Lawrence Thompson v. Pete Copeland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAWRENCE L. THOMPSON, No. 16-35301

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-01769-

MJP

SUE RAHR, Head Sheriff's

Officers/and Department,

Defendant, OPINION

and

PETE COPELAND, Deputy Sheriff

Officer; KING COUNTY SHERIFF'S

DEPARTMENT, in all,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted December 7, 2017

Seattle, Washington

Filed March 13, 2018

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Morgan Christen, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Christen

2 THOMPSON V. COPELAND

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment, on qualified immunity grounds, in a 42 U.S.C.

§ 1983 action alleging that a police officer used excessive

force when he pointed a gun at plaintiff’s head in the context

of a felony arrest after plaintiff had already been searched,

was calm and compliant, and was being watched over by a

second armed deputy.

Examining the facts in the light most favorable to

plaintiff, the non-moving party on summary judgment, the

panel assumed that the police officer did indeed point his gun

at plaintiff’s head and threatened to kill him. The panel held

that under the circumstances, defendant’s use of force in

arresting plaintiff was not objectively reasonable. The panel

held that where, as in this case, officers have an unarmed

felony suspect under control, where they easily could have

handcuffed the suspect while he was sitting on the squad car,

and where the suspect is not in close proximity to an

accessible weapon, a gun to the head constitutes excessive

force under the Fourth Amendment.

The panel nevertheless held that although the use of

excessive force violated plaintiff’s constitutional rights,

defendant was entitled to qualified immunity because

plaintiff’s right not to have a gun pointed at him under the

*

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

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

THOMPSON V. COPELAND 3

circumstances was not clearly established at the time the

events took place.

The panel addressed plaintiff’s other claims for

unreasonable search and failure to supervise in a

concurrently-filed memorandum disposition.

Dissenting, Judge Christen would hold that the police

officer was not entitled to qualified immunity on plaintiff’s

excessive force claim because plaintiff’s right not to have a

gun pointed at his head was clearly established in Robinson

v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc),

which was decided long before plaintiff’s arrest in 2011.

COUNSEL

Benjamin Michael Flowers (argued), Jones Day, Columbus,

Ohio, for Plaintiff-Appellant.

Endel R. Kolde (argued), Senior Deputy Prosecuting

Attorney, King County Prosecuting Attorney’s Office,

Seattle, Washington, for Defendants-Appellees.

OPINION

McKEOWN, Circuit Judge:

In recent years, the use of force by police officers making

traffic stops has flared into a national debate of renewed

importance. At the same time, the doctrine of qualified

immunity in the excessive force context has continued to

evolve. This appeal presents a question at the intersection of

the Fourth Amendment and qualified immunity law. In the

4 THOMPSON V. COPELAND

course of a felony arrest, may a police officer point a loaded

gun at an unarmed suspect’s head, where that suspect had

already been searched, was calm and compliant, was

watched over by a second armed deputy, and was seated on

the bumper of a police cruiser 10–15 feet away from a gun

found in the suspect’s car? Because the facts are at this stage

disputed, we take the facts in the light most favorable to the

suspect. We hold that pointing a loaded gun at the suspect’s

head in these circumstances constitutes excessive force

under the Fourth Amendment, but that the officers here are

entitled to qualified immunity because the law was not

clearly established at the time of the traffic stop.

Background

In December, 2011, Pete Copeland, a deputy in the King

County Sheriff’s Office (“KCSO”), was on patrol in the City

of Burien, Washington. After watching Lawrence

Thompson commit “multiple traffic violations,” Copeland

pulled him over. Thompson apologized to Copeland but

failed to provide a driver’s license, although he did offer up

some mail addressed in his name.

When Copeland ran Thompson’s identifying

information, he discovered that Thompson had a suspended

license for an unpaid ticket, that Thompson was a convicted

felon, and that his most recent felony conviction was for

possessing a firearm. Copeland decided to arrest Thompson

for driving with a suspended license, and to impound

Thompson’s car, as required by a City of Burien ordinance. 1

1

Thompson’s car was later impounded, after the events described

here, and a warrant was issued to search the car.

THOMPSON V. COPELAND 5

Copeland had Thompson exit the vehicle and patted him

down for weapons. Finding none, Copeland radioed for

backup, and had Thompson sit on the bumper of Copeland’s

patrol car. Copeland then conducted an inventory search of

Thompson’s vehicle. During his search, Copeland saw a

loaded revolver sitting in an open garbage bag on the rear

passenger-side floorboard. After seeing the gun, Copeland

decided to arrest Thompson for violating the Uniform

Firearms Act, a felony. See Wash. Rev. Code § 9.41.040.

Thompson continued to sit on the bumper of Copeland’s

police cruiser, watched over by another deputy who had

arrived for backup on the scene. Thompson was about 10–

15 feet from the gun in the backseat of his car, and was not

handcuffed. Copeland signaled to the deputy watching over

Thompson, then drew his gun.

What happened next is disputed by the parties. Copeland

claims he unholstered his firearm and assumed a low-ready

position, with his gun clearly displayed but not pointed

directly at Thompson. By contrast, Thompson claims that

Copeland pointed his gun at Thompson’s head, demanded

Thompson surrender, and threatened to kill him if he did not.

Copeland directed Thompson to get on the ground, face-

down, so that he could be handcuffed. Thompson complied

and was cuffed without incident. Copeland arrested

Thompson for being a felon in possession of a firearm.

