                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LAWRENCE L. THOMPSON,                   No. 16-35301
               Plaintiff-Appellant,
                                           D.C. No.
                v.                      2:14-cv-01769-
                                             MJP
SUE RAHR, Head Sheriff's
Officers/and Department,
                           Defendant,     OPINION

               and

PETE COPELAND, Deputy Sheriff
Officer; KING COUNTY SHERIFF'S
DEPARTMENT, in all,
              Defendants-Appellees.

     Appeal from the United States District Court
       for the Western District of Washington
     Marsha J. Pechman, District Judge, Presiding

       Argued and Submitted December 7, 2017
                Seattle, Washington

                Filed March 13, 2018

Before: Michael Daly Hawkins, M. Margaret McKeown,
         and Morgan Christen, Circuit Judges.

             Opinion by Judge McKeown;
              Dissent by Judge Christen
2                   THOMPSON V. COPELAND

                          SUMMARY *


                           Civil Rights

    The panel affirmed the district court’s summary
judgment, on qualified immunity grounds, in a 42 U.S.C.
§ 1983 action alleging that a police officer used excessive
force when he pointed a gun at plaintiff’s head in the context
of a felony arrest after plaintiff had already been searched,
was calm and compliant, and was being watched over by a
second armed deputy.

    Examining the facts in the light most favorable to
plaintiff, the non-moving party on summary judgment, the
panel assumed that the police officer did indeed point his gun
at plaintiff’s head and threatened to kill him. The panel held
that under the circumstances, defendant’s use of force in
arresting plaintiff was not objectively reasonable. The panel
held that where, as in this case, officers have an unarmed
felony suspect under control, where they easily could have
handcuffed the suspect while he was sitting on the squad car,
and where the suspect is not in close proximity to an
accessible weapon, a gun to the head constitutes excessive
force under the Fourth Amendment.

    The panel nevertheless held that although the use of
excessive force violated plaintiff’s constitutional rights,
defendant was entitled to qualified immunity because
plaintiff’s right not to have a gun pointed at him under the



    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  THOMPSON V. COPELAND                       3

circumstances was not clearly established at the time the
events took place.

   The panel addressed plaintiff’s other claims for
unreasonable search and failure to supervise in a
concurrently-filed memorandum disposition.

    Dissenting, Judge Christen would hold that the police
officer was not entitled to qualified immunity on plaintiff’s
excessive force claim because plaintiff’s right not to have a
gun pointed at his head was clearly established in Robinson
v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc),
which was decided long before plaintiff’s arrest in 2011.


                         COUNSEL

Benjamin Michael Flowers (argued), Jones Day, Columbus,
Ohio, for Plaintiff-Appellant.

Endel R. Kolde (argued), Senior Deputy Prosecuting
Attorney, King County Prosecuting Attorney’s Office,
Seattle, Washington, for Defendants-Appellees.


                         OPINION

McKEOWN, Circuit Judge:

    In recent years, the use of force by police officers making
traffic stops has flared into a national debate of renewed
importance. At the same time, the doctrine of qualified
immunity in the excessive force context has continued to
evolve. This appeal presents a question at the intersection of
the Fourth Amendment and qualified immunity law. In the
4                   THOMPSON V. COPELAND

course of a felony arrest, may a police officer point a loaded
gun at an unarmed suspect’s head, where that suspect had
already been searched, was calm and compliant, was
watched over by a second armed deputy, and was seated on
the bumper of a police cruiser 10–15 feet away from a gun
found in the suspect’s car? Because the facts are at this stage
disputed, we take the facts in the light most favorable to the
suspect. We hold that pointing a loaded gun at the suspect’s
head in these circumstances constitutes excessive force
under the Fourth Amendment, but that the officers here are
entitled to qualified immunity because the law was not
clearly established at the time of the traffic stop.

                          Background

    In December, 2011, Pete Copeland, a deputy in the King
County Sheriff’s Office (“KCSO”), was on patrol in the City
of Burien, Washington.           After watching Lawrence
Thompson commit “multiple traffic violations,” Copeland
pulled him over. Thompson apologized to Copeland but
failed to provide a driver’s license, although he did offer up
some mail addressed in his name.

