CORRELL L. THOMAS, Plaintiff-Appellee,
C. DILLARD, Police Officer, Defendant-Appellant, and PALOMAR COMMUNITY COLLEGE DISTRICT, Defendant
and Submitted June 2, 2015, Pasadena, California
from the United States District Court for the Southern
District of California. D.C. No. 3:11-cv-02151-CAB-NLS. Cathy
Ann Bencivengo, District Judge, Presiding.
panel reversed the district court's order on summary
judgment denying qualified immunity to Palomar College police
officer Christopher Dillard and also reversed the district
court's partial summary judgment in favor of plaintiff on
the issue of liability in an action brought pursuant to 42
U.S.C. § 1983 alleging unlawful seizure and excessive
force under the Fourth Amendment.
to a possible domestic violence call, officer Dillard
demanded that plaintiff submit to a Terry frisk for
a search of weapons. When plaintiff refused to be searched,
officer Dillard tased him. The panel held that although the
domestic violence nature of a police investigation is a
relevant consideration in assessing whether there is reason
to believe a suspect is armed and dangerous, it is not alone
sufficient to establish reasonable suspicion. The panel
therefore held that Dillard violated plaintiff's Fourth
Amendment rights against unreasonable seizure by detaining
him for the purpose of performing a Terry frisk. The
panel nonetheless held that Dillard was entitled to qualified
immunity because it was not clearly established at the time
that the initial demand for a frisk was unlawful. The panel
further held that it was not clearly established at the time
that continuing to detain a noncompliant domestic violence
suspect for the purpose of executing a frisk and tasing him
when he refused to comply were unlawful.
in part and dissenting in part, Judge Bea agreed that Officer
Dillard was entitled to qualified immunity on plaintiff's
claims for unlawful seizure and excessive force under 42
U.S.C. § 1983, and that the district court's grant
of partial summary judgment to plaintiff must accordingly be
reversed. Judge Bea would hold, however, that the domestic
violence nature of a call requesting police assistance
can alone give rise to reasonable suspicion
necessary to justify a Terry frisk.
L. Winet, Winet Patrick Gayer Creighton & Hanes, Vista,
California, for Defendant-Appellant.
G. Iredale (argued), Iredale and Yoo, San Diego, California;
Mervyn S. Lazarus, Law Offices of Mervyn S. Lazarus, Newport
Beach, California, for Plaintiff-Appellee.
Ferdinand F. Fernandez, Raymond C. Fisher and Carlos T. Bea,
C. Fisher, Circuit Judge.
College Police Officer Christopher Dillard responded to a
call to investigate a man pushing a woman in a public area on
the college's campus. There he found Correll Thomas, a
student at the college who had been hanging out with and
kissing his girlfriend, Amy Husky. Although Thomas was
unarmed and in fact had committed no act of domestic
violence, Dillard demanded Thomas submit to a search for
weapons, believing police officers are free to conduct a
Terry frisk whenever they are investigating a
potential " domestic violence" incident, regardless
of the specific circumstances of the call or the facts
encountered at the scene. When Thomas refused to be searched,
Dillard tased him. Thomas sued Dillard under 42 U.S.C. §
1983, asserting unlawful seizure and excessive force under
the Fourth Amendment. The district court denied Dillard
qualified immunity on summary judgment and granted partial
summary judgment to Thomas on the issue of liability. Dillard
address whether a law enforcement officer has reasonable
suspicion to conduct a Terry frisk, searching a
suspect for weapons, based solely on the perceived domestic
violence nature of the investigation. We hold that, although
the domestic violence nature of a police investigation is a
relevant consideration in assessing whether there is reason
to believe a suspect is armed and dangerous, it is not alone
sufficient to establish reasonable suspicion. We therefore
hold Dillard violated Thomas' Fourth Amendment rights
against unreasonable seizure by detaining him for the purpose
of performing a Terry frisk. Because it was not
clearly established at the time that the perceived domestic
violence nature of an investigation was insufficient to
establish reasonable suspicion, however, we hold Dillard is
entitled to qualified immunity. We further hold Dillard used
excessive force when he tased Thomas in order to force him to
submit to the Terry frisk against his consent. Given
the frisk was unlawful and unnecessary, Dillard used
unreasonable force. Nonetheless, given the unsettled state of
the law regarding the use of Tasers at the time, we again
hold Dillard is entitled to qualified immunity. Given the
Supreme Court's instructions that we may not define
clearly established law at too high a level of generality, it
was not clearly established at the time of Dillard's
actions that an officer who mistakenly but reasonably
believed he had the right to conduct a Terry frisk
could not deploy a Taser in dart mode to overcome a
suspect's resistance to the frisk. Accordingly, without
in any way endorsing Dillard's actions or overlooking the
indignities those actions caused Thomas to suffer, we reverse
the order of the district court and hold Dillard is entitled
to summary judgment on the ground of qualified immunity.