The State of Washington charged Thompson with

“unlawful possession of a firearm.” A Washington state

court dismissed the charges after determining that the

6 THOMPSON V. COPELAND

evidence against Thompson had been gathered in violation

of the Washington State Constitution.2

Thompson sued Copeland and King County under

42 U.S.C. § 1983, alleging violations of his Fourth

Amendment rights. Specifically, Thompson alleged that

Copeland used excessive force in pointing his gun at

Thompson and threatening to kill him. 3

In recommending dismissal of this claim, the Magistrate

Judge noted that the question is “whether the officers’

actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their

underlying intent or motivation.” The Magistrate Judge

found that the degree of force used on Thompson was

reasonable given that Copeland was conducting a “felony

arrest of a suspect who was not secured, who was in

relatively close proximity to a weapon, who was taller and

heavier than him, and who had a prior felony conviction for

unlawfully possessing a firearm.” The Magistrate Judge

concluded that “Copeland’s minimal use-of-force in

effectuating [Thompson’s] arrest was objectively

2

The Washington Supreme Court has interpreted Article I, § 7 of

the Washington State Constitution to prohibit traffic stops “which cannot

be constitutionally justified for [their] true reason (i.e. speculative

criminal investigation), but only for some other reason (i.e., to enforce

traffic code) which is at once lawfully sufficient but not the real reason.”

State v. Ladson, 979 P.2d 833, 838 (Wash. 1999); contra Whren v.

United States, 517 U.S. 806, 813 (1996). Applying this standard, the

Washington court found that Copeland’s traffic stop was conducted for

pretextual reasons, that Copeland’s search was illegal under state law,

and that therefore the evidence Copeland found must be suppressed.

3

Thompson’s other claims for unreasonable search and failure to

supervise are addressed in the concurrently-filed memorandum

disposition.

THOMPSON V. COPELAND 7

reasonable” and did not violate Thompson’s Fourth

Amendment rights. The Magistrate Judge also

recommended granting Copeland’s motion for summary

judgment on the basis of qualified immunity. The district

court adopted the Magistrate Judge’s Report and

Recommendation, and dismissed Thompson’s claims with

prejudice, a decision we review de novo. Sandoval v. Las

Vegas Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th Cir.

2014).

Analysis

Our analysis involves two distinct steps. Id. Police

officers are not entitled to qualified immunity if (1) the facts

“[t]aken in the light most favorable to the party asserting the

injury” show that “the [officers’] conduct violated a

constitutional right” and (2) “the right was clearly

established” at the time of the alleged violation. Saucier v.

Katz, 533 U.S. 194, 201 (2001). We may address these two

prongs in either order. Pearson v. Callahan, 555 U.S. 223,

236 (2009). These inquiries are questions of law. Morales

v. Fry, 873 F.3d 817, 819 (9th Cir. 2017); Serrano v.

Francis, 345 F.3d 1071, 1080 (9th Cir. 2003).

Because this case was decided on summary judgment,

we examine the facts in the light most favorable to the non-

moving party and hence assume that Copeland did indeed

point his gun at Thompson’s head and threaten to kill him—

rather than hold it in the alternative low-ready position as

Copeland claims. See Sandoval, 756 F.3d at 1160. If

genuine issues of material fact prevent a determination of

qualified immunity, the case must proceed to trial. Id.

8 THOMPSON V. COPELAND

I. Violation of Constitutional Right

Where, as here, Thompson “alleges excessive force

during an investigation or arrest, the federal right at issue is

the Fourth Amendment right against unreasonable seizures.”

Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam);

Tennessee v. Garner, 471 U.S. 1, 7 (1985).

We approach an excessive force claim in three stages.

Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537 (9th Cir.

2010). First, we “assess the severity of the intrusion on the

individual’s Fourth Amendment rights by evaluating the

type and amount of force inflicted.” Id. (citation and internal

quotation marks omitted). Then, we evaluate the

government’s interests by assessing the severity of the

crime; whether the suspect posed an immediate threat to the

officers’ or public’s safety; and whether the suspect was

resisting arrest or attempting to escape. Id. Finally, we

“balance the gravity of the intrusion on the individual against

the government’s need for that intrusion.” Id.; Graham v.

Connor, 490 U.S. 386, 396–97 (1989).

Applying these standards here, we conclude that

Copeland’s use of force in arresting Thompson was not

objectively reasonable. Accepting Thompson at his word, as

we are required to do at the summary judgment stage,

Copeland pointed the gun at Thompson’s head and

threatened to kill him if he did not surrender. This type and

amount of force can hardly be characterized as “minor,” as

the government contends. We have previously held, in the

context of a residential confrontation, that “pointing a loaded

gun at a suspect, employing the threat of deadly force, is use

of a high level of force.” Espinosa, 598 F.3d at 537. With

respect to the government’s interests, Thompson was

suspected of driving with a suspended license and violating

the Uniform Firearms Act—potential crimes of low and

THOMPSON V. COPELAND 9

moderate severity, respectively. The safety threat either to

the officers or the public was relatively low. The

government’s claim that Thompson “could have charged

past Deputy Copeland and grabbed the revolver [in the back

of the car] in a matter of seconds” is weak. Thompson would

have had to travel 10–15 feet to his car to grab the gun or

make any use of it. Thompson had no weapon and had

already been searched. He was sitting on the bumper of a

squad car, watched over by an armed deputy. He was not

“actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S. at 396. He was “compliant with

the directions of law enforcement at all times.” See Green

v. City & Cty. of S.F., 751 F.3d 1039, 1048, 1050 (9th Cir.

