On April 5, 2016, the U.S. Court of Appeals for the Ninth Circuit held, inThomas v. Dillard & Palomar Community College District, that a “domestic violence call,” justifies a Terry stop but, with no more information, it does not by itself justify a Terry frisk (Terry v. Ohio (392 U.S. 1).

Furthermore, when the subject passively refused to cooperate, the use of a Taser was unjustified and found to be excessive force.

However, given the unsettled state of the law regarding the use of Tasers at the time, the officer was entitled to qualified immunity from civil liability.

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 appealed.


On September 21, 2010, at 3:42 p.m., Officer Dillard of the Palomar College Police Department was dispatched to the Escondido college campus regarding a black male involved in a domestic violence matter.  The officer went to the location and was unable to locate anyone fitting the limited description provided by dispatch.  At 4:20 p.m., Officer Dillard received another call from dispatch stating that a black male, “wearing a purple shirt,” was pushing a woman near some storage containers on the south side of the campus.

Officer Dillard went to the location of the containers.  Initially, Dillard saw no one fitting the description, however Mr. Thomas, the plaintiff, appeared from behind some storage containers with a woman (later identified as his girlfriend) after Officer Dillard had passed by in his police car.  Mr. Thomas was a black male wearing a purple colored top.

Dillard got within ten feet of Thomas and stated to both Thomas and the woman that “no one was in trouble” and asked if they had any identification.  Mr. Thomas stated that he did have identification on him.  Dillard then asked Thomas if he had any weapons on him.  Thomas stated that he did not.

Dillard then asked if he could search him for weapons.  Thomas stated he did not want to be searched.  Dillard came closer to Thomas and asked again if he could search him and told him that he was there because there was a call about a domestic violence incident involving a black man in a purple top.  Thomas denied that he had done anything wrong and again refused to allow Officer Thomas to search him.  Officer Dillard then stepped forward and attempted to put Thomas into a control hold.  Thomas pulled away from Dillard at which time the officer stepped back and pulled out his Taser.

According to Thomas, he was not being belligerent or aggressive towards the officer.  Officer Dillard, while pointing his Taser at Thomas, radioed for back-up.  Officer Dillard ordered Thomas to get onto his knees and to put his hands in the air.  Thomas refused.

Another officer arrived on scene whereupon she drew her firearm and pointed it at Thomas and ordered him to put his hands into the air.  Thomas complied.  Dillard then again ordered Thomas to his knees and Thomas refused to do so.  Dillard said that he would count to three and if he did not comply, he was going to “tase” him.  Thomas did not comply so Dillard “tased” him.

Court Discussion

The Ninth Circuit Court of Appeals analyzed the basis of the initial detention and the grounds to perform a weapons search of Mr. Thomas.  The Court held that Officer Dillard had justification to detain Thomas and question him pursuant to Terry v. Ohio (392 U.S. 1).  “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.’”

The court noted that Officer Dillard had reasonable suspicion to think that criminal activity was afoot and that Mr. Thomas was the individual that may be involved.  The police dispatch had informed Officer Dillard that a black man wearing the same color shirt as Mr. Thomas was seen pushing a woman in the location where Officer Dillard found Thomas and the woman.

Dillard was entitled to detain Thomas briefly to investigate the report of potential criminal activity.  However, the detention must be tailored to its underlying justification: to determine if Mr. Thomas was the person seen pushing the woman and if there was contact with the woman, was it battery?

The court held that during this detention (Terry stop), Officer Dillard could ask Thomas for consent to search him for weapons.  Thomas did not have to consent to the search and could decline the Officer’s request to search.

A Terry frisk is justified by a concern for officer safety and for the safety of others in close proximity to the suspect.  However, in order to perform aTerry frisk, the officer must have “reasonable suspicion that a suspect is armed and dangerous to the officer or to others.”

Simply because a person may be lawfully detained for a Terry stop does not immediately permit a Terry frisk.  The court further explained that an officer needs an objective “reasonable suspicion” to justify a search.

Thus, the question is “whether a reasonably prudent person would have been warranted in believing the suspect was armed and dangerous and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior.”

Officer Dillard needed to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion of a frisk.