we are reviewing the denial of Dillard's motion for
summary judgment based on qualified immunity, we assume
Thomas' version of disputed facts and draw all reasonable
inferences in his favor. See Mattos v.
Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en banc).
approximately 3:42 pm on September 21, 2010, the Palomar
College Police Department dispatched Officer Dillard to the
college's Escondido campus to respond to a domestic
violence call involving a black male. Dillard spoke to a
college administrator on the north side of campus, but was
unable to obtain any further details pertaining to the
domestic violence incident that may have prompted the call.
The record contains virtually no information about this call.
We have no description of the suspect other than
Dillard's belief that the call mentioned a black male, no
description of the what the alleged " domestic
violence" may have entailed and no information about
where the incident might have occurred.
40 minutes later, at 4:20 pm, while he was speaking with the
administrator, Dillard received a call to investigate a male
wearing a purple shirt pushing a female near some storage
containers on the south side of the Escondido campus. A male
wearing a purple shirt pushing a female was the entire scope
of the call. There was no further description of the "
suspect," or of the alleged " pushing," and
the call made no mention of domestic violence. When Dillard
arrived on the scene, he first encountered a community
service officer who had also responded to the call, and who
would remain present throughout the ensuing
incident. Dillard then saw a male with a purple
shirt and a female come out from behind the storage
containers. These were Thomas, who is
African-American, and his girlfriend, Husky.
got out of his police car, telling Thomas and Husky as he did
so that no one was in trouble. Dillard stopped about 10 feet
away from Thomas and Husky, who were standing next to each
other. Dillard saw no indication that a crime had occurred.
Husky exhibited no signs of domestic violence. She showed no
signs of injury. She had not been crying. She did not appear
distraught. The area was open to the public. Thomas and Husky
looked like normal college students. Their hands appeared
empty. They may have appeared startled or fidgety, but, as
Dillard testified, these were normal behaviors.
asked Thomas and Husky whether they had identification.
Thomas responded that he did; Husky said she did not. Dillard
did not ask to see the identification. Instead, he asked
Thomas whether he had any weapons on him. When Thomas
responded that he did not, Dillard asked Thomas whether he
would mind being searched for weapons. This was approximately
15 seconds into the encounter. Thomas responded that he did
approached Thomas and asked again whether he would consent to
a search for weapons. When Thomas declined, Dillard told
Thomas he had received a call " about a guy in a purple
shirt pushing around a girl." Thomas and Husky both
denied they had seen anything or had done anything wrong.
They both denied they were fighting, or that Thomas was
pushing Husky. Husky told Dillard they had just been kissing
behind the storage containers. Dillard asked Thomas again for
consent to search for weapons, and Thomas again refused.
Dillard moved toward Thomas, attempting to grab him and place
him a controlled hold for the purpose of conducting a frisk.
When Thomas stepped away to avoid being grabbed, Dillard
backed off, pulled out his Taser, pointed it at Thomas and
told Thomas he was going to search him. This occurred
approximately 30 to 40 seconds into the encounter. Husky,
meanwhile, was yelling at Dillard that Thomas had done
continued to respond to Dillard's questions but to
withhold his consent to being searched. He was not aggressive
or belligerent. Dillard called for backup and kept his Taser
pointed at Thomas. Dillard told Thomas to put his hands in
the air, step forward and drop to his knees. Thomas refused
to do so. In response to the call for backup, a uniformed
Escondido police officer arrived on the scene and pointed her
handgun at Thomas from a distance of 15 feet away. When the
Escondido officer told Thomas to put up his hands, he did so.