2014). Nor did the officers have “reason to believe that he

would resist or flee.” See Baldwin v. Placer Cty., 418 F.3d

966, 970 (9th Cir. 2005). Reviewing the totality of the

circumstances, the force used against Thompson was

excessive when balanced against the government’s need for

such force.

In the end, “pointing guns at persons who are compliant

and present no danger is a constitutional violation.” Baird v.

Renbarger, 576 F.3d 340, 346 (7th Cir. 2009) (citing Motley

v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc)). A

jury could find that “brandishing a cocked gun in front of

[Thompson’s] face” and threatening to kill him was

unreasonable under these particular circumstances.

Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th Cir.

2002) (en banc) (citation omitted). We do not discount the

concern for officer safety when facing a potentially volatile

situation. But where the officers have an unarmed felony

suspect under control, where they easily could have

handcuffed the suspect while he was sitting on the squad car,

and where the suspect is not in close proximity to an

10 THOMPSON V. COPELAND

accessible weapon, a gun to the head constitutes excessive

force.

II. No Clearly Established Right

Although the use of excessive force violated

Thompson’s constitutional rights, Copeland is entitled to

qualified immunity because Thompson’s right not to have a

gun pointed at him under the circumstances here was not

clearly established at the time the events took place. In

arriving at this conclusion, we take careful note of recent

Supreme Court precedent illuminating the reach and

parameters of qualified immunity in the excessive force

context.

The Supreme Court long ago laid down the principle that

qualified immunity protects government officials “from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be

“clearly established,” existing “precedent must have placed

the statutory or constitutional question beyond debate,” such

that “every” reasonable official, not just “a” reasonable

official, would have understood that he was violating a

clearly established right. Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (emphasis added). Thus, the “dispositive

question” is “whether the violative nature of particular

conduct is clearly established.” See, e.g., Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (per curiam) (quoting al-Kidd,

563 U.S. at 742).

Just last year, in a case addressing excessive force, the

Supreme Court underscored that qualified immunity, when

properly applied, protects “all but the plainly incompetent or

those who knowingly violate the law.” White v. Pauly,

THOMPSON V. COPELAND 11

137 S. Ct. 548, 551 (2017) (citation and internal quotation

marks omitted). The Court “reiterate[d] the longstanding

principle that ‘clearly established law’ should not be defined

at a high level of generality.” Id. at 552 (citation omitted).

And the Court cautioned that, as an “an immunity from suit,

qualified immunity is effectively lost if a case is erroneously

permitted to go to trial.” Id. at 551 (citation and internal

quotation marks omitted).

Looking to the particular setup here, we cannot say that

every reasonable officer in Copeland’s position would have

known that he was violating the constitution by pointing a

gun at Thompson. Thompson’s nighttime, felony arrest

arising from an automobile stop, in which a gun was found,

coupled with a fluid, dangerous situation, distinguishes this

case from our earlier precedent. More specifically,

Copeland was conducting a felony arrest at night of a suspect

who was not handcuffed, stood six feet tall and weighed two

hundred and sixty-five pounds, was taller and heavier than

Copeland, and had a prior felony conviction for unlawfully

possessing a firearm. Although Thompson was cooperative,

the situation was still critical in terms of potential danger to

the officers, especially given that a loaded gun was only 10–

15 feet away. Copeland did not violate a “clearly

established” right as that concept has been elucidated by the

Supreme Court in the excessive force context. See Pauly,

137 S. Ct. at 552.

In arguing that Copeland violated his clearly established

rights, Thompson points to our earlier decisions in Robinson

v. Solano Cty., 278 F.3d 1007 (9th Cir. 2002) (en banc), and

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

neither of those cases involved a felony traffic stop with a

firearm in proximity, nor did they feature facts sufficiently

similar to the pattern we address here to put the

12 THOMPSON V. COPELAND

constitutional question beyond debate as required to defeat

qualified immunity. al-Kidd, 563 U.S. at 741.

In Robinson, we held that police used excessive force in

pointing their guns at a 64-year old unarmed retired police

officer who had his hands up. 278 F.3d at 1010, 1015. The

police were responding to a radio dispatch regarding a man

“carrying a shotgun,” who had just shot two dogs, and who

was in the street “yelling at this time.” Id. at 1010. After six

police vehicles arrived on the scene in broad daylight,

Robinson voluntarily approached from his yard in an

unbuttoned shirt and jeans. Id. The officers saw that he was

clearly unarmed—a shotgun was nowhere in sight. Id. at

1010, 1014. The police presence was overwhelming. And

although the officers released Robinson within thirty

minutes when it was ascertained he had not violated the law,

the potential crime was at most a misdemeanor, in contrast

to Thompson’s felony arrest. Id. at 1010–11, 1014.

In Hopkins, officers used excessive force when they

broke into the home of an unarmed man who had been in a

minor traffic accident and was suspected of drunk driving,

arrested him, and pointed their guns at him. 573 F.3d at 759,

776. Citing to Robinson, we held that “pointing a gun to the

head of an apparently unarmed suspect during an

investigation can be a violation of the Fourth Amendment,

especially where the individual poses no particular danger.”

