FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

C ORRELL L. T HOMAS ,

Plaintiff-Appellee

,

v.

C. D ILLARD , Police Officer,

Defendant-Appellant

,

and

P ALOMAR C OMMUNITY C OLLEGE D ISTRICT , Defendant

. No. 13-55889

D.C. No. 3:11-cv-02151- CAB-NLS

OPINION

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted June 2, 2015—Pasadena, California

Filed April 5, 2016

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

Opinion by Judge Fisher; Partial Concurrence and Partial Dissent by Judge BeaT H O M A S V

. D I L L

A R D 2

SUMMARY *

Civil Rights

The panel reversed the district court’s order on summary judg ment deny ing qualifi e d immunity to Palomar Colleg e police o ffice r Christopher Dillard a nd also reversed the district c ourt’s partial summary judg ment in favor of p laintiff

o n t h e issue of liability in an action broug ht pursuant t o 42 U.S.C. § 1983 allegi n g u n lawful seiz ure and e x cessive force under the F ourth Amendment.

Responding to a possible domest ic violence call, officer Dillard demanded that plaint i ff submit to a Terry f risk for a search of w eapons. W hen plaintiff refused to be s earched, officer Dillard tased him.

The panel held that althoug h the domestic violence nature of a police investig ation is a r elevant considera tion in assessing whether there is reason to believe a s u s p e ct is armed and dang e rous, it is not a lone su f f i cient to establish reasonable suspicion. The panel there f o r e held that Dillard violated plaintiff’s F ourth Amendment rig h ts ag ainst

unreason a ble seiz ure by detaining him for the purpose o f performing a Terry f

risk. The panel no n e t heless held that Dillard w as entitled to qualified immunity because it was not

c l early established at the time that the initial demand f o r a frisk w as unlawful. T h e panel further held that it was not clearly establis h e d at the time that c ontinuing to detain a

n o ncompliant domestic violence suspect for the purpose of

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T H O M A S V

. D I L L

A R D 3

e x e cu t i n g a frisk and tasing him when h e refused to c ompl y were unlawful.

Co ncurring in part a

nd dissenting in part, J udg e B ea ag reed that Officer Dillard was entitled to qualified immunity

on plaintiff’s claims for unlawful seiz u re and e x cessive force under 42 U.S.C. § 1983, and that the district court’s g rant of partial summary judg ment to p l a intiff must a ccording ly be reversed. J udg e B e a would hold, however, that the domestic violence nature of a c all requesting police assi s t ance c an alone g ive rise to reasonable suspicion necessary to justify a Terry frisk.

COUNSEL

Randall L

. W inet, W inet Patrick Gay er Cr eig h ton & Hanes, Vista, California, for Defendant-Appellant.

Eug ene G. I redale (arg

ued), I redale and Yoo, San Dieg o , Cali fornia; Mervy

n S. L az arus, L aw Offices of Mervy n S. L az arus, Newport B each, California, for Plaintiff-Appellee.

OP INION

F I SHER, Circuit J udg e :

Palomar Colleg e Police Officer Christopher Dillard responded to a call to investig ate a man pushing a w oman in

a public area on the colleg e’s campus. There he f ound Correll Thomas, a student a t the colleg e who had been hang ing out with a n d kissing his g irlfriend, Amy Husky

. Althoug h Thomas was unarmed and in fact had committed noT H O M A S V

. D I L L

A R D 4

act of domestic violence, Dillard demanded Thomas submit
to a search f

or weapons, belie v ing police officers are free to conduct a Terry f

r i s k w henever they are investig ating a potential “ domestic vio l e nce” incident, reg ardless of the specific circumstances of the call or the facts encountered at the scene. 1 W hen Thomas refused to be searched, D i l l a r d tased him. Thomas sued Dillard under 4 2 U.S.C. § 1983,
assert i n g u nlawful seiz ure and ex c e ssive force under the F ourt h Amendment. T he district court denied Dillard qualified immunity on summary judg ment and g r anted partial
summary judg ment to Thomas on the i s s u e o f liability

. Dillard appeals.

W e address whether a law enforcement officer has reasonable suspicion to conduct a Terry fri s k

, s e arching a suspect for weapons, based solely on the perceived domestic violence nature of the investig a tion. We hold that, althoug h the domestic violence nature of a police inve s t i ga t i on is a relevant consideration in assessing whether there is r eason to believe a suspect is armed and d ang erou s , it is not alone sufficient to establish reasonable s u spicion. W e therefore hold D illard v iolated Thomas ’ Fo u rth Amendment rig hts
ag ainst unreasonable seiz ure by detaining him for the purpose

o f p erforming a Terry frisk. B e c ause it was not c lear l y established at th e time that the perceived domestic violence
nature of an investig ation w as insufficient to establish reasonable suspicion, however, we hold Dillard is entitled to

1 Un d er th e Fo u rth Am e n d m e n t to th e Un ited States Co n stitu tio n , f risk in g a p erso n f

o r w eap o n s req u ires reaso n ab le su sp i cio n a su sp ect “ is

arm ed an d p resen tly d an g ero u s t o t h e o f f icer or to o th ers.” Terry v. Oh io
, 3 9 2 U .S. 1
, 2 4 (1 9 6 8 ). T o estab lish r e a s o n a b le su sp icio n a su sp ect is

arm ed an d d an g ero u s, “ th e p olice o f f icer m u st b e ab le to p o in t to sp ecif ic

an d articu lab le f

acts w h i c h

, t ak en to g eth er w ith ratio n al in f eren ces f ro m th o se f acts, reaso n ab ly

w arran t th at in tru sio n .” Id

. at 2 1

.T H O M A S V

. D I L L

A R D 5

qualified immunity

. W e further hold Dillard used ex cessive force when he tased Thomas in order to force him to submit
to the T e r r y f r i sk ag ainst his consent. Given the f risk was unlawful and unnecessary , Dillard used unreasonable fo rc e

. Nonetheless, g iven the unsettled state o f the law reg arding the

use of Tasers at the time, we ag a in hold Dillard is entitled to qualified immunity

. Given the Supreme Court’s instructions that we may not define c learly established l aw at too hig h a level o f g enerality

, it w as not clearly established at the time of Dillard’s actions that an officer who mistakenly b ut reasonably believed he had the rig h t to conduct a Terry frisk could not deploy a Taser in dart m o d e t o overcome a suspect’s resistance to the frisk. According ly

, without in any way endorsing Dillard’s actions or overlooking t h e i n d i g nities those actions caused Thomas to suffer, we reverse the order of the d istric t court a

nd hold Dillard is entitled to summary judg ment on the g round of qualified immunity

.

I. BACK G R OUND

B e cause we are reviewing the denial of Dillard’s motion for summary judg ment based on q ualified immu n i t y , we

assume Thomas’ version of disputed fa ct s and draw all reasonable inferences in hi s f a vor. See Mattos v. Agarano
, 661 F .3d 433, 439 (9th Cir. 2011) (en banc).

At approx imately 3:42 p m o n S e ptember 21, 2010, the Paloma r Colleg e Police Department dispatched Officer Dillard to the colleg e’s Escondido campus to r espond to a domestic violence call involving a black male. Dillard spoke
to a c o l leg e administrator on the north side of campus, but

was unable to obtain any f u r t h er details pertaining to the domestic violence incident that may have prompted the call. The record c o n t ains v irtually no information about this call.T H O M A S V

. D I L L

A R D 6

W e have no description of the suspect other than Dillard’ s belief that the call mentioned a black male, no description o f
t h e what the alleg ed “ d omestic v iolence” may have entai l e d and n o information about w here the incident mig h t h ave occurred.

Approx imately 40 minutes later, a t 4:20 pm, while he was speaking with th e a d m inistrator, Dillard received a call to investig ate a male wearing a purple shirt pushing a f emale

near some storag e c o ntaine r s on the south side of the Escondido campus. A male wearing a purple shirt pushing a female was the entire scope of the call. T here was no f urther description of the “ suspect,” or of the a lleg ed “ pushing ,” a nd the call m ade no mention of d omestic violence. W h en Dillard arrived o n t h e scene, he f irst encountered a community service officer who had also responded to the call, and who would remain present throug hout the ensuing incident. 2 Dillard t h e n s a w a male with a purple shirt and a female come out from b ehind the storag e containers. 3 These

were T homas, who is African-American, a nd his g irlfriend, Husky

. 4

2 T h e d issen t d escrib es th e en co u n t er as o ccu rrin g in “ an alley f lan k ed b y larg e sto rag e co n tain ers.” D issen t at 4 9

. A s th e d istrict co u rt p o in ted

o u t, h o w ev er, th ere w as n o th in g sin ister ab ou t th e lo catio n o f th e

en co u n ter: “ T h e area to w h ich Of f icer Dillard w as d i sp atch ed

, alth o u g h d escrib ed as an alley

, w as an o pen p av ed ro ad b o rd ered o n o n e sid e b y a larg e p ark in g lo t. It w as n o t a restricted o r su sp icio u s area.”

3 T h e d issen t in clu d es ad d itio n al d etails ab o u t T h o m as’ ap p earan ce th at h av e n o b earin g o n th e issu es p resen ted in th i s case – e.g ., th at T h o m as

w as w earin g “ sk ater sh oes, a n eck ch ain

, an earrin g , an d a b lack b ean ie.” Dissen t at 4 9

.

4 A t t h e tim e of th e en co u n ter, D illard an d T h o m as b o th sto o d ab o u t f iv e

an d a h alf f eet tall an d w eig h ed ab ou t 1 6 0 p o u n d s.T H O M A S V

. D I L L

A R D 7

D i l lard g o t out of his police car, telling Thomas a n d Husky as he d id so that no one was in trouble. Dillard stopped about 10 f

ee t a way from Thomas and Husky

, w ho

we r e s t an ding nex t to e ach o ther. Dillard saw no indication that a crime had occurred. H usky ex hibited no sig ns o f domestic violence. She showed no sig ns of injury

. She h ad
not been cry

ing

. She did n ot appear distraug ht. The area was open t o the public. T h omas and Husky looked like normal colleg e s t u d ents. Their hands appeared empty

. They may have appeared startled or fidg ety , but, as D illard testi f ied, these were normal behaviors.

Dillard aske d T h omas and H usky whether they h ad identification. Thomas responded that he did; Husky said she did not. Dillard did not ask to see the identification. I nstead, he asked Thomas whether he had a ny weapons o n him. W h en Thomas r esponded that he did not, Di l lard asked Thomas whether he would mind being searched for weapons. T h is was approx imately 15 seconds into the encounter. Thomas responded that he did mind.

Dillard approached Thomas and asked ag ain w h e t h er he would consent to a searc h f or w eapons. When T h omas declined, Dillard told Thom a s he had received a call “about

a g uy in a purple shirt p u s h i n g around a g irl.” T homas a nd Husky both denied they had seen any thing or h ad done
any thing wrong

. They both denied they were fig hting

, or that Th o m a s w a s pushing H usky

. Husky told Dillard they h ad just been k issing behind the storag e c ontainers. Dillard asked Thomas a g ain for consent to search for weapons, and T h omas ag ain refused. Dillard moved toward Thomas, attempting to g ra b h i m a nd place him a controlled hold for the purpose o f conducting a frisk. W hen T homas step p e d a w a y to avoid being g rabbed, Dillard backe d off, p ulled out h is Taser,T H O M A S V

. D I L L

A R D 8

pointed it at T homas and told Thomas he was g oing to search him. This occurred approx imately 30 to 40 seconds into the
encounter. Husky

, mea n w h i l e, was y e lling at Dillard that Thomas had done nothing wrong

.

Thomas con t i n u ed to respond to Dillard’s questions but
to withhold his c o n sent to being searched. He was not ag g r essive o r bellig erent. Dillard c alled for backup and k ept his Taser pointed a t Thomas. Dillard told Thomas to put his hands in the air, step forward and drop to his knees. T h omas refused to do s o

. I n r esponse to the call for backup, a uniformed Escondido p olice officer arrived on the scene a nd pointed her handg un a t T h o m a s from a distance of 15 feet
away

. W h en the Escondido officer told Thomas to put u p his hands, he did so. Di l l a r d t o l d Thomas that if he did not g et down on his knees by the count of three, Dillard wo uld tase him. D illard counted to three, a n d

, w hen Thomas did not comply

, tased Thomas. Dillard fired the Taser in dart mode, discharg ing a set of electrified barbs that lodg ed in Thomas’ chest a nd delivered an incapacitating surg e of electrical
current to his body

. This occurred approx imately six minutes into the encounter. Thomas was handcuffed, sear ched (no
weapons were found), treated b y paramedics, arreste d a nd charg ed with unlawfull y resisting

, delay ing o r obstructing a peace officer. See Cal. Penal Code § 148(a)(1). The charg e s were dismissed six months later.

Thomas filed suit ag ainst Dillard under 42 U.S.C. § 1983, alleg ing v iolations o f his F o urth A mendment rig hts to be free from unla w f

u l seiz ure and ex c essive force. He also alleg ed claims under California state law for neg lig ence and violation of California Civil Code § 52.1. Dillard moved for summary judg ment, and T homas cross-moved for partial summary judg ment on the issue of liability

. The district court deniedT H O M A S V

. D I L L

A R D 9

Dillard ’ s m o t ion and g ranted Thomas’ motion. The court ruled Dillard lacked reasonable suspicion to believe T h omas

was armed and dang erou s , and thus that Dillard unlawfully seiz ed Thomas for the pur p o se of conducting a weapons

s e arch. The court also denied qualified immunity for t h i s seiz ure, reasoning :

Having d etermined the ex istence of a constit u t ional v iolation, the Court considers whethe r t he r ig ht violated was clearly

e s t ablished at the time o f its occurrence. A t the time Officer D illard tased Thomas to force his compliance with a weapons’ search, it was clearly established that such a search is unreasonable unless supported b y the officer’ s reasonab l e suspicion that the person to be searched is a

rmed and dang erous. Ramirez [ v

. City of Buena P a rk

], 560 F .3d [ 1012,] 1023 [ (9th Cir. 2 009)]

. T h ere was no objective evidence to support a r easonable suspicion that Thomas h ad a w eapon. Officer Dillard’s

e x p l a n a t i o n , b a s e d o n h i s s u b j e c t i v e characteriz ation that this wa s a domestic viol e n c e call and therefore necessitated a search without any indication a wea p o n was involved, is wholly inadequ at e to justify his conduct. I t would hav e b een clear to a reasonable officer that a search of Thomas in the circumstances presented was unlawful. Officer Dill a rd is not entitled to qualified immunity

.