Dillard told Thomas that if he did not get down on his knees
by the count of three, Dillard would tase him. Dillard
counted to three, and, when Thomas did not comply, tased
Thomas. Dillard fired the Taser in dart mode, discharging a
set of electrified barbs that lodged in Thomas' chest and
delivered an incapacitating surge of electrical current to
his body. This occurred approximately six minutes into the
encounter. Thomas was handcuffed, searched (no weapons were
found), treated by paramedics, arrested and charged with
unlawfully resisting, delaying or obstructing a peace
officer. See Cal. Penal Code § 148(a)(1). The
charges were dismissed six months later.
filed suit against Dillard under 42 U.S.C. § 1983,
alleging violations of his Fourth Amendment rights to be free
from unlawful seizure and excessive force. He also alleged
claims under California state law for negligence and
violation of California Civil Code § 52.1. Dillard moved
for summary judgment, and Thomas cross-moved for partial
summary judgment on the issue of liability. The district
court denied Dillard's motion and granted Thomas'
motion. The court ruled Dillard lacked reasonable suspicion
to believe Thomas was armed and dangerous, and thus that
Dillard unlawfully seized Thomas for the purpose of
conducting a weapons search. The court also denied qualified
immunity for this seizure, reasoning:
Having determined the existence of a constitutional
violation, the Court considers whether the right violated was
clearly established at the time of its occurrence. At the
time Officer Dillard tased Thomas to force his compliance
with a weapons' search, it was clearly established that
such a search is unreasonable unless supported by the
officer's reasonable suspicion that the person to be
searched is armed and dangerous. Ramirez [
v. City of Buena Park], 560 F.3d [1012,]
1023 [(9th Cir. 2009)]. There was no objective evidence to
support a reasonable suspicion that Thomas had a weapon.
Officer Dillard's explanation, based on his subjective
characterization that this was a domestic violence call and
therefore necessitated a search without any indication a
weapon was involved, is wholly inadequate to justify his
conduct. It would have been clear to a reasonable officer
that a search of Thomas in the circumstances presented was
unlawful. Officer Dillard is not entitled to qualified
court further ruled " Dillard's use of his taser to
compel Thomas's compliance with the search was excessive
force." " Having concluded that Officer Dillard had
no reasonable suspicion to support a search of Thomas for
weapons, any force used to accomplish that search was
objectively unreasonable and tasing Thomas was clearly
excessive," the court wrote. Dillard timely appealed.
JURISDICTION AND STANDARD OF REVIEW
Ordinarily, we lack jurisdiction over an appeal from a denial
of summary judgment because it is not a " final"
judgment under 28 U.S.C. § 1291. See
Mueller v. Auker, 576 F.3d 979, 987 (9th Cir. 2009).
A public official, however, may immediately appeal the denial
of a motion for summary judgment asserting qualified
immunity. See Mitchell v. Forsyth, 472 U.S.
511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
Accordingly, we have jurisdiction to review the denial of
qualified immunity to Dillard. Our review is limited to
whether, after construing disputed facts and reasonable
inferences in favor of Thomas, Dillard is entitled to
qualified immunity as a matter of law. See
Mattos, 661 F.3d at 439 & n.2. We review this
question de novo. See id. at
Qualified immunity shields a police officer from suit under
§ 1983 unless (1) the officer violated a statutory or
constitutional right, and (2) the right was clearly
established at the time of the challenged conduct.
See Plumhoff v. Rickard, 134 S.Ct. 2012,
2023, 188 L.Ed.2d 1056');">188 L.Ed.2d 1056 (2014); Ashcroft v. al-
Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179
L.Ed.2d 1149 (2011). Although we have discretion in deciding
which of these two prongs to address first, here we elect to
follow the order laid out above. See
Mattos, 661 F.3d at 440. We evaluate separately the
constitutionality of each distinct Fourth Amendment
intrusion: the investigatory stop, the Terry frisk
and the use of the Taser. See Ramirez, 560
F.3d at 1019.
