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Thomas v. Dillard

United States Court of Appeals, Ninth Circuit

April 5, 2016

CORRELL L. THOMAS, Plaintiff-Appellee,
v.
C. DILLARD, Police Officer, Defendant-Appellant, and PALOMAR COMMUNITY COLLEGE DISTRICT, Defendant

         Argued and Submitted June 2, 2015, Pasadena, California

          Appeal 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.

          SUMMARY[*]

         Civil Rights

         The panel reversed the district court's order on summary judgment denying qualified immunity to Palomar College police officer Christopher Dillard and also reversed the district court's partial summary judgment in favor of plaintiff on the issue of liability in an action brought pursuant to 42 U.S.C. § 1983 alleging unlawful seizure and excessive force under the Fourth Amendment.

         Responding to a possible domestic violence call, officer Dillard demanded that plaintiff submit to a Terry frisk for a search of weapons. When plaintiff refused to be searched, officer Dillard tased him. The panel held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion. The panel therefore held that Dillard violated plaintiff's Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk. The panel nonetheless held that Dillard was entitled to qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The panel further held that it was not clearly established at the time that continuing to detain a noncompliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.

         Concurring in part and dissenting in part, Judge Bea agreed that Officer Dillard was entitled to qualified immunity on plaintiff's claims for unlawful seizure and excessive force under 42 U.S.C. § 1983, and that the district court's grant of partial summary judgment to plaintiff must accordingly be reversed. Judge Bea would hold, however, that the domestic violence nature of a call requesting police assistance can alone give rise to reasonable suspicion necessary to justify a Terry frisk.

         Randall L. Winet, Winet Patrick Gayer Creighton & Hanes, Vista, California, for Defendant-Appellant.

         Eugene G. Iredale (argued), Iredale and Yoo, San Diego, California; Mervyn S. Lazarus, Law Offices of Mervyn S. Lazarus, Newport Beach, California, for Plaintiff-Appellee.

         Before: Ferdinand F. Fernandez, Raymond C. Fisher and Carlos T. Bea, Circuit Judges.

          OPINION

         Raymond C. Fisher, Circuit Judge.

         Palomar College Police Officer Christopher Dillard responded to a call to investigate a man pushing a woman in a public area on the college's campus. There he found Correll Thomas, a student at the college who had been hanging out with and kissing his girlfriend, Amy Husky. Although Thomas was unarmed and in fact had committed no act of domestic violence, Dillard demanded Thomas submit to a search for weapons, believing police officers are free to conduct a Terry frisk whenever they are investigating a potential " domestic violence" incident, regardless of the specific circumstances of the call or the facts encountered at the scene.[1] When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under 42 U.S.C. § 1983, asserting unlawful seizure and excessive force under the Fourth Amendment. The district court denied Dillard qualified immunity on summary judgment and granted partial summary judgment to Thomas on the issue of liability. Dillard appeals.

         We address whether a law enforcement officer has reasonable suspicion to conduct a Terry frisk, searching a suspect for weapons, based solely on the perceived domestic violence nature of the investigation. We hold that, although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion. We therefore hold Dillard violated Thomas' Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk. Because it was not clearly established at the time that the perceived domestic violence nature of an investigation was insufficient to establish reasonable suspicion, however, we hold Dillard is entitled to qualified immunity. We further hold Dillard used excessive force when he tased Thomas in order to force him to submit to the Terry frisk against his consent. Given the frisk was unlawful and unnecessary, Dillard used unreasonable force. Nonetheless, given the unsettled state of the law regarding the use of Tasers at the time, we again hold Dillard is entitled to qualified immunity. Given the Supreme Court's instructions that we may not define clearly established law at too high a level of generality, it was not clearly established at the time of Dillard's actions that an officer who mistakenly but reasonably believed he had the right to conduct a Terry frisk could not deploy a Taser in dart mode to overcome a suspect's resistance to the frisk. Accordingly, without in any way endorsing Dillard's actions or overlooking the indignities those actions caused Thomas to suffer, we reverse the order of the district court and hold Dillard is entitled to summary judgment on the ground of qualified immunity.