The c ourt f

u rther ruled “Dillard’s use of his taser to c ompel Thomas’s c ompliance with the search was ex cessive force.”T H O M A S V

. D I L L

A R D 10

“Having concluded that Officer D illard ha d n o reasonable suspicion to support a search of Thomas for w e apons, any force used to accomplish that search was o b j e ctively unreasonable and tasing Thomas was clearly ex cessive,” the court wrote. Dillard timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

Ordinarily

, we lack jurisdictio n over an appeal from a denial of summary judg ment b ecause it i s n ot a “ final” ju d gm e n t under 28 U.S.C. § 1291. See Mueller v. Auker

, 5 7 6 F. 3d 9 79, 987 (9th Cir. 2009). A public officia l

, however, may immediately appeal the denial of a motion for
summary j u d gm ent asserting qualified immunity

. See Mitchell v

. F

orsyth

, 472 U.S. 511, 526–27 (1985). According ly

, we have jurisdiction t o review the denial o f qualified immunity to Dillard. Ou r review is limited to whether, after c onstruing d isputed facts and reasonable inferences in favor of T homas, Dillard is entitled to qualified immunity as a matter o f law. S ee M attos , 661 F .3d at 439 & n.2. W e review this question de novo. See id. at 439. 5

III. DISCUSSION

Qu alified immunity shields a police officer from suit under § 1983 unless ( 1 ) the officer violated a statutory o r constitutional rig ht, and (2) the rig ht was clearly e stablished

5 Un d er th e circu m stan ces o f th is c a s e , w e a lso h av e j u risd ictio n to

rev iew th e d istrict co u rt’ s g ran t o f p artial su m m ary j u d g m en t

to T h o m as

o n th e issu e o f F o u rth A m en d m en t liab ility b ecau se o u r h old in g th at Dillard is en titled to q u alif i ed im m u n ity n ecessarily

reso lv es th e issu e o f Dillard ’ s liab ility

. S

ee K.W

. ex rel. D.W

. v. Armstro n g , 7 8 9 F.3 d 9 62
, 9 7 5 (9 th Cir. 2 0 1 5 ); Bu ll v. City & Cty. of S a n Fra n cisco
, 5 9 5 F.3 d 9 64
, 9 7 1
, 9 8 2 (9 t h Cir. 2 0 1 0 ) (en b an c).T H O M A S V

. D I L L

A R D 11

at the t i m e o f the c halleng ed conduct. See Plumhoff v

. Rickard

, 134 S. Ct. 2012, 2023 (20 1 4 ); A shcroft v. al-Kidd

, 131 S. Ct. 2074, 2080 (2011). Althoug h we have discretion in deciding which of these two prong s to address first, here

we elect to follow the o r d er laid out a bove. See Mattos
, 661 F .3d at 440. W e evaluate separately the constitutionality of each distinct F ourth Amendment i n t rusion: the investig a t o r

y stop, the Terry frisk and the use of the Taser. See Ramirez , 560 F .3d at 1019.

A. Investigative Stop

The F ourth Amendment protects the “rig ht of the people
to be secure in their pe r s o n s

. . . a g ainst unreasonable searches and seiz ur es ” by the g overnment. U.S. Const. amend. I V. “This inestimable rig ht of personal security belong s as much to t h e c i tiz en on the streets of our cities a s to the homeowner closeted in his stu d y t o dispose of his
secret affairs.” Terry v

. Ohio

, 392 U

. S

. 1
, 8–9 (1968). “Unquestionably [ Thomas] was entitled t o the protection o f the F o urth Amendment as he walked down the street in [ Escondido] ,” just as J ohn Terry was e nti t l ed to the same protection on a Cleveland street in 1963. Id. at 9.

Te rry 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” r equired to

ex e c u t e a n arrest o r a “full” search. See id. at 20–27. T o initiate a brief stop to investig a te potential criminal a ctivity

, a stop that d oes n o t rise to the level o f 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. 2 6 6, 273 (2002). This means the officer must h a v e reasonable suspicion “the p erson apprehended is committingT H O M A S V

. D I L L

A R D 12

o r has committed a criminal offense.” Arizona v. J ohnson

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

Thomas does n ot c halle n ge Dillard’s initial d ecision to stop a nd question him a

nd Husky for a b r ief 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 f ound, by the s t o ra g e containers. T his created a reasonable suspicio n T h omas mig ht have committed a simple a ssault or battery

, possibly in the contex t of a domestic relationship. See, e.g. , Cal. Penal Code § 2 42 (defining battery as “any willful a nd unlawful use of fo rce or violence upon the person of another”); id. § 243(e)(1) (proscribing simple battery ag ainst “a person with whom the d efendant h as, or has had, a dating relationship”). 6 Di l l a r d was entitled to detain T h omas briefly to investig ate the rep o r t of potential criminal activity – a so-called Terry stop.

I n conducting the stop, Dillard also was permitted to ask Thomas for c onsent to search for weapons, see United States

v. Drayton
, 536 U.S. 1 94, 207 ( 2002), known as a Terry frisk,

see United States v. I.E.V.
, 7 05 F

. 3d 430, 433 (9th Cir. 2012). As the word “ consent” implies, however, Thomas was free to decline Dillard’s r e q uest. See Florida v. Bostick

, 5 01 U.S. 429, 437 (1991) (“[ A] n individual may decline an officer’s request [ for a consent search] without fearing prosecution.”). The nature o f the interaction between Dillard and T h omas chang ed sig nificantly

, h owever, o nce Dillard unholstered his

6 Un d er Calif

o rn i a law

, “ th e least t o uc h in g m ay co n s titu te b attery .” P e o p l e v. Myers
, 7 1 Cal. Rp tr. 2 d 5 1 8
, 5 2 2 (Ct. A pp

. 1 9 9 8 ) (in te r n a l
q u o tatio n m ark s o m itted ). It n eed n o t b e v io len t o r sev ere, an d it n eed n o t

cau se b o d ily

h arm o r ev en p ain

. S ee id

.T H O M A S V

. D I L L

A R D 13

Taser, pointed it a t T homas and o rdered Thomas to submit to

a frisk for weapons. At that po i n t , he ex ceeded the justification and authority f or the Terry stop – to investig ate

a potential battery

. See Florida v. Royer , 460 U.S. 491, 500 (1983) (“The scope of the d e tention must be carefully tailored
to its underly ing justification.”); id. (“[ A] n inves t i gative detention must be t e m p orary and last no long er than is
necessary to effectuate the purpose of the s t o p .”); see also Rodriguez v. United States
, 135 S. Ct. 1609, 1614 (2015) (noting the p ermissible duration of a traffic stop, “ [ l] i k e a Terry stop,” is determined by t h e “ m i ssion” of the stop). Once Dillard demanded Thomas submi t to a search for
weapons, h e needed a reasonable basis for believing T h omas mig ht be armed a

nd dang erous in o rder to continue detaining him for the search. The question, then, is whether D illard h ad such justification.

B. F risk

Thomas arg ues Dillard had n o justification for ordering him to submit to a Terry frisk and that detai n i n g him to perform the frisk violated the F o u rth Amendm en t

. He contends it was clearly e stablished that Dillard’s conduct was

u nconstitutional when the events took place in Septemb e r 2 0 1 0
, and D illard therefore is not entitled to qualified immunity

. W e address t h e se two prong s of the qualified immunity analy sis in turn. W e emphasiz e, ag ain, that for this
purpose w e take the facts and inferences drawn from them in favor of Thomas.

1. Constitutional Violation

W h ereas the purpose o f a T e r r y stop is to further the interests of crime prevention a nd detection, a Terry frisk isT H O M A S V

. D I L L

A R D 14

justified by the concern for the safety of the officer a nd others i n prox imity

. See Terry
, 392 U.S. at 22–24. According l y , whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for

w e apons requires reasonable suspicion that a suspect “ i s armed and presently da n ge r o u s to the officer or to others.” Id. at 24; see also J

o h n s o n , 555 U.S. at 326–27. “A lawful frisk does not alway s flow from a justified stop.” U n ited States v. Thomas

, 863 F

. 2d 622, 628 (9th Cir. 1988). Rather, “[ e] ach element, the stop and the frisk, must be analy z ed separately ; the reasonableness of each must be independently determined.” Id. ; see also Terry , 392 U.S. at 22–23.

A frisk for w eapons “is a serious intrusion upon the sanctity of the perso n, which may inflict g reat indig nity a nd

arouse strong resentment, and i t is not to b e undertaken lig htly .” Terry
, 392 U.S. at 17 ; s e e also id. at 14–17 nn.11–14. As the Supreme Court r ecog niz ed in f ashioning the stop-and-frisk ex c e ption to probable c a u s e , p eople have

a strong interest in personal security

, a nd routine police intrusions breed resentment within co mmunities they serve. According ly

, Terry was careful to craft a standard for a frisk that w as both protective of law enforcement o fficer s w h o confront potentially dang erous individuals a n d consistent with the o bjective, fact-based approach traditionally r equired
to justify invasions i n t o areas protected by the F ourth Amendment. See id. at 20–27. 7

7 T h e Co u rt w as pa r t i cu larly s en sitiv e to resen tm en t i n m i n o rity

co m m u n ities w ith

reg ard to ag g ressiv e sto p

- an d

- f risk tactics. S

ee Terry
, 3 9 2 U.S. at 1 4

– 1 5 & n .1 1 (citin g Presid en t’ s Co m m is s i o n o n L aw En f o rcem en t an d A d m in istratio n o f J u stice, Ta s k F o r c e R e p o rt: T h e Po l i ce 1 8 3

– 8 4 (1 9 6 7 )); id

. at 16

– 1 7 & n .1 4 ; see a l

so J oh n Q. B arrett, Decid i n g th e S to p a n d Frisk Ca ses: A Lo o k In sid e th e S u p reme Co u rt’s Co nferen ce , 7 2 St. J oh n ’ s L

. Rev

. 7 4 9
, 7 7 0

– 7 2 (1 99 8 ); E a r l C

. Du d ley J r., T erry v

.T H O M A S V

. D I L L

A R D 15

To establish reasonable suspicion a suspect is armed a nd dang erous, thereby justify ing a frisk, “the police officer must be able to p oint to specific and articulable facts w hich, taken tog ether w ith rational inferences from those facts, reasonably
warrant that intrusion.” T e rry , 392 U .S. at 2 1. A “mere ‘inchoate and unparticulariz ed suspicion or hunch’” that a person is a

rmed and dang erous does not establish reasonable suspicio n , M

a r yland v. Buie
, 494 U.S. 325, 332 (1990) (quoting T

e rry , 392 U.S. at 2 7) (some internal quotation marks omitte d ), and c ircumstances sug g esting only that a suspect would be d ang erous if armed are insufficient, see United S tates v. Flatter

, 4 56 F .3d 1 154, 1 157 (9th Cir. 2006). There must b e adequate reason to believe the suspect is armed. See id.

Reasonable suspicion is a n o b j ective standard, asking whether “a reasonably p rudent [ pe rs on] would have been warranted in b elieving [ the suspect] was armed and thus presented a threat to the o fficer’s safety w hile he was investig ating his suspicious behavior.” Terry
, 392 U.S. at 28. This inquiry requires consideration of all the f acts a nd ci r c u m stances an officer confronts in the encounter; we consider the totality o f the c ircumstances. See id. ; Navarette

v. California

, 134 S. Ct. 1 683, 1687 (2014); Arvizu
, 534 U.S.
at 273; United States v. S

okolow

, 490 U.S. 1, 8 ( 1989); United States v. Co r t ez , 449 U.S. 411, 417 (1981); United States v

. Burkett

, 612 F .3d 1103, 1107 (9th Cir. 2010). I mportantly

, reasonable suspicion must be individualiz ed: “[ e] ven in hig h crime areas, where the p ossibility that any g iven individual is armed is sig nifi c a

n t , T e r r y r e q u i r e s reasonable, individualiz ed

Oh i o , th e W

a rren Co u rt a n d t h e Fo u rth Amen d men t: A L a w Clerk’s Persp ective , 7 2 St. J o h

n ’ s L . Rev . 8 9 1 , 8 9 3 (1 9 9 8 ).T H O M A S V

. D I L L

A R D 16

suspici o n b efore a frisk f or weapons can be conducted.” Buie , 494 U.S. at 334 n.2.

I n a ssessing the totality of the circumstances, re l ev a n t considerations may include: observing a visible bulg e i n a person’s clothing that c o uld ind i c ate the presence of a weapon, see Flatter

, 456 F

. 3d at 1157 (citations o m i t t e d ); seeing a w eapon in an area the suspect controls, such as a car,

see Michigan v. Long
, 463 U.S. 1032, 1050 (1983); “sudden movements” sug g esting a poten tial assault or “attempts to reach for a

n object that was not immediately visible,” Flatter

, 456 F. 3 d a t 1157 (citing United States v. Flippin

, 924 F .2d 163, 164–66 (9th Cir. 1991)); cf. Y barra v. Illinois

, 444 U.S. 85, 9 3 (1979) (ho l d i ng reasonable suspicion was lacking where an individual ’ s h a n d s were e mpty and he made “ no g estures or o ther actions indicative o f a n intent to commit an assault”); “ evasive and deceptive responses” to an office r’ s questions about what an individual w as u p t o , Burkett

, 612 F .3d at 1107; unnatural hand postures that sug g est an effort to conceal a firearm, see id. ( suspect opened the
passeng er car door with his left hand and kept his rig ht hand

nex t to his body and appeared to re a ch f or his coat pocket); and whether the officer o bserves any thing during an encounter with the suspect that w o u l d dispel the officer’s suspicions reg a

rding the suspect’s p otential involvement in a crime o r likelihood of being armed, see Terry
, 392 U.S. at 28; United S tates v

. $109,179 in U. S

. Currency
, 2 2 8 F .3d 1080, 1086 (9th Cir. 2000).

This last point is e speciall y important. Even where certain facts mig

ht support reasonable suspicion a suspect is armed and d ang e rous when viewed initially or in isolation, a frisk is not justified wh e n additional or subsequent facts dispel o r neg ate the suspicion. J u st a s a suspicion must beT H O M A S V

. D I L L

A R D 17

reasonable and individualiz ed, it must be based on the totality of the circumstances known to the officer. Officers may not cherry pick f

acts to j u s t i fy the serious F ourth A mendment intrusion a frisk imposes. See Thomas

, 863 F .2d at 62 6 –30 (holding there was reasonable suspicion to stop a driver w ho
roug h ly resembled a c o unterfeiting suspect and was near the

scene of the c rime; but once the d river ex ited h is vehicle a

nd it was clear he did not match the suspect’s description, there

was no reasonable suspicion und e r t h e circumstances to justify further detention or a frisk).

H ere, D illard c ontends a reasonable officer would ha v e been justified in believing Thomas was armed and dang erous based o n the following specific facts: (1) Dillard had received
two d ispatches reg arding potential violence ag a inst a female, Thomas loosely matched the minimal descriptions of the suspects in both d ispatches, a nd Dillard encountered T h omas and Husky in the location where the p u s h ing incident h ad been reported; (2) Thomas a nd Husky ap p e a r e d startled a nd fidg ety ; ( 3) Thomas was wearing clothing

– a T-shirt a nd loose-fitting jeans – c apable of h iding a weapon; (4) T h omas refused to c onsent to a weapons sear c h

, e ven after Dillard

ex p lained the nature o f his investig ation; and (5) T h omas stepped away after Dillard approached him and a ttempted to place him into a controlled hold. L ike the district c ourt, we conclude these facts, v i e wed as part of the totality of the circumstances, did not g ive Dillard reason to believe T h omas was armed and dang erous.

