attributable to all kinds of

“disturbance calls”—not just domestic violence calls. See

Maj. Op. at 24 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

60 THOMAS V. DILLARD

at Scene of Incident, 2002–2011 (last visited Feb. 17, 2016),

available at https://www.fbi.gov/about-us/cjis/ucr/leoka/

2011/tables/table-19 [hereinafter “Table 19”]. In fact, from

2002 to 2011, more than three times as many police officers

were killed while responding to domestic violence calls than

while responding to burglary calls. Id. (showing that 36

officers were “feloniously killed” while responding to

domestic violence calls, as compared to only 11 officers

responding to active burglary calls). And in 2004, 16 percent

(9 out of 57) of the police officers feloniously killed in the

line of duty were responding to domestic disturbance calls,

specifically. Id.

Instead of looking at this hard data or following our own

precedent, however, the majority credits a recent article and

the findings of one researcher whose study was limited to the

Los Angeles area, which suggest that robbery and burglary

calls are actually more dangerous than domestic violence

calls. See Maj. Op. at 23–24 & n.11.6 Even assuming,

arguendo, that robbery and burglary calls are more frequently

associated with weapons than domestic violence calls, it does

not follow that domestic violence calls do not also pose a

substantial threat to a police officer’s safety. In holding that

a “daylight robbery . . . would be likely to involve the use of

weapons,” Terry made no suggestion that robbery represented

6

For example, the majority credits the opinion of the author of an article

appearing in the May 2011 edition of The Police Chief, which (like the

majority) editorializes on the FBI’s statistics presented herein, but does

not actually present any contrary evidence to support its conclusion. In

any event, I find it odd that the majority chooses to credit this article over

the well-supported conclusions reached by at least two Ninth Circuit

cases. See, e.g., Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009);

United States v. Martinez, 406 F.3d 1160 (9th Cir. 2004), discussed supra,

at 58.

THOMAS V. DILLARD 61

the outer limit of crimes thought to be sufficiently dangerous

to support a reasonable inference on the part of the officer

that a person suspected of that crime might be armed. See

Terry v. Ohio, 392 U.S. 1, 28 (1968). Rather, Terry

recognized that even where an officer does not have the

probable cause necessary to make an arrest, it would “be

clearly unreasonable to deny the officer the power to take

necessary measures to determine whether the person is in fact

carrying a weapon and to neutralize the threat of physical

harm,” as long as the “officer is justified in believing that the

individual whose suspicious behavior he is investigating at

close range is armed and presently dangerous to the officer or

to others.” Id. at 24.

The FBI data referenced in the record shows that

thousands of police officers are assaulted every year while

responding to domestic violence disputes. One in every five

of these assaults involves a deadly weapon (a firearm, a knife,

or another “dangerous weapon”). See Table 73. And every

year, these assaults result in deaths to law enforcement

officers. See Table 19. Given these statistics, I would find

that domestic violence calls are associated with weapons

frequently enough that an officer can form a reasonable

suspicion that a suspect might be armed based on the

domestic violence nature of the call.7

7

The warrantless entry cases cited by the majority for the proposition

that “domestic abuse cases [do not] create a per se exigent need for

warrantless entry,” do not resolve whether a frisk—which, unlike

warrantless entry, is necessitated by safety concerns—may be justified by

the domestic violence nature of the call. See Maj. Op. at 26 (citing United

States v. Black, 482 F.3d 1035 (9th Cir. 2007), and United States v.

Martinez, 406 F.3d 1160 (9th Cir. 2005)). Moreover, both cases cited by

the majority upheld the constitutionality of the officers’ warrantless entry

in response to a domestic violence call. See Black, 482 F.3d at 1040–41;

62 THOMAS V. DILLARD

Of course, an officer’s reasonable suspicion could in

some circumstances be dispelled by other facts known to the

officer. See Terry, 392 U.S. at 28 (suggesting that, under

certain circumstances, a suspect’s response to an officer’s

approach might dispel reasonable suspicion that suspect is

armed). But at the time he encountered Thomas, Dillard was

aware of no such facts. Dillard encountered an individual

matching the description of a suspect of two reports of

domestic abuse, who emerged “suspiciously” from a

concealed area where the violence had allegedly occurred

with a woman. Thomas was wearing baggy clothes and a

long shirt that could conceal weapon. Thomas acted

“standoffish.” He refused to consent to a weapons search.

More importantly, he refused even to raise his hands or to

move them away from his waistline, where Dillard was

reasonably concerned a weapon might be concealed.8

True, Thomas’ baggy clothing could not alone support a

reasonable suspicion that he was armed. See Ybarra v.

