United States v. Marc Willy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30006

Plaintiff-Appellant,

D.C. Nos.

v. 1:19-cr-02059-SAB-1

1:19-cr-02059-SAB

MARC ANTHONY WILLY,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Stanley A. Bastian, Chief District Judge, Presiding

Argued and Submitted February 7, 2022

Seattle, Washington

Filed July 26, 2022

Before: Jay S. Bybee and Morgan Christen, Circuit Judges,

and James V. Selna,* District Judge.

Opinion by Judge Bybee;

Dissent by Judge Christen

*

The Honorable James V. Selna, United States District Judge for the

Central District of California, sitting by designation.

2 UNITED STATES V. WILLY

SUMMARY**

Criminal Law

The panel affirmed the district court’s order granting

Marc Anthony Willy’s motion to suppress evidence and

statements obtained after his arrest, in a case that required the

panel to determine whether there was probable cause to arrest

Willy for displaying a weapon in a manner that “warrant[ed]

alarm for the safety of other persons.” Wash. Rev. Code

§ 9.41.270(1).

Willy was arrested after two people separately reported

that a man in a truck had displayed a firearm while asking

them questions about an alleged kidnapping in the area. After

his arrest, a search of Willy’s vehicle and person recovered

illegal firearms and a modified CO2 cartridge. He was

charged with making and possessing a destructive device in

violation of the National Firearms Act.

Explaining important context for Willy’s actions, the

panel noted that Washington is an open carry state (i.e., it is

presumptively legal to carry a firearm openly) in which it is

a misdemeanor to carry a concealed pistol without a license,

but also a “shall issue state” meaning that local law

enforcement must issue a concealed weapons license if the

applicant meets certain qualifications. The panel wrote that

the bare fact that Willy displayed a weapon would not be

sufficient to stop Willy, because there is no evidence that

Willy was carrying a concealed weapon. Noting that

**

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

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

UNITED STATES V. WILLY 3

Washington courts have narrowed terms in § 9.41.270(1) to

preserve the constitutionality of the statute, the panel

observed that what emerges is a workable standard: The act

must warrant alarm in a reasonable person for the safety of

others.

A sheriff’s deputy’s suspicion that Willy had violated

§ 9.41.270 arose not from his own observations but from the

accounts of the two reporting parties. The panel wrote that it

was reasonable for an officer in the sheriff’s deputy’s position

to rely on the information, but concluded that the deputy did

not, consistent with Washington law and the Fourth

Amendment, have probable cause to arrest Willy without

further inquiry for three reasons. First, it was not clearly

erroneous for the district court to conclude that neither

reporting party indicated to the deputy that Willy displayed

his firearm in a threatening manner. Second, § 9.41.270(1)

requires more than the mere display of a firearm, and at the

time the deputy located Willy, he did not have sufficient

information to reasonably believe Willy had displayed his

gun in a manner that warrants alarm. The panel wrote that

although the reports indicated that Willy displayed the

firearm rather than just carrying it, this distinction does not,

in an open-carry state, create enough of a possibility of

criminal activity that Willy was subject to immediate arrest

without further investigation. Finally, the district court

accurately stated that § 9.41.270(1) both incorporates a

reasonable person standard and does not require that a

person’s actions actively cause alarm.

As the government did not challenge application of the

“fruit of the poisonous tree” doctrine, the panel affirmed the

district court’s application of the exclusionary rule to

4 UNITED STATES V. WILLY

suppress Willy’s statements, the firearms, and the CO2

device.

Dissenting, Judge Christen wrote that the deputy without

question had probable cause to suspect that Willy violated the

second clause of § 9.41.270(1) because the reliability of the

callers’ reports was verified when the details they provided

checked out; and it was the deputy’s perilous duty to arrest

Willy, a man he had good reason to believe to be armed and

mentally compromised, for displaying a firearm “in a manner,

under circumstances, and at a time and place that . . . warrants

alarm for the safety of other persons.”

COUNSEL

Richard C. Burson (argued), Assistant United States

Attorney; Joseph H. Harrington, Acting United States

Attorney; United States Attorney’s Office, Yakima,

Washington; for Plaintiff-Appellant.

Jeremy B. Sporn (argued), Federal Defenders of Eastern

Washington and Idaho, Yakima, Washington, for Defendant-

Appellee.

UNITED STATES V. WILLY 5

OPINION

BYBEE, Circuit Judge:

This case requires us to determine whether there was

probable cause to arrest Marc Anthony Willy for displaying

a weapon in a manner that “warrant[ed] alarm for the safety

of other persons.” Wash. Rev. Code § 9.41.270(1). Willy

was arrested after two people separately reported that a man

in a truck had displayed a firearm while asking them

questions about an alleged kidnapping in the area. After his

arrest, a search of Willy’s vehicle and person recovered

illegal firearms and a modified CO2 cartridge. Willy was

charged with making and possessing a destructive device in

violation of the National Firearms Act, 26 U.S.C. § 5861.

The district court granted Willy’s motion to suppress all

evidence and statements obtained after his arrest because his

arrest was not supported by probable cause. We affirm.

I. BACKGROUND

On May 12, 2019, the Yakima County’s Sheriff’s Office

received a call from a witness (“Reporting Party 1”) stating

that a man had pulled up outside of his home in a vehicle and

displayed a firearm. Dispatch relayed this information to

Deputy Curtis Thaxton, who interviewed Reporting Party 1

at his residence. Reporting Party 1 told Deputy Thaxton that

a white male in a green truck pulled up on the street in front

of his house and began talking about being abducted and kept

somewhere in the area. The man said he was trying to find

the place where he was kept. During the conversation, the

man pulled out a semiautomatic pistol, racked the slide, and

then put it down. Reporting Party 1 expressed concern about

the man’s mental state. He provided Deputy Thaxton with

6 UNITED STATES V. WILLY

the truck’s license plate number, and the vehicle came back

as registered to Marc Willy. Thaxton showed Reporting

Party 1 Willy’s Department of Licensing photo, and he

identified Willy as the man with whom he had spoken.

Reporting Party 1 said that Willy made no threats to him, nor

had Willy pointed the pistol at him at any time.

About ten minutes after leaving Reporting Party 1’s

residence, Deputy Thaxton responded to another report from

dispatch. The second call had come from Reporting Party 2,

who lived about three miles from the previous caller. Deputy

Thaxton spoke to the second witness over the phone because

Reporting Party 2 had already left her residence. Reporting

Party 2 stated that a man with a name like “Willis” pulled up

to her gate in a green truck when she was leaving her house

and told her that he had been kidnapped and held in a

camouflaged trailer or van in the area and that he was trying

to find it. While they were talking, the man told her he was

armed and then displayed a pistol and put it away. Reporting

Party 2 told the man she did not know the place he was

looking for, and he drove away. Reporting Party 2 said that

she was not was not directly threatened, nor was Willy

argumentative or hostile.

Deputy Thaxton resumed patrol and testified that at this

point he was concerned that Willy was “a danger to himself

or others in the area,” because

the way he was rambling on, that things

weren’t completely coherent what was going

on; that he would possibly use it if confronted

with somebody else, that he had made contact

with somebody else; that once the gun’s

out—normal people just don’t walk around

UNITED STATES V. WILLY 7

displaying firearms out to people when they

pull up.

Thaxton believed Willy “had already committed the violation

of carry, exhibit, draw a dangerous weapon or firearm with an

intent to create an affront or alarm to another.” See Wash.

Rev. Code § 9.41.270.1 Deputy Thaxton located the green

truck pulling into a gas station. Once he confirmed the

license plate matched the one given to him by Reporting

Party 1, Deputy Thaxton turned on his emergency lights and

conducted a “high-risk stop.” With his firearm drawn,

Deputy Thaxton ordered Willy out of the vehicle. Willy

complied with all of Deputy Thaxton’s orders. While making

Willy turn around, Deputy Thaxton saw a pistol holstered on

his hip. Deputy Thaxton removed the gun, put Willy in

handcuffs, and escorted him to the back seat of the police

vehicle.

After securing Willy’s pistol in the patrol car, Deputy

Thaxton noticed that the gun had the serial number scratched

off. Deputy Thaxton read Willy his Miranda rights, and

Willy indicated that he was willing to talk to Deputy Thaxton.

1

Section 9.41.270 provides in relevant part:

It shall be unlawful for any person to carry, exhibit,

display, or draw any firearm, dagger, sword, knife or

other cutting or stabbing instrument, club, or any other

weapon apparently capable of producing bodily harm,

in a manner, under circumstances, and at a time and

place that either manifests an intent to intimidate

another or that warrants alarm for the safety of other

persons.

Wash. Rev. Code § 9.41.270(1). Violation of this subsection is a gross

misdemeanor. Id. § 9.41.270(2).

8 UNITED STATES V. WILLY

Willy told Deputy Thaxton that he had been abducted and

kept at a location for several days and that he had escaped but

police had not done anything to help him. When asked about

the scratched off serial number, Willy stated that he bought

the gun already in that condition three or four years

previously at a gun show in Spokane.

Willy consented to a search of his truck and stood by the

patrol car while Deputy Thaxton started the search. As

Deputy Thaxton moved to the passenger-side door, Willy told

him that there was a sawed-off shotgun on the rear floorboard

of the truck. Deputy Thaxton recovered a non-functional

short-barrel shotgun from the vehicle. After the vehicle

search, Deputy Thaxton took Willy to Yakima County Jail for

booking. When Thaxton searched Willy, he recovered a CO2

cartridge that had crimp marks around the neck and two

pieces of fuse coming out of the neck. ATF agents later

determined that the device qualified as a “destructive device”

under 26 U.S.C. § 5845(f).

