A federal appeals court ruled that even though a Palomar College police officer “clearly” used excessive force when he shot a student with a Taser just to frisk him for weapons, he shouldn’t be held liable.

The ruling by the 9th U.S. Circuit Court of Appeals Tuesday effectively lets Officer Christopher Dillard off the hook for the encounter on the college’s Escondido campus September 21, 2010.

That afternoon, Dillard received a report of a domestic violence incident involving a black man on the north side of campus, but there was no further information given. About 40 minutes later, Dillard was asked to check out what appeared on a campus surveillance video to be a black man in a purple shirt pushing a woman near storage containers on the south side of campus.

When he arrived, Dillard saw Correll Thomas, a 19-year-old black student wearing a purple shirt, emerge from behind the containers with a woman who was quickly identified as his girlfriend.


Dillard told the couple they weren’t in trouble, and then asked Thomas for identification. Thomas said he had it but the officer didn’t ask to see it. Dillard then asked Thomas if he minded a pat down for weapons. The student said he did mind.

The girlfriend told the officer they hadn’t done anything wrong and had only been kissing behind the containers. She denied she was pushed, didn’t appear to be in distress and showed no sign of injury.

When the student again denied to be searched for weapons, the officer made a move to restrain him, and the student stepped back, avoiding the officer’s grasp. That’s when the officer pulled out his Taser and pointed it at the student in a standoff. The student continued to answer the officer’s questions, but he said he wasn’t armed and wouldn’t consent to a search.

It escalated from there. Dillard demanded Thomas put his hands up and get on his knees, and the student refused. Dillard called for backup, and an Escondido police officer showed up and pointed her gun at the student. Thomas put his hands up, and Dillard threatened to shoot the Taser if he didn’t kneel.


Thomas did not comply and was shot with the Taser. He was handcuffed and searched. No weapons were found.

He was arrested on a charge of resisting a police officer; the charge was dismissed six months later.

He sued the college police officer, arguing the officer had no right to demand a weapons search in the first place, or use the Taser when Thomas refused.

At the center of the discussion is whether the officer had the right to frisk Thomas. Such frisks, called Terry frisks, were established in a 1968 landmark Supreme Court case, Terry v. Ohio, which held that an officer can search a suspect for weapons even if there’s no probable cause for arrest, as long as the officer has a reasonable suspicion the person is armed and dangerous.


But what constitutes an officer’s reasonable suspicion of a person being armed and dangerous?

The 9th Circuit ruled here that there was nothing about this encounter that should have made Dillard suspect the student was armed. The caller didn’t mention a weapon, the girlfriend quickly denied being abused and the student wasn’t being aggressive. The court ruled that a report of domestic violence alone does not meet the threshold for suspecting a person could be armed.

“Thomas’ appearance and behavior gave no suggestion he was armed. Thomas was in a location where he was entitled to be, answered Dillard’s questions forthrightly, faced Dillard with his hands fully visible in the afternoon sunlight and made no overt movements suggesting he was arming himself. There were no suspicious bulges in the T-shirt or any other item of Thomas’ clothing,” the 9th Circuit ruled.

As the Terry case found, a frisk for weapons “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”


But still, the court found that Dillard is covered for his actions under “qualified immunity” because the state of the law was unclear at the time, and a reasonable officer would not have known any better. The 9th Circuit said the officer could have reasonably surmised, based on other court rulings at the time, that a domestic violence suspect could be forced to comply with a weapons pat down.

Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law,” according to case law on the subject.

The court’s ruling reverses an earlier ruling by a San Diego federal judge that held the officer should be held liable because the law was clearly established.

In a dissenting opinion, 9th Circuit Judge Carlos Bea argued that the officer rightly demanded the frisk and pointed to statistics that show domestic violence calls to be some of the most dangerous facing police.


“By analyzing the circumstances confronting Officer Dillard through a rosy-hued lens of hindsight, the majority opinion deprives future law enforcement officers faced with domestic violence disputes of an important tool for protecting themselves and the citizens with whose safety they are entrusted.”

Dillard’s lawyer, Randall Winet, said Wednesday he was pleased with the court’s decision. “I believe the court got the matter correct.”

Thomas’ lawyer, Eugene Iredale, said he plans to request a rehearing on the matter.

“The law was in fact clearly established,” Iredale said Wednesday. “It’s a universal Fourth Amendment rule of criminal procedure, an officer before a frisk must have specific, articulable facts to believe a person is armed and dangerous.”


kristina.davis@sduniontribune.com