    When Copeland ran Thompson’s identifying
information, he discovered that Thompson had a suspended
license for an unpaid ticket, that Thompson was a convicted
felon, and that his most recent felony conviction was for
possessing a firearm. Copeland decided to arrest Thompson
for driving with a suspended license, and to impound
Thompson’s car, as required by a City of Burien ordinance. 1



    1
       Thompson’s car was later impounded, after the events described
here, and a warrant was issued to search the car.
                 THOMPSON V. COPELAND                      5

    Copeland had Thompson exit the vehicle and patted him
down for weapons. Finding none, Copeland radioed for
backup, and had Thompson sit on the bumper of Copeland’s
patrol car. Copeland then conducted an inventory search of
Thompson’s vehicle. During his search, Copeland saw a
loaded revolver sitting in an open garbage bag on the rear
passenger-side floorboard. After seeing the gun, Copeland
decided to arrest Thompson for violating the Uniform
Firearms Act, a felony. See Wash. Rev. Code § 9.41.040.

    Thompson continued to sit on the bumper of Copeland’s
police cruiser, watched over by another deputy who had
arrived for backup on the scene. Thompson was about 10–
15 feet from the gun in the backseat of his car, and was not
handcuffed. Copeland signaled to the deputy watching over
Thompson, then drew his gun.

    What happened next is disputed by the parties. Copeland
claims he unholstered his firearm and assumed a low-ready
position, with his gun clearly displayed but not pointed
directly at Thompson. By contrast, Thompson claims that
Copeland pointed his gun at Thompson’s head, demanded
Thompson surrender, and threatened to kill him if he did not.

   Copeland directed Thompson to get on the ground, face-
down, so that he could be handcuffed. Thompson complied
and was cuffed without incident. Copeland arrested
Thompson for being a felon in possession of a firearm.

   The State of Washington charged Thompson with
“unlawful possession of a firearm.” A Washington state
court dismissed the charges after determining that the
6                     THOMPSON V. COPELAND

evidence against Thompson had been gathered in violation
of the Washington State Constitution.2

   Thompson sued Copeland and King County under
42 U.S.C. § 1983, alleging violations of his Fourth
Amendment rights. Specifically, Thompson alleged that
Copeland used excessive force in pointing his gun at
Thompson and threatening to kill him. 3

    In recommending dismissal of this claim, the Magistrate
Judge noted that the question is “whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” The Magistrate Judge
found that the degree of force used on Thompson was
reasonable given that Copeland was conducting a “felony
arrest of a suspect who was not secured, who was in
relatively close proximity to a weapon, who was taller and
heavier than him, and who had a prior felony conviction for
unlawfully possessing a firearm.” The Magistrate Judge
concluded that “Copeland’s minimal use-of-force in
effectuating [Thompson’s] arrest was objectively

    2
       The Washington Supreme Court has interpreted Article I, § 7 of
the Washington State Constitution to prohibit traffic stops “which cannot
be constitutionally justified for [their] true reason (i.e. speculative
criminal investigation), but only for some other reason (i.e., to enforce
traffic code) which is at once lawfully sufficient but not the real reason.”
State v. Ladson, 979 P.2d 833, 838 (Wash. 1999); contra Whren v.
United States, 517 U.S. 806, 813 (1996). Applying this standard, the
Washington court found that Copeland’s traffic stop was conducted for
pretextual reasons, that Copeland’s search was illegal under state law,
and that therefore the evidence Copeland found must be suppressed.
    3
      Thompson’s other claims for unreasonable search and failure to
supervise are addressed in the concurrently-filed memorandum
disposition.
                  THOMPSON V. COPELAND                        7

reasonable” and did not violate Thompson’s Fourth
Amendment rights.          The Magistrate Judge also
recommended granting Copeland’s motion for summary
judgment on the basis of qualified immunity. The district
court adopted the Magistrate Judge’s Report and
Recommendation, and dismissed Thompson’s claims with
prejudice, a decision we review de novo. Sandoval v. Las
Vegas Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th Cir.
2014).