Deputy Thaxton conferred with the prosecutor’s office

and told them his reasons for arresting Willy. The prosecutor

recommended charging Willy with possessing an

altered-number pistol and a short-barrel shotgun. In his

“Declaration of Probable Cause,” in support of those two

charges, Deputy Thaxton wrote that “[Willy] displayed a

black semi auto pistol [to Reporting Witness 1] and loaded it

(racked the slide). [Willy] never threatened anyone with it

and didn’t point it towards him.” He also wrote that

Reporting Witness 2 said “[Willy] told her he was armed and

displayed a black pistol” and that “[Willy] never threatened

her with it or pointed it at her.” Willy was ultimately charged

with violating § 9.41.270 and altering the serial number on

UNITED STATES V. WILLY 9

the pistol. The record does not disclose any resolution of the

state charges.

A federal grand jury in the Eastern District of Washington

returned a three-count indictment charging Willy with

receiving and possessing an improvised explosive

device—the altered CO2 cartridge—in violation of 26 U.S.C.

§ 5861(c), receiving and possessing an improvised explosive

device which was not registered to him in violation of

26 U.S.C. § 5861(d), and making an improvised explosive

device in violation of 26 U.S.C. § 5861(f). Willy filed a

motion to suppress the evidence. A hearing on the motion

was held, during which Deputy Thaxton testified. The

district court granted the motion to suppress, finding that

although Deputy Thaxton had reasonable suspicion to

conduct an investigatory stop, Thaxton lacked probable cause

to make the arrest. The evidence was “tainted by the

illegality of the arrest.” The government filed a timely notice

of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231.

We have jurisdiction pursuant to 18 U.S.C. § 3731 and

28 U.S.C. § 1291. We review de novo the district court’s

ruling on a motion to suppress and for clear error any

underlying findings of historical fact. United States v. Torres,

828 F.3d 1113, 1118 (9th Cir. 2016). We must “give due

weight to inferences drawn from th[e] facts by resident judges

and local law enforcement officers.” Ornelas v. United

States, 517 U.S. 690, 699 (1996). The district court’s

interpretation of state law, including state statutes, is

reviewed de novo. Brunozzi v. Cable Commc’ns, Inc.,

851 F.3d 990, 995 (9th Cir. 2017).

10 UNITED STATES V. WILLY

III. DISCUSSION

The Fourth Amendment, applicable to the United States

and made applicable to the states by the Fourteenth

Amendment, protects the right of the people to be secure in

their persons, houses, papers, and effects against

unreasonable searches and seizures. U.S. Const. amend. IV;

see Terry v. Ohio, 392 U.S. 1, 8 (1968). The Fourth

Amendment provides that a warrant for arrest “shall [not]

issue, but upon probable cause.” In this case, Willy was

arrested for violating § 9.41.270—only later was he charged

with altering the serial number on the pistol (the basis for a

second state charge actually filed against him) or possessing

the crimped CO2 cartridge (the basis for the federal charges).

The evidence supporting the federal charges was seized after

Willy’s arrest during a search at the jail. Thus, the

“constitutional validity of the search . . . depend[s] upon the

constitutional validity of [Willy’s] arrest.” Beck v. Ohio,

379 U.S. 89, 91 (1964). Accordingly,

[w]hether that arrest was constitutionally valid

depends in turn upon whether, at the moment

the arrest was made, [Deputy Thaxton] had

probable cause to make it—whether at that

moment the facts and circumstances within

[his] knowledge and of which [he] had

reasonably trustworthy information were

sufficient to warrant a prudent man in

believing that the petitioner had committed or

was committing an offense.

Id.; see also United States v. Lopez, 482 F.3d 1067, 1072 (9th

Cir. 2007).

UNITED STATES V. WILLY 11

Deputy Thaxton testified that, even before he found Willy

at a service station and activated his light bar, he had

determined that Willy had violated Washington law and that

he was going to arrest Willy. Since Thaxton himself had not

observed any suspicious conduct by Willy, the question is

whether he had probable cause to arrest Willy based only on

the two reports.

“Articulating precisely what ‘reasonable suspicion’ and

‘probable cause’ mean is not possible. They are

commonsense, nontechnical conceptions that deal with ‘the

factual and practical considerations of everyday life on which

reasonable prudent men, not legal technicians, act.’”

Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S.

213, 231 (1983)). We do not have “a neat set of legal rules,”

Gates, 462 U.S. at 232, but must “examine whether the facts

and circumstances within the officer’s knowledge are

sufficient to warrant a prudent person to believe a suspect has

committed, is committing, or is about to commit a crime.”

United States v. Valencia, 24 F.3d 1106, 1108 (9th Cir. 1994).

Although we do not have a precise test, “probable cause” is

a higher standard than the “reasonable suspicion” required to

conduct a Terry stop and make further inquiries. Kansas v.

Glover, 140 S. Ct. 1183, 1187 (2020) (“[T]he level of

suspicion the [Terry stop] standard requires is . . . obviously

less than is necessary for probable cause.” (quoting Navarette

v. California, 572 U.S. 393, 397 (2014))).

We thus turn to Washington law to determine whether

Deputy Thaxton had grounds under § 9.41.270 for arresting

Willy. See United States v. Bontemps, 977 F.3d 909, 914 (9th

Cir. 2020), cert. denied, 141 S. Ct. 2874 (2021).

12 UNITED STATES V. WILLY

A. The Scope of Washington Revised Code § 9.41.270

We begin with important context for Willy’s actions.

Washington is an open carry state. That means that it is

presumptively legal to carry a firearm openly. As we recently

observed in United States v. Brown, 925 F.3d 1150 (9th Cir.

2019), it is a misdemeanor to carry a concealed pistol without

a license, but “Washington is a ‘shall issue state,’ meaning

that local law enforcement must issue a concealed weapons

license if the applicant meets certain qualifications.” Id. 1154

(emphasis in original). The bare fact that Willy displayed a

weapon would not be sufficient to stop Willy, because there

is no evidence that he was carrying a concealed weapon. The

reporting parties’ statements that Willy was carrying a gun

“created at most a very weak inference that he was unlawfully

carrying the gun [concealed] without a license, and certainly

not enough to alone support a Terry stop.” Id. Moreover,

Thaxton acquired no additional reasons for arresting Willy

until after he stopped him: When Thaxton ordered Willy to

leave his truck and turn around slowly, Willy was openly

carrying his pistol, in a holster on his hip.

As we have observed, notwithstanding that Washington

is an open carry state, it is a gross misdemeanor in

Washington for a person to “carry, exhibit, display, or draw

any firearm . . . in a manner, under circumstances, and at a

time and place that either manifests an intent to intimidate

another or that warrants alarm for the safety of other

persons.” Wash. Rev. Code § 9.41.270(1). The Washington

courts have construed critical terms in the statute, narrowing

them to preserve the constitutionality of the statute. Two

cases are of particular note.

UNITED STATES V. WILLY 13

In the first, State v. Maciolek, 676 P.2d 996 (Wash. 1984),

the Washington Supreme Court addressed a void-for-

vagueness challenge to § 9.41.270. Maciolek involved two

separate convictions under § 9.41.270, consolidated for the

appeal. In the first case, Maciolek was convicted of violating

§ 9.41.270 after he became angry when his doctor would not

renew his prescription for Percodan. Maciolek “deliberately

pulled back his jacket to reveal a handgun . . . . The doctor,

alarmed and intimidated by this display, immediately wrote

out a prescription for Percodan.” Id. at 997. In the second

case, Johnson was a 13-year old who had an altercation with

a pair of 9-year olds. He fired his BB gun at them and then

took one of their bikes. Id. The Washington Supreme Court

held that the statute was not void for vagueness and upheld

both convictions.2 The cases challenged the statute on two

grounds: the vagueness in the phrase “a knife or other cutting

or stabbing instrument” and in the phrase “in a manner, under

circumstances and at a time and place that either manifests an

intent to intimidate another or that warrants alarm for the

safety of other persons.” Only the latter phrase is in play

here. The court began with the definition of “intimidate,”

which it said was “defined very narrowly” as to “inspire or

affect with fear . . . (as by threats).” Id. at 999 (quoting

Webster’s Third New Int’l Dictionary 1184 (1961)). In a

lengthy footnote, the court stated that the phrase “warrants

2

The court also affirmed a third case, in which the defendant was

seen chasing a woman up the center of the street with a knife. The

defendant was convicted under a Seattle municipal statute similar to

§ 9.41.270. Maciolek, 676 P.2d at 997.

14 UNITED STATES V. WILLY

alarm for the safety of other[s]” was sufficiently qualified by

other language to “giv[e] the statute a narrow scope”:

If a weapon is displayed in a manner, under

circumstances and at a time and place so that

it poses a threat to another person, such a

display would warrant alarm for the safety of

another. Thus, narrowly construing the phrase

to apply to only conduct that poses a threat to

others gives the phrase a narrow and definite

focus and saves it from vagueness. Such a

construction is also consistent with the

statute’s purpose, which is to prevent

someone from displaying dangerous weapons

so as to reasonably intimidate members of the

public.

Id. at 1001 n.3 (citations omitted).

The second is a decision of the Washington Court of

Appeals, State v. Spencer, 876 P.2d 939, 943 (Wash. Ct. App.

1994), upholding the statute against a challenge under

Washington’s equivalent of the Second Amendment.3

Spencer was convicted under § 9.41.270 when he was seen by

multiple people walking with his dog at night in an urban area

3

The Washington Constitution provides:

The right of the individual citizen to bear arms in

defense of himself, or the state, shall not be impaired,

but nothing in this section shall be construed as

authorizing individuals or corporations to organize,

maintain or employ an armed body of men.

Wash. Const. art. 1, § 24.

UNITED STATES V. WILLY 15

with an AK-47S, with the magazine attached, on his shoulder.