         I. BACKGROUND

         Because we are reviewing the denial of Dillard's motion for summary judgment based on qualified immunity, we assume Thomas' version of disputed facts and draw all reasonable inferences in his favor. See Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en banc).

         At approximately 3:42 pm on September 21, 2010, the Palomar College Police Department dispatched Officer Dillard to the college's Escondido campus to respond to a domestic violence call involving a black male. Dillard spoke to a college administrator on the north side of campus, but was unable to obtain any further details pertaining to the domestic violence incident that may have prompted the call. The record contains virtually no information about this call. We have no description of the suspect other than Dillard's belief that the call mentioned a black male, no description of the what the alleged " domestic violence" may have entailed and no information about where the incident might have occurred.

         Approximately 40 minutes later, at 4:20 pm, while he was speaking with the administrator, Dillard received a call to investigate a male wearing a purple shirt pushing a female near some storage containers on the south side of the Escondido campus. A male wearing a purple shirt pushing a female was the entire scope of the call. There was no further description of the " suspect," or of the alleged " pushing," and the call made no mention of domestic violence. When Dillard arrived on the scene, he first encountered a community service officer who had also responded to the call, and who would remain present throughout the ensuing incident.[2] Dillard then saw a male with a purple shirt and a female come out from behind the storage containers.[3] These were Thomas, who is African-American, and his girlfriend, Husky.[4]

         Dillard got out of his police car, telling Thomas and Husky as he did so that no one was in trouble. Dillard stopped about 10 feet away from Thomas and Husky, who were standing next to each other. Dillard saw no indication that a crime had occurred. Husky exhibited no signs of domestic violence. She showed no signs of injury. She had not been crying. She did not appear distraught. The area was open to the public. Thomas and Husky looked like normal college students. Their hands appeared empty. They may have appeared startled or fidgety, but, as Dillard testified, these were normal behaviors.

         Dillard asked Thomas and Husky whether they had identification. Thomas responded that he did; Husky said she did not. Dillard did not ask to see the identification. Instead, he asked Thomas whether he had any weapons on him. When Thomas responded that he did not, Dillard asked Thomas whether he would mind being searched for weapons. This was approximately 15 seconds into the encounter. Thomas responded that he did mind.

         Dillard approached Thomas and asked again whether he would consent to a search for weapons. When Thomas declined, Dillard told Thomas he had received a call " about a guy in a purple shirt pushing around a girl." Thomas and Husky both denied they had seen anything or had done anything wrong. They both denied they were fighting, or that Thomas was pushing Husky. Husky told Dillard they had just been kissing behind the storage containers. Dillard asked Thomas again for consent to search for weapons, and Thomas again refused. Dillard moved toward Thomas, attempting to grab him and place him a controlled hold for the purpose of conducting a frisk. When Thomas stepped away to avoid being grabbed, Dillard backed off, pulled out his Taser, pointed it at Thomas and told Thomas he was going to search him. This occurred approximately 30 to 40 seconds into the encounter. Husky, meanwhile, was yelling at Dillard that Thomas had done nothing wrong.

         Thomas continued to respond to Dillard's questions but to withhold his consent to being searched. He was not aggressive or belligerent. Dillard called for backup and kept his Taser pointed at Thomas. Dillard told Thomas to put his hands in the air, step forward and drop to his knees. Thomas refused to do so. In response to the call for backup, a uniformed Escondido police officer arrived on the scene and pointed her handgun at Thomas from a distance of 15 feet away. When the Escondido officer told Thomas to put up his hands, he did so. Dillard told Thomas that if he did not get down on his knees by the count of three, Dillard would tase him. Dillard counted to three, and, when Thomas did not comply, tased Thomas. Dillard fired the Taser in dart mode, discharging a set of electrified barbs that lodged in Thomas' chest and delivered an incapacitating surge of electrical current to his body. This occurred approximately six minutes into the encounter. Thomas was handcuffed, searched (no weapons were found), treated by paramedics, arrested and charged with unlawfully resisting, delaying or obstructing a peace officer. See Cal. Penal Code § 148(a)(1). The charges were dismissed six months later.