( 1 ) Potential Domestic Violence Nature o f the Call. The only fact Dillard seriously presses for suspecting T homas was

a r m e d a t the time he demanded to frisk is the percei v e d d o m e s t ic v iolence nature of the crime he was investig ating

. I t i s true, of course, that the ty pe of crime a perso n i sT H O M A S V

. D I L L

A R D 18

suspected o f committing may be h ig hly relevant to the

ex istence of reasonable suspicion for a weapons frisk. I n Terry
, the office r ’ s suspicion that Terry was armed was premised larg ely on his substantiated suspicion that Terry was planning a day

time store robbery and that such robberies a re

“ l i k el y t o involve the use o f weapons.” 392 U.S. at 28. Similarly

, we have held it is reasonable for an off i c e r t o

assume a s u s p e cted narcotics trafficker is likely armed. See $109,179 in U.S. Currency
, 228 F .3d a t 1086–87. T h e same is true for a suspected b ank r o b b er, see United States v

. Johnson

, 581 F .3d 994, 1000 (9th Cir. 2009), someone suspected of involvement in a larg e-scale marijuana g rowing

o p e r a tion, see U

nited S tates v. D avis
, 530 F .3d 1069, 1 082–83 (9th Cir. 2008), a nd a suspect in certain nig htti m e burg laries, see United States v

. Mattarolo

, 2 0 9 F .3d 1153, 1158 (9th Cir. 2000). 8 On the other hand, when a person is

8 Of co u rse, su sp icio n o f a crim e lik ely to in v o lv e w eap o n s is n o t t h e en d

o f th e m atter. Un d er th e to tality

- o f

- th e- circu m stan ces an aly sis, ad d itio n al f acts m ay s u f

f icien tly disp el an o f

f icer’ s s u sp icio n

. S

ee Th o ma s , 8 6 3 F.2 d
at 6 2 8– 2 9 (h o ld in g a f

risk w as u n law f

u l w h ere, af t er th e s u sp ects w ere sto p ped an d ex ited t h e i r v eh icle, th eir clo th in g d id n o t m atch th e d escrip tio n o f th e rep o rted p erp etrato rs); 4 Way n e R. L aFav e, S

ea rch & S eizu r e § 9 .6 (a) (5 th ed

. 2 0 1 5 ) (“ [I]t sh o u ld n o t b e assu m ed th at w

h atev er

m i g h t h ap p en b etw een th e in i tiatio n o f th e sto p an d th e in itiatio n o f t h e f risk is o f n o relev an ce, f o r th is i s n o t th e case. If b y i n v e s tig atio n or h ap p en stan ce th e q u an tu m o f ev id en ce n eed ed t o j u stif y a f o rcib le sto p h as d issip ated d u rin g th is in t erv al, t h en it is n o t p erm issib le to f risk .”); cf. Terry
, 3 9 2 U.S. at 2 8
, 3 0 (n o tin g n o th in g d isp elled th e o f f icer’ s s u sp icio n s th at T erry w as arm ed ). Ev en w

h ere th e ty

p e o f crim e is lik ely to in v o lv e

w eap o n s , w e co n sid er t h e to tality o f th e circu m stan ces t o d eterm in e

w h eth er t h e su sp icio n is actu ally j u stif ied in co n tex t a n d w

h eth er an y

su sp icio n w as d isp ell e d b y o th er f acts k n o w n to th e o f

f icer. S ee, e.g

. , Jo h n so n , 58 1 F.3 d at 1 0 0 0 (o f f icers p erso n ally o b serv ed m an y tell- t ale sig n s o f a b an k ro b b ery

p lan u n f o l d i n g b ef

o re th em ); Da vis
, 5 3 0 F .3 d at 1 0 8 2 (d istin g u i sh in g a s us p e ct w h o h ad access to a p riv ate resid en ce g ro w in g m arij u an a o n a larg e scale f ro m o n e w

h o w a s i n a pu

b lic p l aceT H O M A S V

. D I L L

A R D 19

being investig ated for a crime that is neither “likely to involve the u s e o f w eapons,” Terry
, 392 U.S. at 28, nor “frequently associated with weapons,” Flatter

, 456 F .3d at 1 1 58, suspicion of such a c r ime does not p rovide reaso n t o suspect a person is armed. See id. (suspicion o f mail theft is insufficient); Thomas

, 86 3 F .2d a t 6 29 (same with passing counterfeit money

); Ramirez v. City of

Buena Park

, 560 F .3d 1012, 1 022 (9th Cir. 2009) ( same with illi c it drug use). W e have not previously addressed whether domestic v i o l ence is the ty p e of crime that is likely

to involve weapons, such that the nature o f the crime itself may provide suspicion a suspect is arme d. W e address that issue now, and hold domestic violence is not a crime such as bank robbery or trafficking in larg e q uantities of drug s that is, a s a g eneral matter, likely to involve the use of w eapons. Thus, officers may not rely solely on the d o m estic v iolence nature of a call to establish reasonable suspicion for a frisk. S e e 4 W ay ne R. L aF ave, Search & Seizure § 9.6(a) (5th ed. 2015) (describing a “minor assault w ithout weapons” as the ty pe of crime that does not, absent oth e r circumstances, g ive r ise to a reasonable suspicion a suspect is armed). 9

Dillard’s a

rg ument, accepted by o ur d issenting colleag ue, that the mere fact an officer is r e sponding to a p erceived

an d h ad on l y a lo o se asso ciatio n w ith d ru g d ealers); $ 1 0 9 ,1 7 9 in U .S

. Cu rren cy , 2 2 8 F.3 d at 10 8 5

– 8 7 (d ru g traf f ick in g su sp ect f

ailed t o id en tif

y h im self

, p ro v i d ed in co n sisten t an sw ers to an o f f icer’ s q u estio n s an d w as

co n f ro n ted i n a co n f

in ed h o tel ro o m ); Ma tta ro lo

, 2 0 9 F.3 d at 1 1 5 8 (af ter b ein g sto p p ed o n a rem o t e stretch o f ro ad

, a n ig h t tim e bu rg lary su sp ect g o t

o u t o f h is car an d q u ick ly

ap p ro ach ed th e o f

f icer’ s sq u ad car).

9 W e l ik ew ise h av e f

ou n d n o case law to su g g est th e Calif o rn ia co u r t s

w o u ld p resu m e a su sp ect is arm ed an d d a n g e r o u s b ased so lely o n th e d o m estic v io len ce n atu re o f a call.T H O M A S V

. D I L L

A R D 20

domestic v iolence call establishes reasonable suspicion a suspect is armed and d a n ge r ous ig nores the broad scope o f conduct encompassed b y the term domestic violence, especially u nder Californ i a law. See Cal. Penal Code § 1 3700(b) (defining “domes t i c violence” to include any “abuse committed ag ainst an adult or a mino r w h o is a spo u s e , former spouse, cohabitant, former cohabitant, o r person with w hom the suspect has had a child or is having o r has had a dating or e ng a g ement relationship”); id. § 13700(a) (defining “abuse” to include “ i n tentionally o r recklessly causing or atte m p t i ng to cause bodily injury

, or placing another person in reasonable apprehension of imminent serious bodily injury to himself o r herself, o r another”). Domestic v i o lence comes in widely vary ing deg r ees o f dang erousness. I t “is a term o f art encompassing acts that o ne mig ht not c haracteriz e as ‘violent’ in a n ondomestic contex t.” United States v. Castleman

, 1 34 S. Ct. 1405, 1411 (2014). I t

can involve conduct as minor as squeez in g a nother’s arm to create a bruise, see id. at 1412, or as serious as rape, see People v. Poplar

, 83 Cal. Rptr. 2 d 320, 326 (Ct. App. 1999), or homicide, see Castleman , 134 S. Ct. at 1408–09.

As a g eneral categ ory of c r i m e, therefore, domestic violence is clearly disting uishabl e f rom the more specific crimes the Supreme Court and this court have held a re likely
to i n v o l v e t h e use o f weapons, such as the day time store robbery in Terry
, bank robbery or narcotics trafficking

. Althoug h m ai l t heft and b ank robbery both fall under the categ ory o f theft offenses, only the latter g ives rise to suspicion a s u spect is armed. Compare Flatter

, 456 F

. 3d at 1158, with Johnson

, 5 81 F .3d at 1000. L ikewise, illicit d rug use, larg e-scale marijuana cultivation and narcoti c s trafficking are all drug offenses, but only th e l a t t e r two g ive rise to reasonable suspicion fo r a Terry f risk. CompareT H O M A S V

. D I L L

A R D 21

Ramirez
, 5 60 F .3d a t 1022, with Davis
, 530 F .3d at 1082–83, and $109,179 i n U.S. Currency
, 228 F .3d at 1086–87. A s with the g eneral categ ories of theft and drug offenses, domestic violence encompasses too broad an array of crimes
to c ateg orically justify reasonable suspicion under Terry a nd its prog eny

.

Given the breadth of domestic violence, the sp ec ific circumstances of a call must be facto r ed into the reasonable suspicion analy sis. Some d omestic violence calls may pose serious threats to officers, such as those requiring an officer
to enter a suspect’s h ome and intervene in the m i d d l e of a heated fig ht or v i c i o us attack. See Mattos
, 661 F .3d at 457 ( K o z i nski, C.J
., concurring in part and dissenting in par t ) (noting that b y enteri n g t h e home, o fficers may “become targ e ts of fear and ang er” a n d a r e “in close quarters, ‘at the disadvantag e of being on [their] adversary ’s turf’” (quoting Buie
, 494 U.S. at 333)). Other ex amples are those involving

a suspect ang rily threatening a responding officer to ge t o f f his property , see Reed v. Hoy
, 909 F .2 d 3 2 4, 325 (9th Cir. 1989), overruled on other grounds by Edgerly v. City & Cty. of San Francisco
, 5 99 F .3d 946, 956 n.14 (9th Cir. 2010), o r

a report of a suspect wielding a g un, see George v. Morris
, 736 F

. 3 d 829, 832 (9th Cir. 2013). B ut not all domestic violence calls present such risks. Reasonable suspicion must be based o n “specific and a rticu l a b l e facts” reg arding the suspect and the “particular c i rcumstances,” rather than “unparticulariz ed suspicion.” Terry
, 392 U.S. a t 2 1, 27. “This demand for specificity in the information upon which police ac t i o n i s predicated is the central teaching of [ the Supreme] Court’s F o u rth Amendment jurisprudence.” Id. at 21 n.18. W e reject the notion there is a blanket “domestic violence” ex c eption to Terry ’s r equirement for particulariz ed suspicion.T H O M A S V

. D I L L

A R D 22

Our F ourth Amendm e n t jurisprudence in the areas o f warrantless entry and ex cessive force confirms that domestic violence suspects are not p resumed to be armed. W e h a v e recog niz ed, of course, that some domestic violence calls are d a n g erous a

nd some domestic violence suspects are arm ed

. I n United States v. Martinez , 406 F .3d 1160 (9th Cir. 2005), for ex ample, we noted “the combustible nature of domestic disputes,” id. at 1165 (quoting Tierney v. Davidson

, 133 F .3d 189, 197 (2d Cir. 1998)), ex plaining :

The volatil i ty of situations involving domestic violence make them particularly well-suited for an application of the
emerg ency doctrine. W hen offi cers respond
to a domestic abuse call, they u nderstand that “violence may be lurking and ex plode with little warning

. ” Fletcher v. Clinton

, 196 F .3d 41, 50 (1st Cir. 1999). I ndeed, “more officers

are killed or inj u r ed on domestic violence calls than on a

ny other ty

pe of call.” Hearing s before Senate J udiciary Committee, 1994 W L 530624 (F .D.C.H.) . . . .

Id. at 1164 ( quoting cong ressional testimon y b y Sam B aca, then Chief of Police of L akeland, F lorida, Sept. 29, 1994 1 0 );

see a l s o H i ibel v. S ixth Judicial Dist. Court of Nevada

, 542 U.S. 177, 186 (2004) (“Officers called to i nvestig ate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety

, and possible dang er to the potential victi m

. ” ) ; Mattos
,

1 0 A l th o u g h Ma r tin ez su g g ests th i s testim o n y w as o f f ered “ o n b eh alf of Natio n al T ask Fo rce o n Do m estic V io len ce,” th at d o es n ot ap pear t o h av e b een th e case. S

ee 1 9 94 W L 5 3 0 6 2 4

.T H O M A S V

. D I L L

A R D 23

661 F .3d at 450 (“W e take very seriously t he dang er that domestic disputes pose to law enforcement officers

. . . .”). W e a ccept the proposition that domestic vio l e n c e calls present a sig nificant risk to police o f f icers’ safety

, b ut to create a new categ ory of crime justify ing a utomatic f

r i s ks

r equires more than a showing that some domestic violence calls are dang erous.

Thomas and the dissent, moreover, appear to overstate the threats d omestic violence c a lls a s a categ ory pose to police officers. See Shannon Mey e r , PhD, Victim Specialist, Seattle Divisio n , F e deral B ureau of I nvestig ation, & Randall H

. Carroll, Chief of Police (Retired), B elling ham, Washing ton, Police Depar t ment and President, Profectus Consulting

, W hen Officers Die: Understanding Domestic Violence Calls for Service
, The Police Chief 78 (Ma y 2011), http://www.policechiefmag az ine.o r g/ m a ga z i n e / i n d e x .cfm? f

u s e a c t i o n = d i s p l a y

_ a r c h &a r t i cl e

_ id=2378& issue_ i d = 5 2 0 1 1 (last visited Dec. 29, 2 0 15) (althoug h “it is widely b elieved that domestic violence calls pose the g reatest threat to police officers’ safety a

nd that law enforcement officers are most likely to b e injured or killed re sponding to this categ ory o f call

. . . , the bulk of research d o e s n o t actually support this perspective”; “when ex amined in c ontex t, domestic violence calls for service account for a relatively small proportion o f the overall r a t e of police officers murders”); J oel G arner & Eliz abeth Clemmer, National I nstitute of J ustice, U.S. Department of J ustice, Danger to Police in Domestic Disturban ces – A New Look

, Research in B rief 2–3 (Nov. 1986), http://files.eric.ed.g o v/fulltex t/ED295090.pdf ( last visited Dec. 29, 2 015) (finding no officer injuries or deaths in

a study o f 1,446 family disputes in L os Ang eles). Creating a

ne w class of presumptively armed and dang erous suspectsT H O M A S V

. D I L L

A R D 24

requires more than the dubious data Thomas and the dissent invoke. 1 1

Our dissenting colleagu e also cites studies emphasiz ing the risks domestic v iolence po s es to victims. Dissent at 56, 64–65. See Callie Marie Renninson, Ph.D., I ntimate Partner Violence and Ag e o f V i c tim, 1993–99, B ureau of J u stice Statistics Special Report (rev. 11/28/01), at 7 (“An averag e o f 15% of intimate partner violence victims were involved in a victimiz ation in which the offender had a weapon

. ” ) ; S usan B

. Sorenson, Ph.D., & D oug las J

. Wiebe, Ph.D., W e apons in the Liv e s o

f B attered W

omen , 94 Am. J

. Pub. Health 1413 (2004) (36.7 percent of residents of California battered women’s shelters reported that, at some poin t during their lives, an intimate partner u sed a fir ea r m to hurt, threaten o r

scare them); W hen Men Murder W omen: An Ana l y s i s o f 2011 Homicide Data, Violence Policy C enter (September 2013), at 6 (“Of the females killed with a firearm, n early twothirds w ere murdered by male intimates.”). These risks a re undeniable and immensely serious, but the breadth of police

1 1 Rely in g o n FB I d ata, f

o r ex am p le, T h om as’ ex p ert asserts t h at 3 1 .7
p ercen t o f o f

f icer assau lts an d 1 2 .7 p ercen t o f o f f icer d eath s o ccu rred

w h ile an sw erin g d o m estic v io l en ce calls in 2 0 1 1

. B u t th e actu al FB I d ata b elie th ese claim s

. In f

act, 2 .7 p ercen t

– n o t 12 .7 p ercen t

– o f o f f icer d eath s o ccu rred w

h ile resp o n d in g t o “ d o m estic d istu rb an ce” calls, an d th is ty p e o f c a l l i nclu d es a v ariety o f d om estic d istu rb an ces, n o t m erely d o m estic v io len ce calls. See FB I, La w En fo rcemen t Officers Killed & A s s a u l ted 20 1 1
, tb l. 1 9
, h ttp s://w w w .f b i.g o v / ab o u

t

- u s / c j i s / u c r / l e o k a / 2 0 1 1 / tab les/tab le- 1 9 (last v isited Dec. 2 9
, 2 0 1 5 ). Sim ilarly

, alth o u g h 3 3 p ercen t

o f o f f icer assau l ts o ccu rred w

h en resp o n d i n g to “ distu

rb an ce calls,” see id

. a t t b l

. 6 9
, h t t p s : / / w w w

. f b i

. g o v / a b o u t

- u s / c ji s / u cr/leo k a/2 0 1 1 /tab l e s /

t a b l e

- 6 9 (last v isited Dec. 2 9
, 2 0 1 5), th at b ro ad categ o ry of calls in clu des n o t o n ly d o m estic v io len ce b u t also b ar f ig h ts, g an g calls, g en eral d istu rb an ces, in cid en ts w

h ere a c i t i z e n is b ran d ish in g a f irearm an d oth er ty

p es of d o m estic d istu

rb an ces. S

ee Garn er & Clem

m er, su p ra , at 2

.T H O M A S V

. D I L L

A R D 25

calls falling under the rubric of “do m estic violence” is so g reat that the perceived “domestic violence” nature of a c all cannot, in every case and w ithout more, establish a reasonable suspicion a particular suspect is armed. Nothing i n these studies g ave Dillard reason to suspect that Thom a s , in particular, was armed and dang e rous.