The responding officer saw Spencer “in ‘a hostile, assaultive

type manner with the weapon ready.’” Id. at 940. The

Washington Court of Appeals rejected the constitutional

challenge. It found that “the statute does not prevent a person

from carrying weapons in self-defense” and “[i]f there is no

present threat, weapons must be carried in a manner that does

not warrant alarm in others.” Id. at 941. The court explained

that § 9.41.270

only prohibits the carrying or displaying of

weapons when objective circumstances would

warrant alarm in a reasonable person. Thus,

the restriction applies only in a limited

number of situations. . . . In the vast majority

of situations, a person of common intelligence

would be able to ascertain when the carrying

of a particular weapon would reasonably

warrant alarm in others.

Id. at 942 (footnote omitted). In a pair of footnotes, the court

added that “[t]hese circumstances may include, as in

[Spencer’s] case, the fact that the weapon is being carried in

a residential neighborhood, the time of day, the urban

environment, the manner in which the weapon is carried, the

size and type of weapon, and the fact that the weapon has a

clip visibly attached. . . . [Spencer’s case] does not fall

anywhere near a potential ‘grey area’ in the statute.” Id. at

942 nn.4–5. The court then visited the question raised in

Maciolek, whether the statute was void for vagueness. The

Court of Appeals held that the statute had “a sufficiently

narrow scope.” Id. at 943. It also adopted a lower court’s

reading that “a reasonable person standard is incorporated

into the phrase ‘warrants alarm.’” Id.; see id. at 943 n.7

16 UNITED STATES V. WILLY

(“[T]here must be a sufficient objective basis for the alarm,

i.e., circumstances must be such that a reasonable person

would be alarmed.”). “When viewed with these two

limitations in mind, it is clear that the statute is sufficiently

definite to (1) provide defendants with adequate notice of

prohibited conduct and (2) provide adequate enforcement

standards.” Id. at 943. In Spencer’s case, the court repeated,

“[a]ny reasonable person would feel alarmed upon seeing, on

a residential street at night, a man carrying a visibly loaded

AK-47 assault rifle in an assaultive manner. . . . [A] person of

common intelligence would realize that carrying an assault

rifle under such circumstances and in such a manner would

warrant alarm in others.” Id. at 943–44.

If we consider Maciolek and Spencer together, what

emerges is a workable standard for judges and juries to

evaluate: The act must warrant alarm in a reasonable person

for the safety of others. Maciolek, 676 P.2d at 1001 n.3;

Spencer, 876 P.2d at 943 & n.7. A broader construction,

Washington courts have suggested, might well run afoul of

void-for-vagueness principles or the right under the

Washington Constitution “to bear arms in defense of

himself.”

The dissent insists on reading the phrase “warrants alarm

for the safety of other persons” in isolation. Dissenting Op.

at 34. This approach expands § 9.41.270(1) beyond its

intended scope. As the Washington courts have explained,

“narrowly construing the phrase [‘warrants alarm for the

safety of other[s]’] to apply to only conduct that poses a

threat to others gives the phrase a narrow and definite focus

and saves it from vagueness” and is consistent with the

statute’s purpose. Maciolek, 676 P.2d at 1001 n.3. Although

Willy’s conduct could only arguably violate the “warrants

UNITED STATES V. WILLY 17

alarm” portion of the statute, the rest of the statute is not

irrelevant—it gives us the proper context and respects

Washington’s decision to interpret § 9.41.270(1) to avoid

constitutional problems. The preceding phrase, “manifests an

intent to intimidate another,” indicates that the Washington

legislature did not intend “warrants alarm for the safety of

other persons” to apply broadly to all conduct that might raise

concern—a reading that swallows the first portion of the

statute.4 Rather, the “warrants alarm” portion is best read as

capturing the scenarios where someone is not directly

threatening a person who is present, but is handling their

firearm in such a way that it presents a danger to others. See

State v. Workman, 584 P.2d 382, 386 (Wash. 1978) (holding

that even though no one saw the firearm, the defendants

handling of a gun while attempting to commit attempted

armed robbery “warrant[ed] alarm for the safety of anyone

who may chance to be nearby”). We choose to take the

Washington courts’ lead and read “warrants alarm” to refer

to conduct that a reasonable person would believe poses a

threat to themselves or other persons.

We have reviewed Washington cases involving charges

or convictions under § 9.41.270. These cases have addressed

a variety of circumstances, but all have involved palpable

threats with a weapon and did not approach what the Spencer

court termed “a potential ‘grey area’ in the statute.” Spencer,

876 P.2d at 942 n.5. For example, in State v. Baggett,

4

Indeed, under the dissent’s expansive reading, it is hard to imagine

conduct that would “manifest[] an intent to intimidate” without also

“warrant[ing] alarm for the safety of other persons.” Dissenting Op.

42–44. We must avoid rendering the first prohibition superfluous. See

Rivard v. State, 231 P.3d 186, 190 (Wash. 2010). Instead, we should

assume that the second portion of the statute attempts to capture related

but not overlapping conduct.

18 UNITED STATES V. WILLY

13 P.3d 659 (Wash. Ct. App. 2000), a police officer saw

Baggett leaning out of the passenger window of a parked car

with a rifle, evidently about to shoot a cat on the side of the

road. When Baggett saw the patrol car, he ordered his wife

to drive away, but she stopped when the officer activated his

siren. The officer instructed Baggett to drop his rifle, and

Baggett pointed the rifle at the officer. The Washington

Court of Appeals had no difficulty concluding that “[t]he

manner in which he held the rifle warranted alarm for the

safety of [the officer].” Id. at 662.

In State v. Glenn, 166 P.3d 1235 (Wash. Ct. App. 2007),

a seven-year old boy reported that a man in a passing car had

pointed a gun at him. His mother called 911 with the license

plate of a car matching the boy’s description. As the officers

interviewed the boy, the car passed by and the boy again

identified the car. The officers conducted a high-risk stop.

The driver, Glenn, was ordered out of the car, handcuffed,

and read his Miranda rights. The officers found $1,100 on

Glenn and marijuana in his car; they never found a gun. The

Washington Court of Appeals nevertheless upheld Glenn’s

conviction on the marijuana charge. The court held that the

officers had “received a legitimate citizen’s report that a

driver had pointed a gun from his vehicle . . . . Pointing a gun

at a victim is serious criminal conduct.” Id. at 1239.

Other cases are consistent with these principles. See State

v. Evans, 179 Wash. App. 1015 (2014) (upholding a search

based on a 911 complaint that a man was “waving a gun at

her daughter”); State v. Hoston, 175 Wash. App. 1073 (2013)

(upholding a search based on a report by three men in an area

known for gang activity who saw a man flash a handgun and

then put it in his waistband in the context of a “rolling fight”);

State v. Owens, 324 P.3d 757, 759 (Wash. Ct. App. 2014)

UNITED STATES V. WILLY 19

(upholding a § 9.41.270 conviction when after a verbal

altercation which prompted a 911 call, Owens advised that he

was going to get his gun since the cops were coming, ignored

officers’ orders, and continued approaching with a rifle);

State v. Smith, 93 P.3d 877, 878 (Wash. Ct. App. 2003)

(upholding § 9.41.270 conviction where Smith threatened,

“I’m going to get my 45, and we’ll take care of business,”

before returning and swinging his gun in the air, threatening

with a pipe, and throwing a hammer); State v. M.T., 97 Wash.

App. 1067, at *3 (1999) (upholding a conviction based on a

seven-year old’s report that a man had approached her with

a closed pocketknife which he thrust in the air; she had

previously seen the man “pierce his own hand with the

knife”; and “a reasonable person would be intimidated by

M.T.’s display of the knife, even though the knife was

closed”); see also United States v. Caraang, 2018 WL

2216103, at *1–3 (W.D. Wash. 2018) (holding that an officer

had reasonable suspicion to stop Caraang where he was

reported to have waved a gun in a bar parking lot in the

presence of five to ten people, racked the slide, and yelled

“anybody want some?”); Hill v. Ramsdell, 2016 WL 1304847

(W.D. Wash. 2016) (holding that police had probable cause

to arrest Hill on § 9.41.270 charges when he attended a city

council meeting wearing what appeared to be brass knuckles);

State v. Mitchell, 906 P.2d 1013 (Wash. Ct. App. 1995)

(holding that an officer had reasonable suspicion to stop

Mitchell when he was carrying a semi-automatic weapon in

an urban, residential area at night, he tucked the gun in his

waistband when he saw the officer, and tossed the gun when

the officer ordered him to put his hands up).5

5

The dissent argues that Mitchell cannot be squared with our reading

of § 9.41.270. Dissenting Op. at 43–44. First, we note that the Mitchell

court only determined that the officers had reasonable suspicion to

20 UNITED STATES V. WILLY

Just as important to our analysis, Washington courts have

refused to enforce § 9.41.270 when the threats are not

sufficiently direct or imminent. For example, in State v.

Cardenas-Muratalla, 319 P.3d 811 (Wash. Ct. App. 2014),

police received a 911 call reporting a man with a gun in a

high crime area of downtown Seattle. Police saw a man

answering the description—Cardenas-Muratalla—and

thought that he “fluffed” his sweatshirt when he saw the

approaching patrol car. When Cardenas-Muratalla did not

stop in response to the officers’ instructions, the officers tased

and shot him. Cardenas-Muratalla was carrying an unloaded

pistol in his waistband. The Washington Superior Court

refused to suppress the evidence of the gun, but the

Washington Court of Appeals reversed. The court held that

the 911 call had not reported any criminal activity: “Carrying

a firearm is a crime if it is carried or displayed in a manner

that either manifests an intent to intimidate another or that

warrants alarm for the safety of other persons.” Id. at 816

(footnote omitted; citing § 9.41.270). In Cardenas-

Muratalla, “[t]here [was] no evidence in the record that the

911 caller reported being intimidated or alarmed when the

suspect showed him the gun or that the suspect discharged the

conduct a Terry stop based on § 9.41.270. 906 P.2d at 1016. Mitchell

was arrested for being a minor in possession of a handgun only after the

officers learned of his identity and criminal record. Id. at 1015. Second,

when officers passed Mitchell, who was walking in an urban residential

neighborhood at night, he tucked the firearm into his waistband,

concealing the weapon from view. We agree that openly carrying a

firearm under unusual circumstances, which might include the time of day,

neighborhood, manner of carry, and type of firearm, see Spencer, 876 P.2d

at 949 nn.4–5, could constitute a violation of § 9.41.270(1). And as in

Mitchell, the officers here could have stopped Willy to inquire further.