                           Analysis

    Our analysis involves two distinct steps. Id. Police
officers are not entitled to qualified immunity if (1) the facts
“[t]aken in the light most favorable to the party asserting the
injury” show that “the [officers’] conduct violated a
constitutional right” and (2) “the right was clearly
established” at the time of the alleged violation. Saucier v.
Katz, 533 U.S. 194, 201 (2001). We may address these two
prongs in either order. Pearson v. Callahan, 555 U.S. 223,
236 (2009). These inquiries are questions of law. Morales
v. Fry, 873 F.3d 817, 819 (9th Cir. 2017); Serrano v.
Francis, 345 F.3d 1071, 1080 (9th Cir. 2003).

    Because this case was decided on summary judgment,
we examine the facts in the light most favorable to the non-
moving party and hence assume that Copeland did indeed
point his gun at Thompson’s head and threaten to kill him—
rather than hold it in the alternative low-ready position as
Copeland claims. See Sandoval, 756 F.3d at 1160. If
genuine issues of material fact prevent a determination of
qualified immunity, the case must proceed to trial. Id.
8                 THOMPSON V. COPELAND

    I. Violation of Constitutional Right

    Where, as here, Thompson “alleges excessive force
during an investigation or arrest, the federal right at issue is
the Fourth Amendment right against unreasonable seizures.”
Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam);
Tennessee v. Garner, 471 U.S. 1, 7 (1985).

    We approach an excessive force claim in three stages.
Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537 (9th Cir.
2010). First, we “assess the severity of the intrusion on the
individual’s Fourth Amendment rights by evaluating the
type and amount of force inflicted.” Id. (citation and internal
quotation marks omitted).          Then, we evaluate the
government’s interests by assessing the severity of the
crime; whether the suspect posed an immediate threat to the
officers’ or public’s safety; and whether the suspect was
resisting arrest or attempting to escape. Id. Finally, we
“balance the gravity of the intrusion on the individual against
the government’s need for that intrusion.” Id.; Graham v.
Connor, 490 U.S. 386, 396–97 (1989).

    Applying these standards here, we conclude that
Copeland’s use of force in arresting Thompson was not
objectively reasonable. Accepting Thompson at his word, as
we are required to do at the summary judgment stage,
Copeland pointed the gun at Thompson’s head and
threatened to kill him if he did not surrender. This type and
amount of force can hardly be characterized as “minor,” as
the government contends. We have previously held, in the
context of a residential confrontation, that “pointing a loaded
gun at a suspect, employing the threat of deadly force, is use
of a high level of force.” Espinosa, 598 F.3d at 537. With
respect to the government’s interests, Thompson was
suspected of driving with a suspended license and violating
the Uniform Firearms Act—potential crimes of low and
                 THOMPSON V. COPELAND                       9

moderate severity, respectively. The safety threat either to
the officers or the public was relatively low. The
government’s claim that Thompson “could have charged
past Deputy Copeland and grabbed the revolver [in the back
of the car] in a matter of seconds” is weak. Thompson would
have had to travel 10–15 feet to his car to grab the gun or
make any use of it. Thompson had no weapon and had
already been searched. He was sitting on the bumper of a
squad car, watched over by an armed deputy. He was not
“actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396. He was “compliant with
the directions of law enforcement at all times.” See Green
v. City & Cty. of S.F., 751 F.3d 1039, 1048, 1050 (9th Cir.
2014). Nor did the officers have “reason to believe that he
would resist or flee.” See Baldwin v. Placer Cty., 418 F.3d
966, 970 (9th Cir. 2005). Reviewing the totality of the
circumstances, the force used against Thompson was
excessive when balanced against the government’s need for
such force.

    In the end, “pointing guns at persons who are compliant
and present no danger is a constitutional violation.” Baird v.
Renbarger, 576 F.3d 340, 346 (7th Cir. 2009) (citing Motley
v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc)). A
jury could find that “brandishing a cocked gun in front of
[Thompson’s] face” and threatening to kill him was
unreasonable under these particular circumstances.
Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th Cir.
2002) (en banc) (citation omitted). We do not discount the
concern for officer safety when facing a potentially volatile
situation. But where the officers have an unarmed felony
suspect under control, where they easily could have
handcuffed the suspect while he was sitting on the squad car,
and where the suspect is not in close proximity to an
10                THOMPSON V. COPELAND

accessible weapon, a gun to the head constitutes excessive
force.

