Correll L. Thomas, Plaintiff-Appellee,
C. Dillard, Police Officer, Defendant-Appellant, and Palomar Community College District, Defendant.
Argued and Submitted June 2, 2015., -Pasadena, California
Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding, D.C. No. 3:11-cv-02151-CAB-NLS
Randall L. Winet, Winet Patrick Gayer Creighton & Hanes, Vista, California, for Defendant-Appellant.
Eugene G. Iredale (argued), Iredale and Yoo, San Diego, California; Mervyn S. Lazarus, Law Offices of Mervyn S. Lazarus, Newport Beach, California, for Plaintiff-Appellee.
The panel reversed the district court's order on summary judgment denying qualified immunity to Palomar College police officer Christopher Dillard and also reversed the district court's partial summary judgment in favor of plaintiff on the issue of liability in an action brought pursuant to 42 U.S.C. § 1983 alleging unlawful seizure and excessive force under the Fourth Amendment.
Responding to a possible domestic violence call, officer Dillard demanded that plaintiff submit to a Terry frisk for a search of weapons. When plaintiff refused to be searched, officer Dillard tased him.
The panel held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion. The panel therefore held that Dillard violated plaintiff's Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk. The panel nonetheless held that Dillard was entitled to qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The panel further held that it was not clearly established at the time that continuing to detain a non compliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.
Concurring in part and dissenting in part, Judge Bea agreed that Officer Dillard was entitled to qualified immunity on plaintiff's claims for unlawful seizure and excessive force under 42 U.S.C. § 1983, and that the district court's grant of partial summary judgment to plaintiff must accordingly be reversed. Judge Bea would hold, however, that the domestic violence nature of a call requesting police assistance can alone give rise to reasonable suspicion necessary to justify a Terry frisk.
The opinion filed April 5, 2016 and reported at 2016 WL 1319765 is hereby AMENDED as follows:
At slip opinion page 23, line 8, change <Thomas and the dissent> to <Dillard and the dissent>.
At slip opinion page 24, line 1, change <Thomas and the dissent> to <Dillard and the dissent>.
At slip opinion page 24, footnote 11, line 1, change <Thomas' expert> to <Dillard's expert>.
Appellee's Petition for Rehearing and Suggestion for Rehearing En Banc, filed April 16, 2016, remains pending.
Before: Ferdinand F. Fernandez, Raymond C. Fisher and Carlos T. Bea, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Bea
FISHER, Circuit Judge
Palomar College Police Officer Christopher Dillard responded to a call to investigate a man pushing a woman in a public area on the college's campus. There he found Correll Thomas, a student at the college who had been hanging out with and kissing his girlfriend, Amy Husky. Although Thomas was unarmed and in fact had committed no act of domestic violence, Dillard demanded Thomas submit to a search for weapons, believing police officers are free to conduct a Terry frisk whenever they are investigating a potential "domestic violence" incident, regardless of the specific circumstances of the call or the facts encountered at the scene. When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under 42 U.S.C. § 1983, asserting unlawful seizure and excessive force under the Fourth Amendment. The district court denied Dillard qualified immunity on summary judgment and granted partial summary judgment to Thomas on the issue of liability. Dillard appeals.
We address whether a law enforcement officer has reasonable suspicion to conduct a Terry frisk, searching a suspect for weapons, based solely on the perceived domestic violence nature of the investigation. We hold that, although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion. We therefore hold Dillard violated Thomas' Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk. Because it was not clearly established at the time that the perceived domestic violence nature of an investigation was insufficient to establish reasonable suspicion, however, we hold Dillard is entitled to qualified immunity. We further hold Dillard used excessive force when he tased Thomas in order to force him to submit to the Terry frisk against his consent. Given the frisk was unlawful and unnecessary, Dillard used unreasonable force. Nonetheless, given the unsettled state of the law regarding the use of Tasers at the time, we again hold Dillard is entitled to qualified immunity. Given the Supreme Court's instructions that we may not define clearly established law at too high a level of generality, it was not clearly established at the time of Dillard's actions that an officer who mistakenly but reasonably believed he had the right to conduct a Terry frisk could not deploy a Taser in dart mode to overcome a suspect's resistance to the frisk. Accordingly, without in any way endorsing Dillard's actions or overlooking the indignities those actions caused Thomas to suffer, we reverse the order of the district court and hold Dillard is entitled to summary judgment on the ground of qualified immunity.
Because we are reviewing the denial of Dillard's motion for summary judgment based on qualified immunity, we assume Thomas' version of disputed facts and draw all reasonable inferences in his favor. See Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en banc).
At approximately 3:42 pm on September 21, 2010, the Palomar College Police Department dispatched Officer Dillard to the college's Escondido campus to respond to a domestic violence call involving a black male. Dillard spoke to a college administrator on the north side of campus, but was unable to obtain any further details pertaining to the domestic violence incident that may have prompted the call. The record contains virtually no information about this call. We have no description of the suspect other than Dillard's belief that the call mentioned a black male, no description of the what the alleged "domestic violence" may have entailed and no information about where the incident might have occurred.