The difference is Thaxton arrested Willy on the spot whereas the officers

in Mitchell conducted a Terry stop and then discovered an independent

ground for arrest.

UNITED STATES V. WILLY 21

gun or pointed it at anyone. In fact, “the caller told the 911

operator, ‘He didn’t threaten me. It’s just that he showed me.

I seen it. . . . Just calling to tell you, just calling to tell you.’”

Id. The court held that the 911 call did not even “rais[e] a

reasonable suspicion of criminal activity.” Id.

Similarly, in State v. Casad, 139 Wash. App. 1032 (Wash.

Ct. App. 2007), a 911 caller reported seeing a man walking

down a public street with a rifle in a towel. When the police

saw Casad, it was 2 p.m. in the afternoon, and he was walking

with two rifles pointed downward and partially covered with

a towel. Police stopped Casad, and he told them he did not

have a car and was taking the rifles to a pawn shop. The

rifles were unloaded. Casad had a felony record and was

arrested for unlawful possession of a firearm. The

Washington Superior Court held that police lacked grounds

to conduct a Terry stop, and the Washington Court of

Appeals affirmed the suppression of the evidence as fruit of

an unlawful detention. The court of appeals held that Casad

could not be stopped even to investigate potential violation of

§ 9.41.270. Given the time of day, the location, and the

manner in which Casad was carrying the rifles, “[i]t [was] not

unlawful for a person to responsibly walk down the street

with a visible firearm, even if this action would shock some

people.” Id. at *5.

Our recent decision in a Washington case involving

§ 9.41.270 is consistent with these rulings. In United States

v. Brown, 925 F.3d 1150 (9th Cir. 2019), we held that a report

of a gun did not even constitute reasonable suspicion to stop

Brown. Seattle police received a 911 call reporting that an

unidentified person saw a young, black man with a gun. An

officer spotted Brown, who matched the description, and

“drove behind him for several blocks before turning on his

22 UNITED STATES V. WILLY

patrol lights and driving the wrong direction down a one-way

street to follow Brown.” Id. at 1152. When the officer turned

on his lights and began following Brown, he ran. We held

that the officers lacked reasonable suspicion even to stop

Brown. Id. at 1153–56; see id. at 1154 (“The anonymous tip

that Brown had a gun thus created at most a very weak

inference that was unlawfully carrying the gun without a

license, and certainly not enough to alone support a Terry

stop.”). We pointed to the fact that Washington is a “shall

issue state” and that there was no evidence that Brown was

carrying without a license. Nor was there anything in the

manner in which Brown was carrying that would have

implicated § 9.41.270: “No evidence shows that the resident

was alarmed at the time she reported seeing the gun. There

is no report that she yelled, screamed, ran, was upset, or

otherwise acted as though she was distressed.” Id. at 1154.

Thus, “[c]onsidering . . . the presumptive legality of carrying

a concealed firearm in Washington, the ‘tip’ alone did not

create reasonable suspicion that Brown was engaged in any

criminal activity.” Id.6

The dissent dismisses these cases as involving “innocuous

conduct.” Dissenting Op. at 44. But part of the significance

of those cases lies in the fact that the defendants were arrested

by police and charged by prosecutors. Obviously those

entities did not consider the defendants’ conduct “innocuous.”

These cases are part of a dialogue between police and

6

In contrast, we have consistently found reports that a defendant is

carrying a concealed weapon sufficient to give rise to reasonable suspicion

of potential illegal activity in California, where carrying a concealed

firearm is presumptively a crime. See e.g., Bontemps, 977 F.3d at 914;

United States v. Vandergroen, 964 F.3d 876, 881 (9th Cir. 2020); Foster

v. City of Indio, 908 F.3d 1204, 1215 (9th Cir. 2018).

UNITED STATES V. WILLY 23

prosecutors on the one hand, and the courts on the other, to

establish the boundaries for lawful and unlawful carrying and

display of weapons. Moreover, in two of the cases, Brown

and Casad, the courts concluded that not only did the police

lack probable cause to arrest, they lacked reasonable

suspicion to conduct a Terry stop. See Brown, 925 F.3d

at 1154; Casad, 139 Wash. App. 1032 at *5.

The question for us, of course, is which side of the line

drawn by the Washington courts does Willy’s conduct fall

on? We turn to that question.

B. Applying These Principles to Willy

Deputy Thaxton’s suspicion that Willy had violated

§ 9.41.270 arose not from his own observations but from the

accounts of two reporting parties. For our purposes, we will

assume that the information was reliable, but we are confident

the circumstances will bear out the assumption. See Florida

v. J.L., 529 U.S. 266, 270–74 (2000); Vandergroen, 964 F.3d

at 879–80. The parties identified themselves, provided

Deputy Thaxton with detailed reports, and provided

consistent details of their very recent encounters with Willy.

It was reasonable for an officer in Deputy Thaxton’s position

to rely on the information. See Foster, 908 F.3d at 1214.

The more difficult question is not whether Deputy

Thaxton should have investigated further, but whether, on the

basis of the two reports, he had probable cause to arrest Willy

without further inquiry. If Thaxton had probable cause, it

means he could have arrested Willy at his home or place of

employment; it means he could have procured a warrant and

then arrested Willy the following day or the following week.

Although the reports Deputy Thaxton received were reliable,

24 UNITED STATES V. WILLY

under Washington law, they did not describe conduct that a

reasonable officer would believe violated § 9.41.270. We

conclude that Deputy Thaxton did not have probable cause to

arrest Willy for three reasons.

First, the district court’s key factual findings were based

on the in-court testimony of Deputy Thaxton. The court

found that both reporting parties indicated that Willy did not

display the gun in a threatening manner and did not indicate

that Willy threatened any individual, including his alleged

kidnappers, or pointed the gun at anyone. These findings are

not “illogical, implausible, or without support in the record.”

See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir.

2010). Deputy Thaxton testified that he understood Willy’s

interactions with the reporting parties were not lengthy or

“especially hostile,” and that neither party indicated Willy

was argumentative. Both reporting parties told Deputy

Thaxton that Willy had not pointed the gun at them or made

any demands of them. Willy appeared to only want any

information the reporting parties might have about his alleged

kidnapping, and when the parties indicated they knew

nothing, Willy left “peacefully.” Deputy Thaxton testified

that neither reporting party seemed to be “overly concerned,”

but that he inferred from the fact that they called police that

“they were concerned enough that they did call in about it.”

Deputy Thaxton indicated that he interpreted Reporting Party

1’s concern that Willy was “rambling on” as a worry that

“something wasn’t completely correct with [Willy].” From

that, Thaxton surmised—without direct statements from

either of the reporting parties— that “[Willy] would possibly

use [the gun] if confronted with somebody else” because

“normal people just don’t walk around displaying firearms

out to people when they pull up.” At the same time, Deputy

UNITED STATES V. WILLY 25

Thaxton confirmed “[t]here was no direct threat with a

firearm, to my knowledge.”

The strongest fact for the government is that Willy racked

the slide of his gun in the presence of Reporting Party 1. In

context, however, that fact does not demonstrate that Willy

was acting in manner that warrants alarm. Reporting Party 1

told Deputy Thaxton that Willy had “picked the firearm up,

racked it, and then put it back down.” Deputy Thaxton

testified that it was his understanding that the gun was in the

seat of Willy’s truck, and Willy remained in his truck during

his interactions with both reporting parties. On this record, it

was not clearly erroneous for the district court to conclude

that neither reporting party indicated to Deputy Thaxton that

Willy displayed his firearm in a threatening manner.

The dissent takes the district court’s statement—that

“Deputy Thaxton had a particularized and objective basis for

suspecting that Willy ‘was either armed and delusional or

armed and seeking to possibly avenge his alleged kidnaping

and abduction’”—out of context. Dissenting Op. at 32, 45.

The discussion preceding and following this sentence

supports our view. The district court stated:

In the Court’s mind, Deputy Thaxton had

reasonable suspicion to conduct a Terry stop.

After speaking with the reporting persons, he

learned that Defendant was armed and was

trying to find the place where he had been

kidnapped and abducted. These facts

provided Deputy Thaxton with a

“particularized and objective basis” for

suspecting that Defendant was either armed

and delusional or armed and seeking to

26 UNITED STATES V. WILLY

possibly avenge his alleged kidnapping and

abduction. Thus, Deputy Thaxton could have

briefly detained Defendant and asked him

questions about the two incidents in question.

The district court found a sufficient factual basis for a

reasonable officer to suspect that Willy might be either

delusional or seeking to avenge his kidnapping. However,

the court did not “posit[]” that those were the only possible

scenarios or that suspicion that Willy might commit a crime

in the future bears on whether he violated § 9.41.270 in his

interactions with the reporting parties. See Dissenting Op.

at 45. Rather, the district court found, and we agree, that

Deputy Thaxton had reasonable suspicion to detain Willy to

inquire further whether his unusual interactions with the

reporting parties amounted to a criminal violation or were an

indication that he was about to commit a crime.