Plainly

, domestic violence calls vary widely in the actual threats they pose to officers and others. An officer therefore
must consider the specific factual cir c umstances o f an encount e r to justify a particular search or seiz ure, as our jurisprudence in the areas of warrantless entry and e x cessive force b ear out. I n Ma r t i n e z , for ex a mple, we considered whether it was reasonable for an o f ficer to enter a h ouse without a warrant d u ring an ong oing

, volatile domestic dispute. I n upholding the war r antless entry , we did not

s i m p l y rely on the fact that the officer was responding t o a d o m e stic violence call or the g eneraliz ed risk such calls can pose to officer safety

. W e looked to t h e specific circumstances the officer encountered: he was responding to

an interrupted 911 call r eporting a man who was “out o f control,” he had previously been c alled to the residence for domestic violence, where he n oticed the woman’s “fat lip,” and when h e arrived at the scene he saw a w o m a n cr y ing in
t h e front y ard and a man y elling ang rily from inside the residence. See Martinez
, 406 F

. 3d at 1162–63. The hig hly charg ed and rapidl y d eveloping situation in Martinez stands in stark contra s t t o this case, in which Thomas was neither
ag g r essive n or confrontational, there was no sig n of ong oing (or completed) domestic violence and Thomas stood v irtually motionless for six minutes while Dillard trained h is Taser on h i m. There was minimal objective risk here that vi o l e n c e would “ex p lode with little warning .” Id. at 1164.T H O M A S V

. D I L L

A R D 26

Two y ears later, in U

nited States v. Black

, 482 F .3d 1035 (9th Cir. 2007), we once ag ain “stopped short of holding that ‘domestic a

buse c ases c r eate a per se e x ig e n t need for warrantless entry ,’” e x plaining that w e evaluate, “on a caseby -case basis, whether the ‘total circumstances, presented to the law officer before a search . . . relieved the officer of the customary need for a prior warrant.’” Id. at 1040 (alteration in orig inal) (quoting United S tates v. Brooks

, 367 F .3d 1128, 1 136 (9th Cir. 2004)). We held a w arrantless ent r y i n t o a man’s a partment was justified in the interest o f the welfare o f

a domestic a

buse victim who had called 911 and reported that the man h ad beaten her up that morning in the apartment a nd that h e h ad a g un, and the polic e r easonably believed she mig ht be inside and b adly injured. See id. at 1039. As with Martinez
, the scene in Black was much more dang erous and uncertain than it was in this case.

Our en banc court held in the contex t of an e x cessive force challeng e that mere suspicion of domestic violence did “not reveal any basis” f

or believing a s u s pect was armed. Smith v. City of

Hemet
, 394 F .3d 689, 702 (9th Cir. 2005) (en banc). There, the suspect’s wife had pla c e d an emerg ency call reporting her husband was hitt ing her a nd had g r abbed her b reast very ha rd

, but did not have a g un. S ee id. at 693, 702. W h en officers arrived, the suspect initially refused to take his h ands out of his pockets, entered an d e x i t ed his home, shouted ex pletives at the officers, but then eventually took his hands out of his pockets and r emained in plain view of the officers. See id. Thoug h acknowledg ing the “seriousness a

nd reprehensibility of domestic abuse,” we concluded on these facts “ [ t ] h e record does n ot r eveal a ny basis for believing that Smith was armed or that he posed an i m m e d i ate threat to any o ne’s safety .” Id. at 702 (emphasis added). I n contrast to the suspect in Smith , Thomas was notT H O M A S V

. D I L L

A R D 27

ag g r essive to the police, he kept his hands and body in plain view at all times a

nd Husky vehemently denied he had abused her. 1 2

I n the y ears since we decided Smith

, Martinez and Black

, our decisions have continued to d emonstrate that F ourth Ame n d m e n t c halleng es in the contex t of domestic violence
turn on the spec i f

i c facts of the case, considered in their totality

. W e have never sug g es t e d that a suspicion o f “domestic v iolence” alone provides sufficient j u s t i f i c ation for

a g iven police intrusion. See George
, 736 F

. 3 d a t 839 (acknowledg ing the safety c oncerns arising from domestic violence calls but holding such concerns are diminished when the dispute a

ppears to have concluded b y the time the officers arrive on scene); Mattos
, 661 F .3d at 451 (holding the use o f

a Taser on a woman intervening to discoura g e officers from arresting her abusive husband constituted ex cessive force in part because there was “no threat that either spouse ha[ d ] a weapon”). The mere fact that Dillard w as responding to a perceived domestic violence call, therefore, did not establish reasonable suspicion to believe T h o mas was a rmed a nd dang erous.

Nor did the specific facts of this “domestic violence” c all do so. O n the facts p re s e n t ed here, the perceived domestic violence nat u r e o f the call provided scant reason to believe Thomas was armed and dang erous. Campus police dispatch

12 A lth o u g h t

h e d issen t say s T h o m as “ ref u sed to m o v e h is h an ds f ro m h is w aistlin e” (Dissen t at 52 ), in f act T h o m as sto o d f

acin g Dillard w ith h is

“ h an d s h an g in g at [h i s ] sid es, in a m an n e r th at w ou ld b e co n sid ered

n o rm al if [h e] w as stan d in g an d m ak in g ca su al co n v ersatio n w i th

so m eo n e.” He “ n ev er m ad e an y o v ert m o v em en ts w i th [h i s] h an d s at an y tim e in relatio n

to [h is] w aistlin e.”T H O M A S V

. D I L L

A R D 28

had reported that a person matching Thomas’ description, a

man with a purple shirt, was seen pushing a woman o n a public s t r e e t on campus. F orty minutes earlier, Dillard h ad

re c e i v e d a vag ue report of “domestic violence” at no p a rticular location on campus. Combining the inferen c e s Dillard could have reasonably drawn from these two calls, at most h e had p a

rticulariz ed suspicion that Thomas and Husky

were in a domestic relationship an d T h omas had been pushing Husky

. The specific ty pe of “domestic violence” c all Dillard thou gh t he w as responding to, then, was a simple battery within a d omestic r elationship. See Cal. Penal Code § 243(e )(1). Dillard’s questioning of Thomas and Husky confirms this was the full e x tent o f h i s suspicion. H e asked Husky and Thomas if they had been “fig hting or arg uing ” or whether Thomas was “pu shing her a r ound.” There were no facts sug g esting to a reasonable officer t h a t any specific phy sical c ontact bey ond pushing wa s o ccurring

, and the couple strong ly denied that even that had occurred, w i t h the supposed victim professing she and h er boy friend h ad instead been kissing

.

Even assuming a r easonable o fficer could still reasonably suspect T h o m as had pushed H usky d espite the denials, no reasonable officer could assume all persons i n volved in a simple domestic battery a r e, a s a categ orical matter, likely to be armed and dang erous. A n inference that Thomas was armed c o u l d b e drawn only in the presence of other circumstances that were not pres e n t here. As d iscussed below, Thomas’ a

ppearance and behavior g ave no sug g estion he was armed. Thomas was in a location where he was

e n t i tled to be, answered Dillard’s questions forthrig htly

, f a c e d Dillard with his hands fully visible in the afternoon sunlig ht and made n o o v ert movements sug g esting he was armingT H O M A S V

. D I L L

A R D 29

himself. There were no suspicious bu l g e s i n the T-shirt o r any other item of Thomas’ clothing

.
Moreover, even if Dillard reasonably could have fe a r ed
at the time he received the c all that the most tox ic and volatile
sort o f domestic dispute mig ht await him at the scen e , t h e se fears should h ave been dispelled by what he encount e r e d at the scene. There were no sig ns Thomas had attacked Husky

, she vehem ently and repeatedly denied Thomas was fig hting with her (much less abusing her), she i nsisted she a nd Thomas had been kissing and Thomas was reasonably cooperative and nonthreatening

. 1 3

13 T h e d issen t m en tio n s law rev i ew arti c l e s rep o rtin g th at d om estic

v io len ce v ictim s o f

ten d eclin e to co o p erate w ith p o li c e a n d p ro secu to rs. Dissen t at 5 2

– 5 3

. T h is is an i m p o rtan t po in t, b u t it d o es n ot ren der Hu s k y ’ s statem en ts an d v i g o ro u s d e fe n s e o f T h o m as irrelev an t. T h e articles u p o n w h ich th e d issen t relies, m o reo v er, em p h asize th at “ [v ]ictim s

o f d o m estic v io len ce are m ore p ro n e t h an o th er crim e v ictim s to recan t or ref u se to co o p erate a

fter in itia lly pro vid in g in

fo r ma tio n to po l ice. ” T o m L in in g er, Pro s ecu tin g Ba tterers After Cra wfo rd

, 9 1 Va. L

. Rev

. 7 4 7
, 7 6 8 (2 0 0 5) (em

ph asis ad d ed ). “ In a t

y pical case, th ese v ario u s f acto rs d o no t d eter co op era tio n with la w en fo rcemen t in th e immed ia te a fterma th of th e

a b u s e , b u t th ey b eg in to b ear h eav ily on th e v ictim in a m atter o f d a y s

. ” Id

. at 7 71 (em

p h asis ad d ed ); cf. L i sa Marie De San ctis, Brid g in g th e G a

p Between th e Ru l es o

f Evid en ce a n d J

u s t i c e f o r Victims o

f Do mestic Vi o l e n c e , 8 Y ale J .L

. & Fem in i sm 3 59
, 3 6 7

– 6 8 (1 9 96 ) (n o tin g “ [m ]an y

v ictim s are u n co op erativ e fr o m th e i n itial f ilin g o f th e case,” b u t citin g

o n ly a 1 9 9 5 telep h o n e in terv iew w ith a sin g le assistan t d istrict atto rn ey in

o n e city f

or th is p ro p o si t i o n )

. H ere, alth o u g h Dillard m ay h av e b een j u stif i ed in v i ew in g Hu sk

y ’ s d ef en se of T h o m as w ith so m e sk ep t icism

, w e d o n o t se e h o w i t w o u ld h av e b een reaso n ab le to en tirely d i sco u n t h er statem en ts, esp ecially w

h en th ey w ere f

u lly co n s isten t w ith th e o th er f acts Dillard en co u

n tered at th e scen e, n o n e o f w h ich su g g ested th at d om estic

v io len ce h ad occu rred o r w as ab o u t to o ccu r o r th at T h o m as w as arm ed

an d d an g ero u s.T H O M A S V

. D I L L

A R D 30

I n sum, we hold the perceived domestic violence nature of the call did not automatically and categ o r i c ally g ive Dillard reason to believe Thomas was armed and d ang erous. Nor did the particular circumstances o f this domestic violence call in particular, including t h e content of the c all and the circumstances Dillard confronted o n the scene, which we discuss in further detail below.

( 2 ) A ppearing Sta r t led o r Fidgety. As one additional

reason to b elieve Thomas w as armed, Dillard points to Thomas’ demeanor, sug g e sting Thomas appeared “ s tartled and fidg ety .” W e do not see h ow either of these observations

s u p p ort even minimally the inference that Thomas w a s armed, howev e r. Althoug h Dillard testified Thomas a nd Husky may have appeared “ a little s t artled” when he first confronted them, he also ex plained that this was “a common reaction

. . . when a police offi cer arrives on the scene.” B y fidg ety , Dillard meant only that Thomas and Husky e x hibited normal h and movements, noting that it i s n o t natural for people to stand in a perfectly still, statuesque form. T h omas and Husky

, in o ther words, behaved normally

. Such behavior does not g ive rise to reasonable suspicion to believe a suspect is armed and dang e rous.

(3) Thomas’ Clothing. As further reason to believ e Thom a s was armed, Dillard points to the fact that T h omas

was wearing an untucked T-shirt and jeans, “clothing capable of hiding a weapon.” W e acknowledg e that such clothing would d o nothing to dispel the notion that Thomas was armed, but neither does it s u gge s t t h at he was armed. See Y b arra , 444 U.S. at 9 3 (holding there was no reason to believe a bar patron was armed where “the most [ the officer] could point to was that [ the patron] was wearing a 3/4-leng th lumber j acket, clothing which the State admits could beT H O M A S V

. D I L L

A R D 31

ex p ected on almost a n y tavern patron in I llinois in e arly March”); Flatter

, 456 F .3d at 1158 (holding t h e re was no reasonable suspicion a suspected mail thief was armed e v e n th oug h his “vest obscured his waistline”). That a person is normally dressed d o es not give rise to reasonable suspicion the person is armed and dang erous. Otherwise, innumerable colleg e students every

where could be frisked f

or weapons on appearance alone.

( 4 ) W ithholding Consent to Search. As further reason to believe T homas was armed, Dillard p oints to Thomas’ r efusal to consent to a weapons search, even after Dillard ex p lained the nature of his i nvestig a tion. This fact too g a ve Dillard little o r no reason to b e l i eve Thomas was armed. T h omas

was f ree to decline D i llard’s request. See Bostick

, 501 U.S. at 437. As the district court ex plained:

An individual’s steadfast refusal to consent to a searc h c annot become the basis for re a s o nable suspicion, absent any other specific facts, to justify a forced search of that individual. I f that were the case, the F ourth Amendment would have no effect. An officer

w i t h o u t r e a s o n a b l e s u s p i c i o n t h a t a n individual was a

r med

, could simply g enerate

reason a ble suspicion by asking an otherwise non-threatening suspect to submit to a search and if he declined the officer would then have unfettered discretion to force him to submit.

See also United Sta t es v

. Santos
, 4 0 3 F .3d 1120, 1125–26 (10th Cir. 2005) (“A refus a l t o c onsent to a search cannot itself form the basis for reasonable suspicion . .

. . I f refusal

o f consent were a basis for r e a sonable suspicion, not h i n gT H O M A S V

. D I L L

A R D 32

would be left of F ourth Amendment protect i o ns.”); United States v

. Boyce
, 351 F

. 3d 1102, 1110 (11th Cir. 2003) (“The police c annot base their decision to prolong a traffic stop on the detainee ’s r e f

usal to c o nsent to a search. Such a r efusal
may only be considered w hen the police have a l r e a d y observed, b efore a sking for perm i ssion to search, facts sufficient to raise a reasonable suspicion.”); United States v. Machuca-Barrera

, 261 F .3d 425, 435 n .32 (5th Cir. 2 001) (“The mere fact that a person refuses to consent t o search
cannot b e u s ed as evidence in support of reasonable suspici o n

. ” ); cf. Graves v. City of Coeur D’Alene

, 339 F .3d 828, 842 ( 9th Cir. 2003) (“[ T] hat [the suspect ] refused to

conse n t to search cannot b e used to establish probable cause.”), abrogated on o ther grounds by Hiibel

, 542 U.S. 177.