Approximately 40 minutes later, at 4:20 pm, while he was speaking with the administrator, Dillard received a call to investigate a male wearing a purple shirt pushing a female near some storage containers on the south side of the Escondido campus. A male wearing a purple shirt pushing a female was the entire scope of the call. There was no further description of the "suspect, " or of the alleged "pushing, " and the call made no mention of domestic violence. When Dillard arrived on the scene, he first encountered a community service officer who had also responded to the call, and who would remain present throughout the ensuing incident. Dillard then saw a male with a purple shirt and a female come out from behind the storage containers. These were Thomas, who is African-American, and his girlfriend, Husky.
Dillard got out of his police car, telling Thomas and Husky as he did so that no one was in trouble. Dillard stopped about 10 feet away from Thomas and Husky, who were standing next to each other. Dillard saw no indication that a crime had occurred. Husky exhibited no signs of domestic violence. She showed no signs of injury. She had not been crying. She did not appear distraught. The area was open to the public. Thomas and Husky looked like normal college students. Their hands appeared empty. They may have appeared startled or fidgety, but, as Dillard testified, these were normal behaviors.
Dillard asked Thomas and Husky whether they had identification. Thomas responded that he did; Husky said she did not. Dillard did not ask to see the identification. Instead, he asked Thomas whether he had any weapons on him. When Thomas responded that he did not, Dillard asked Thomas whether he would mind being searched for weapons. This was approximately 15 seconds into the encounter. Thomas responded that he did mind.
Dillard approached Thomas and asked again whether he would consent to a search for weapons. When Thomas declined, Dillard told Thomas he had received a call "about a guy in a purple shirt pushing around a girl." Thomas and Husky both denied they had seen anything or had done anything wrong. They both denied they were fighting, or that Thomas was pushing Husky. Husky told Dillard they had just been kissing behind the storage containers. Dillard asked Thomas again for consent to search for weapons, and Thomas again refused. Dillard moved toward Thomas, attempting to grab him and place him a controlled hold for the purpose of conducting a frisk. When Thomas stepped away to avoid being grabbed, Dillard backed off, pulled out his Taser, pointed it at Thomas and told Thomas he was going to search him. This occurred approximately 30 to 40 seconds into the encounter. Husky, meanwhile, was yelling at Dillard that Thomas had done nothing wrong.
Thomas continued to respond to Dillard's questions but to withhold his consent to being searched. He was not aggressive or belligerent. Dillard called for backup and kept his Taser pointed at Thomas. Dillard told Thomas to put his hands in the air, step forward and drop to his knees. Thomas refused to do so. In response to the call for backup, a uniformed Escondido police officer arrived on the scene and pointed her handgun at Thomas from a distance of 15 feet away. When the Escondido officer told Thomas to put up his hands, he did so. Dillard told Thomas that if he did not get down on his knees by the count of three, Dillard would tase him. Dillard counted to three, and, when Thomas did not comply, tased Thomas. Dillard fired the Taser in dart mode, discharging a set of electrified barbs that lodged in Thomas' chest and delivered an incapacitating surge of electrical current to his body. This occurred approximately six minutes into the encounter. Thomas was handcuffed, searched (no weapons were found), treated by paramedics, arrested and charged with unlawfully resisting, delaying or obstructing a peace officer. See Cal. Penal Code § 148(a)(1). The charges were dismissed six months later.
Thomas filed suit against Dillard under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights to be free from unlawful seizure and excessive force. He also alleged claims under California state law for negligence and violation of California Civil Code § 52.1. Dillard moved for summary judgment, and Thomas cross-moved for partial summary judgment on the issue of liability. The district court denied Dillard's motion and granted Thomas' motion. The court ruled Dillard lacked reasonable suspicion to believe Thomas was armed and dangerous, and thus that Dillard unlawfully seized Thomas for the purpose of conducting a weapons search. The court also denied qualified immunity for this seizure, reasoning:
Having determined the existence of a constitutional violation, the Court considers whether the right violated was clearly established at the time of its occurrence. At the time Officer Dillard tased Thomas to force his compliance with a weapons' search, it was clearly established that such a search is unreasonable unless supported by the officer's reasonable suspicion that the person to be searched is armed and dangerous. Ramirez [v. City of Buena Park], 560 F.3d [1012, ] 1023 [(9th Cir. 2009)]. There was no objective evidence to support a reasonable suspicion that Thomas had a weapon. Officer Dillard's explanation, based on his subjective characterization that this was a domestic violence call and therefore necessitated a search without any indication a weapon was involved, is wholly inadequate to justify his conduct. It would have been clear to a reasonable officer that a search of Thomas in the circumstances presented was unlawful. Officer Dillard is not entitled to qualified immunity.