Second, § 9.41.270(1) requires more than the mere

display of a firearm, and at the time Deputy Thaxton located

Willy, he did not have sufficient information to reasonably

believe that Willy had displayed his gun in a manner that

warrants alarm. Willy’s conduct differs from violations of

§ 9.41.270 that have been upheld by the Washington courts

such that a reasonable officer would have needed additional

information before believing a violation of the statute had

occurred. The type of weapon—a semi-automatic pistol—is

the type of weapon a person might keep in their car or on

their person for self-defense. Willy was in what Deputy

Thaxton described as a “rural community,” where firearms

were common. And, as the district court found, Willy did not

point the gun at anyone or manifest an intent to harm anyone.

Indeed, Willy told both reporting parties what he was looking

for—a trailer—and introduced himself by name to Reporting

UNITED STATES V. WILLY 27

Party 2. Although Willy’s conduct, including his fantastical

account of his kidnapping, was strange and might have

warranted further investigation, in Washington, where it is

presumptively lawful to possess a firearm, it did not warrant

his immediate arrest.7

Although the government is correct that the reports here

indicated that Willy displayed the firearm rather than just

carrying it, this distinction does not create enough of a

possibility of criminal activity that Willy was subject to

immediate arrest without further investigation. In a state in

which carrying a firearm openly is lawful, there is very little

room between “carrying” a firearm and “displaying” it. We

read the Washington cases as “narrowly construing the phrase

to apply to only conduct that poses a threat to others” as a

means of “giv[ing] the phrase a narrow and definite focus and

sav[ing] it from vagueness.” Maciolek, 676 P.2d at 1001 n.3.

The threat must follow from “objective circumstances [that]

7

We agree with the dissent that Willy’s conduct does not fit neatly

into either category of cases, those with clearly threatening conduct, like

Baggett and Glenn, or those with lawful conduct, like Brown, Cardenas-

Muratalla, or Casad. Dissenting Op. at 44–45. But we respectfully

disagree with the dissent’s suggestion that what separates Willy’s case

from those in which there was neither a manifestation of intent to

intimidate or conduct that warranted alarm is “the concern that Willy was

mentally ill or experiencing some sort of psychological disturbance.”

Dissenting Op. at 45. Section 9.41.270 was not designed as a mechanism

for dealing with people who have a mental disorder or who are

experiencing a mental health crisis. Washington has extensive procedures

for identifying and detaining persons with behavioral health disorders who

“present[] a likelihood of serious harm,” see Wash. Rev. Code

§§ 71.05.150, .153; see generally Wash. Rev. Code ch. 71.05, including

a six-month suspension of the right to possess a firearm for anyone

detained for evaluation and treatment on the grounds that they present a

likelihood of serious harm, Wash. Rev. Code § 71.05.128.

28 UNITED STATES V. WILLY

would warrant alarm in a reasonable person.” Spencer,

876 P.2d at 942 (footnote omitted). If the circumstances in

Cardenas-Muratalla, Casad, and in our decision in Brown do

not add up to reasonable suspicion, we are hard pressed to

conclude that the 911 calls here add up to probable cause to

arrest.

Finally, the government argues that the district court erred

in its interpretation of state law by effectively requiring the

presence of subjective harm for a violation of § 9.41.270(1).

Although the district court found that neither of the reporting

parties “manifested any physical characteristics associated

with ‘alarm,’” it did not misapply the requirements of

§ 9.41.270(1). The district court accurately stated that

§ 9.41.270(1) both incorporates a reasonable person standard

and does not require that a person’s actions actively cause

alarm. The reporting parties’ accounts of what happened and

their demeanor as they did so were “facts and circumstances

within [Deputy Thaxton’s] knowledge,” and directly relevant

to whether Deputy Thaxton had probable cause to arrest

Willy. Valencia, 24 F.3d at 1108. The district court properly

considered the reporting parties’ descriptions of their

encounters with Willy, explaining that “[b]oth [witnesses]

indicated that Defendant did not display the gun in a

threatening manner” and “neither one indicated that

Defendant was threatening any other persons, including his

alleged kidnappers.” We find no error in the district court’s

mention of the subjective reactions of the reporting parties, as

the court properly weighed whether Willy’s conduct, as

relayed to Deputy Thaxton, would warrant alarm in a

UNITED STATES V. WILLY 29

reasonable person.8 See Spencer, 876 P.2d at 944 (stating that

the court’s conclusion that the defendant’s conduct warranted

alarm was supported by the actual alarm induced in several

witnesses).

The dissent makes much of the fear that whether or not

Willy was truly abducted, he would seek to harm either his

actual captors or innocent strangers he perceived to be part of

his “imagined abduction.” Dissenting Op. at 45. But Deputy

Thaxton did not purport to arrest Willy because he believed

Willy was about to commit a battery or other violent crime

against his alleged kidnappers, nor does the government

advance such an argument. Deputy Thaxton arrested Willy

because of what Willy had already done. Thaxton testified

that at the time he arrested Willy, Willy had already violated

§ 9.41.270(1) in his interactions with Reporting Parties 1

and 2.

Section 9.41.270 criminalizes the act of displaying a

firearm in a manner that warrants alarm, not displaying a

firearm reasonably but creating a separate impression that

you might seek to harm persons not present at some

unspecified future time. We are not asked to decide whether

Willy “warrant[ed] alarm for the safety of others,” we must

8

The government argues that the district court’s statement during the

hearing that, if he were in Reporting Party 1’s shoes, he “would be very

intimidated” contradicts the eventual finding that a reasonable person

would not have been alarmed. We disagree. First, the district court’s

written decision supercedes any statements during the hearing. See White

v. Wash. Pub. Power Supply Sys., 692 F.2d 1286, 1289 n.1 (9th Cir. 1982)

(“[T]he rule in this circuit is that the formal findings of fact and

conclusions of law supersede the oral decision.”). And second, the district

court prefaced its statement with “ I know [this is] not really the standard

the Court needs to look at, but just bear with me for this example.”

30 UNITED STATES V. WILLY

ask only whether a reasonable officer would believe that

Willy displayed his firearm “in a manner, under

circumstances, and at a time and place that . . . warrants alarm

for the safety of other persons.” More information was

required to answer that question.

We do not take lightly Deputy Thaxton’s concern that

Willy could have been a danger to himself or others and that

he did not want to “place [him]self in possible jeopardy” by

approaching Willy’s vehicle to gather more information. In

these circumstances, we fully respect that Deputy Thaxton

had reasonable suspicion to stop Willy and make further

inquiries. But Deputy Thaxton had a range of options short

of arrest for inquiring whether Willy had violated or was

about to violate § 9.41.270 or another criminal statute.

Deputy Thaxton could have stopped Willy’s vehicle, see

United States v. Chaudhry, 461 F.3d 1097, 1100 (9th Cir.

2006), ordered Willy out of the vehicle, see Arizona v.

Johnson, 555 U.S. 323, 331–32 (2009), drawn his own

weapon, see Allen v. City of Los Angeles, 66 F.3d 1052,

1056–57 (9th Cir. 1995), patted Willy down for weapons, see

United States v. Terry-Crespo, 356 F.3d 1170, 1173–77 (9th

Cir. 2004), and even handcuffed Willy during the detention

if he felt it was necessary for his safety, see United States v.

Edwards, 761 F.3d 977, 981–82 (9th Cir. 2014). We thus

agree with the dissent that Thaxton “could not afford to

ignore [the surrounding] context, in the interest of his own

safety, Willy’s safety, and the safety of anyone else in the

vicinity.” Dissenting Op. at 49. But that just emphasizes

why Thaxton should have conducted a Terry stop to see

whether Willy posed a potential threat to Willy’s own safety,

Thaxton’s safety, or the safety of others. Instead, Thaxton

decided that Willy had already posed such a threat to

Reporting Parties 1 and 2. That judgment is not supported by

UNITED STATES V. WILLY 31

the record. We conclude that Deputy Thaxton could not,

consistent with Washington law and the Fourth Amendment,

arrest Willy on the spot without further inquiry into whether

a violation of § 9.41.270 had taken or was about to take place.

C. Exclusionary Rule

Under the “fruits of the poisonous tree” doctrine,

evidence seized subsequent to a violation of the Fourth

Amendment is tainted by the illegality and subject to

exclusion, unless it has been sufficiently “purged of the

primary taint.” Wong Sun v. United States, 371 U.S. 471,

485–88 (1963). The district court held that all evidence

obtained and statements made after the illegal arrest were

subject to exclusion. The government has not challenged the

application of the “fruit of the poisonous tree” doctrine to the

two firearms, CO2 cartridge, or Willy’s statement. Thus, we

affirm the district court’s application of the exclusionary rule

to suppress Willy’s statements, the altered handgun, short-

barrel shotgun, and CO2 device as the fruits of the illegal

arrest. See United States v. Washington, 490 F.3d 765,

774–77 (9th Cir. 2007); United States v. Patzer, 277 F.3d

1080, 1084–85 (9th Cir. 2002); United States v. Shephard,

21 F.3d 933, 938–40 (9th Cir. 1994).

IV. CONCLUSION

We affirm the district court’s order granting the

defendant’s motion to suppress.

AFFIRMED.

32 UNITED STATES V. WILLY

CHRISTEN, Circuit Judge, dissenting:

The only question our court needs to decide is whether

Deputy Thaxton had probable cause to suspect that Willy

violated the second clause in RCW 9.41.270(1) by displaying

a firearm “in a manner, under circumstances, and at a time

and place that . . . warrants alarm for the safety of other

persons.” Without question he did, and Deputy Thaxton

lawfully arrested him.