Id. at 776 (citing Robinson, 278 F.3d at 1015). We

confirmed that force can be excessive where the “crime

under investigation [is] at most a misdemeanor[,] the suspect

[is] apparently unarmed and approaching the officers in a

peaceful way,” there “[are] no dangerous or exigent

circumstances apparent at the time of the detention, and the

officers outnumber[] the plaintiff.” Id. (citation and internal

quotation marks omitted). Again, the potential crime in

THOMPSON V. COPELAND 13

Hopkins was not a felony and there were no apparent

dangerous or exigent circumstances.

The arrest in Hopkins occurred in his bedroom, within

the sanctuary of his own home, where “searches and seizures

. . . without a warrant are presumptively unreasonable.”

573 F.3d at 773 (9th Cir. 2009) (citing Payton v. New York,

445 U.S. 573, 586 (1980)). Robinson approached from “the

area immediately surrounding and associated with [his]

home,” which “enjoys protection as part of the home itself.”

Florida v. Jardines, 569 U.S. 1, 6–7 (2013). Though the

distance from his house—which was in a rural area—to the

street was 135 feet, Robinson was in the “area around the

home to which the activity of home life extends.” Oliver v.

United States, 466 U.S. 170, 182 n.12 (1984). 4

The Supreme Court “has traditionally drawn a

distinction between automobiles and homes or offices in

relation to the Fourth Amendment.” S. Dakota v. Opperman,

428 U.S. 364, 367 (1976). Indeed, the Court has recognized

that traffic stops are “especially fraught with danger to police

officers.” Arizona v. Johnson, 555 U.S. 323, 330 (2009)

(citation and internal quotation marks omitted). As the

government points out, traffic stops and arrest situations

“amount[ed] to a combined total of 27.1% of assaults against

4

Similarly, Thompson’s reliance on Sandoval v. Las Vegas

Metropolitan Police Department is misplaced. 756 F.3d at 1159, 1165.

In Sandoval, which we decided in 2014, a police officer used excessive

force when he entered a home without a warrant, using errant

information, and pointed a gun at an unarmed teenager suspected of

having possibly committed a misdemeanor burglary. Id. The law was

clearly established that “[b]ursting through the back door unannounced

with guns drawn” and pointing a gun at the teenager’s head was neither

necessary nor reasonable. Id. at 1165 (citation omitted).

14 THOMPSON V. COPELAND

officers . . . , and a combined total [of] 35.6% of situations

leading to an officer’s felonious death, from 2006–2015.”

Perhaps because of the considerable danger inherent in

the traffic stop context, the Supreme Court has stressed that

the “risk of harm to both the police and the occupants [of a

stopped vehicle] is minimized . . . if the officers routinely

exercise unquestioned command of the situation.” Johnson,

555 U.S. at 330 (citation and internal quotation marks

omitted). And the Court has “expressly recognized that

suspects may injure police officers and others by virtue of

their access to weapons, even though they may not

themselves be armed.” Michigan v. Long, 463 U.S. 1032,

1048 (1983). We have recently echoed the Court’s view,

recognizing the “need for unquestioned obedience to lawful

commands during a car stop.” Gonzalez v. City of Anaheim,

747 F.3d 789, 804 (9th Cir. 2014).

These precedents, many of which were decided after

Robinson and Hopkins, complicate the state of the law at the

time of Thompson’s seizure. They also suggest that a

seizure conducted during a traffic stop may be a less severe

“intrusion on the individual’s Fourth Amendment interests”

than the same seizure conducted within the refuge of the

home. Graham, 490 U.S. at 396 (citation and internal

quotation marks omitted). The Fourth Amendment’s

protection is at its zenith within the home, and the area

immediately surrounding and associated with the home.

Payton, 445 U.S. at 589–90; Jardines, 569 U.S. at 6–7. At

the same time, the special and empirical dangers traffic stops

pose to police buttress the “countervailing governmental

interests at stake” in employing some force to control a

potentially volatile automotive arrest situation. Graham,

490 U.S. at 396. This distinction accords with common

sense.

THOMPSON V. COPELAND 15

At the time of the gun-pointing here, Copeland was

engaged in both a traffic stop and a nighttime felony arrest,

and the situation was “tense, uncertain, and rapidly

evolving.” Id. at 397. Copeland was aware that Thompson

had been convicted of a recent felony for possessing a

firearm. There were only two deputies on the scene—as

opposed to Robinson where six police vehicles fortified the

officers with overwhelming force. 278 F.3d at 1010.

Thompson was heavier and taller than Copeland. And

critically, Thompson was within seconds of a firearm—

unlike the plaintiffs in Robinson and Hopkins where no guns

were anywhere in the vicinity at the time of the gun-pointing.

The circumstances Copeland faced “would have alarmed

any officer.” Ruvalcaba v. City of L.A., 64 F.3d 1323, 1328

(9th Cir. 1995). After careful scrutiny of the record, we are

not persuaded that Copeland was “plainly incompetent” or

that he “knowingly violate[d] the law” when he acted as he

did. See Pauly, 137 S. Ct. at 551 (citation and internal

quotation marks omitted).

The only traffic stop case Thompson points to involved

markedly different facts. See Green, 751 F.3d at 1039.

Police officers stopped an African-American woman after a

system they used to run license plates malfunctioned,

leaving them with the completely mistaken belief that the

woman had stolen the car she was driving. Id. at 1042. The

officers failed to verify whether the car was stolen, even

though they had ample opportunity to do so. Id. at 1043. At

least four officers pointed guns at the woman without

reasonable suspicion or probable cause that she had

committed any crime. Id. at 1043, 1044. There was no

weapon anywhere nearby, and the woman suffered from

knee problems, stood five feet and six inches tall, and

weighed 250 pounds. Id. at 1043. That scenario, which

16 THOMPSON V. COPELAND

merited denial of qualified immunity, contrasts starkly with

this case.