The court further ruled "Dillard's use of his taser to compel Thomas's compliance with the search was excessive force." "Having concluded that Officer Dillard had no reasonable suspicion to support a search of Thomas for weapons, any force used to accomplish that search was objectively unreasonable and tasing Thomas was clearly excessive, " the court wrote. Dillard timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
Ordinarily, we lack jurisdiction over an appeal from a denial of summary judgment because it is not a "final" judgment under 28 U.S.C. § 1291. See Mueller v. Auker, 576 F.3d 979, 987 (9th Cir. 2009). A public official, however, may immediately appeal the denial of a motion for summary judgment asserting qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985). Accordingly, we have jurisdiction to review the denial of qualified immunity to Dillard. Our review is limited to whether, after construing disputed facts and reasonable inferences in favor of Thomas, Dillard is entitled to qualified immunity as a matter of law. See Mattos, 661 F.3d at 439 & n.2. We review this question de novo. See id. at 439.
Qualified immunity shields a police officer from suit under § 1983 unless (1) the officer violated a statutory or constitutional right, and (2) the right was clearly established at the time of the challenged conduct. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014); Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011). Although we have discretion in deciding which of these two prongs to address first, here we elect to follow the order laid out above. See Mattos, 661 F.3d at 440. We evaluate separately the constitutionality of each distinct Fourth Amendment intrusion: the investigatory stop, the Terry frisk and the use of the Taser. See Ramirez, 560 F.3d at 1019.
A. Investigative Stop
The Fourth Amendment protects the "right of the people to be secure in their persons . . . against unreasonable searches and seizures" by the government. U.S. Const. amend. IV. "This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Terry v. Ohio, 392 U.S. 1, 8–9 (1968). "Unquestionably [Thomas] was entitled to the protection of the Fourth Amendment as he walked down the street in [Escondido], " just as John Terry was entitled to the same protection on a Cleveland street in 1963. Id. at 9.
Terry permits limited police intrusions on a person's freedom of movement and personal security when an officer's suspicion falls short of the "probable cause" required to execute an arrest or a "full" search. See id. at 20–27. To initiate a brief stop to investigate potential criminal activity, a stop that does not rise to the level of an arrest, an officer must have reasonable suspicion to believe "criminal activity may be afoot." Id. at 30; United States v. Arvizu, 534 U.S. 266, 273 (2002). This means the officer must have reasonable suspicion "the person apprehended is committing or has committed a criminal offense." Arizona v. Johnson, 555 U.S. 323, 326 (2009).
Thomas does not challenge Dillard's initial decision to stop and question him and Husky for a brief period. Campus police dispatch had informed Dillard that a man wearing the same color shirt as Thomas had pushed a woman in the very location Thomas and Husky were found, by the storage containers. This created a reasonable suspicion Thomas might have committed a simple assault or battery, possibly in the context of a domestic relationship. See, e.g., Cal. Penal Code § 242 (defining battery as "any willful and unlawful use of force or violence upon the person of another"); id. § 243(e)(1) (proscribing simple battery against "a person with whom the defendant has, or has had, a dating relationship").Dillard was entitled to detain Thomas briefly to investigate the report of potential criminal activity – a so-called Terry stop.
In conducting the stop, Dillard also was permitted to ask Thomas for consent to search for weapons, see United States v. Drayton, 536 U.S. 194, 207 (2002), known as a Terry frisk, see United States v. I.E.V., 705 F.3d 430, 433 (9th Cir. 2012). As the word "consent" implies, however, Thomas was free to decline Dillard's request. See Florida v. Bostick, 501 U.S. 429, 437 (1991) ("[A]n individual may decline an officer's request [for a consent search] without fearing prosecution."). The nature of the interaction between Dillard and Thomas changed significantly, however, once Dillard unholstered his Taser, pointed it at Thomas and ordered Thomas to submit to a frisk for weapons. At that point, he exceeded the justification and authority for the Terry stop – to investigate a potential battery. See Florida v. Royer, 460 U.S. 491, 500 (1983) ("The scope of the detention must be carefully tailored to its underlying justification."); id. ("[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop."); see also Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015) (noting the permissible duration of a traffic stop, "[l]ike a Terry stop, " is determined by the "mission" of the stop). Once Dillard demanded Thomas submit to a search for weapons, he needed a reasonable basis for believing Thomas might be armed and dangerous in order to continue detaining him for the search. The question, then, is whether Dillard had such justification.
Thomas argues Dillard had no justification for ordering him to submit to a Terry frisk and that detaining him to perform the frisk violated the Fourth Amendment. He contends it was clearly established that Dillard's conduct was unconstitutional when the events took place in September 2010, and Dillard therefore is not entitled to qualified immunity. We address these two prongs of the qualified immunity analysis in turn. ...