Two concerned citizens called their local sheriff’s office

on May 12, 2019 to report their separate encounters with

Willy, who had approached both of them near their respective

residences that evening to ask for their help in locating the

place where he had been held against his will by unidentified

abductors. Willy was a stranger to the callers, and his bizarre

tale and behavior motivated both of them to contact the

sheriff’s office. He professed to be driving around looking

for the place where he had been held captive for several days

near a camouflaged trailer and van. Willy told Reporting

Party 1 that the police had refused to help him and he made

clear that he had armed himself and was searching for the

camouflaged trailer and van on his own. In the course of

explaining to the first caller that he was looking for the place

where the alleged kidnappers held him captive, Willy picked

up a firearm, racked the slide, and then set it back down at his

side. Willy told the same story, and again displayed his semi-

automatic firearm, when he stopped to talk to the second

caller. The district court conducted an evidentiary hearing

and found that Deputy Thaxton had a particularized and

objective basis for suspecting that Willy “was either armed

and delusional or armed and seeking to possibly avenge his

alleged kidnapping and abduction.”

UNITED STATES V. WILLY 33

Washington criminalizes displaying a firearm under

circumstances that either: (1) manifest an intent to intimidate

another; or (2) warrant alarm for the safety of other persons.

See RCW 9.41.270(1). It is the statute’s second clause that is

at issue here. RCW 9.41.270(1) requires us to consider the

manner, circumstances, and time and place in which the

weapon was displayed. I see no room for debate about

whether Willy’s conduct objectively warranted alarm for the

safety of others. It is uncontested that Willy displayed a

firearm to both callers, i.e., the majority agrees he displayed

it and was not simply carrying it. Majority Op. 5–6. And the

surrounding circumstances support the district court’s finding

that Deputy Thaxton had a particularized and objective basis

for suspecting that Willy “was either armed and delusional,

or armed and seeking to possibly avenge his alleged

kidnapping and abduction.” No one argues that the court’s

findings of historical fact were clearly erroneous. On this

record, Willy’s separate violations of RCW 9.41.270(1) were

complete when he drove away from the encounters with

Reporting Party 1 and Reporting Party 2 (collectively, “the

reporting witnesses”).

Deputy Thaxton had probable cause to arrest Willy for

violating the second clause of RCW 9.41.270(1), even though

Willy’s actions occurred outside Deputy Thaxton’s presence,

because the reliability of the callers’ reports was verified

when the details they provided checked out: both reporting

witnesses described the same green truck and said they were

approached by a man who told the same extraordinary story,

and the green truck’s license plate number correlated to a

photograph of the registered owner that one of the callers

positively identified as the person who had approached her in

her driveway. Deputy Thaxton spotted the green truck with

a matching license plate number that same evening,

34 UNITED STATES V. WILLY

approached it, and directed the driver (Willy) to exit but keep

his hands visible. In doing so, Deputy Thaxton effectuated an

arrest in a way that minimized the risk to Willy and to others.

It was Deputy Thaxton’s perilous duty to arrest Willy, a man

he had good reason to believe to be armed and mentally

compromised, for displaying a firearm “in a manner, under

circumstances, and at a time and place, that . . . warrants

alarm for the safety of other persons.” See RCW 9.41.270(1).

The majority affirms the district court’s order granting

Willy’s motion to suppress. Because probable cause so

clearly justified his arrest, I respectfully dissent.

I.

On the night of May 12, 2019 at approximately 8:37 p.m.,

the Yakima County Sheriff’s Office received a call from

Reporting Party 1 that a stranger driving a green Chevrolet

truck had pulled over to speak with him outside of his home.

Reporting Party 1 stated that the driver displayed a firearm

and began “rambling on and not making sense about being

previously abducted in this area and was looking for the

place” where he had been held. As the driver of the green

truck recounted his bizarre tale, he picked up a black semi-

automatic gun and racked the slide before returning it to rest

on the passenger seat of the truck. Reporting Party 1 then

contacted the Yakima County Sheriff’s Office and relayed the

truck’s licence plate number to dispatch. When Deputy

Thaxton responded about twenty minutes later, he showed

Reporting Party 1 a photo of Willy, the vehicle’s registered

owner. Reporting Party 1 “looked at it and immediately said,

yeah, that’s the guy that was in the truck.” As the majority

recognizes, Reporting Party 1 “expressed concern about

[Willy’s] mental state.” Majority Op. 5.

UNITED STATES V. WILLY 35

About ten minutes after meeting with this first witness,

Deputy Thaxton responded to a call from a second, unrelated

witness reporting a similar encounter about three miles away.

This caller said that a man in a green truck waved her down

as she was pulling out of her driveway. Reporting Party 2

had never met this man before but she recalled that he

introduced himself using a name that was something like

“Willis.” The man told Reporting Party 2 the same story

about being kidnapped and held in a camouflaged trailer and

van. Like Reporting Party 1, Reporting Party 2 did not feel

personally threatened, but Reporting Party 2 was clear that

the man told her he was armed. Willy remained in his truck

as he talked to the reporting witnesses, but he displayed a

black gun and declared his intention to find the location

where he had been held. The man drove off when Reporting

Party 2 told him she could not help him find the camouflaged

trailer and van.

After following up with both reporting witnesses, Deputy

Thaxton located the green Chevrolet truck as it turned into a

gas station later that night. The deputy activated his

emergency lights, pulled his vehicle behind the truck, and

conducted a “high-risk stop” by drawing his firearm and

ordering the truck driver to exit and keep his hands visible.

Willy complied and Deputy Thaxton ordered him to turn

360 degrees. As Willy was turning around, Deputy Thaxton

observed a black semi-automatic pistol holstered on Willy’s

right hip. Thaxton then directed Willy to place his hands

above his head, approached him and removed the pistol from

its holster, and seated Willy in the backseat of his patrol car.

Thaxton noticed that the serial number had been filed off the

black pistol and he read Willy Miranda warnings. Willy

agreed to speak with the deputy and he told the same story

about being kidnapped and held for several days at a location

36 UNITED STATES V. WILLY

with a camouflaged trailer and van. He also said that he

eventually escaped his captors and reported that the police

had done nothing about his abduction. Willy consented to a

search of his truck, and Deputy Thaxton retrieved a sawed-off

shotgun from the right rear floor bed.

At the Yakima County jail, Willy was searched with a

metal detector wand. A modified CO2 cartridge was

discovered concealed in the groin area of Willy’s pants, along

with pellets, gunpowder, and a fuse. Willy explained that

these items comprised a non-functioning pipe bomb.

II.

Deputy Thaxton initially stopped Willy for unlawfully

displaying the semi-automatic pistol during his encounters

with the two witnesses, and the State of Washington

ultimately charged Willy with violating its statute prohibiting

the unlawful display of a firearm. See RCW 9.41.270(1). A

federal grand jury in the Eastern District of Washington

returned a three count indictment against Willy for receiving

and possessing an improvised explosive device, in violation

of 26 U.S.C. § 5861(c); receiving and possessing an

improvised explosive device that was not registered to him,

in violation of 26 U.S.C. § 5861(d); and making an

improvised explosive device, in violation of 26 U.S.C.

§ 5861(f).

Willy argued that Deputy Thaxton lacked probable cause

to arrest him, and he moved to suppress the semi-automatic

pistol, shotgun, pipe bomb, and the statements made after his

arrest. The district court granted his motion. The court

concluded that Willy was under arrest as soon as Deputy

Thaxton ordered him to exit his truck because the deputy

UNITED STATES V. WILLY 37

approached Willy’s truck with his firearm drawn and ordered

Willy to exit the vehicle. In granting Willy’s motion to

suppress, the district court concluded that Deputy Thaxton

had reasonable suspicion to conduct an investigative stop, but

not probable cause to effectuate an arrest without probing

more fully the circumstances surrounding Willy’s interactions

with the two reporting witnesses who had called the sheriff’s

office. The district court ruled that the challenged evidence

was the fruit of an illegal arrest and suppressed the evidence

pursuant to the exclusionary rule.1

In the district court and on appeal, the government relied

on its position that Willy’s arrest was lawful because it was

supported by probable cause. The government did not rely on

the good faith exception,2 the inevitable discovery exception,3

or the admonition that the exclusionary rule is intended to

deter Fourth Amendment violations and should be applied as

“our last resort, not our first impulse . . . applicable only . . .

1

Willy separately argues that his arrest violated the Fourth

Amendment because Washington law prohibits officers from arresting

suspects for misdemeanors committed outside their presence. See Wash.

Rev. Code. § 10.31.100. This argument is foreclosed by our precedent.

See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990) (“The requirement

that a misdemeanor must have occurred in the officer’s presence to justify

a warrantless arrest is not grounded in the Fourth Amendment.”); see also

Alford v. Haner, 446 F.3d 935, 937 n.2 (9th Cir. 2006) (citing Barry and

holding that an arrest in violation of a Washington statute prohibiting

arrests for misdemeanors committed outside officer’s presence did not run

afoul of the Fourth Amendment).

2

See, e.g., Davis v. United States, 564 U.S. 229, 238–40 (2011).

3

See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984).

38 UNITED STATES V. WILLY

where its deterrence benefits outweigh its substantial social

costs.”4

III.

Determinations of reasonable suspicion and probable

cause are generally reviewed de novo, and the Supreme Court

has cautioned that reviewing courts “should take care both to

review findings of historical fact only for clear error and to

give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers.”5 Here,

the district court’s findings of historical fact are not disputed.

The sticking point is whether the established facts amounted

to probable cause to suspect that Willy had violated RCW

9.41.270, Washington’s law prohibiting displaying a firearm

with intent to intimidate or in a manner that warrants alarm.