While Thompson fails to carry his burden that, in view

of the safety concerns faced in this traffic stop, every

reasonable police officer would have known that Copeland’s

conduct was unconstitutional under these circumstances, we

acknowledge that the facts of this case are at the outer limit

of qualified immunity’s protection in the excessive force

context. There can be little question that holding the gun in

the low-ready alternative would have been a superior option

for Copeland to use in the circumstances here, rather than

pointing it at Thompson’s head. In the face of the then-

current law, there was not a clearly established constitutional

violation. Going forward, however, the law is clearly

established in this scenario.

Conclusion

Because the law was not clearly established within the

parameters dictated by the Supreme Court, Copeland is

entitled to qualified immunity and the grant of summary

judgment is AFFIRMED.

CHRISTEN, Circuit Judge, dissenting:

The majority decides Deputy Copeland is entitled to

qualified immunity on Lawrence Thompson’s excessive

force claim because Thompson’s right not to have a gun

pointed at his head was not clearly established in 2011, when

the events of this case took place. This decision squarely

conflicts with the clear directive our court issued in

Robinson v. Solano County, a case involving facts that, if

distinguishable at all, posed a greater threat to officer safety.

THOMPSON V. COPELAND 17

We specifically took Robinson en banc “to clarify the law of

the circuit on the scope of qualified immunity for excessive

force claims,” 278 F.3d 1007, 1009 (9th Cir. 2002) (en

banc), and Robinson’s holding was plain: an officer who

points his gun at the head of an arrestee who is cooperative

and unthreatening, outnumbered by police, and apparently

unarmed, violates the Fourth Amendment. Id. at 1015. If

the contours of this right were not clearly established before

we decided Robinson, they most certainly were thereafter.

See id. Today’s decision regrettably muddies Robinson’s

clear dictates, but it cannot overturn sixteen years of

precedent. Because our three-judge panel is bound to abide

by Robinson, I respectfully dissent.

I.

Notably, the court and I read the undisputed factual

record the same way: Thompson’s case arose on the evening

of December 10, 2011, when Deputy Copeland was on patrol

in the City of Burien. Deputy Copeland signaled Thompson

to pull over to the side of the road after observing

Thompson’s failure to stop at an intersection limit line and

turning without signaling a full 100 feet before initiating a

turn. Thompson pulled over and immediately apologized to

Deputy Copeland for the traffic infractions. He did not have

his license with him but he gave his name and corroborated

his identification with a business envelope that was

addressed to him. Deputy Copeland ran Thompson’s name

through a computer and learned that Thompson’s license had

been suspended for an unpaid ticket, and that he had a felony

conviction for unlawful possession of a firearm. Deputy

Copeland decided to arrest Thompson for driving with a

suspended license in the third degree, a misdemeanor, see

Wash. Rev. Code § 46.20.342(c), and called for backup.

After Deputy Fitchett arrived on the scene, Deputy Copeland

18 THOMPSON V. COPELAND

asked Thompson to step out of the car and patted him down

to verify that he was unarmed. Finding no weapons, Deputy

Copeland directed Thompson to sit on the bumper of his

patrol car under Deputy Fitchett’s supervision while Deputy

Copeland began an inventory search of the vehicle

Thompson had been driving. 1

We must construe the events that followed in the light

most favorable to Thompson. See Barboza v. Cal. Ass’n of

Prof’l Firefighters, 799 F.3d 1257, 1263 (9th Cir. 2015).

Thompson alleges he remained seated calmly on the patrol

car’s bumper while Deputy Copeland searched his car,

which was located 10 to 15 feet away. The State does not

deny that Thompson was calm and cooperative. There is no

allegation that Thompson was behaving erratically or

threateningly, nor that Thompson was anything but fully

compliant with the officers’ directives as he sat on the

bumper of the patrol car. The parties also agree that during

his search of the vehicle, Deputy Copeland noticed a gun

inside a plastic grocery bag on the rear passenger floorboard.

The parties dispute what happened next. Deputy

Copeland averred that he unholstered his weapon, held it in

the low-ready position, and ordered Thompson to lie face-

down on the ground. According to Thompson, Deputy

Copeland unholstered his weapon, pointed it at Thompson’s

head, and threatened to kill him if he made a wrong move.

In response, Thompson immediately lay on the ground and

“did not resist in any way.” Deputy Copeland handcuffed

1

Thompson, a self-employed mechanic, had just finished repairing

the car and was taking it for a test-drive when Deputy Copeland stopped

him.

THOMPSON V. COPELAND 19

Thompson without incident and re-arrested him, this time for

being a felon in possession of a firearm.

A Washington Superior Court judge found that

Thompson was stopped for pretextual reasons, in violation

of the Washington State Constitution. The judge also found

Deputy Copeland’s decision to impound Thompson’s car

was a pretext to search for evidence and dismissed the

charges against him.

II.