Fourth Amendment protects the " right of the people to
be secure in their persons . . . against unreasonable
searches and seizures" by the government. U.S. Const.
amend. IV. " This inestimable right of personal security
belongs as much to the citizen on the streets of our cities
as to the homeowner closeted in his study to dispose of his
secret affairs." Terry v. Ohio, 392 U.S. 1,
8-9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "
Unquestionably [Thomas] was entitled to the protection of the
Fourth Amendment as he walked down the street in
[Escondido]," just as John Terry was entitled to the
same protection on a Cleveland street in 1963. Id.
Terry permits limited police intrusions on a
person's freedom of movement and personal security when
an officer's suspicion falls short of the " probable
cause" required to execute an arrest or a "
full" search. See id. at 20-27. To
initiate a brief stop to investigate potential criminal
activity, a stop that does not rise to the level of an
arrest, an officer must have reasonable suspicion to believe
" criminal activity may be afoot." Id. at
30; United States v. Arvizu, 534 U.S. 266, 273, 122
S.Ct. 744, 151 L.Ed.2d 740 (2002). This means the officer
must have reasonable suspicion " the person apprehended
is committing or has committed a criminal offense."
Arizona v. Johnson, 555 U.S. 323, 326, 129 S.Ct.
781, 172 L.Ed.2d 694 (2009).
does not challenge Dillard's initial decision to stop and
question him and Husky for a brief period. Campus police
dispatch had informed Dillard that a man wearing the same
color shirt as Thomas had pushed a woman in the very location
Thomas and Husky were found, by the storage containers. This
created a reasonable suspicion Thomas might have committed a
simple assault or battery, possibly in the context of a
domestic relationship. See, e.g., Cal. Penal Code
§ 242 (defining battery as " any willful and
unlawful use of force or violence upon the person of
another" ); id. § 243(e)(1) (proscribing
simple battery against " a person with whom the
defendant has, or has had, a dating relationship"
). Dillard was entitled to detain Thomas
briefly to investigate the report of potential criminal
activity -- a so-called Terry stop.
conducting the stop, Dillard also was permitted to ask Thomas
for consent to search for weapons, see United
States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105,
153 L.Ed.2d 242 (2002), known as a Terry frisk,
see United States v. I.E.V., 705 F.3d 430,
433 (9th Cir. 2012). As the word " consent"
implies, however, Thomas was free to decline Dillard's
request. See Florida v. Bostick, 501 U.S.
429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ( "
[A]n individual may decline an officer's request [for a
consent search] without fearing prosecution." ). The
nature of the interaction between Dillard and Thomas changed
significantly, however, once Dillard unholstered his Taser,
pointed it at Thomas and ordered Thomas to submit to
a frisk for weapons. At that point, he exceeded the
justification and authority for the Terry stop -- to
investigate a potential battery. See Florida v.
Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983) (" The scope of the detention must be carefully
tailored to its underlying justification." );
id. (" [A]n investigative detention must be
temporary and last no longer than is necessary to effectuate
the purpose of the stop." ); see also
Rodriguez v. United States, 135 S.Ct. 1609, 1614,
191 L.Ed.2d 492 (2015) (noting the permissible duration of a
traffic stop, " [l]ike a Terry stop," is
determined by the " mission" of the stop). Once
Dillard demanded Thomas submit to a search for weapons, he
needed a reasonable basis for believing Thomas might be armed
and dangerous in order to continue detaining him for the
search. The question, then, is whether Dillard had such
argues Dillard had no justification for ordering him to
submit to a Terry frisk and that detaining him to
perform the frisk violated the Fourth Amendment. He contends
it was clearly established that Dillard's conduct was
unconstitutional when the events took place in September
2010, and Dillard therefore is not entitled to qualified
immunity. We address these two prongs of the qualified
immunity analysis in turn. We emphasize, again, that for this
purpose we take the facts and inferences drawn from them in
favor of Thomas.