To decide whether Deputy Thaxton had probable cause to

arrest Willy, “we examine the events leading up to the arrest,

and then decide whether these historical facts, viewed from

the standpoint of an objectively reasonable police officer,

amount to ‘probable cause.’”6 Our review is de novo because

the question here is one of law, not fact, and we are in as

4

Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations and

internal quotation marks omitted); see United States v. Dreyer, 804 F.3d

1266, 1278 (9th Cir. 2015) (en banc).

5

Ornelas v. United States, 517 U.S. 690, 699 (1996).

6

District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (citation

and internal quotation marks omitted).

UNITED STATES V. WILLY 39

good a position as the district court to make this

determination independently.7

“Probable cause to arrest exists when officers have

knowledge or reasonably trustworthy information sufficient

to lead a person of reasonable caution to believe that an

offense has been or is being committed by the person being

arrested.”8 This “requires only a probability or substantial

chance of criminal activity, not an actual showing of such

activity.”9 The Supreme Court has repeatedly made clear that

probable cause “is not a high bar: It requires only the kind of

fair probability on which reasonable and prudent [people,] not

legal technicians, act.”10

Deputy Thaxton had probable cause to arrest Willy

because two concerned citizens separately called the police

dispatcher to report that Willy, a stranger to both of them,

was driving around at approximately 8:30 in the evening

looking for a camouflaged trailer and van where he claimed

to have been abducted and kept for several days. Willy’s

7

See Ornelas, 517 U.S. at 697 (citing Miller v. Fenton, 474 U.S. 104,

114, (1985)); see also United States v. Johnson, 903 F.2d 1219, 1221 (9th

Cir. 1990) (“The district court’s finding of historical facts is reviewed

under the clearly erroneous standard, but the ultimate determination of

whether those facts amount to an unlawful seizure is a matter of law that

we review de novo.”).

8

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing

Beck v. Ohio, 379 U.S. 89, 91 (1964)).

9

Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).

10

Kaley v. United States, 571 U.S. 320, 338 (2014) (citations and

internal quotation marks omitted).

40 UNITED STATES V. WILLY

conduct warranted alarm for the safety of others because he

went out of his way to display his semi-automatic pistol to

both witnesses as he explained the reason he was out

searching for the camouflaged trailer and van. He does not

contest that the Reporting Witness 1 described him as

“rambling,” that he repeatedly claimed to have escaped from

kidnappers, that he complained the police had not done

anything to help him, that he picked up a black semi-

automatic pistol from the seat of his truck while talking to

both local residents, nor that he racked the gun’s slide while

he was explaining to Reporting Party 1 that he was looking

for the location where he had been held for several days

against his will. Though the reporting witnesses expressed

concern about Willy’s mental state, the majority nevertheless

concludes that the historical facts do not amount to probable

cause to suspect that Willy had displayed a firearm in a

manner, under circumstances, and at a time and place that

warranted alarm for the safety of other persons. See RCW

9.41.270(1). I strongly disagree.

IV.

It is presumptively lawful to openly carry a firearm in

Washington, United States v. Brown, 925 F.3d 1150, 1154

(9th Cir. 2019), but RCW 9.41.270 declares it a gross

misdemeanor to “carry, exhibit, display, or draw any firearm

. . . in a manner, under circumstances, and at a time and

place that either manifests an intent to intimidate another or

that warrants alarm for the safety of other persons.” RCW

9.41.270(1) (emphasis added). The majority agrees that

Willy displayed a firearm to the witnesses, i.e., the majority

agrees he was not merely carrying one, but the majority

concludes that the manner, circumstances, and time and place

did not warrant alarm for the safety of other persons.

UNITED STATES V. WILLY 41

The meaning of the phrase “warrants alarm for the safety

of other persons” in RCW 9.41.270(1) is central to this

appeal, but whether the concerned citizens who called the

sheriff’s office subjectively felt threatened is not. The second

statutory clause is at issue, not the first, and Washington case

law is clear that the objective “reasonable person” standard

applies. See State v. Spencer, 876 P.2d 939, 942–43 (Wash.

Ct. App. 1994). Accordingly, neither Willy’s intent, nor the

subjective responses of the first two callers, dictates the

outcome of Willy’s motion to suppress:

The unlawful display statute recognizes that

display of a weapon, without any required

intent, could be done in a manner to cause

reasonable apprehension, fear, or alarm.

There is no necessary nexus between

reasonable apprehension and the defendant’s

actual intent. Under some circumstances,

apprehension could be reasonable at the mere

sight of a firearm, while the defendant’s intent

could be completely innocent.

State v. Byrd, 868 P.2d 158, 162 (Wash. Ct. App. 1994),

aff’d, 887 P.2d 396 (Wash. 1995) (emphasis added). “The

statute only requires that the circumstances [w]arrant alarm

for the safety of others. They need not actively [c]ause such

alarm.” State v. Workman, 584 P.2d 382, 386 (Wash. 1978).

The majority reviews Washington case law, but comes up

short in finding support for its conclusion that Deputy

Thaxton lacked probable cause to arrest Willy for violating

Washington’s unlawful display statute. In State v. Maciolek,

676 P.2d 996 (Wash. 1984) and Spencer, 876 P.2d 939,

Washington courts considered and rejected void for

42 UNITED STATES V. WILLY

vagueness challenges to the statute. In the majority’s words,

the two cases together yield only the rule that a defendant’s

“act must warrant alarm in a reasonable person for the safety

of others.” Majority Op. 16.

Citing Maciolek, 676 P.2d at 999, the majority suggests

it is incorrect to view the two clauses of RCW 9.41.270(1)

separately. Majority Op. 16–17. Maciolek rejected the

challenger’s vagueness argument by reasoning that the

specific list of weapons in the first clause calls for a narrow

construction of the second clause “to apply to only conduct

that poses a threat to others.” See Maciolek, 676 P.2d at

999–1001. The court decided that persons of common

intelligence would not have to guess at the meaning of the

statute, id. at 999, and nothing in Maciolek suggests that

RCW 9.41.270(1)’s two clauses must be read as one. In fact,

in State v. Baggett, another decision cited by the majority and

decided sixteen years after Maciolek, the Washington

appellate court affirmed the defendant’s conviction for

“violat[ing] the second portion of RCW 9.41.270(1).”

13 P.3d 659, 660 (Wash. Ct. App. 2000); see State v. M.T.,

97 Wash. App. 1067, at *3 (1999) (noting that “the final

element of this statute is stated in the disjunctive: the action

must either manifest an intent to intimidate another or it must

warrant alarm”).

The majority concludes that RCW 9.41.270 is “best read

as capturing the scenarios where someone is not directly

threatening a person who is present, but is handling their

firearm in such a way that it presents a danger to others.”

Majority Op. 17. This is wrong for two reasons.

First, we cannot re-write RCW 9.41.270(1). The

Washington legislature criminalized conduct that warrants

UNITED STATES V. WILLY 43

alarm for the safety of others—not conduct that “presents a

danger” to others. Because Willy’s words and conduct were

a thinly veiled threat of actions he would take if he located his

alleged abductors, it plainly warranted alarm for their safety.

Second, the majority’s interpretation of the statute cannot

be squared with State v. Mitchell, 906 P.2d 1013 (Wash. Ct.

App. 1995), a decision the majority cites with approval.

Majority Op. 19. In that case, the Washington court decided

that an officer had reasonable suspicion to stop Mitchell for

violating RCW 9.41.270 when he personally observed

Mitchell carrying a semi-automatic weapon in an urban,

residential area at night. Mitchell, 906 P.2d 1013. Mitchell

tucked the gun in his waistband when the officer passed him.

Contrary to the majority’s interpretation of RCW 9.41.270(1),

Mitchell was “not directly threatening a person who [was]

present,” and there is no indication that he was handling his

“firearm in such a way that it presents a danger to others”

when the officer stopped him. See id. at 1014–15. The court

emphasized the “warrants alarm for the safety of other

persons” portion of RCW 9.41.270(1), and held that “openly

carrying a semi-automatic weapon while walking down a

street in an urban, residential area at night” was sufficient to

warrant reasonable suspicion that this statute was being

violated. Id. at 1016.

Like Mitchell, Willy displayed a semi-automatic firearm

in residential areas at night. Unlike Mitchell, Willy also

racked the slide of his firearm, appeared mentally unstable,

and made it known that he was actively searching for other

persons he believed to be his abductors. The statute’s plain

text shows the Washington’s legislature criminalized conduct

that either manifests an intent to intimidate another or that

warrants alarm for the safety of other persons. Willy’s

44 UNITED STATES V. WILLY

combined actions, words, and gestures fall squarely within

Maciolek’s construction of RCW 9.41.270(1)’s core because

the manner and circumstances in which he displayed his

firearm “pose[d] a threat to others” and objectively

“warrant[ed] alarm” for their safety. See RCW 9.41.270(1);

Maciolek, 676 P.2d at 1001 n.3.

The other Washington cases surveyed by the majority can

be divided into two categories. The first category includes

cases in which the defendants displayed very obviously

threatening conduct. For example, the defendant in Baggett

pointed a rifle at a police officer and was charged with second

degree assault but convicted of RCW 9.41.270 as a lesser

included offense. 13 P.3d 659. State v. Glenn involved a

legitimate citizen report that a driver had pointed a gun at a

child from a vehicle—justifying the belief that the

defendant’s suspected misconduct endangered the safety of

the officers. 166 P.3d 1235 (Wash. Ct. App. 2007).