( 5 ) Ste p p i ng Back. The one sudden movement T h omas made, to step back in r esponse to Dillard’s reaching for Thomas to put him in a “controlled hold” t o f risk him, also did not sug g est Thomas was armed. A r e a c t ive, instinctive

m ovement in response to a n officer’s own a g g ressi v e movement differs sig nificantly from the unprovoked, sudden
movements w e have h eld m a y factor into reasonable

s u s p icion. T he latter ty pe of movement has a volition al quality

, indicating a suspect’s “ attempt[ ] to take advantag e o f the situation by arming [ him] self.” Flippin

, 9 2 4 F. 2d at 164–66 (holding a suspect’s sudden g rabbing of a make-up ba g w hile under investig ative detention by an officer in her hotel room, coupled with the officer’s knowledg e that her companion had been carry ing a larg e knife, sug g ested an attempt to arm herself) ; see Burkett

, 612 F .3d at 1107 (holding an officer was j u s t ified in frisking a car passeng er

w h e r e the driver took a suspiciously long time to pull over while the passeng er w a s making furtive movements notT H O M A S V

. D I L L

A R D 33

v i s i ble to the officer a

n d then k ept one h and in an unnatu ra l position on his body when he ex ited the vehi c l e ) ; United States v. Taylor

, 716 F .2d 701, 708–09 (9th C i r

. 1 983) (during a stop of a methamphetamine manufacturing suspect,

a passeng e r refused to show his h an ds, making furtive
movements inside a truck as officers approa ched). I n response to Dillard’s reaching for him, Thomas stepped back

a couple feet, stopped, remained facing D illard, and made no movement with his h ands or any other part of his b o dy

. I n judg ing the sig nificance of this i nteraction, we are mindful that Dillard had n o justification to put T homas in a controlled hold to search him to beg in with, as the remainder of our reasonable s u spicion analy sis makes c lear. See Thomas

, 863 F .2d at 6 30 (“The way [an officer] conduct[ s] his investig ation

. . . cannot be used to bootstrap a justi fi c ation for the detention and frisk of [ a suspect] .”). This movement, when considered in contex t, does n o t sug g est Thomas was arming himself.

To summariz e, none of the circumstances a t the scene o f this encounter justified a reasonable s u s p icion Thomas was armed and dang erous. Even if Dillard r easonably believed he

was investig ating a potential domestic violence incident, that did not automatically g ive him the rig h t to f r i s k Thomas. Domestic violence encompasses too many criminal acts o f
vary ing degr e e s o f seriousness for an officer to form reasonable suspicion a suspect is armed from that label alone. “Unless an o fficer can point to specific facts that demonstrate reasonable suspicion that the individu a l is armed a nd dang erous, the F ourth Amendm en t tolerates no frisk.” Ramirez
, 5 60 F .3d a t 1022 (citing Knowles v. I owa , 525 U.S. 1 13, 117–19 (1998)). F rom the f acts he knew o nce h e actually c onfronted T homa s a t the scene, Dillard could not reasonably s uspect Thomas was armed and d ang erous.T H O M A S V

. D I L L

A R D 34

D i l l a r d v iolated the F o urth Amendment by detaining T homas

, under threat of a Taser, to conduct a suspicionless frisk. 1 4

Our dissenting colleague would hold that “the nature o f

a d o mestic violence call justifies an officer’s formulation o f

a r easonable suspicion that a suspect may be armed (i n t h e absence of mitig a ting circumstances).” Dissent at 64. Accordin g t o the dissent, our opinion “requires a law enforcement officer to face potential liability unless he leaves

a domestic v i olence scene without a ny assurance that the abuser is not armed and w ill not ag ain inflict violence on the victim

– only nex t time, w ith a gu n

. ” D i s sent at 64. W e

14 B ecau s e w e f

o cu s o n th e o b

j ectiv e q u estio n

o f w h eth er a reaso n ab le

o f f icer w o u ld h av e b een j u stif ied in b eliev in g T h o m as w as a r m e d

, see Terry
, 3 92 U.S. at 2 1– 2 2 ; Dela w a re v. Pro u se , 4 4 0 U.S. 6 48
, 65 4 (1 9 7 9 ),

w e h av e n o t co n sid ered Dillard ’ s s u b j ectiv e d e c isio n

m ak in g

. No n eth eless, w e n o te Dillard ’ s decisio n m ak in g w a s t ro u b lin g i n sev eral
resp ects. Dillard testif

ied h e b eliev ed T h o m as w as arm ed an d d ecid ed to search h im s o l ely b ecau se o f th e p erceiv ed d o m estic v io len ce n atu re o f th e call. As w e ex p lain in tex t , th ese assu m p tio n s w ere u

n reaso n ab le g iv en th e w id e ran g e o f co n d u ct classif ied as “ d o m estic v io len ce” an d th e n eed
to co n sid er th e to tality o f th e circu m stan ces. In ad d itio n , Dillard testif ied h e d ecid ed h e w o u ld search T h o m as ev en b ef o re h e arriv ed o n th e scen e,

m ak in g clear th at h e w o u ld h av e co n d u cted t h e s earch ev en if t

h e f acts h e

en co u n tered o n th e scen e d isp elled an y reaso n h e m ay h av e h ad to b eliev e T h o m as w as arm ed

. A s th e d istrict co u rt p o i n ted o u t, “ [b ]y h is o w

n

acco u n t, Of

f ic er Dillard g av e n o co n sid eratio n to th e actu al f acts h e

o b serv ed ; h e w as o n a m issio n t o search T h om as n o m atter w h at.” T h ese actio n s w ere n ot co n sisten t w ith th e F o u rth A m en d m en t. Ev en if Dillard

reaso n ab ly c o u l d presu m e T h o m as w as arm ed f ro m th e p erceiv ed d o m estic v io len ce n atu

re o f th e call alo n e (an d h e co u ld n o t), h e co u ld n o t

reaso n ab ly d e c id e to f

o llo w th at p reco n ceiv ed p lan irresp ectiv e o f th e

su sp icio n

- n eg atin g f

acts h e en co u n tered at t h e s cen e. A n of f icer is n o t fr e e to ig n o re th e actu al circu m stan ces h e en co u n ters in f

av o r o f a p erso n al po licy th at h e w ill ex ecu te a p atd o w n f risk w h en ev er h e resp o n d s to a call co n cern in g a p erceiv ed d om estic d isp u te.T H O M A S V

. D I L L

A R D 35

respectfully disag ree. The domestic violence nature of a c all is certainly relevant to an officer’s assessment of whether to conduct a search for weapons. I ndeed, “[ e] rring on the side of caution is ex actly

what we ex pect of conscientious police officers” confronting d o mestic v iolence. Black

, 482 F .3d at 1040. B ut reasonable sus p icion is not established merely because a n officer perceives a call as falling under the broad rubric of “domestic violenc e

. ” The officer’s decision to condu ct a f

r isk must be based o n the totality of the circumstan c e s , i n c luding the full nature and contex t of the call and th e f

a cts the o f

ficer actually observes on the scene. A vag ue call a

bout an unarmed man pushing a woman in a public place on a col l e ge c a mpus, without more, does not g ive rise to a conclusive reasonable suspicion that the man is armed a nd dang erous

. N o r d id the facts Dillard became

aware of when he actually c o n fr o n ted Thomas. He saw no evidence that an a ssault had occurred, and Husky vehemently denied that it had. Nothing in our decision p r e v e n t s a law enforcement officer from conducting a frisk when the circumstances call for it. The circumstances here did not.

2. Clearly Established Law

W e nex t address whether Thomas’ constitutional rig ht to be f r e e from an unlawful detention for the purpose o f conducting a suspicionless frisk was “‘clearly established in lig ht of the specific contex t of the case’ at the time of t he

ev en t s i n q

uestion.” M

attos , 661 F .3d at 440 (quoting Robinson v. Y

ork

, 566 F .3d 81 7
, 8 21 (9th Cir. 2009)). “An officer cannot be said to have violated a clearly e stablished rig ht unless the rig h t’s contours were sufficiently definite that
any reasonable official in h i s shoes would have u nderstood that he was violating it.

. . .” City & Cty. of S an Francisco v

. Sheehan

, 135 S. Ct. 1765, 1 774 ( 2015) (brackets and internalT H O M A S V

. D I L L

A R D 36

quotation marks omitted). Qualified immunity “g ives
g overnment officials breathing room to make reasonable but mistaken judg ments, and p r otects all but th e plainly in c o mpetent or those who knowing ly violate the law.” Stanton v. Sims
, 134 S. C t

. 3, 5 (2013) (internal quotation marks omitted). “W e do not require a case directly on point, but ex i sting precedent must have placed the statutory o r constitutional question bey ond debate.” Ashcroft v. al-Kidd

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

The case law has defined with some specificity the ty pes of circumstances that g ive rise to r easona b le suspicion for a Terry f risk, a s well as those that do not. At the time at issue, S ep t em ber 2010, it was clearly established that a frisk f o r weapons, on less suspicion than probable cause for a search,

was authoriz ed only when a n officer had reasonable suspicion

a suspect was “armed and presently dang erous to the officer

or to others.” Terry
, 392 U.S. at 24; Ramire z , 5 6 0 F .3d at 1023 (“[ I ] t was c learly established [ in 2003] that every patdown is u n r easonable u nless it is supported by the officer’s reasonable suspicion that the person to be frisked is armed and dang erous.” (emphasis added)). I t was clearly established that an o f

fi c e r must rely on “specific a nd articulable facts” a n d “ rational inferences from those facts” that provide such suspicion, a nd m a y not rely on “inchoate and unparticulariz ed s u spicion or [ a] ‘hunch.’” Terry
, 392 U .S. at 21, 27. I t was clearly established t h a t an officer
must consider the totality of t h e circumstances, including whether the facts of a particular encounter serve to dispel any preex isting suspicion. See id. at 28; U nited States v. Thomas

, 863 F .2d 622, 628–29 (9th Cir. 1988).

Y barra cl e a r ly established that reasonable suspicion requires a

n officer to point to specific facts indicatin g aT H O M A S V

. D I L L

A R D 37

particular suspect is armed. See 4 4 4 U.S. 85, 92–94 ( 1 979);

see also Buie
, 494 U.S. at 334 n.2. Y barra and a number o f subsequent controlling cases we have already cited identified the many behaviors and ph y sical characteristics of an individual that can provide a reason to believe someo n e is armed. None of these sus p i c ious circumstances applied to Thomas. B a sed on ap p e a r a nce a n d observation alone, Thomas p osed no more of a threat than the bar patron the Supreme Court held should not have been frisked in Y barra

. See 444 U.S. at 93–94.

Nonetheless, despite the many case s that have g iven shape to the contours of the reasonable suspicion r equirement for a Terry frisk, g iven the Supreme Court’s demanding standard we are compel l e d t o conclude it would not have been clear to “ any reasonable official” in Dillard’s position that demanding to f

risk a person s u s pected o f domestic violence was unlawful. See Sheehan

, 135 S. Ct. at 1774. The

cases had e stablished that reasonable susp i cion f or a Terry frisk may arise when the crime an individual is suspected of committing is “likely to involve the use of weapons.” Terry
, 392 U.S. at 28; see Flatter

, 4 56 F.3d at 1158. Althoug h no court had held domestic violence was such a c rime, there was

some lang uage i n our cases sug g esting domestic violence might qualify

. I n Martinez
, for e x ample, we said, “[ w] h en officers r espond to a domestic abuse c all, they understand that violence may be lurking and ex plode with littl e wa rning

. ” 406 F

. 3 d a t 1164 (internal quotation marks omitted). Althoug h we had h e ld that domestic violence provided insufficient justification on its own to authoriz e entering a home without a warrant, see Black

, 482 F .3d at 1040, we h ad

never specifically applied that p rinciple to Terry frisks, which

ar e justified on less suspicion than the probable cause required for a warrant. Similarly

, althoug h we held in SmithT H O M A S V

. D I L L

A R D 38

that suspicion of do mestic v iolence p rovided no reason to believe a suspect was armed (at least where the suspect’s wife had informed the police that he had n o g u ns or weapons in the ho u s e )

, t hat was in the contex t of an e x cessive force c laim,

see 394 F .3d at 702–03.

An officer in Dillard’s shoes, who would certainly b e

aware of the potential dang ers involved in domestic violence calls, cannot be said to have been “p lainly incompetent” for believing suspicion of domestic violence provided reason to be l i e v e a suspect is armed and dang erous. See Stanton
, 134 S. Ct. a t 5. Althoug h this v iew w as mistaken, it was not unreasonably mistaken. See id. Dillard is therefore e ntitled
to qualif ied immunity on T homas’ claim that Dillard unlawfully detained him for the p urpose of a suspicionless frisk.

The district court denied qualified immunity because, “[ a] t the time Officer Dillard tased Th o m a s to force his compliance with a weapons’ search, it was clearly e stablished that such a search is unreasonable u n l e s s s upported by the officer’s reasonable suspicion that the person to be searched is armed and dang erous.” The Supreme Court, however, has “repeatedly told co u rts not to d efine clearly established law
at a hig h level of g e nerality

, since d oing so avoids the c rucial question wh ether the official a cted reasonably in the particu l a r circumstances that he or she f aced.” Plumhoff v

. Rickard

, 134 S. Ct. 2 012, 2023 ( 2014) ( alteration, citation a nd internal quot a t i o n marks omitted). B e fore today

, we h ad

never squarely held that domestic violence is not a crime such

as bank robbery or drug trafficking that is, as a g eneral matter, likely to involve the use of weapons. I n lig ht of cases such as $109,179 in U

.S. Currency
, 228 F .3d at 1086, holding that some c rimes are strong ly associated with armed suspects,T H O M A S V

. D I L L

A R D 39

as well a s cases such as Martinez
, 406 F .3d at 1164–65, acknowledg ing the d a

n g e r p o sed b y at least s o m e domestic violence calls, whether all domestic v iolence crimes presumptively justify a weapons frisk was not, u n til now, bey ond debate.

3. The Continued Detention

Once Dillard initiated Thomas’ detention for the purpose of a weapons frisk, the constitutional violation was complete. Nonetheless, Dillard hig hlig hts an e v ent subseq u e n t to his initiation of the d etention that he arg ues provided reasonable suspicion T homas w as a r m e d

. After Dillard had drawn his Taser, he ordered Thomas to put h is hands up , s t e p forward and drop to his knees to permit a s e a r c h for weapons; but Thomas refused to do so, multiple times, until the Escondido

o f ficer p ointed her g u n at h im, a t which point he raised h i s hands. Assuming without deciding that an officer’s conduct in ex ecuting a

n unlawful d etention can prompt a suspicious reaction in the detainee that makes the c o n t inued detention lawful, b ut see Thomas

, 863 F

. 2d at 630, Thomas’ r efusal to comply with Dillard’s commands failed to jus t ify the continued detention here.

Althoug h noncompliant behavior can contri b u te to reasonable suspicion a suspect is armed, see Burkett

, 6 12 F .3d
at 1 107, here it provided no basis f or believing Thomas was

ar m e d

. Althoug h Thomas refused to raise his hands a nd kneel, he stood still and his h a nds were empty and plainly visible throug ho ut the entire six minutes he was being detain ed u n d e r threat of Dillard’s Taser. Ag ain, he had no suspicious bulg es sug g esting he had a weapon, there had been

no report he h ad a weapon a n d t h e crime for which he was being i n v e s tig ated was not likely to involve the use o fT H O M A S V

. D I L L

A R D 40

weapons. Thomas had been forthrig ht with Dillard from the beg inning

, p roviding his identity and answering his questions directly

. H usky was adamant that Thomas had done nothing

wr o ng

. I n contex t, Thomas’ steadfast, passive resistance to Dillard’s insistence that he offer himself to be searched does

n o t tip the balance in favor of reasonable suspicion to f r i s k

. See Smith

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

. . . any basis” for suspecting a domestic violence suspect was armed

– even after he had initially refused officers’ order to take his hands out of his pockets, had g o ne in and out of h is house a nd had y elled e x pletives at officers – in part becau s e h is h ands

were p l a i n l y visible when the officers used force to detain him). Thomas’ refusal to raise his hands and k n eel for an unlawful frisk did not make the remainder of t h e d e tention lawful. N onetheless, becau s e we hold it was not clearly established that Dillard’s initial d e mand for a frisk was unlawful, neither was it clearly established that continuing to detain a noncompliant domestic violen c e suspect for the
purpose of ex ecuting a frisk w as u nlawful. Dillard is entitled
to q ualified immunity for that portion of the detention as well.

C. Excessive F o r c e

W e nex t address w hether, when Dillard shot Thomas with his Taser, h e u s e d ex cessive force in violation of the F ourth Amendment, and if so, whether that violation was clearly established in 2010.

