Domestic Violence Call Does Not Automatically Justify a Terry Frisk

by | May 25, 2016

A campus police officer responded to a call to investigate a man pushing a woman. The officer encountered Thomas, a student who had been hanging out with and kissing his girlfriend. Although Thomas was unarmed and had committed no act of domestic violence, the officer ordered Thomas to submit to a Terry frisk. When Thomas refused, the officer used a TASER®. Thomas sued the officer, alleging unlawful seizure and excessive force.

Courts have ruled that certain serious crimes generally involve weapons and automatically justify a Terry frisk of suspects. Such crimes include nighttime burglary, large-scale drug trafficking and robberies. The officer claimed that police officers are free to conduct a Terry frisk whenever investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene. The court disagreed.

The officer asserted that the following facts justified a frisk:
1. Thomas generally matched the description of a black male in a purple shirt observed “pushing” a female.
2. Thomas and his girlfriend seemed “startled and fidgety” when approached.
3. Thomas wore loose clothing that might easily conceal a weapon.
4. Thomas refused to consent to be frisked.
5. Thomas moved away from the officer when the officer tried to grab him.

In contrast, both Thomas and his girlfriend denied that there had been any domestic violence.
The court quickly disregarded nervousness and the instinctive step back as suspicious. Rather, the court noted, such factors would more likely be a “natural response” when dealing with an officer: “A vague call about an unarmed man pushing a woman in a public place on a college campus, without more, does not give rise to a conclusive reasonable suspicion that the man is armed and dangerous.”

A single dissenting judge would have allowed the frisk. Judge Bea observed that the 9th Circuit court has “repeatedly (and correctly) recognized the unique dangers law enforcement officers face when responding to domestic violence calls—including the inherent volatility of a domestic violence scene, the unique dynamics of battered victims seeking to protect the perpetrators of abuse, the high rate of assaults on officers’ person, and the likelihood that an abuser may be armed.”

At the end of the matter, however, both the majority and dissent concurred that the officer was entitled to qualified immunity.

Any call may turn deadly—whether an armed robbery, shoplifting or college campus domestic dispute. The same careful observation skills that will help an officer stay safe will also help an officer observe, assess and articulate particular threat factors that will justify a frisk for weapons.

Thomas v. Dillard, 2016 WL 1319765 (9th Cir. 2016)

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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