         Thomas filed suit against Dillard under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights to be free from unlawful seizure and excessive force. He also alleged claims under California state law for negligence and violation of California Civil Code § 52.1. Dillard moved for summary judgment, and Thomas cross-moved for partial summary judgment on the issue of liability. The district court denied Dillard's motion and granted Thomas' motion. The court ruled Dillard lacked reasonable suspicion to believe Thomas was armed and dangerous, and thus that Dillard unlawfully seized Thomas for the purpose of conducting a weapons search. The court also denied qualified immunity for this seizure, reasoning:

Having determined the existence of a constitutional violation, the Court considers whether the right violated was clearly established at the time of its occurrence. At the time Officer Dillard tased Thomas to force his compliance with a weapons' search, it was clearly established that such a search is unreasonable unless supported by the officer's reasonable suspicion that the person to be searched is armed and dangerous. Ramirez [ v. City of Buena Park], 560 F.3d [1012,] 1023 [(9th Cir. 2009)]. There was no objective evidence to support a reasonable suspicion that Thomas had a weapon. Officer Dillard's explanation, based on his subjective characterization that this was a domestic violence call and therefore necessitated a search without any indication a weapon was involved, is wholly inadequate to justify his conduct. It would have been clear to a reasonable officer that a search of Thomas in the circumstances presented was unlawful. Officer Dillard is not entitled to qualified immunity.

         The court further ruled " Dillard's use of his taser to compel Thomas's compliance with the search was excessive force." " Having concluded that Officer Dillard had no reasonable suspicion to support a search of Thomas for weapons, any force used to accomplish that search was objectively unreasonable and tasing Thomas was clearly excessive," the court wrote. Dillard timely appealed.

         II. JURISDICTION AND STANDARD OF REVIEW

          Ordinarily, we lack jurisdiction over an appeal from a denial of summary judgment because it is not a " final" judgment under 28 U.S.C. § 1291. See Mueller v. Auker, 576 F.3d 979, 987 (9th Cir. 2009). A public official, however, may immediately appeal the denial of a motion for summary judgment asserting qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 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 439.[5]

         III. DISCUSSION

          Qualified immunity shields a police officer from suit under § 1983 unless (1) the officer violated a statutory or constitutional right, and (2) the right was clearly established 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.

         A. Investigative Stop

          The Fourth Amendment protects the " right of the people to be secure in their persons . . . against unreasonable searches and seizures" by the government. U.S. Const. amend. IV. " This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Terry v. Ohio, 392 U.S. 1, 8-9, 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. at 9.

          Terry permits limited police intrusions on a person's freedom of movement and personal security when an officer's suspicion falls short of the " probable cause" required to execute an arrest or a " full" search. See id. at 20-27. To initiate a brief stop to investigate potential criminal activity, a stop that does not rise to the level of an arrest, an officer must have reasonable suspicion to believe " criminal activity may be afoot." Id. at 30; United States v. Arvizu, 534 U.S. 266, 273, 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).

         Thomas does not challenge Dillard's initial decision to stop and question him and Husky for a brief period. Campus police dispatch had informed Dillard that a man wearing the same color shirt as Thomas had pushed a woman in the very location Thomas and Husky were found, by the storage containers. This created a reasonable suspicion Thomas might have committed a simple assault or battery, possibly in the context of a domestic relationship. See, e.g., Cal. Penal Code § 242 (defining battery as " any willful and unlawful use of force or violence upon the person of another" ); id. § 243(e)(1) (proscribing simple battery against " a person with whom the defendant has, or has had, a dating relationship" ).[6] Dillard was entitled to detain Thomas briefly to investigate the report of potential criminal activity -- a so-called Terry stop.

         In conducting the stop, Dillard also was permitted to ask Thomas for consent to search for weapons, see United States v. Drayton, 536 U.S. 194, 207, 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 justification.