Whereas the purpose of a Terry stop is to further
the interests of crime prevention and detection, a
Terry frisk is justified by the concern for the
safety of the officer and others in proximity. See
Terry, 392 U.S. at 22-24. Accordingly, whereas a
Terry stop is justified by reasonable suspicion that
criminal activity may be afoot, a frisk of a person for
weapons requires reasonable suspicion that a suspect "
is armed and presently dangerous to the officer or to
others." Id. at 24; see also
Johnson, 555 U.S. at 326-27. " A lawful frisk
does not always flow from a justified stop." United
States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988).
Rather, " [e]ach element, the stop and the frisk, must
be analyzed separately; the reasonableness of each must be
independently determined." Id.; see also
Terry, 392 U.S. at 22-23.
frisk for weapons " is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and
arouse strong resentment, and it is not to be undertaken
lightly." Terry, 392 U.S. at 17; see
also id. at 14-17 nn.11-14. As the Supreme
Court recognized in fashioning the stop-and-frisk exception
to probable cause, people have a strong interest in personal
security, and routine police intrusions breed resentment
within communities they serve. Accordingly, Terry
was careful to craft a standard for a frisk that was both
protective of law enforcement officers who confront
potentially dangerous individuals and consistent with the
objective, fact-based approach traditionally required to
justify invasions into areas protected by the Fourth
Amendment. See id. at 20-27.
establish reasonable suspicion a suspect is armed and
dangerous, thereby justifying a frisk, " the police
officer must be able to point to specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion."
Terry, 392 U.S. at 21. A " mere 'inchoate
and unparticularized suspicion or hunch'" that a
person is armed and dangerous does not establish reasonable
suspicion, Maryland v. Buie, 494 U.S. 325, 332, 110
S.Ct. 1093, 108 L.Ed.2d 276 (1990) (quoting Terry,
392 U.S. at 27) (some internal quotation marks omitted), and
circumstances suggesting only that a suspect would be
dangerous if armed are insufficient, see
United States v. Flatter, 456 F.3d 1154, 1157 (9th
Cir. 2006). There must be adequate reason to believe the
suspect is armed. See id.
Reasonable suspicion is an objective standard, asking whether
" a reasonably prudent [person] would have been
warranted in believing [the suspect] was armed and thus
presented a threat to the officer's safety while he was
investigating his suspicious behavior." Terry,
392 U.S. at 28. This inquiry requires consideration of all
the facts and circumstances an officer confronts in the
encounter; we consider the totality of the circumstances.
See id.; Navarette v. California, 134 S.Ct.
1683, 1687, 188 L.Ed.2d 680 (2014); Arvizu, 534 U.S.
at 273; United States v. Sokolow, 490 U.S. 1, 8, 109
S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v.
Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621
(1981); United States v. Burkett, 612 F.3d 1103,
1107 (9th Cir. 2010). Importantly, reasonable suspicion must
be individualized: " [e]ven in high crime areas, where
the possibility that any given individual is armed is
significant, Terry requires reasonable,
individualized suspicion before a frisk for weapons can be
conducted." Buie, 494 U.S. at 334 n.2.
assessing the totality of the circumstances, relevant
considerations may include: observing a visible bulge in a
person's clothing that could indicate the presence of a
weapon, see Flatter, 456 F.3d at 1157
(citations omitted); seeing a weapon in an area the suspect
controls, such as a car, see Michigan v.
Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 77 L.Ed.2d
1201 (1983); " sudden movements" suggesting a
potential assault or " attempts to reach for an object
that was not immediately visible," Flatter, 456
F.3d at 1157 (citing United States v. Flippin, 924
F.2d 163, 164-66 (9th Cir. 1991)); cf. Ybarra v.
Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238
(1979) (holding reasonable suspicion was lacking where an
individual's hands were empty and he made " no
gestures or other actions indicative of an intent to commit
an assault" ); " evasive and deceptive
responses" to an officer's questions about what an
individual was up to, Burkett, 612 F.3d at 1107;
unnatural hand postures that suggest an effort to conceal a
firearm, see id. (suspect opened the passenger car
door with his left hand and kept his right hand next to his
body and appeared to reach for his coat pocket); and whether
the officer observes anything during an encounter with the
suspect that would dispel the officer's suspicions
regarding the suspect's potential involvement in a crime
or likelihood of being armed, see Terry,
392 U.S. at 28; United States v. $109,179 in U.S.
Currency, 228 F.3d 1080, 1086 (9th Cir. 2000).
last point is especially important. Even where certain facts
might support reasonable suspicion a suspect is armed and
dangerous when viewed initially or in isolation, a frisk is
not justified when additional or subsequent facts dispel or
negate the suspicion. Just as a suspicion must be reasonable
and individualized, it must be based on the totality
of the circumstances known to the officer. Officers may not
cherry pick facts to justify the serious Fourth Amendment
intrusion a frisk imposes. See Thomas, 863
F.2d at 626-30 (holding there was reasonable suspicion to
stop a driver who roughly resembled a counterfeiting suspect
and was near the scene of the crime; but once the driver
exited his vehicle and it was clear he did not match the
suspect's description, there was no reasonable suspicion
under the circumstances to justify further detention or a
Dillard contends a reasonable officer would have been
justified in believing Thomas was armed and dangerous based
on the following specific facts: (1) Dillard had received two
dispatches regarding potential violence against a female,
Thomas loosely matched the minimal descriptions of the
suspects in both dispatches, and Dillard encountered Thomas
and Husky in the location where the pushing incident had been
reported; (2) Thomas and Husky appeared startled and fidgety;
(3) Thomas was wearing clothing -- a T-shirt and
loose-fitting jeans -- capable of hiding a weapon; (4) Thomas
refused to consent to a weapons search, even after Dillard
explained the nature of his investigation; and (5) Thomas
stepped away after Dillard approached him and attempted to
place him into a controlled hold. Like the district court, we
conclude these facts, viewed as part of the totality of the
circumstances, did not give Dillard reason to believe Thomas
was armed and dangerous.
(1) Potential Domestic Violence Nature of the Call.
only fact Dillard seriously presses for suspecting Thomas was
armed at the time he demanded to frisk is the perceived
domestic violence nature of the crime he was investigating.
It is true, of course, that the type of crime a person is
suspected of committing may be highly relevant to the
existence of reasonable suspicion for a weapons frisk. In
Terry, the officer's suspicion that Terry was
armed was premised largely on his substantiated suspicion
that Terry was planning a daytime store robbery and that such
robberies are " likely to involve the use of
weapons." 392 U.S. at 28. Similarly, we have held it is
reasonable for an officer to assume a suspected narcotics
trafficker is likely armed. See $109,179 in U.S.
Currency, 228 F.3d at 1086-87. The same is true for a
suspected bank robber, see United States v.
Johnson, 581 F.3d 994, 1000 (9th Cir. 2009), someone
suspected of involvement in a large-scale marijuana growing
operation, see United States v. Davis, 530
F.3d 1069, 1082-83 (9th Cir. 2008), and a suspect in certain
night-time burglaries, see United States v.
Mattarolo, 209 F.3d 1153, 1158 (9th Cir.
2000). On the other hand, when a person is
being investigated for a crime that is neither " likely
to involve the use of weapons," Terry, 392 U.S.
at 28, nor " frequently associated with weapons,"
Flatter, 456 F.3d at 1158, suspicion of such a crime
does not provide reason to suspect a person is armed. See
id. (suspicion of mail theft is insufficient);
Thomas, 863 F.2d at 629 (same with passing
counterfeit money); Ramirez v. City of Buena Park,
560 F.3d 1012, 1022 (9th Cir. 2009) (same with illicit drug
use). We have not previously addressed whether domestic
violence is the type of crime that is likely to involve
weapons, such that the nature of the crime itself may provide
suspicion a suspect is armed. We address that issue now, and
hold domestic violence is not a crime such as bank robbery or
trafficking in large quantities of drugs that is, as a
general matter, likely to involve the use of weapons. Thus,
officers may not rely solely on the domestic violence nature
of a call to establish reasonable suspicion for a frisk.