The circumstances in Thompson’s case plainly justified

the display of some degree of force. Deputy Copeland knew

Thompson had a prior felony conviction for unlawful

possession of a firearm, saw a gun in the backseat of the car

Thompson had been driving, and suddenly found himself in

the unenviable position of having to effectuate an arrest of a

felon-in-possession. Thompson acknowledges, and I fully

agree, that it would not have been unreasonable for Deputy

Copeland to unholster his gun and hold it in the low-ready

position. But there is a world of difference between

unholstering a weapon as a display of force while

commanding a suspect to submit to arrest, and threatening to

kill someone while pointing a gun at their head. Our Fourth

Amendment jurisprudence, specifically our en banc decision

in Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002)

(en banc), drew this line over a decade ago. Even if officers

previously thought pointing a gun at an unarmed,

unthreatening citizen was a show of force only nominally

more severe than holding a gun in the low-ready position,

Robinson declared that the former has irrefutable

constitutional consequences. Today, the court ignores this

critical distinction and regrettably blurs the guidance

Robinson provided.

20 THOMPSON V. COPELAND

Determining whether officers employ unreasonable

force in effectuating an arrest requires “careful attention to

the facts and circumstances of each particular case.”

Graham v. Connor, 490 U.S. 386, 396 (1989). Under some

circumstances, the Fourth Amendment permits officers to

display or employ deadly force. See, e.g., Wilkinson v.

Torres, 610 F.3d 546, 552–53 (9th Cir. 2010) (concluding

officer was justified in use of deadly force to protect fellow

officer from harm); Long v. City & Cty. of Honolulu,

511 F.3d 901, 906 (9th Cir. 2007) (concluding officer was

justified in use of deadly force where armed, agitated suspect

threatened to shoot); Blanford v. Sacramento Cty., 406 F.3d

1110, 1116 (9th Cir. 2005) (concluding officers were

justified in use of deadly force where armed suspect ignored

their warnings and commands to stop). Courts face a

difficult task in deciding where a particular factual

circumstance falls on the spectrum between reasonable and

unreasonable force, and we must always assess the force

actually employed from the perspective of a reasonable

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

hindsight. See Graham, 490 U.S. at 396–97. That said, in

2002 our en banc court declared the force used in Robinson

was unreasonable. Construing the facts here in the light

most favorable to Thompson, I see no principled way to

distinguish Thompson’s case from Robinson’s.

In Robinson, a neighbor called to report that the plaintiff

had shot two of her dogs and was “in the middle of the street

yelling at this time.” Robinson, 278 F.3d at 1010. When

officers arrived outside Robinson’s property shortly

thereafter, he approached them. Id. As he walked the

135 feet from his front door to where officers stood in the

street, Robinson identified himself by name and

acknowledged that he was indeed the subject of the

neighbor’s call to the police. Id. That gave the officers good

THOMPSON V. COPELAND 21

reason to believe he had just used a gun. Robinson appeared

unarmed, but the officers had not had a chance to do a pat-

down to verify that he was. 2 Id. at 1011, 1014. From about

six feet away, one officer pointed a gun at Robinson’s head

and instructed him to put his hands above his head; another

officer also unholstered his gun and pointed it at Robinson.

Id. at 1010. As Robinson was raising his hands, the first

officer repeated his command, stepped forward, and thrust

his gun to within three or four feet of Robinson’s head. Id.

Robinson was then handcuffed and put in the back of a patrol

car. Id.

Robinson’s jury deadlocked over whether the force the

officers employed to seize him was reasonable, but the

district court granted the officers’ Rule 50 motion for

judgment as a matter of law on the excessive force claim,

ruling that the officers were entitled to qualified immunity.

Id. at 1011. A three-judge panel of our court disagreed and

held that the officers were not entitled to qualified immunity

because the law governing excessive force was sufficiently

clear to put a reasonable officer on notice that pointing a gun

at Robinson’s head violated his constitutional rights. Id.

We took Robinson en banc for the express purpose of

clarifying our court’s standard for constitutionally excessive

force and the scope of qualified immunity available in the

oft-repeated scenario that confronts officers effectuating

arrests of suspects who, like Robinson and Thompson, are

neither in cars nor otherwise situated where they might have

access to weapons. Id. at 1009. En banc, we observed that

Robinson was apparently unarmed, outnumbered, and

approaching officers peacefully; there were no “dangerous

2

In fact, Robinson had a four-inch utility knife strapped to his belt.

Robinson, 278 F.3d at 1011.

22 THOMPSON V. COPELAND

or exigent circumstances apparent at the time of the

detention” that justified aiming a gun at his head. Id. at 1014.

Even though Robinson was believed to have recently used a

gun and was not definitively known to be unarmed, we

concluded that the officers’ threatened use of lethal force

was excessive and in violation of the Fourth Amendment.

Id. at 1013–14. Nevertheless, we affirmed the district

court’s holding that the officers were entitled to qualified

immunity because Fourth Amendment law governing the

officers’ conduct was not clearly established when Robinson

was arrested. Id. at 1016–17.

Robinson was decided in 2002. It cannot be questioned

that the rule from Robinson was clearly established when

Thompson was arrested in 2011.

Today, the court agrees that Deputy Copeland used

unconstitutionally excessive force. It also agrees that, going

forward, qualified immunity should not be available to

officers who point guns at suspects under similar

circumstances. Yet the court grants Deputy Copeland

qualified immunity. It does so by concluding that, until now,

the law had not made it clear to an officer in Deputy

Copeland’s position that pointing a gun at the suspect’s head

would constitute excessive force. The court offers two

reasons for reaching this conclusion. Neither withstands

scrutiny. First, the court likens Thompson’s case to a traffic

stop. That comparison would be apt if Thompson had been

sitting in a car, because then a reasonable deputy might have

feared that Thompson could reach a hidden weapon. But

Thompson was outside of his car and well away from it, he

had already been frisked, and he was under the guard of a

second officer. The possibility of a secreted weapon did not

justify pointing a gun at Thompson’s head.