         B. Frisk

         Thomas argues Dillard had no justification for ordering him to submit to a Terry frisk and that detaining him to perform the frisk violated the Fourth Amendment. He contends it was clearly established that Dillard's conduct was unconstitutional when the events took place in September 2010, and Dillard therefore is not entitled to qualified immunity. We address these two prongs of the qualified immunity analysis in turn. We emphasize, again, that for this purpose we take the facts and inferences drawn from them in favor of Thomas.

         1. Constitutional Violation

          Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. See Terry, 392 U.S. at 22-24. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect " is armed and presently dangerous to the officer or to others." Id. at 24; see also Johnson, 555 U.S. at 326-27. " A lawful frisk does not always flow from a justified stop." United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988). Rather, " [e]ach element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined." Id.; see also Terry, 392 U.S. at 22-23.

          A frisk for weapons " is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." Terry, 392 U.S. at 17; see also id. at 14-17 nn.11-14. As the Supreme Court recognized in fashioning the stop-and-frisk exception to probable cause, people have a strong interest in personal security, and routine police intrusions breed resentment within communities they serve. Accordingly, Terry was careful to craft a standard for a frisk that was both protective of law enforcement officers who confront potentially dangerous individuals and consistent with the objective, fact-based approach traditionally required to justify invasions into areas protected by the Fourth Amendment. See id. at 20-27.[7]

          To establish reasonable suspicion a suspect is armed and dangerous, thereby justifying a frisk, " the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21. A " mere 'inchoate and unparticularized suspicion or hunch'" that a person is armed and dangerous does not establish reasonable suspicion, Maryland v. Buie, 494 U.S. 325, 332, 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.

          In assessing the totality of the circumstances, relevant considerations may include: observing a visible bulge in a person's clothing that could indicate the presence of a weapon, see Flatter, 456 F.3d at 1157 (citations omitted); seeing a weapon in an area the suspect controls, such as a car, see Michigan v. Long, 463 U.S. 1032, 1050, 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).

         This last point is especially important. Even where certain facts might support reasonable suspicion a suspect is armed and dangerous when viewed initially or in isolation, a frisk is not justified when additional or subsequent facts dispel or negate the suspicion. Just as a suspicion must be reasonable and individualized, it must be based on the totality of the circumstances known to the officer. Officers may not cherry pick facts to justify the serious Fourth Amendment intrusion a frisk imposes. See Thomas, 863 F.2d at 626-30 (holding there was reasonable suspicion to stop a driver who roughly resembled a counterfeiting suspect and was near the scene of the crime; but once the driver exited his vehicle and it was clear he did not match the suspect's description, there was no reasonable suspicion under the circumstances to justify further detention or a frisk).

         Here, Dillard contends a reasonable officer would have been justified in believing Thomas was armed and dangerous based on the following specific facts: (1) Dillard had received two dispatches regarding potential violence against a female, Thomas loosely matched the minimal descriptions of the suspects in both dispatches, and Dillard encountered Thomas and Husky in the location where the pushing incident had been reported; (2) Thomas and Husky appeared startled and fidgety; (3) Thomas was wearing clothing -- a T-shirt and loose-fitting jeans -- capable of hiding a weapon; (4) Thomas refused to consent to a weapons search, even after Dillard explained the nature of his investigation; and (5) Thomas stepped away after Dillard approached him and attempted to place him into a controlled hold. Like the district court, we conclude these facts, viewed as part of the totality of the circumstances, did not give Dillard reason to believe Thomas was armed and dangerous.

          (1) Potential Domestic Violence Nature of the Call.