     II. No Clearly Established Right

    Although the use of excessive force violated
Thompson’s constitutional rights, Copeland is entitled to
qualified immunity because Thompson’s right not to have a
gun pointed at him under the circumstances here was not
clearly established at the time the events took place. In
arriving at this conclusion, we take careful note of recent
Supreme Court precedent illuminating the reach and
parameters of qualified immunity in the excessive force
context.

    The Supreme Court long ago laid down the principle that
qualified immunity protects government officials “from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be
“clearly established,” existing “precedent must have placed
the statutory or constitutional question beyond debate,” such
that “every” reasonable official, not just “a” reasonable
official, would have understood that he was violating a
clearly established right. Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011) (emphasis added). Thus, the “dispositive
question” is “whether the violative nature of particular
conduct is clearly established.” See, e.g., Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam) (quoting al-Kidd,
563 U.S. at 742).

    Just last year, in a case addressing excessive force, the
Supreme Court underscored that qualified immunity, when
properly applied, protects “all but the plainly incompetent or
those who knowingly violate the law.” White v. Pauly,
                  THOMPSON V. COPELAND                       11

137 S. Ct. 548, 551 (2017) (citation and internal quotation
marks omitted). The Court “reiterate[d] the longstanding
principle that ‘clearly established law’ should not be defined
at a high level of generality.” Id. at 552 (citation omitted).
And the Court cautioned that, as an “an immunity from suit,
qualified immunity is effectively lost if a case is erroneously
permitted to go to trial.” Id. at 551 (citation and internal
quotation marks omitted).

    Looking to the particular setup here, we cannot say that
every reasonable officer in Copeland’s position would have
known that he was violating the constitution by pointing a
gun at Thompson. Thompson’s nighttime, felony arrest
arising from an automobile stop, in which a gun was found,
coupled with a fluid, dangerous situation, distinguishes this
case from our earlier precedent.            More specifically,
Copeland was conducting a felony arrest at night of a suspect
who was not handcuffed, stood six feet tall and weighed two
hundred and sixty-five pounds, was taller and heavier than
Copeland, and had a prior felony conviction for unlawfully
possessing a firearm. Although Thompson was cooperative,
the situation was still critical in terms of potential danger to
the officers, especially given that a loaded gun was only 10–
15 feet away. Copeland did not violate a “clearly
established” right as that concept has been elucidated by the
Supreme Court in the excessive force context. See Pauly,
137 S. Ct. at 552.

    In arguing that Copeland violated his clearly established
rights, Thompson points to our earlier decisions in Robinson
v. Solano Cty., 278 F.3d 1007 (9th Cir. 2002) (en banc), and
Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009). But
neither of those cases involved a felony traffic stop with a
firearm in proximity, nor did they feature facts sufficiently
similar to the pattern we address here to put the
12                THOMPSON V. COPELAND

constitutional question beyond debate as required to defeat
qualified immunity. al-Kidd, 563 U.S. at 741.

    In Robinson, we held that police used excessive force in
pointing their guns at a 64-year old unarmed retired police
officer who had his hands up. 278 F.3d at 1010, 1015. The
police were responding to a radio dispatch regarding a man
“carrying a shotgun,” who had just shot two dogs, and who
was in the street “yelling at this time.” Id. at 1010. After six
police vehicles arrived on the scene in broad daylight,
Robinson voluntarily approached from his yard in an
unbuttoned shirt and jeans. Id. The officers saw that he was
clearly unarmed—a shotgun was nowhere in sight. Id. at
1010, 1014. The police presence was overwhelming. And
although the officers released Robinson within thirty
minutes when it was ascertained he had not violated the law,
the potential crime was at most a misdemeanor, in contrast
to Thompson’s felony arrest. Id. at 1010–11, 1014.