1. Constitutional Violation

“[ T] he rig ht to make a

n arrest or inves t ig a tory stop

nec essarily carries with it the rig ht to use some deg ree o f phy sical coercion o r threat thereof to effect it.” Graham v

. Connor
, 490 U. S

. 3 86, 396 (1989). According ly

, lawT H O M A S V

. D I L L

A R D 41

enforcement may use o b

j e ctively reasonable force to carry out investig atory sto p s

. See G reen v

. City & Cty. of San Francisco
, 751 F

. 3d 1 039, 1049 (9th Cir. 20 1 4 ). Under Graham

, “[ d] etermining w h e t h er the force used to effect a particular seiz u re is reasonable under the F ourth A mendment requires a careful b ala n c i ng of the nature and quality of the int r u s i on on the individual’s F ourth Amendment interests
ag ainst the countervailing g overnmental in terests at stake.” Mattos
, 661 F .3d at 441 ( alteration in orig inal) (quoting Graham

, 490 U.S. at 396) (internal quotation marks omitted). “W e apply Graham by first considering the nature and quality of t h e alleg ed intrusion; we then consider the g overnmental interests at stak e by looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or othe r s , an d (3) whether the

su s p ect was a ctively resisting arrest o r attempting to evade
arrest b y flig ht.” Id. These f a c tors are not ex clusive; “we

ex a mine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular
case, w hether o r n o t listed in Graham .” Id. (quoting Bryan v

. MacPherson

, 630 F .3d 805, 8 26 (9th Cir. 2 010) ) ( internal quotation marks omitted). The most important f actor is whether the suspect p osed an immediate threat to the safety of the officers or others. See id.

To determin e whether officers used ex c essive force to carry o u t an u nlawful frisk, we do not, as the Tenth Circuit has sug g ested, ask whether the o f ficers used g reater force than would have been r e a sonably n ecessary to effect a lawful frisk. S e e Cortez v. McCauley

, 478 F .3d 1108, 11 2 7 ( 1 0 th Cir. 2007) (en b anc). As we e x plained in Velazquez v. City of Long Beach

, 793 F .3d 1 0 1 0
, 1024–26 (9th Cir. 2015), that approach would be c ontrar y to Graham

. B ecause “‘it is the

n e ed for force which is a t the heart of the Graham facto rs ’T H O M A S V

. D I L L

A R D 42

. . . , the facts underly ing the seiz u r e are pertinent in judg ing the overall r easonableness of th e seiz ure for F ourth Amendment purpose s , including the reasonableness of the fo rce used to effectuate the seiz ure.” Id. at 1025 (quoting Blankenhorn v. City o

f Orange
, 485 F .3d 463, 480 (9th Cir. 2007)). Thus, that Dillard had no reason to believe T h omas

was armed and dang erous, and hence no n e e d to conduct a frisk, is r elevant – indeed, hig hly r elevant – to the ex cessive force analy sis.

W e first consider the nature o f t h e force applied. Using

a Taser in d art mode c onstitutes an “ intermediate, sig nificant level of force.” Bryan
, 630 F .3d at 826.

The pain is intense, is felt thr o ug hout the bo d y , and is administered by effectively commandeering the victim’s muscles a nd

nerves. B ey ond the ex perience of pain, tasers

r e sult in immobiliz ation, disorientation, los s of balance, a

nd w eakne s s , e ven after the electrical curren t h as ended. Moreover, tasering a person may result in serious injuries when intense pain and loss of muscle control

cause a sudden and uncontrolled fall. Id. at 825 (citations and internal qu o tation marks omitted). The e x perience of being s h o t with a Taser is a “painful and frig h tening blow.”

Id. at 826 (quoting Orem v. Rephann

, 5 23 F .3d 442, 448 (4th Cir. 2008)).

Turning to the g o vernm e n t a l interests at stake, we first consider the severity o f the crime at issue. Any fo rm o f domestic v iolence is serious, b ut the alleg ation in this caseT H O M A S V

. D I L L

A R D 43

was not p articularly s e v e re. Thomas was stopped for suspicion of p ushing a w oman. D illard obser v e d n o sig ns Husky w as injured o r distressed. She vehemently denied Thomas h ad abused her and instead insisted they were kissing behind the storag e containers before Dillard arrived.

R e g a rding the second Graham factor, Dillard had scan t

reason to believe Thomas po s e d a n immediate threat to him

or any one else. F rom the moment Dillard appro a c h ed Thomas and Husky

, Thomas stood facing the officer with his hands at his si d e s

. He h a d been cooperative, aside from refusing to raise h is hands, kneel and be frisked, and he never

a c t ed a g g ressively or bellig erently toward the o fficer. He stepped backward at one point when Dillard tried to g rab his

arm. B u t as we noted before, Dillard had no justification for
g rabbing him, it was a brief reaction to Dillard’s own sudden
movement and Thomas remained facing Dillard with his hands at his sides and in full view. I n addition, a s n oted, Dillard had no reason to believe Thomas was armed.

Reg arding the third Graham factor, Tho m a s g a ve no indication h e was g oing to flee, and his resistance w a s mostly passive. He stood facing Dillard with his hands by his sides for approx imately six minutes a s Dillard soug h t his compliance in carry

ing out the f

ris k. Althoug h T h omas resisted Dillard’s commands to permit a frisk, by refusing to raise h i s h a n ds and kneel, he did so “passively ” and not “actively .” See Forrester v. City o f San Diego , 25 F .3d 804, 805 (9th Cir. 1994) ( characteriz ing as passive resistence protestors “remaining seated, refusing to move, a nd refusing
to bear weig ht” despite police orders to the co n t ra r y )

. Had there been a bona f

ide n e ed t o frisk Thomas for weapons, then some force may h a v e been justified in compelling Thomas’ compliance. A s w e have ex plained, however, thereT H O M A S V

. D I L L

A R D 44

was no j u s tification for conducting a frisk, so Thomas’ peaceful resistance to what he cor r e ctly perceived to be an unlawfu l s e arch did not justify this use of force. Althoug h D i llard a rg ues the force u sed was reasonable, he d o e s s o solely on the flawed premise tha t the frisk was “constitutionally soun d

, ” arg uing he “had an urg e nt n eed to

ensure [ his] safety

. . . by conducting a weapons’ search.” He does n ot a

rg ue the use of force was reasonable eve n if the frisk was unjustified. Acco r d i n g ly

, the use of force was ob j e c t i v e l y u n r e a s o n a b l e , v i o l a t i ng Thomas’ F ourth Amendment rig hts ag a inst e x cessive force. Se e Graham

, 490 U.S. at 397.

2. Clearly Established Law

Dillard arg ues that at the time of his encounter with Thomas, the law in this c ircuit w a s u n s ettled as to what circumstances constituted an ex cessive u s e o f a Taser and, therefore, it would n ot have been c lear to an officer confronting a suspect who was u nwilling to submit to what he perceived to be a lawful weapons search that he could not use his Taser to carry

out the search. W e must ag ree.

Althoug h we conclude Dillard’s use of the Taser constitu ted ex cessive force, the f acts of the cases ex isting at the time are n o t s o closely a nalog ous to this case such that Dillard’s mistaken view of the law was unreasonable. See Stanton
, 134 S. Ct. at 5

. I t is true t h a t in Smith we h eld the

use o f force on a more threatening and noncompliant suspect than Thomas was unjustified. See 3 9 4 F .3d at 7 0 2–03. The level of force used in that c ase, however, was more severe than Dillard’s use of a Taser. The officers repeatedly sicced police dog s on Smith, bla s t ed him with pepper spray four times, tackled him a

nd drag g ed him face down off his porch.T H O M A S V

. D I L L

A R D 45

See id. at 703–04. Smith would not have made clear just h ow much of a threat a suspect must pose to justify the less severe level of force of a Taser.

Bryan was also disting uishable because, unlike Thomas, the suspect in that case was suspected of a traffic infraction,
not domestic v iolence. S e e 6 3 0 F. 3d at 822. Thomas also repeatedly rebuffed Dillard’s attempt to frisk him, so he was less c ompliant than the suspect in Br y an , who g ot out of his
car, contrary to the officer’s o rder, and stood still. See id. F urthermore, althoug h we hold Dillard had no ju s t i f ication for the frisk, and therefore Thomas’ efforts to avoid the unlawful frisk provide little, if a n y , justification for the use o f the Taser, w e als o h o ld Dillard was reasonably mistaken
reg arding his entitlement to frisk Thomas. His r easonable but mi s t aken belief reg arding the frisk makes his application o f force to perform the frisk more reasonable than t h a t of the officer who u sed a Taser in Bryan with no such justification. Thomas offers no other authority holding t h e u se of a Taser in an analog ous situation was ex cessive.

Under t h e controlling case law in September 2010, therefore, it would not have b e e n a p p arent to an officer in Dillard’s shoes that using a T aser on a dom e s t i c violence suspect refusing to a llow a fr i s k – whom the officer reasonably b u t m istakenly believed could be f risked

– constituted ex cessive force. Dillard is therefore en t i t l e d to qu al ified immunity o n Thomas’ ex cessive force claim a s well.

IV. CONCLUSION

V i e wi n g the evidence in the lig ht most favorable to Thomas, the district court properly concluded Dillar d v i o l a tedT H O M A S V

. D I L L

A R D 46

Thomas’ F ourth Amendment r ig hts ag ainst unlawful seiz ure

a n d ex c essive force. W e hold the domestic violence natu r e of a police investig ation is not a lone enoug h to establ i s h reasonable suspicion a suspect is armed. We nonetheless h old Dillard is entitled to qualified immunity

. B eca u s e Dillard is entitled to qualified immunity

, we also reverse the partial summary judg ment g ranted to Thomas o n the issue o f liability

. See Bull v. City & Cty. of San Francisco , 595 F .3d 964, 982 (9th Cir. 2010); Ma rk s v

. Clarke

, 102 F .3d 1012, 1018 (9th Cir. 1996).

REVERSED. Costs on appeal are awarded to Thomas.

* * *

Thomas’ motion t o dismiss the appeal for lack o f jurisdiction, filed November 13, 2014, is DENIED

.

B EA, Circuit J udg e, concurring in part and dissenting in part:

I c o n c ur in my c olleag ues’ determination that Office r Dillard w a s entitled to qualified immunity o n Correll Thomas’ claims for unlawful seiz u r e and ex cessive force under 42 U.S.C. § 1983, and that the district court’s g rant of partial su m m a r y judg ment to Thomas must a ccording ly be reversed. I write separately

, h owever, because w e have repeatedly (and correctly

) recog niz ed the unique dang ers law enforceme n t o fficers face when responding to domestic violence calls—including the inherent volatility of a domestic violence scene, the unique dy n amics of battered v ictims seeking to pro t e c t t he p erpetrators of abuse, the hig h rate o f assaults o n officers’ person, and the likelihood that an abuserT H O M A S V

. D I L L

A R D 47

may be a rmed. I would therefore hold that the domestic violence n ature of the call can alone g ive rise to r e a s onable suspicion necessary

to justify a Terry frisk.

I also write separately because I do not subscribe to the majority ’s holding that Dillard v i o l ated Thomas’ F ourth Amendment rig ht by detaining him fo r purposes o f performing a Terry frisk. See Maj. Op. at 4. My c olleag ues

re a ch this conclusion by ig noring the ax iomatic rule that, at the qualified immunity stag e , we r evie w “the objective

re a s onableness of a p articular seiz ure under the F ourth Amendment

. . . . f

rom the perspective ‘of a reasonable officer on the scene, rather than with the 20 / 2 0 v i sion o f hindsig ht.’” Plumhoff v. R ickard

, 134 S. Ct. 2012, 2020 (2014). Here, Officer D illard r esponded to not one, but two, domestic violence radio calls, both reported in the span of 33 minutes. The first call reported domestic violence by a black male on the E scondido campus. The second indicated that a

man wearing a purple shirt was being obser ved on a live video f eed “pushing ” a woman in a secluded part of campus. Officer D illard encountered a black male w e ar ing a purple shirt—a person matching the description o f t h e suspect o f both c alls—in the area where a t least one o f t he r eported incidents of violence had been obs e rved, with a female w ho identified herself a s Thomas’ g irlf r i e n d. T hese facts supported a reasonable inference of continuous domestic abuse lasting u

pwards of half a n h o ur—a situation that the majority ( incorrectly

, in my view) minimiz e s as a “simple battery .” See Maj. Op. at 28. Tru e , t here is evidence in the record that T homas’ g irlfriend, Amy Husky

, c laimed that Thomas w as just “play

ing a r o u n d ” when h e concededly pushed Husky ag ainst the storag e containers, b ut a reasonable officer operating without the benefit of hindsig ht and with the knowledg e of t h e overwhelming frequency w ith whichT H O M A S V

. D I L L

A R D 48

domestic violence victims seek to protect their abusers, see discussion, infra at pp. 52–53, could h ave believed himself to be confronting a suspect capable of sig nificant violence w ho mig ht be armed. B y analy z ing the c ircumstances confronting Officer D illard throug h a rosy -hued lens of hindsig ht

, t h e majority opinion deprives future law e nforcement officers faced with domestic v iolence disputes of an important tool for protecting themselves a

nd the citiz ens with whose safety they are entrusted.

I.

I t is h ornbo ok law that, a t the summary judg ment stag e , courts “are required to view the f acts and d r aw reasonable inferences ‘in the li ght most favorable to the party opposing the [ summary judg ment] motion.’” Scott v. Harris
, 550 U.S. 372, 378 (2007) (“I n qualified immunity cases, t h i s usually

means adopting

. . . the plaintiff’s version of the facts.”). B ut it is equally a x iomatic that, in determining whether a p o lice officer is entitled to qualified immunity

, w e v iew the facts “from the perspective ‘ of a r easonabl e o f f icer on the scene, rather than with the 20/20 vision o f h indsig ht.’” Plumhoff v

. Rickard

, 134 S. Ct. 2012, 2020 (2014). My colleag ues accept Thomas’ version of the facts, but fail to consider how those facts would h ave looked to a reasonable officer on the scene. Properly v iewed, the facts confronting Off i c e r Dillard supported h is formulation of a reasonable suspicion that Thomas may have been armed.

Officer Dillard received two police dispatches o n the afternoon in question. The first reported “domestic violence involving a black male” at the E s c o ndido campus. Approx imately thirty minutes later, a nd within minut e s o f Officer D illard’s arrival at the campus, a second policeT H O M A S V

. D I L L

A R D 49

dispatch came in, this time advising O f f i cer Dillard that a male wearing a purple shirt was b eing observed on live security video pushing a female by some containers in the campus’ biohaz ard storag e area. Thus, both dispat ches reported potential domestic violence by a male on a female on the E scondido campus. 1 Viewing the facts “from the perspective of a r easonable o fficer at the scene,” the undisputed similarity be t ween the calls g ave rise to a reasonable inference that the reported d omestic violence may have been occurring continuously from the time the first c all

came in throug h t h e time of the second (more than thirty minutes later). Officer Dillar d

, e quipped with only this limit e d information, approached the location where the observed violence had occurred—an alley flanked by larg e storag e c ontainers. O fficer Dillard t e s tified that, g iven the

na t ure of the call, the possibility of weapons was the “most important question on [ h is] mind.” His training had taug ht him that “ a domestic violence call can b e a very dang erous call to a p olice officer” and that he stood a g ood likelihood o f “g etting seriously

hurt or injured.”