See 4 Wayne R. LaFave, Search & Seizure
§ 9.6(a) (5th ed. 2015) (describing a " minor
assault without weapons" as the type of crime that does
not, absent other circumstances, give rise to a reasonable
suspicion a suspect is armed).
argument, accepted by our dissenting colleague, that the mere
fact an officer is responding to a perceived domestic
violence call establishes reasonable suspicion a suspect is
armed and dangerous ignores the broad scope of conduct
encompassed by the term domestic violence, especially under
California law. See Cal. Penal Code § 13700(b)
(defining " domestic violence" to include any
" abuse committed against an adult or a minor who is a
spouse, former spouse, cohabitant, former cohabitant, or
person with whom the suspect has had a child or is having or
has had a dating or engagement relationship" );
id. § 13700(a) (defining " abuse" to
include " intentionally or recklessly causing or
attempting to cause bodily injury, or placing another person
in reasonable apprehension of imminent serious bodily injury
to himself or herself, or another" ). Domestic violence
comes in widely varying degrees of dangerousness. It "
is a term of art encompassing acts that one might not
characterize as 'violent' in a nondomestic
context." United States v. Castleman, 134 S.Ct.
1405, 1411, 188 L.Ed.2d 426 (2014). It can involve conduct as
minor as squeezing another's arm to create a bruise,
see id. at 1412, or as serious as rape,
see People v. Poplar, 70 Cal.App.4th 1129,
83 Cal.Rptr.2d 320, 326 (Ct. App. 1999), or homicide,
see Castleman, 134 S.Ct. at 1408-09.
general category of crime, therefore, domestic violence is
clearly distinguishable from the more specific crimes the
Supreme Court and this court have held are likely to involve
the use of weapons, such as the daytime store robbery in
Terry, bank robbery or narcotics trafficking.
Although mail theft and bank robbery both fall under the
category of theft offenses, only the latter gives rise to
suspicion a suspect is armed. Compare
Flatter, 456 F.3d at 1158, with
Johnson, 581 F.3d at 1000. Likewise, illicit drug
use, large-scale marijuana cultivation and narcotics
trafficking are all drug offenses, but only the latter two
give rise to reasonable suspicion for a Terry frisk.
Compare Ramirez, 560 F.3d at 1022,
with Davis, 530 F.3d at 1082-83,
and $109,179 in U.S. Currency, 228 F.3d at
1086-87. As with the general categories of theft and drug
offenses, domestic violence encompasses too broad an array of
crimes to categorically justify reasonable suspicion under
Terry and its progeny.
the breadth of domestic violence, the specific circumstances
of a call must be factored into the reasonable suspicion
analysis. Some domestic violence calls may pose serious
threats to officers, such as those requiring an officer to
enter a suspect's home and intervene in the middle of a
heated fight or vicious attack. See Mattos,
661 F.3d at 457 (Kozinski, C.J., concurring in part and
dissenting in part) (noting that by entering the home,
officers may " become targets of fear and anger"
and are " in close quarters, 'at the disadvantage of
being on [their] adversary's turf'" (quoting
Buie, 494 U.S. at 333)). Other examples are those
involving a suspect angrily threatening a responding officer
to get off his property, see Reed v. Hoy,
909 F.2d 324, 325 (9th Cir. 1989), overruled on other
grounds by Edgerly v. City & Cty. of San
Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010), or a
report of a suspect wielding a gun, see George
v. Morris, 736 F.3d 829, 832 (9th Cir. 2013). But not
all domestic violence calls present such risks. Reasonable
suspicion must be based on " specific and articulable
facts" regarding the suspect and the " particular
circumstances," rather than " unparticularized
suspicion." Terry, 392 U.S. at 21, 27. "
This demand for specificity in the information upon which
police action is predicated is the central teaching of [the
Supreme] Court's Fourth Amendment jurisprudence."
Id. at 21 n.18. We reject the notion there is a
blanket " domestic violence" exception to
Terry' s requirement for particularized
Fourth Amendment jurisprudence in the areas of warrantless
entry and excessive force confirms that domestic violence
suspects are not presumed to be armed. We have recognized, of
course, that some domestic violence calls are dangerous and
some domestic violence suspects are armed. In United
States v. Martinez, 406 F.3d 1160 (9th Cir. 2005), for
example, we noted " the combustible nature of ...