THOMPSON V. COPELAND 23

The only other justification the court offers for granting

qualified immunity is its suggestion that Robinson’s case did

not put Deputy Copeland on notice that threatening

Thompson with lethal force would be excessive because,

unlike Thompson, Robinson was “approach[ing] from the

area immediately surrounding . . . his home” when officers

pointed their guns at him. By citing to Florida v. Jardines,

569 U.S. 1, 6–7 (2013), the court implies that Robinson was

in the area the Supreme Court has designated as the

“curtilage” of his home, and therefore was entitled to special

Fourth Amendment protection. This is both factually and

legally wrong. The Supreme Court defines the curtilage of

a home as the common law did, the “area immediately

adjacent to the home,” Oliver v. United States, 466 U.S. 170,

180 (1984), that is “so associated with the activities and

privacies of domestic life that [it should be] deemed . . . as

part of [the] home,” United States v. Dunn, 480 U.S. 294,

303 (1987) (emphasis added); see also Jardines, 569 U.S. at

6–7 (concluding the front porch is “the classic exemplar” of

curtilage, because it “immediately surround[s] and [is]

associated with the home” (internal quotation marks

omitted)). Our court is not free to redefine “curtilage,” and

Robinson was nowhere near the curtilage of his home when

he was seized. In fact, our opinion specified that he was

135 feet from his front door when he approached officers

who were standing in a public street. Robinson, 278 F.3d at

1010.

Inevitably, there are minor factual differences between

Robinson’s case and Thompson’s, but the Supreme Court

has repeatedly instructed that a plaintiff need not identify “a

case directly on point” for a right to be clearly established.

White v. Pauly, 137 S. Ct. 548, 551 (2017) (citing Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015)); see also Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011). “If qualified immunity

24 THOMPSON V. COPELAND

provided a shield in all novel factual circumstances, officials

would rarely, if ever, be held accountable for their

unreasonable violations of the Fourth Amendment.” Mattos

v. Agrano, 661 F.3d 433, 442 (9th Cir. 2011); see also Hope

v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be

on notice that their conduct violates established law even in

novel factual circumstances.”); Deorle v. Rutherford,

272 F.3d 1272, 1286 (9th Cir. 2001) (“Otherwise, officers

would escape responsibility for the most egregious forms of

conduct simply because there was no case on all fours

prohibiting that particular manifestation of unconstitutional

conduct.”). The question is whether existing precedent

“placed the statutory or constitutional question beyond

debate,” Mullenix, 136 S. Ct. at 308, such that a reasonable

officer in the defendant’s position would have known his

behavior was unlawful, see White, 137 S. Ct. at 551.

Here, factual differences between Thompson’s case and

Robinson’s only underscore the strength of Thompson’s

excessive force claim: Deputy Copeland himself patted

down Thompson before he directed Thompson to sit on the

bumper of the patrol car. Thompson’s affect was calm, he

was under the supervision of another officer, he was seated

at least 10 to 15 feet away from the vehicle he had been

driving—and at least that far from the gun on its rear

floorboard. Like Robinson, Thompson was outnumbered by

officers. He was apologetic and uncombative. There were

“no dangerous or exigent circumstances apparent at the time

of the detention,” Robinson, 278 F.3d at 1014, nor any

allegation that Thompson was behaving erratically.

Robinson provided fair notice that pointing a gun at a

suspect’s head under these circumstances—where a fully

compliant suspect is unarmed, outnumbered, and

unthreatening—violates the Fourth Amendment. The

court’s effort to distinguish Robinson by suggesting that

THOMPSON V. COPELAND 25

Robinson was anywhere near the curtilage of his home

erodes our en banc effort to provide a clear standard for

police officers.

III.

We must take great care to “apply the ‘clearly

established’ rule in such a way that faithfully guards ‘the

need to protect officials who are required to exercise their

discretion and the related public interest in encouraging the

vigorous exercise of official authority.’” Mattos, 661 F.3d

at 442 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982)). We allow “for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 397.

Individuals who serve the public by voluntarily taking on

the dangerous task of enforcing criminal laws are by no

means “required by the Fourth Amendment to take

unreasonable risks.” Washington v. Lambert, 98 F.3d 1181,

1186 (9th Cir. 1996). And we must be mindful that police

officers 3 and citizens alike have suffered the consequences

of tragic mistakes made in the rapidly unfolding and chaotic

circumstances that can attend arrests. For good reason, the

Fourth Amendment imposes limits on the force that may be

used or displayed to control a scene or subdue a suspect.

3

Statistics compiled by the FBI indicate that in 2016, an estimated

66 law enforcement officials were feloniously killed in the line of duty.

Federal Bureau of Investigation, FBI Releases 2016 Preliminary

Statistics for Law Enforcement Officers Killed in the Line of Duty (May

15, 2017), https://www.fbi.gov/news/pressrel/press-releases/fbi-

releases-2016-preliminary-statistics-for-law-enforcement-officers-

killed-in-the-line-of-duty.