    In Hopkins, officers used excessive force when they
broke into the home of an unarmed man who had been in a
minor traffic accident and was suspected of drunk driving,
arrested him, and pointed their guns at him. 573 F.3d at 759,
776. Citing to Robinson, we held that “pointing a gun to the
head of an apparently unarmed suspect during an
investigation can be a violation of the Fourth Amendment,
especially where the individual poses no particular danger.”
Id. at 776 (citing Robinson, 278 F.3d at 1015). We
confirmed that force can be excessive where the “crime
under investigation [is] at most a misdemeanor[,] the suspect
[is] apparently unarmed and approaching the officers in a
peaceful way,” there “[are] no dangerous or exigent
circumstances apparent at the time of the detention, and the
officers outnumber[] the plaintiff.” Id. (citation and internal
quotation marks omitted). Again, the potential crime in
                    THOMPSON V. COPELAND                           13

Hopkins was not a felony and there were no apparent
dangerous or exigent circumstances.

     The arrest in Hopkins occurred in his bedroom, within
the sanctuary of his own home, where “searches and seizures
. . . without a warrant are presumptively unreasonable.”
573 F.3d at 773 (9th Cir. 2009) (citing Payton v. New York,
445 U.S. 573, 586 (1980)). Robinson approached from “the
area immediately surrounding and associated with [his]
home,” which “enjoys protection as part of the home itself.”
Florida v. Jardines, 569 U.S. 1, 6–7 (2013). Though the
distance from his house—which was in a rural area—to the
street was 135 feet, Robinson was in the “area around the
home to which the activity of home life extends.” Oliver v.
United States, 466 U.S. 170, 182 n.12 (1984). 4

    The Supreme Court “has traditionally drawn a
distinction between automobiles and homes or offices in
relation to the Fourth Amendment.” S. Dakota v. Opperman,
428 U.S. 364, 367 (1976). Indeed, the Court has recognized
that traffic stops are “especially fraught with danger to police
officers.” Arizona v. Johnson, 555 U.S. 323, 330 (2009)
(citation and internal quotation marks omitted). As the
government points out, traffic stops and arrest situations
“amount[ed] to a combined total of 27.1% of assaults against


     4
       Similarly, Thompson’s reliance on Sandoval v. Las Vegas
Metropolitan Police Department is misplaced. 756 F.3d at 1159, 1165.
In Sandoval, which we decided in 2014, a police officer used excessive
force when he entered a home without a warrant, using errant
information, and pointed a gun at an unarmed teenager suspected of
having possibly committed a misdemeanor burglary. Id. The law was
clearly established that “[b]ursting through the back door unannounced
with guns drawn” and pointing a gun at the teenager’s head was neither
necessary nor reasonable. Id. at 1165 (citation omitted).
14               THOMPSON V. COPELAND

officers . . . , and a combined total [of] 35.6% of situations
leading to an officer’s felonious death, from 2006–2015.”

    Perhaps because of the considerable danger inherent in
the traffic stop context, the Supreme Court has stressed that
the “risk of harm to both the police and the occupants [of a
stopped vehicle] is minimized . . . if the officers routinely
exercise unquestioned command of the situation.” Johnson,
555 U.S. at 330 (citation and internal quotation marks
omitted). And the Court has “expressly recognized that
suspects may injure police officers and others by virtue of
their access to weapons, even though they may not
themselves be armed.” Michigan v. Long, 463 U.S. 1032,
1048 (1983). We have recently echoed the Court’s view,
recognizing the “need for unquestioned obedience to lawful
commands during a car stop.” Gonzalez v. City of Anaheim,
747 F.3d 789, 804 (9th Cir. 2014).

    These precedents, many of which were decided after
Robinson and Hopkins, complicate the state of the law at the
time of Thompson’s seizure. They also suggest that a
seizure conducted during a traffic stop may be a less severe
“intrusion on the individual’s Fourth Amendment interests”
than the same seizure conducted within the refuge of the
home. Graham, 490 U.S. at 396 (citation and internal
quotation marks omitted). The Fourth Amendment’s
protection is at its zenith within the home, and the area
immediately surrounding and associated with the home.
Payton, 445 U.S. at 589–90; Jardines, 569 U.S. at 6–7. At
the same time, the special and empirical dangers traffic stops
pose to police buttress the “countervailing governmental
interests at stake” in employing some force to control a
potentially volatile automotive arrest situation. Graham,
490 U.S. at 396. This distinction accords with common
sense.
                 THOMPSON V. COPELAND                      15