At first, Dillard could not locat e the suspect. Only a fter reversing his c ar and driving down the alley a second time did Dillard spot Thomas and Husky emerg ing from behind some b i o h az a rd storag e containers. T h omas, a black male, was wearing a long purple shirt, bag g y jeans, skater shoes, a neck chain, a n earring

, and a b lack beanie. Thomas therefore matched perfectly the descrip t i o n o f both dispatches. Moreover, Dillard found Thomas with A m y Husky

, w ho shortly after encountering Officer D illard y elled that T h omas

1 A s th e m aj or i t y p o i n ts o u t, p u sh in g a w o m an w o u ld q u alif y as d o m estic v io l en ce i f th e p e r p etrato r an d th e v ictim w ere in a d atin g relatio n sh ip

. S

ee Maj . Op . at 1 9

– 2 0

.T H O M A S V

. D I L L

A R D 50

was her “f***ing boy friend” (establishing a domestic relationship).

Officer Dillard, who stands only five feet, six inches tall and weig hs 15 5 p ounds, ex ited his vehicle and walked
approx imately four steps, stopping ten feet away from the place w here Thomas and H usky were s t a n d ing

. Officer Dillard concedes that he did not observe any visible injuries
to Hu s k y ’ s p erson. Nor d id Amy appear “distraug ht.” Nevertheless, Dillard had been taug h t that a domestic violence scene, by its nature, is “very v olatile” ; people can “suddenly become violent or a ng ry ,” making it i m p o rtant to

secure the scene as quickly as possible, reg ardless of whether the officer encounters active violence upon arrival.

Officer Dillard initiated c ontact w ith the couple b y telling Thomas and Husky

, “No one is in trouble here.” H e asked the pair for identification and told them he was “investig ating suspicious activity .” Dillard then asked Thomas whether he h a d a n y weapons on him, and T homas said “ no.” Officer Dillard asked T ho m a s if he would “mind” if Dillard

no n etheless searched him for weapons—a “common question when investig a ting a possible domestic violence.” 2 Thomas responded that he “did m i n d .” Dillard tried to “deescalate” the situation, ex plainin g that T homas was not under arrest, but that Dillard was “i n v e s tig ating a male wearing a purple shirt pushing a g irl around” and just n eeded to check T h omas for weapons to make sure the scene was safe. T h omas continued t o s a y “no” in response to Officer Dillard’s repeated requests that Thoma s consent to a weapons search.

2 Desp ite b eliev in g h e h ad a rig h t t o co n d u ct a Terry f risk

, O ffi c e r Dillard ask ed T h o m as f

o r co n s en t in ef

f o rts to av o id a p h y sical altercatio n

an d to reso l v e th e in v estig atio n p eacef u lly

.T H O M A S V

. D I L L

A R D 51

F or the n ex t six minutes, Officer Dillard continued try ing
to elicit cooperation w ithout resorting to force. W hen verbal commands did not work, D illard stepped forw a rd i n an attempt to put Thomas in a control hold, but Thomas retreated closer to the “recessed” a

rea by the storag e containers where the couple h ad previously been concealed. O fficer D i l l ard “backed off,” afraid that Thomas mig ht try to fig h t him in the “small, confined space,” and withdrew his taser. Dillard told Thomas to put h i s h ands in the air, to step forward, and to drop to his knees slowly

. Th o m a s said “no.” Dillard repeatedly c ommanded T h omas to raise his h ands, but Thomas refused. Officer D illard repeatedly c o mmanded Thomas to move his hands away from his waistline—the area Dillard was c oncerned mig ht conceal a weapon—but T h omas ig nored that comman d, too. After this went on for six minutes, Dillard deploy ed his taser, feeling like that was the “final and only

option” left to him.

Thes e f a c ts are undisputed. I ndeed, the parties’ recollection as to the encounter differs only slig h tly

. Dillard testified that H usky did not say that the p air had been kissing until after the incident, at which point she also admitted that Thomas had pushed her. Thomas, on the other hand, declares that Husky t old Dillard w ithin the first moments of the
encounter that the pair h a d “ just [ been] kissing ” behind the containers. T homas a lso recalls that Husky started “y e lling ”
at some point during the stand-off that Thomas had “done nothing wr o n g. ” F inally

, Thomas insists that at no time during the encoun ter did he act “bellig erent[ ly ] ” o r “ag g ressive[ ly ] ” toward Officer Dillard or any one else.

B u t even cre diting Thomas’ version of events, we must consider how a reasonable officer would perceive this scene, armed only

with the limited information available to OfficerT H O M A S V

. D I L L

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Dillard. Officer Dillard encountered an individual suspected of sig nificant domestic violence, who “appeared to b e hiding behind the biohaz ard storag e area” (a relatively secluded area

o f campus w here even Thomas admits the couple h ad g o n e “for p r ivacy ”). Thomas and Husky appeared “startled” b y Officer Dillard’s presence. Officer Dillard perceived T h omas

as “standoffish,” in part because Thomas spoke in a low, serious tone. Contrary to my colleag ues’ sug g estion, neither Thomas’ statement that he was not “bellig erent” n or any other evidence in the record contradicts Officer Di l l ard’s perception of Thomas’ manner. The majority opinion points
out tha t, according to Thomas, Officer Dillard a ppeared “surp ri s ed ” and then “ang ry and ag itated” after T h omas refused to consent to a weapons search. B ut such a reaction would be a natural response to a c o nfrontation with a suspect

an officer reasonably suspects to be a rmed, who is refusing to permit the officer to conduct a weapons search.

I t is also u ndisputed that Thomas r efused to move his hands from his waistline, d espite numerous requests. T h omas characteriz es his hand placement as “normal if I was standing and making casual conversation with someone.” B ut in lig ht of Dillard’s repeated requests that T homas m o v e his h ands
away from his waistline, a reasonable officer in Officer D i l l ard’s position could well h ave perceived the natural “fidg eting ” of Thomas’ h ands by h i s sides as an attempt to conceal a weapon. Of c ourse, we know n ow that Thomas was

no t c o n c e aling a weapon in his waistband. B ut Officer Dillard—who reasonably believed he was d e a l ing with a demonstrably vio l e n t, domestic violence suspect—had no way of knowing that.

The majority

opinion makes much o f Husky ’s statement to Dillard that the c ouple had just been “kissing

. ” B u t it isT H O M A S V

. D I L L

A R D 53

well-documented that victims o f domestic violence—even those who initially report their abusers to police—more often than not “recant or refuse to cooperate” with t h e police seeking to help them. See, e

. g

. , T om L ining er, Prosecuting B a tterers After Crawford

, 91 Va. L

. Rev. 747, 751 (20 0 5 ) (“Approx imately 80 p er c e n t of victims decline to a ssist the
g overnment in prosecutions o f domestic violence cases.”); L isa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for V i c tims o f Domestic Violence

, 8 Yale J

. L

. & Fe m i nism 359, 3 67–68 (1996) (“[ V] ictims o f domestic violence are uncooperative in approx imately eig hty
to n inety percent of c ases. Many victims are uncooperative from the initial filing of the case

. . . . ”). Thus, even assuming that Husky was y e lling a t Officer D i l l a r d that Thomas h ad done nothing wrong , a reasonable officer in Dillard’s position could have discounted those statements as an e ffort by the victim of violence to protect her abuser. Thus, contrary to the majority ’s sug g estion, the resolution of this f a ctual discrepancy in T homas’ favor does not neg ate Di l lard’s reasonable belief that Thomas was a p erpetrator of potentially

severe and/or continuous d omestic v io l e n c e

. Only with the be n e fit o f hindsig ht do we know otherwise. U nder these circumstances, Dillard reasonably believed that he h a d a duty

, as a community caretaker, not to l e ave a domestic violence victim in the care of a demonstrably violent person without conducting a weapons search.

II.

Thomas arg ues that the F ourth Amendment p rec l u d ed Dillard from fris king Thomas for weapons under the circumstances presented here. Thomas additionally ar g ues that this conclusion was clearly esta b l i shed as of September 2010, and thus Officer Dillard w a s n o t entitled to qualifiedT H O M A S V

. D I L L

A R D 54

immunity

. The qualified immunity inquiry is two-fold: I t requires a violation of a constitutional rig ht, and a finding that such r i gh t w a s c learly established a t the time the violation

oc c u r r ed. Pearson v. Callahan

, 555 U.S. 223, 231 (2009). 3 I ag ree with the majority ’s h olding that it was n ot clearly

e stablished in September 2010 that Dillard’s conduct was unconstitutional. However, I disag ree with the maj o r i ty ’s holding that Thomas has demonstrated a v iolation of his F ourth Amendment rig ht, because I would find t h a t a reasonable o fficer in D illard’s p osition could have formulated

a reasonable suspicion that Thomas mig ht be armed b ased on the facts available to Dillard here.

I n determining whether Dillard’s frisk violated a

c o nstitutional rig ht, this court should bear in mind t h a t a Terry frisk is a “protectiv e s e arch—permitted without a warrant and o n the basis of reasonable suspicion.” Minnesota

v. Dickerson

, 508 U.S. 366, 373 (1993). Unlike a full-blown arrest, “[ t] he protective search for weapons .

. . constitutes a brief, thoug h far from inconsiderable, i n t r u sion upon the sanctity of the person.” Terry v. Ohio

, 392 U.S. 1
, 26 (1968). “[ R] easonable suspicion” that a p e rson is armed is
enoug h—and this is “less than probable cause.” Minnesota
, 508 U.S. at 373. I n other words, w e must merely find that under “the facts availab l e t o the officer at that moment” a “man of reasonable caution” “mig ht” believe t h a t a person

was “armed and prese n t ly dang erous.” P ennsylvania v

. Mi m ms , 434 U.S. 106, 111–12 ( 1977) (internal quotation marks omitted); see also G allegos v. City of Los Angeles

, 308 F

. 3d 9 87, 990 ( 9th Cir. 2002) (“The r easonable suspicion standard ‘is a less demanding standard than probable cause,’

3 Co u rts of ap p eal h av e d iscretio n to ad d ress eith er p ro n g f i rst. Pea rso n , 5 5 5 U.S. at 2 3 6

.T H O M A S V

. D I L L

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and merely requires ‘a minimal level of o b j e ctive justificatio n

. ’ ” (quoting Illinois v. W a rdlow

, 5 28 U.S. 119, 123 (2000))).

The majority today holds that, “al t h o u gh the domestic violence nature o f a police inve s t i ga tion is a relevant consideration in assessing whether there is reason to believe

a suspect is armed and dang e rous, it is not alone sufficient to establish reasonable suspicion.” Maj. Op. at 4. I disag ree.

I t is well-established that the nature of a suspected crime

can alone support a reasonable suspicion that a suspect mig ht be armed—even where the o fficer d oes not observe any “phy sical indication” of a w eapon. See, e.g. , United States v

. Post
, 6 0 7 F .2d 847, 851 (9th Cir. 1 979) (“[ D] espite the fact that he had not observed a weapon or any phy sical indication of a weapon, it was reasonable to a ssume, from the nature o f the offense c ontemplated [ drug trafficki n g ]
, that [ the defendant] was a

rmed an d d ang erous.” (citing Terry
, 392 U .S. at 28)). I ndeed, courts have routinely upheld a rig ht
to frisk on the basis that the officer h as leg itimat ely stopped

a person suspected of a crime, like domestic violence, that is frequently committed with the use of weapo n s

. S ee, e.g. , Terry
, 392 U.S. at 28 (find i n g i t reasonable to assume that

men whose behavior sug g e sts they a r e c a sing a building for

a “day time robbery

” mig ht be armed because of the nature o f the crime); United States v. Mattarolo , 209 F .3d 1153, 1158 (9th Cir. 2000) ( Terry frisk of n ig httime burg lary suspect was constitutional); People v. Shackelford

, 546 P.2d 964, 966–67 (Colo. App. 1976) (police could lawfully frisk an individual who was found in th e immediate vicinity of the area from which a rape victim had fled b ecause the individual “matched the description of a suspect who had alleg edly committed an act of violence”—rape).T H O M A S V

. D I L L

A R D 56

L ike b urg lary and robbery

, domestic violen c e is frequently committed with a firearm or other weapon. F o r

ex a mple, 36.7 percent o f female d omestic violence shelter residents in California reported having at some point b een threatened or harmed with a firear m d u r i ng a domestic dispute. See Susan B

. Sorenson, Ph.D., & Doug las J

. W iebe, Ph. D

. , W e a pons in the Lives of Battered W omen , 94 Am. J

. Pub. Health 1413 (2004). Another study by the Department of J ustice found that roug h ly 15 p erc e n t of all incidents o f domestic violence involve a w e a p on. See Callie Marie Rennison, Ph.D., U.S. D ep’t of J u stice, Report No. NCJ 187635, B ureau of J ustice Statistics Special Report: I ntimate Partner Violence and Ag e of V ictim (1993–99) 7 (Oct. 2001). And in 2 011, domestic violence assaults involving a firearm accounted for nearly two-thirds of a l l fatal shooting s o f female victims. See Voilence Pol’y Ctr., W h en Men Murder W o men: An Analy sis of 2 011 Homicide Data 6 (Sept. 2013).

I ndeed, the majority co n cedes that some domestic violence calls c an be “ dang erous,” even deadly

, for all parties involved. Maj. Op. at 22. However, the majority emphasiz e s that domestic v iolence e n compasses a broad spectrum o f “criminal acts of vary

ing d e gr e es of seriousness” to support its holding that the domestic violence nature of a call cannot justify a Terry frisk. Maj. Op. a t 33. B ut the majority ’s
arg ument ig n o r e s the practical reality that an officer often does not know what part of that spectrum of criminal a cts he will confr o nt when he arrives at the scene of a domestic dispute. I ndeed, this is what distinguishes domestic violence from other “broad categ ories” of crimes—like theft. W hereas there is little ri sk that an officer investig a ting a suspected mail thief will instead encounter a n armed bank robber, c

f. United States v. Flatter

, 456 F .3d 1 154, 1 158 (9th Cir. 2 006) (cited by the majority) (“Mail theft by postal employ ees is notT H O M A S V

. D I L L

A R D 57

a crime that is frequently

associated with weapons.

. . .”), an officer investig ating a report of “ s i m ple battery ” may w ell find that the domestic violence has e scalate d t o a s sault with a deadly weapon by

the time the police arrive. 4

The majority also reiterates that Thomas wa s observed committing only a “ s imple b attery ” (referring to the second dispat c h )

. S

ee, e.g. , Maj. Op. at 28. B ut in fact, there were two repor t s o f domestic violence, and Thomas matched the description of both r e p o r t s

. The f irst report did not specify the p recise behav i or it characteriz ed a s “domestic violence”—it could well h ave involved more severe abuse, including with a weapon. 5 And in any event, even a “simple battery ” c a n quickly escalate into something far more dang erous. Unless an officer has credible evidence that a domestic violence suspect is not armed, a reasonably cautious officer would assume that a domestic v i o lence suspect “mig ht” be armed—and that is all that is required here. The

4 Giv en th e d em o n strated d an g e r t o p olice o f f icers asso ciated w i th d o m estic v i o len ce calls, th e m aj o rity ’ s citati o n t o c ases i n v o lv in g n o n

v io len t crim es n o t asso ciated w i t h w e a p on s m isses th e p o in t. S ee Maj

. Op

. at 15
, 1 8 –1 9
, 3 7– 3 8 (citin g , e.g

. , U n i t ed S t a tes v. Fla tter , 4 5 6 F.3 d 1 1 5 4
, 1 1 5 8 (9 th Cir. 20 0 6 ); Ra mirez v. City o f B u en a Pa rk

, 5 6 0 F.3 d 1 0 1 2
, 1 0 16 (9 th Cir. 2 0 0 9 ) (su sp icio n th at a p erso n f o u n d sleep in g in h is

c a r w as u n der th e in f

lu en ce o f d ru g s d id n o t g iv e rise to a rea s o n a b l e

su sp icio n th at su sp ect w as arm ed )). A s th e m aj ority reco g n i zes, see Maj

. Op . at 2 2
, d om estic v i o len ce can be v ery “ dan g ero u s[]” an d can in v o lv e crim es clearly asso ciated w ith w eap on s—lik e assau lt w ith a d ead ly

w eap o n o r h o m i cid e. T h u s d om estic v io len ce is o f a f u n d am en tally d if f eren t ch aracter t

h an th e crim es th at w e h av e f o u n d d o n o t j u stif

y a Terry f risk

.