26 THOMPSON V. COPELAND

When an officer gives a command, a fearful arrestee may

require a longer-than-expected interval to understand the

order and follow it. See Estate of Lopez ex rel. Lopez v.

Gelhaus, 871 F.3d 998, 1002–03 (9th Cir. 2017) (after being

instructed to “drop the gun,” a 13-year-old holding a toy gun

did not do so immediately, but instead “paused a few

seconds and began to rotate his body clockwise,” prompting

the officer to shoot and kill him). In the heat of the moment,

officers have interpreted delayed responses as willful refusal

to cooperate, or failed to realize that a suspect has been given

inconsistent commands (e.g., “Put your hands up!” “Don’t

move!”). See, e.g., C.V. ex rel. Villegas v. City of Anaheim,

823 F.3d 1252, 1254 (9th Cir. 2016) (conflicting commands

given to a suspect holding a BB gun, suspect did not

immediately obey, officer shot and killed suspect). People

who are frightened and confused may speak or move

inadvertently, prompting even the most conscientious officer

to perceive the situation as more dangerous and the suspect

as more threatening than is actually the case. See, e.g.,

Longoria v. Pinal Cty., 873 F.3d 699, 703 (9th Cir. 2017)

(recently tased suspect “flinched and moved erratically” and

turned to put his empty hands above his head; officer fired

two rounds into the suspect’s back, killing him); A. K. H. ex

rel. Landeros v. City of Tustin, 837 F.3d 1005, 1009 (9th Cir.

2016) (officer resorted to use of deadly force almost

immediately after commanding suspect to remove his hand

from his pocket, fearing a heavy object in the suspect’s

sweatshirt pocket was a gun, when in fact it was a cell

phone). Trained, well-meaning officers sometimes make

mistakes, and even an additional split-second to perceive and

react can save lives. See, e.g., Torres v. City of Madera,

648 F.3d 1119, 1121 (9th Cir. 2011) (officer intending to use

stun gun accidentally drew and fired pistol, killing suspect).

Once a gun is aimed at a suspect’s head, even an accidental

slip can result in an errant, and fatal, shot. See, e.g., Stamps

THOMPSON V. COPELAND 27

v. Town of Framingham, 813 F.3d 27, 31 (1st Cir. 2016)

(officer pointing a gun at fully compliant suspect’s head

inadvertently pulled the trigger, shooting and killing him).

Here, the court acknowledges that Thompson was “under

control” and “not in close proximity to an accessible

weapon.” But when tinderbox situations do arise, emotions

run high and mistakes are predictable. Even an additional

fraction of a second affords suspects a greater opportunity to

get their bearings and comply with commands, and officers

the chance to reconsider the use of lethal force.

This court has seen an alarming number of officer

shooting cases in recent years, many involving

circumstances similar to those present here but with fatal

results. Police departments are to be commended for

acknowledging the problem and making efforts to address

it, 4 as are Blue Ribbon commissions convened to determine

how and why situations like this one too often escalate to

involve the use or threatened use of deadly force, and to

identify training tactics that reduce risks. 5 Hopefully, this

4

See Bernard D. Rostker et al., RAND Center on Quality Policing,

Evaluation of the New York City Police Department Firearm Training

and Firearm-Discharge Review Process at 88–89 (“Several aspects of

officer training might be modified to reduce the incidence of reflexive

shooting. Accidental reflexive discharges occur without an explicit

decision to shoot. The officer discharges the weapon because of a

problem with physical coordination or an involuntary physiological

response to a stimulus or inadvertently while struggling with a

suspect. . . . To prevent these types of accidental discharges, virtually all

firearm-safety training . . . highlights the need to keep one’s finger

outside the trigger guard except when actually firing the weapon.”).

5

The President’s Task Force on 21st Century Policing

recommended increased training on how to use de-escalation techniques

in lieu of force when possible. See An Evidence-Assessment of the

Recommendations of the President’s Task Force on 21st Century

28 THOMPSON V. COPELAND

important work will continue. There will always be tension

between protecting individual rights and allowing officers

the flexibility they need to protect the public and themselves,

but the court’s job is to balance officers’ use of force against

intrusions on individuals’ Fourth Amendment rights.

Graham, 490 U.S. at 396. The facts of this case cannot be

meaningfully distinguished from those in Robinson, and we

have already made the judgment that on these facts the

balance tips in the suspect’s favor.

IV.

Robinson recognized the critical distinction between

pointing a gun at someone’s head and holding it in the low-

ready position. Deputy Copeland was justified in displaying

some degree of force, but accepting the allegations in the

complaint as true, he unquestionably used excessive force

when he aimed his gun at Thompson’s head and threatened

that if Thompson moved, he’d be dead. Because that rule

was clearly established long before Thompson was arrested,

I respectfully dissent.

Policing at 13, http://www.theiacp.org/Portals/0/documents/ICPR/IAC

P%20GMU%20Evidence%20Assessment%20Report%20FINAL.pdf.

And in response to several high-profile police-involved shooting

incidents and to this court’s caselaw, the San Francisco Police

Department amended its department general orders to elevate drawing

and pointing a firearm at a person (even without discharge) to a

reportable use-of-force instance. See Report of the Blue Ribbon Panel

on Transparency, Accountability, and Fairness in Law Enforcement at

63, 65, http://sfdistrictattorney.org/sites/default/files/Document/BRP_re

port.pdf (citing Espinosa v. City & Cty. of San Francisco, 598 F.3d 528

(9th Cir. 2010)).