Illinois, 444 U.S. 85, 93 (1979) (government failed to

“articulate any specific fact that would have justified” a

reasonable suspicion that Ybarra was armed and dangerous

Martinez, 406 F.3d at 1165. Thus, these cases hardly support the

majority’s conclusion that Officer Dillard violated Thomas’ Fourth

Amendment rights in conducting a Terry frisk of an individual matching

the description of two reports of domestic violence on the Escondido

campus.

8

The mere fact that Thomas provided answers to Officer Dillard’s

questions (i.e. refusals to cooperate) did not “negate” Dillard’s

“reasonable hypothesis” that he might be armed. See Terry, 392 U.S. at

5, 28 (defendant’s “mumble” in response to officer’s question did not

“negate” a reasonable hypothesis that the defendant might be armed where

the officer had observed suspicious activity that led him to believe the

defendant intended to commit a crime involving weapons).

THOMAS V. DILLARD 63

when “the most” the officer “could point to was that Ybarra

was wearing a 3/4-length lumber jacket, clothing which the

State admits could have been expected on almost any tavern

patron” at that time of year). But where an officer is

confronting the suspect of a violent crime frequently

committed with weapons, the fact that the suspect’s clothing

could conceal a weapon is relevant to determining whether

reasonable suspicion that the suspect might be armed is

dispelled.9

The majority focuses on the lack of active violence when

Officer Dillard arrived. But even if the initial violence has

subsided, it is not uncommon for the perpetrator, or even the

victim, to erupt into sudden violence or anger at an officer

responding to a domestic violence call. See Martinez,

406 F.3d at 1164; cf. Lininger and Marie De Sanctis, supra.

If that occurs, the seemingly calm scene can turn dangerous

or deadly (if weapons are present) in a matter of seconds.

Given this volatility, a reasonably cautious police officer will

start by securing the domestic violence scene to ensure there

are no weapons on hand if someone does become

violent—exactly what Officer Dillard tried to do here. In

fact, an officer has a duty as a “community caretak[er]” to

take reasonable steps to protect the victim of reported

domestic violence, and Officer Dillard’s “failure to do so

would have amounted to a dereliction of duty.” United States

v. Willis, 431 F.3d 709, 713 (9th Cir. 2005).

Perhaps with the benefit of “20/20 . . . hindsight” we

might say that Officer Dillard should have realized that

9

For example, reasonable suspicion that a suspect was armed might be

dispelled if the suspect’s clothing made clear he would have nowhere to

hide a weapon.

64 THOMAS V. DILLARD

Thomas was not armed. But in the Fourth Amendment

context we judge the reasonableness of an officer’s conduct

“from the perspective of a reasonable officer on the scene.”

Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Terry,

392 U.S. at 20–22 (1968)); cf. Mattarolo, 209 F.3d at 1158

(“The officer must choose between being sure that the suspect

is not armed and jeopardizing his own safety.”).

In my view, the nature of a domestic violence call

justifies an officer’s formulation of a reasonable suspicion

that a suspect may be armed (in the absence of mitigating

circumstances). Indeed, a law enforcement officer should

feel a moral duty to protect victims of domestic violence.

And while an officer of course cannot shadow an abuser

forever to ensure no future violence befalls the victim, he can

at least make sure that the “scene is secure” from possible

violence with weapons before he leaves the victim with an

abuser. Given that domestic violence assaults account for

nearly two-thirds of all fatal shootings of female victims in

the United States, see Violence Pol’y Ctr. Report, supra, I

would find that the relatively small incursion on bodily

dignity of permitting a Terry frisk based on the domestic

violence nature of a police call is far outweighed by the

strong law enforcement interest—indeed, the broader societal

interest—in saving the lives of domestic violence victims.

We achieve this interest by assuring that abusers are not

armed before the police officer leaves the scene of a domestic

violence encounter. Yet the majority today requires a law

enforcement officer to face potential liability unless he leaves

a domestic violence scene without any assurance that the

abuser is not armed and will not again inflict violence on the

victim—only next time, with a gun. I cannot endorse a legal

rule that places law enforcement officers in such a stressful

dilemma. Thus, while I agree with the result reached by the

THOMAS V. DILLARD 65

majority today, I cannot join my colleagues to the extent they

deny law enforcement officers a tool—the Terry frisk—vital

for ensuring their own safety, as well as the safety of the

domestic violence victims they have a duty to protect.