          The only fact Dillard seriously presses for suspecting Thomas was armed at the time he demanded to frisk is the perceived domestic violence nature of the crime he was investigating. It is true, of course, that the type of crime a person is suspected of committing may be highly relevant to the existence of reasonable suspicion for a weapons frisk. In Terry, the officer's suspicion that Terry was armed was premised largely on his substantiated suspicion that Terry was planning a daytime store robbery and that such robberies are " likely to involve the use of weapons." 392 U.S. at 28. 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).[8] On the other hand, when a person is being investigated for a crime that is neither " likely to involve the use of weapons," Terry, 392 U.S. at 28, nor " frequently associated with weapons," Flatter, 456 F.3d at 1158, suspicion of such a crime does not provide reason to suspect a person is armed. See id. (suspicion of mail theft is insufficient); Thomas, 863 F.2d at 629 (same with passing counterfeit money); Ramirez v. City of Buena Park, 560 F.3d 1012, 1022 (9th Cir. 2009) (same with illicit drug use). We have not previously addressed whether domestic violence is the type of crime that is likely to involve weapons, such that the nature of the crime itself may provide suspicion a suspect is armed. We address that issue now, and hold domestic violence is not a crime such as bank robbery or trafficking in large quantities of drugs that is, as a general matter, likely to involve the use of weapons. Thus, officers may not rely solely on the domestic violence nature of a call to establish reasonable suspicion for a frisk. See 4 Wayne R. LaFave, Search & Seizure § 9.6(a) (5th ed. 2015) (describing a " minor assault without weapons" as the type of crime that does not, absent other circumstances, give rise to a reasonable suspicion a suspect is armed).[9]

         Dillard's argument, accepted by our dissenting colleague, that the mere fact an officer is responding to a perceived 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.

         As a general category of crime, therefore, domestic violence is clearly distinguishable from the more specific crimes the Supreme Court and this court have held are likely to involve the use of weapons, such as the daytime store robbery in Terry, bank robbery or narcotics trafficking. Although mail theft and bank robbery both fall under the category of theft offenses, only the latter gives rise to suspicion a suspect is armed. Compare Flatter, 456 F.3d at 1158, with Johnson, 581 F.3d at 1000. Likewise, illicit drug use, large-scale marijuana cultivation and narcotics trafficking are all drug offenses, but only the latter two give rise to reasonable suspicion for a Terry frisk. Compare Ramirez, 560 F.3d at 1022, with Davis, 530 F.3d at 1082-83, and $109,179 in U.S. Currency, 228 F.3d at 1086-87. As with the general categories of theft and drug offenses, domestic violence encompasses too broad an array of crimes to categorically justify reasonable suspicion under Terry and its progeny.

         Given the breadth of domestic violence, the specific circumstances of a call must be factored into the reasonable suspicion analysis. Some domestic violence calls may pose serious threats to officers, such as those requiring an officer to enter a suspect's home and intervene in the middle of a heated fight or vicious attack. See Mattos, 661 F.3d at 457 (Kozinski, C.J., concurring in part and dissenting in part) (noting that by entering the home, officers may " become targets of fear and anger" and are " in close quarters, 'at the disadvantage of being on [their] adversary's turf'" (quoting Buie, 494 U.S. at 333)). Other examples are those involving a suspect angrily threatening a responding officer to get off his property, see Reed v. Hoy, 909 F.2d 324, 325 (9th Cir. 1989), overruled on other grounds by Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010), or a report of a suspect wielding a gun, see George v. Morris, 736 F.3d 829, 832 (9th Cir. 2013). But not all domestic violence calls present such risks. Reasonable suspicion must be based on " specific and articulable facts" regarding the suspect and the " particular circumstances," rather than " unparticularized suspicion." Terry, 392 U.S. at 21, 27. " This demand for specificity in the information upon which police action is predicated is the central teaching of [the Supreme] Court's Fourth Amendment jurisprudence." Id. at 21 n.18. We reject the notion there is a blanket " domestic violence" exception to Terry' s requirement for particularized suspicion.

         Our Fourth Amendment jurisprudence in the areas of warrantless entry and excessive force confirms that domestic violence suspects are not presumed to be armed. We have recognized, of course, that some domestic violence calls are dangerous and some domestic violence suspects are armed. In United States v. Martinez, 406 F.3d 1160 (9th Cir. 2005), for example, we noted " the combustible nature of ...


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