     At the time of the gun-pointing here, Copeland was
engaged in both a traffic stop and a nighttime felony arrest,
and the situation was “tense, uncertain, and rapidly
evolving.” Id. at 397. Copeland was aware that Thompson
had been convicted of a recent felony for possessing a
firearm. There were only two deputies on the scene—as
opposed to Robinson where six police vehicles fortified the
officers with overwhelming force. 278 F.3d at 1010.
Thompson was heavier and taller than Copeland. And
critically, Thompson was within seconds of a firearm—
unlike the plaintiffs in Robinson and Hopkins where no guns
were anywhere in the vicinity at the time of the gun-pointing.
The circumstances Copeland faced “would have alarmed
any officer.” Ruvalcaba v. City of L.A., 64 F.3d 1323, 1328
(9th Cir. 1995). After careful scrutiny of the record, we are
not persuaded that Copeland was “plainly incompetent” or
that he “knowingly violate[d] the law” when he acted as he
did. See Pauly, 137 S. Ct. at 551 (citation and internal
quotation marks omitted).

    The only traffic stop case Thompson points to involved
markedly different facts. See Green, 751 F.3d at 1039.
Police officers stopped an African-American woman after a
system they used to run license plates malfunctioned,
leaving them with the completely mistaken belief that the
woman had stolen the car she was driving. Id. at 1042. The
officers failed to verify whether the car was stolen, even
though they had ample opportunity to do so. Id. at 1043. At
least four officers pointed guns at the woman without
reasonable suspicion or probable cause that she had
committed any crime. Id. at 1043, 1044. There was no
weapon anywhere nearby, and the woman suffered from
knee problems, stood five feet and six inches tall, and
weighed 250 pounds. Id. at 1043. That scenario, which
16                THOMPSON V. COPELAND

merited denial of qualified immunity, contrasts starkly with
this case.

    While Thompson fails to carry his burden that, in view
of the safety concerns faced in this traffic stop, every
reasonable police officer would have known that Copeland’s
conduct was unconstitutional under these circumstances, we
acknowledge that the facts of this case are at the outer limit
of qualified immunity’s protection in the excessive force
context. There can be little question that holding the gun in
the low-ready alternative would have been a superior option
for Copeland to use in the circumstances here, rather than
pointing it at Thompson’s head. In the face of the then-
current law, there was not a clearly established constitutional
violation. Going forward, however, the law is clearly
established in this scenario.

                          Conclusion

    Because the law was not clearly established within the
parameters dictated by the Supreme Court, Copeland is
entitled to qualified immunity and the grant of summary
judgment is AFFIRMED.



CHRISTEN, Circuit Judge, dissenting:

    The majority decides Deputy Copeland is entitled to
qualified immunity on Lawrence Thompson’s excessive
force claim because Thompson’s right not to have a gun
pointed at his head was not clearly established in 2011, when
the events of this case took place. This decision squarely
conflicts with the clear directive our court issued in
Robinson v. Solano County, a case involving facts that, if
distinguishable at all, posed a greater threat to officer safety.
                 THOMPSON V. COPELAND                      17

We specifically took Robinson en banc “to clarify the law of
the circuit on the scope of qualified immunity for excessive
force claims,” 278 F.3d 1007, 1009 (9th Cir. 2002) (en
banc), and Robinson’s holding was plain: an officer who
points his gun at the head of an arrestee who is cooperative
and unthreatening, outnumbered by police, and apparently
unarmed, violates the Fourth Amendment. Id. at 1015. If
the contours of this right were not clearly established before
we decided Robinson, they most certainly were thereafter.
See id. Today’s decision regrettably muddies Robinson’s
clear dictates, but it cannot overturn sixteen years of
precedent. Because our three-judge panel is bound to abide
by Robinson, I respectfully dissent.

                              I.