The second category of cases includes those in which

defendants simply carried firearms openly, as the law in

Washington permits, and the surrounding circumstances

neither “manifest[ed] an intent to intimidate another,” in

violation of RCW 9.41.270(1)’s first clause, nor “warrant[ed]

alarm for the safety of other persons,” in violation of the

statute’s second clause. The majority cites Brown, 925 F.3d

1150, Majority Op. 12, 21–22, 28, but that decision is a prime

example of a case that does not aid the majority’s cause

because it falls into the second category of cases involving

innocuous conduct. Our court had no trouble reversing the

district court’s denial of Brown’s motion to suppress because

the circumstances in that case were entirely mundane, and

gave no reason for alarm for anyone’s safety. See Brown,

925 F.3d at 1154. The police acted on an unverified tip that

UNITED STATES V. WILLY 45

Brown, an African American man, was simply walking on a

street in downtown Seattle and “had a gun.” Id. at 1152–54.

We reasoned: “With no reliable tip, no reported criminal

activity, no threat of harm, no suggestion that the area was

known for high crime or narcotics, no command to stop, and

no requirement to even speak with the police,” the officers

did not have reasonable suspicion to stop Brown. Id. at

1151–52.

The circumstances in Willy’s case were vastly different

because the reports called in to dispatch gave rise to the

concern that Willy was mentally ill or experiencing some sort

of psychological disturbance. Deputy Thaxton had reports

describing Willy as “rambling on” about being abducted, and

he very reasonably understood from the callers’ reports that

“something wasn’t completely correct with [Willy].” On this

record, the district court was persuaded that Deputy Thaxton

had a particularized and objective basis for suspecting that

Willy “was either armed and delusional or armed and seeking

to possibly avenge his alleged kidnapping and abduction.”

Both scenarios posited by the district court objectively

warranted alarm for the safety of others. If Willy was armed

and experiencing delusional thinking, it was reasonable to be

concerned that he might falsely believe that innocent

strangers had been complicit in his imagined abduction, and

equally reasonable to expect that he would engage in violent

self-help because he was under the impression that the police

had failed him. On the other hand, if Willy had actually

escaped from a kidnapping, believed the police were

unwilling or unable to help him, and was seeking out the

location where he had been held against his will, any

reasonable person would similarly be alarmed for the safety

of those who he thought had kidnapped him and fearful for

46 UNITED STATES V. WILLY

the consequences if Willy managed to find his captors—or

anyone in a camouflaged trailer and van—that he believed to

be the one where he had been held.

In short, regardless of whether he had actually been

kidnapped, the credible reports of the actions Willy took to

show the reporting witnesses his semi-automatic pistol and to

rack its slide as he described his abduction were either

threatening gestures themselves, or intended to convey the

message to the reporting witnesses that the weapon was

loaded and ready for use once he located the camouflaged

trailer and van.11 These circumstances easily support Deputy

Thaxton’s conclusion that Willy had violated RCW 9.41.270

by the time he left the reporting witnesses, i.e., Willy’s

actions and words objectively gave rise to concern for the

safety of others.

Willy and the majority make much of the fact that the

witnesses indicated they did not feel personally threatened,

but the statute’s text and Washington case law are in accord

that the callers need not have felt subjectively threatened in

order for Willy’s conduct to objectively “warrant[] alarm for

the safety of other persons.” See RCW 9.41.270(1);

Workman, 584 P.2d at 385–86. The statute is judged from an

11

See generally What Should America Do About Gun Violence?:

Hearing Before the S. Comm. on the Judiciary, 113th Cong. (2013)

(written testimony of David B. Kopel, Research Director,

Independence Institute) (citation omitted), available at

https://www.judiciary.senate.gov/imo/media/doc/1-30-13KopelTestimo

ny.pdf (“If the final round from the last magazine has been fired, the first

round from the new magazine must be chambered before the gun will fire.

Chambering a round involves ‘racking’ the gun by manually operating the

gun’s slide mechanism, a process that typically takes fractions of a

second.”).

UNITED STATES V. WILLY 47

objective, reasonable person standard, but Washington courts

sometimes consider witness perceptions to decide whether a

defendant’s actions gave objective cause for alarm. See, e.g.,

Spencer, 876 P.2d at 944 (“[O]ur conclusion that [the

defendant’s] conduct warranted alarm is supported by the

kinds of people who were alarmed in this case, including

several firefighters, a police officer, and a passing motorist.”).

In Willy’s case, the district court notably expressed that

even it would have been alarmed by Willy’s actions: “If I was

Reporting Party No. 1 and a person showed up and spoke like

this and showed me his gun and racked it, I would be very

intimidated.” Although the court acknowledged “that’s not

really the standard the Court needs to look at,” in the words

of the Washington Supreme Court, the “conclusion that

[Willy’s] conduct warranted alarm is supported by the kinds

of people who were alarmed in this case,” see id., i.e., a

federal district court judge and a deputy sheriff. The district

court’s own reaction was strong support for the conclusion

that Willy’s actions objectively warranted alarm.

Willy’s violations of RCW 9.41.270 were committed

outside Deputy Thaxton’s presence, but this does not change

the fact that Deputy Thaxton had probable cause to arrest

Willy, because the reports he received from dispatch were

consistent and strongly corroborated when Deputy Thaxton

followed up with the reporting witnesses. Both of the

reporting witnesses who contacted the Yakima County’s

Sheriff’s Office reported being approached by Willy and they

described the same troubling behavior, bizarre story, and

rambling countenance.

Though the reporting witnesses were separated temporally

and geographically, both described the same stranger in a

48 UNITED STATES V. WILLY

green truck driving up to their homes after 8:30 p.m. Both

expressed concern for Willy’s mental state. Both described

his story about being kidnapped, held for several days, and

escaping. Both said that he was looking for the camouflaged

trailer and van where he had been held, that he complained

the police did nothing to help him, and that he gratuitously

picked up a gun in the course of telling his story. The first

caller described Willy racking the gun while explaining that

he was looking for his abductors. The truck’s license plate

correlated to a photo of the registered owner that the first

caller readily identified, and neither witness asked to remain

anonymous. These reports had all of the indicia of

“veracity,” “reliability,” and the solid “basis of knowledge”

that the Supreme Court has instructed “are all highly relevant

in determining the value of [a witness’s] report . . . . [and]

that may usefully illuminate the commonsense, practical

question whether there is probable cause.” See Gates,

462 U.S. at 230. It was not necessary for Deputy Thaxton to

obtain additional corroborating information to establish

probable cause. Common sense answered that practical

question and, as our nation has learned after enduring a tragic

number of shootings perpetrated by mentally ill assailants,

delay may have turned a dangerous situation into a deadly

one.

Despite its acknowledgment that Willy displayed his

firearm to the reporting witnesses, the majority decides “it

was not clearly erroneous for the district court to conclude

that neither reporting party indicated to Deputy Thaxton that

Willy displayed his firearm in a threatening manner.”

Majority Op. 25. But this answers the wrong question. The

second clause of RCW 9.41.270(1) requires that we ask

whether Willy’s actions objectively warranted alarm for the

safety of others. We must consider the surrounding

UNITED STATES V. WILLY 49

circumstances when we answer that question. See RCW

9.41.270(1); Spencer, 876 P.2d at 942 n.4. The majority

never grapples with the fact that Deputy Thaxton had good

reason to fear that Willy was mentally ill, and the significance

of that fact cannot be overstated. The majority decides that

Willy’s chilling act of racking the gun while looking for the

spot where likely imaginary abductors had held him captive

is “[t]he strongest fact for the government,” but it considers

that fact in isolation and pivots, in its very next breath, to the

conclusion that the first clause of the statute was not violated:

“In context, . . . that fact does not demonstrate that Willy was

acting in a manner that warrants alarm.” Majority Op. 25.

But the surrounding context is precisely what established

that Willy violated the second clause of the statute because

the circumstances included compelling reasons to be

concerned for the safety of others. Deputy Thaxton could not

afford to ignore that context, in the interest of his own safety,

Willy’s safety, and the safety of anyone else in the vicinity.

Our court should not ignore that context either, because RCW

9.41.270(1) dictates that the manner, circumstances, and time

and place must be considered. Here, Willy’s manner of

displaying a firearm included recitation of a fantastical and

rambling tale of abduction. The time and place in which he

displayed it was during his nighttime search for the location

of the camouflage trailer and van in a residential area.

Willy’s approach of the reporting witnesses at their homes,

his insistence that the police had not helped him, and the fact

that he had armed himself to search for his abductors on his

own must also be considered.

Respectfully, under these circumstances the court is

remiss in failing to recognize that Willy’s very peculiar

conduct objectively warranted alarm for the safety of others.

50 UNITED STATES V. WILLY

The majority’s 20/20 hindsight observation that the deputy

had a “range of options short of arrest,” Majority Op. 30, or

that he might have opted to take the time necessary to explore

the possibility of obtaining a mental health commitment, see

Majority Op. 27 n.7, might make sense when applied to a

person who had merely displayed a firearm while stopping to

chat or to ask for directions. But given the overall

circumstances relayed in the callers’ verified reports, Deputy

Thaxton did not have a duty to put his own safety at even

greater risk by frisking Willy rather than conducting a high

risk stop and arresting him. See generally Terry v. Ohio, 392

U.S. 1, 23 (1968) (“Certainly it would be unreasonable to

require that police officers take unnecessary risks in the

performance of their duties.”); Washington v. Lambert,

98 F.3d 1181, 1186 (9th Cir. 1996) (“[T]hose who serve the

public by taking on the dangerous job of enforcing the

criminal laws are not required by the Fourth Amendment to

take unreasonable risks.”). In the end, the majority concedes

that “we must ask only whether a reasonable officer would

believe that Willy displayed his firearm ‘in a manner, under

circumstances, and at a time and place that . . . warrants alarm

for the safety of other persons.’” Majority Op. 29–30.

Deputy Thaxton needed no more information to answer that

question, and he was free to arrest Willy.

Because Deputy Thaxton plainly had probable cause to

believe that Willy had violated RCW 9.41.270 before

approaching him at the gas station, the district court erred. I

would reverse the district court’s order granting Willy’s

motion to suppress.