5 B ecau s e T h o m as m atch ed t h e d escrip tio n o f b o th rep o rts, an d b ecau s e b o th rep orts i n v o lv ed d o m estic v io len ce o ccu rrin g o n th e Esco n d i d o

cam p u s, Dillard reaso n ab ly

b eliev ed th e d isp atch es w ere related

.T H O M A S V

. D I L L

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m ajority ’s a

naly sis is thus impermissibly infused with th e benefit of hindsig ht.

F urther undermining the majority ’s view is our circuit’s repeated o bservation tha t “[ t] he volatility of situations involving domestic viole n c e ” makes them p a rticularly dang erous. Marquez v. City of Phoenix

, 693 F .3d 1 167, 1175 (9th Cir. 2012), as amended on denial o f reh’g (Oct. 4, 2 012) (alteration in orig inal) (quoting M attos v

. Agarano
, 661 F .3d 433, 450 (9th Cir. 2011)). W e have also said th a t “[ w] h en officers r espond to a domestic abuse c all, they understand that ‘vio l e nce may be lurking and ex plode with little warning .’” United States v. Mart i n e z , 406 F .3d 1160, 1164 (9th Cir. 2004) ( quoting Fletcher v. Clinton

, 196 F .3d 41, 50 (1st Cir. 1999)) (“[ M] ore officers a re k illed or inju r e d on domestic violence calls than on any o th e r t y p e of call.” (quoting Hearing s b efore Senate J udiciary Committee, 1994 W L 530624 (F .D.C.H.) (Sept. 13, 1994) (stat e ment on behalf o f N ational Task F orce on Domestic Violence))); see also Hopkins v

. B onvicino
, 5 73 F .3d 752, 766 (9th Ci r. 2 0 09) (stating the same).

Consistent with our precedent, Officer Dillard’s training had taug ht him that “a dome stic violence call can b e a very dang erous call to a police officer.” The undisputed evidence in the r ecord (a decl a r a t i on by a police procedures ex pert) indicates that 31.7 percent o f assaults o n police officers in 2011 occurred “ while answering domestic violence ty pe radio calls,” and 12.7 p ercent of the 72 officers killed in 2011 were answering domestic violence calls (citing the F ederal B ureau of I nvestig ation’s (“F B I ’s”) 2011 annual p u blic a tion on police assaults and deaths).T H O M A S V

. D I L L

A R D 59

My colleag u es in the majority are c orrect that the evidence in the record a

ppears somewhat to overstate the F B I data it purports to summariz e, b ecause the fig ures cited in fact
encompass assaults and deaths attributable to all kind s o f

“ disturbance calls”—not just domestic violence c alls. S e e Maj. O p. a t 24 n.11. Bu t the majority ig nores that the F B I data nevertheless supports our circuit’s o ft-stated conclusion that d omestic v iolence is frequently associated with weapons and is one o f the more dang erous calls an officer can r eceive. F or ex ample, the F B I ’s 2011 statistics show t hat
approx imately 33 percent of the a ssaults on police officers in 2011 (18,216 out of 54,774 assa u l ts) w ere committed while
p o l i ce were responding to “disturbance call[ s] ,” a categ ory which includes do m e s t i c v iolence calls. F B I
, Law Enforcement Officers Assaulted: Ci r cumstances at Scene of Incident by Type of W

eapon and Percent Distribution

, 2011 (last visited F eb. 1 7, 2 016), htt ps://www.fbi.g o v/aboutus/cjis/ucr/leoka/2011/tables/table-73 [ hereinafter “ Table 73”]

. A nd of these 18,216 assaults, 17

. 3 p ercent (3,155 assaults annually

) were committed with a weapon. Id.

I n deed, there is reason to think that domestic violence calls are more dangerous to police officers than c alls relating
to other c rimes which we have alre a d y deemed to g ive rise, by their v ery nature, to a reasonable suspicion that a suspect mig h t b e armed. I n United States v. Mattarolo

, 209 F .3d 1153 (9th Cir. 2000), for ex a mple, we held that a Terry frisk of a nig httime burg lary suspect was constitutional, based on the dang erous nature of the crime. Id. a t 1158. B ut the F B I ’s data shows that two of the 72 police officers killed i n 2 011

were responding to a “domestic disturbance,” w h i l e z ero officers were killed in 2011 while responding to a “burg lary in prog ress” or the “pursuing a b urg l a r y s u spect.” See F B I
, Law Enforcement Officers Feloniously Killed: CircumstanceT H O M A S V

. D I L L

A R D 60

at Scene of Incident, 2002–2011 (last visited F eb. 1 7, 2016), available at https:// w ww.fbi.g o v/about-us/cjis/ucr/leoka/ 2011/tables/table-19 [ hereinafter “Table 19”]

. I n fact, from 2002 to 2011, more than three times as many police officers

were k illed while responding to d omestic violence calls than while r e sponding to burg l a r y c a l ls. Id. (showing that 36 officers were “fe loniously killed” while responding to domestic violence calls, as compared to only 11 officers responding to active b urg lary calls). And in 2 004, 16 percent (9 out of 57) o f the p o lice officers feloniously killed in the line of d u t y were responding to d o mestic disturbance calls, specifically

. Id.

I nstead of looking a t this hard data o r following our o wn precedent, however, the majority c r edits a recent a rticle a nd the finding s of one r esearcher whose study was limited to the L os Ang eles area, which sug g est that r obbery and burg lary calls are actually more d ang erous th a n domestic violence calls. See Maj. Op. at 2 3 –24 & n.11. 6 Even assuming

, arguendo

, that robbery and burg lary calls are more f requently associated with weapons than d omestic violence calls, it does
not follow that domestic v iolence ca l l s d o not also pose a substantial threat to a police officer’s safety

. I n holding that

a “day lig ht robbery

. . . would be likely to involve the use of weapons,” Terry made n o s u g g estion that robbery represented

6 Fo r ex am

p l e, th e m aj o rity cred its th e o pin io n o f th e au th o r of an article
ap p e a r i n g in th e May 2 0 11 ed i tio n o f T h e P o lice Ch ief

, w h ich (lik e th e

m aj o rity ) ed ito rializes o n th e FB I’ s statistics p resen ted h erein

, b u t d o e s

n o t ac t u a l l y p resen t an y co n trary ev i d en ce to su p p o rt its co n clu sio n

. In

an y ev en t , I f

in d i t o d d th at t

h e m aj o rity ch o o ses to cred it th is article ov er th e w ell- s u

p p o rted co n clu s io n s reach e d by at least tw o Nin th Circu i t

c a ses. S ee, e.g

. , Ho

p kin s v. Bo n vicin o , 5 7 3 F.3 d 7 5 2 (9 th Cir

. 2 0 0 9 ) ; Un ited S ta tes v. M

a r tin ez , 4 0 6 F.3 d 1 1 6 0 (9 th Cir. 2 0 0 4), d iscu ssed su p ra , at 5 8

.T H O M A S V

. D I L L

A R D 61

the outer limit of crimes thoug h t to be sufficiently dang erous to support a re a sonable inference on the part of the officer that a person suspected o f that crime mig ht be armed. See Te r r y v

. Ohio

, 392 U .S. 1, 28 (1968). Rather, Terry
recog niz ed that even where a n o f f icer does not have the
p r o b a b l e cause necessary to make an arrest, it would “be clearly unreasonable to d eny the officer the p ower t o take
necessary measures to determine whether the person is in fact
carry ing a weapon and to neutraliz e the threat o f p h y s i cal harm,” as long as the “officer is justified in believing that the individ ual whose suspicious behavior he is investig ating at close rang e is armed and presently dang erous to the officer o r to others.” Id. at 24.

The F B I data referenced in the record shows that thousands of p olice officers are assaulted every y e a r while responding to domestic v iolence disputes. One in every five of these assaults involves a deadly weapon (a firearm, a knife,

or another “dang erous weapon”). See T a b le 73. And every y ear, these assaults r esult in d eaths to law enforcement officers. See Table 19. Given these statist ics, I would find that domestic violence calls a r e associated with weapons frequen t l y e nough that an officer can form a reasonable suspicion that a s uspect mig ht be armed based on the domestic violence nature of the call. 7

7 T h e w arran tless en try cases cited b y th e m aj o rity f o r th e p ro p o sitio n th at “ do m estic ab u se cases [d o n o t] create a p er se ex ig en t n e e d f or

w arran t less en try ,” d o n o t reso lv e w h eth er a frisk

—w h ich

, u n lik e

w arran t less en try , is n ecessitated by s a fety co n cern s—m ay b e j u stif ied b y th e d o m estic v io len ce n atu re o f th e call. S ee Maj

. Op

. at 26 (citin g Un ited S ta tes v. Bla ck

, 4 8 2 F.3 d 1 03 5 (9 th C i r

. 2 0 0 7 ), an d Un i ted S ta tes v. Ma rtin ez , 40 6 F.3 d 11 6 0 (9 t h C ir. 2 00 5 )). Mo reo v er, b o th cases cited b y th e m aj o rity u

p h eld th e co n stitu

tio n ality o f th e o f

f icers’ w arran tless en try in resp o n s e to a do m estic v io l en ce call. S ee Bla ck

, 4 8 2 F.3 d at 1 0 40

– 41 ;T H O M A S V

. D I L L

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O f course, an officer’s reasonable suspicion could i n

some circumstances be dispelled by other facts known to the officer. See Terry
, 3 92 U.S. a t 2 8 (sug g esting that, under certain circumstances, a sus p e c t ’s r esponse to an officer’s approach mig ht dispel reasonable suspicion that suspe c t is armed). B ut at the time he e n countered Thomas, Dillard was

a ware of no such facts. Dillard encountered an ind i v i d u al matching the description of a suspect of t w o r e p o rts o f domestic abuse, who emerg ed “s u s p i ciously ” from a concealed area where the violence had alleg e dly occurred with a w oman. Thomas was wearing b a g g y clothes a nd a long shirt that could conceal weap o n

. Thomas acted “standoffish.” He refused to consent to a we a p o ns search. More importantly

, he r efused even to raise h i s hands o r to

move them away from his waistline, where Dillard was reasonably

concerned a weapon mig ht be concealed. 8

True, Thomas’ bag g y

clothing could not alone support a

r easonable suspicion that he was armed. See Y b a r r a v. I llinois

, 4 44 U.S. 8 5, 93 (1979) (g overnment failed to “articulate any specific fact that wo u l d have justified” a reasonable suspicion that Y barra was armed and d a n g erous

Ma rtin ez , 4 0 6 F .3 d at 1 1 6 5

. T h u s , t h e s e cases h ard l y su p p o rt th e

m a j o r i t y ’ s co n clu sio n th at Of

f icer Dillard v io lated T h o m as’ Fo u rth A m en d m en t rig h ts in co n d u ctin g a Terry f risk o f an in d i v id u al m atch in g th e d escrip tio n o f tw o rep o rts o f d o m estic v io len ce o n th e Esco n d i d o

cam p u s.

8 T h e m ere f

act th a t T h o m as p ro v id ed an sw ers to Of f icer D illard ’ s q u estio n s ( i .e. ref

u sals to co o perate) d id n o t “ n eg ate” D i l lard ’ s

“ reaso n ab l e h

y po th esis” t

h at h e m ig h t b e arm ed

. S ee Terry
, 3 92 U.S. at 5
, 2 8 (d ef

en d an t’ s “ m

u m b l e” in resp o n se to o f

f icer’ s q u estio n d id n o t

“ n eg ate” a reaso n ab le h y

p o th esis th at th e def

en d an t m ig h t b e arm ed w

h ere th e o f f icer h ad ob s e r v e d s u sp icio u s activ ity th at led h im to b eliev e th e d ef en d an t in ten d ed to co m

m it a crim e in v o lv in g w eap o n s).T H O M A S V

. D I L L

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when “the most” the officer “could po int to was that Ybarra

was wearing a 3/4-leng th lumber jacket, clothing which the State admits could have been ex pected on almost any

tavern patron” at that time o f y e a r ). B ut where an officer is confronting the suspect of a viole n t crime f requently committed with w eapons, the f act that the suspect’s clothing could conceal a weapon is r e levant to determining whether reasonable suspicion that the suspect mig h t be armed is dispelled. 9

The majority focuses on the lack of active violence when Of f i cer D illard arrived. B ut even if the initial violence has subsided, it is not uncommon for the perpetrator, or even the victim, to e r u p t into sudden violence or ang er at an officer responding to a dom e s tic violence call. See Martinez
, 406 F .3d at 1164; c

f. L ining e r and Marie De Sanctis

, s u p r a

. I f that occurs, the seeming ly calm scene can tur n d a n g erous

or deadly (if weapons are p r esent) in a m a t t e r of seconds. Given this volatility

, a reasonably c autious police officer will
start by securing the domestic violence scene to e nsure there

are no w e apons o n hand if someone d oes become violent—ex actly what Officer Dillard tried to do here. I n fact, an officer has a duty as a “ c o mmunity caretak[ er] ” to take r easona

b l e steps to p rotect the victim of r eported domestic violence, a

nd Officer Di l l a rd ’ s “failure to do so would have amounted to a dereliction of duty .” United States v. W illis

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

Perhaps w i t h the benefit of “20/20

. . . h indsig ht” we mig ht say that O f

f i cer Dillard should have realiz ed that

9 Fo r ex am

p le, reaso n ab le su sp icio n t h at a su sp ect w as arm ed m ig h t b e d isp elled if t

h e s u sp ect’ s clo th in g m ad e clear h e w o u ld h av e n o w h ere to h id e a w eap o n

.T H O M A S V

. D I L L

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Thomas was not ar m e d. B ut in the F ourth A mendment
contex t we judg e the reasonablenes s o f an officer’s conduct “from t h e p e rspective of a reasonable officer on the scene.” Graham v. Connor
, 490 U

. S

. 3 8 6, 396 (1989) (citing Terry
, 392 U.S. at 20–22 (1968)); cf. Mattarolo

, 209 F .3d at 1 158 (“The officer must choose between being sure that the suspect is not armed and jeopardiz ing his own safety .”).

I n my view, the nature of a domestic v i o l e n ce c all justifies an officer’s formulati o n of a reasonable suspicion that a suspect may be armed (i n t h e a b sence of mitig ating circumstances). I n deed, a law e n f o r cement o fficer should feel a moral duty to protect v ictims of domestic violence. And while an officer of course cannot shadow an abuser forever to ensure no future violence befalls the v ictim, h e c an

a t least make sure that the “scene is secure” from p o s s i b l e violence with weapons before he leaves the victim with an abuser. Given that d omestic v iolence as s a u l ts account for nearly two-thirds of all fatal shooting s of f emale vic t i ms in the United States, see Violence Pol’y C tr. Report, supra , I would find that the relatively small incursio n on bodily dig nity o f permitting a Terry frisk based on the domestic violence nature of a police call is far ou t w e i gh ed by the strong law enforcement interest—indeed, the broader societal interest—in saving the lives of d o m estic violence victims. W e a chieve this interest by a ssuring that abu s e r s are not armed before the police officer leaves the scene of a domestic violence e ncounter. Yet the m aj o r i t y today requires a law enforcement o fficer to face potential liability unless he leaves

a domestic viole n ce scene without a ny assurance that the abuser is not armed and w ill not ag ain inflict violence on the victim—only nex t time, w ith a g un. I cannot endorse a leg al rule that places law enforcement officers in such a stressful dilemma. Thus, while I

ag ree with the result reached by theT H O M A S V

. D I L L

A R D 65

majority today

, I cannot join my colleag u es to the ex tent they deny law enforcement officers a tool—the Terry frisk—vital for e nsuring their own safety

, a s w e l l as the safety of the domestic violence victims they have a duty

to protect.