The facts which Officer Dillard asserted were as follows: 1) Dillard received two radio dispatches and Thomas fit the description; 2) both Thomas and the woman (his girlfriend) appeared startled when the officer appeared; 3) Thomas’ clothes were loose fitting in which he could secure a weapon; 4) Thomas refused the frisk after being informed by Officer Dillard the reason for the detention (domestic violence investigation); and 5) Thomas pulled away from Officer Dillard when he attempted a control hold.

Officer Dillard also stressed that the nature of domestic violence investigations were among the most violent types of calls for service for police officers.  Dillard alleged that there were many instances where officers were attacked during a domestic violence investigation, and that he needed to ensure that Thomas was not armed before he continued on with this investigation.

However, according to the court, all of these reasons did not justify the Terryfrisk.  The court concluded that since domestic violence crimes could vary from simple assaults to felony batteries, the specific circumstances of the call must be factored into the reasonable suspicion analysis for the Terry frisk.  The mere fact that it is solely a “domestic violence call,” with no more information, does not by itself justify the Terry frisk.

The court further opined that Thomas’ sudden movement to step back away from Dillard was a reactive and instinctive response to the officer’s aggressive attempt to get Thomas into a control hold.  The court found that Thomas’ movement was not an “unprovoked, sudden” action that would lead an officer to have reasonable suspicion of a person being armed.

According to the court, Thomas was compliant and was only passively resistant.  Moreover, the court concluded that since there were no suspicious bulges in his clothing suggesting that he had a weapon and there was no report of him being armed.

“Thomas had been forthright with Dillard from the beginning, providing his identity and answering his questions directly. His girlfriend was adamant that Thomas had done nothing wrong.  In context, Thomas’ steadfast, passive resistance to Dillard’s insistence that he offer himself to be searched does not tip the balance in favor of reasonable suspicion to frisk.”

In totality, said the Court, after Thomas was wrongfully detained for a weapons frisk, his noncompliant behavior cannot contribute to a reasonable suspicion that he is armed.

Finally, the court found that the controlling law in September, 2010, regarding the use of Tasers in situations like this encounter was not clearly defined and “it would not have been apparent to an officer in Dillard’s shoes that using a Taser on a domestic violence suspect refusing to allow a search” constituted excessive force.  As such, he was entitled to qualified immunity from civil liability.


The type of call for service will be a factor to consider in whether or not to perform a Terry frisk but, in many instances, it will not be the sole factor to substantiate a frisk, unless it is a serious and potentially violent crime that is being investigated, and/or there is a reasonable suspicion to believe a suspect is armed.

The court emphasized that “reasonable suspicion requires an officer to point to specific facts indicating a particular suspect is armed.”

The court noted that, “although noncompliant behavior can contribute to reasonable suspicion that a suspect is armed, here it provided no basis for believing Thomas was armed.

Although Thomas refused to raise his hands and kneel, he stood still and his hands were empty and plainly visible throughout the entire six minutes he was being detained under threat of Dillard’s Taser.”

In addition, the Ninth Circuit Court of Appeals has, once again, clearly stated that, “(u)sing a Taser in dart mode constitutes an “intermediate, significant level of force.”

If a suspect is being passively resistant, and officer safety is not in question, the use of a Taser is highly problematic.  The court does acknowledge force may be necessary but reiterates the criteria to be considered.

“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”  Under [Graham v. Connor, 490 U.S. 386, 396 (1989)], an officer must first consider the nature and quality of the alleged intrusion.

“(W)e then consider the governmental interests at stake by looking at (1) how severe the crime at issue is; and (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”

After evaluating all of the Graham factors, in the specific case before the court, it determined the level of force used was not justified.

However, “(a)lthough we conclude Dillard’s use of the Taser constituted excessive force, the facts of the cases existing at the time are not . . . such that Dillard’s mistaken view of the law was unreasonable.”  As such, under those circumstances, he was entitled to qualified immunity but that decision will be made on a case by case basis.

As with all legal issues it is imperative to seek out and secure advice and guidance from your agency’s counsel.  However, as always, should you wish to discuss this case in greater detail, please feel free to contact David Demurjian or Martin Mayer at (714) 446 – 1400 or via email at drd@jones-mayer.com or mjm@jones-mayer.com respectively.

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