    Notably, the court and I read the undisputed factual
record the same way: Thompson’s case arose on the evening
of December 10, 2011, when Deputy Copeland was on patrol
in the City of Burien. Deputy Copeland signaled Thompson
to pull over to the side of the road after observing
Thompson’s failure to stop at an intersection limit line and
turning without signaling a full 100 feet before initiating a
turn. Thompson pulled over and immediately apologized to
Deputy Copeland for the traffic infractions. He did not have
his license with him but he gave his name and corroborated
his identification with a business envelope that was
addressed to him. Deputy Copeland ran Thompson’s name
through a computer and learned that Thompson’s license had
been suspended for an unpaid ticket, and that he had a felony
conviction for unlawful possession of a firearm. Deputy
Copeland decided to arrest Thompson for driving with a
suspended license in the third degree, a misdemeanor, see
Wash. Rev. Code § 46.20.342(c), and called for backup.
After Deputy Fitchett arrived on the scene, Deputy Copeland
18                  THOMPSON V. COPELAND

asked Thompson to step out of the car and patted him down
to verify that he was unarmed. Finding no weapons, Deputy
Copeland directed Thompson to sit on the bumper of his
patrol car under Deputy Fitchett’s supervision while Deputy
Copeland began an inventory search of the vehicle
Thompson had been driving. 1

    We must construe the events that followed in the light
most favorable to Thompson. See Barboza v. Cal. Ass’n of
Prof’l Firefighters, 799 F.3d 1257, 1263 (9th Cir. 2015).
Thompson alleges he remained seated calmly on the patrol
car’s bumper while Deputy Copeland searched his car,
which was located 10 to 15 feet away. The State does not
deny that Thompson was calm and cooperative. There is no
allegation that Thompson was behaving erratically or
threateningly, nor that Thompson was anything but fully
compliant with the officers’ directives as he sat on the
bumper of the patrol car. The parties also agree that during
his search of the vehicle, Deputy Copeland noticed a gun
inside a plastic grocery bag on the rear passenger floorboard.

    The parties dispute what happened next. Deputy
Copeland averred that he unholstered his weapon, held it in
the low-ready position, and ordered Thompson to lie face-
down on the ground. According to Thompson, Deputy
Copeland unholstered his weapon, pointed it at Thompson’s
head, and threatened to kill him if he made a wrong move.
In response, Thompson immediately lay on the ground and
“did not resist in any way.” Deputy Copeland handcuffed



     1
      Thompson, a self-employed mechanic, had just finished repairing
the car and was taking it for a test-drive when Deputy Copeland stopped
him.
                 THOMPSON V. COPELAND                      19

Thompson without incident and re-arrested him, this time for
being a felon in possession of a firearm.

    A Washington Superior Court judge found that
Thompson was stopped for pretextual reasons, in violation
of the Washington State Constitution. The judge also found
Deputy Copeland’s decision to impound Thompson’s car
was a pretext to search for evidence and dismissed the
charges against him.

                             II.

     The circumstances in Thompson’s case plainly justified
the display of some degree of force. Deputy Copeland knew
Thompson had a prior felony conviction for unlawful
possession of a firearm, saw a gun in the backseat of the car
Thompson had been driving, and suddenly found himself in
the unenviable position of having to effectuate an arrest of a
felon-in-possession. Thompson acknowledges, and I fully
agree, that it would not have been unreasonable for Deputy
Copeland to unholster his gun and hold it in the low-ready
position. But there is a world of difference between
unholstering a weapon as a display of force while
commanding a suspect to submit to arrest, and threatening to
kill someone while pointing a gun at their head. Our Fourth
Amendment jurisprudence, specifically our en banc decision
in Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002)
(en banc), drew this line over a decade ago. Even if officers
previously thought pointing a gun at an unarmed,
unthreatening citizen was a show of force only nominally
more severe than holding a gun in the low-ready position,
Robinson declared that the former has irrefutable
constitutional consequences. Today, the court ignores this
critical distinction and regrettably blurs the guidance
Robinson provided.
20                THOMPSON V. COPELAND

    Determining whether officers employ unreasonable
force in effectuating an arrest requires “careful attention to
the facts and circumstances of each particular case.”
Graham v. Connor, 490 U.S. 386, 396 (1989). Under some
circumstances, the Fourth Amendment permits officers to
display or employ deadly force. See, e.g., Wilkinson v.
Torres, 610 F.3d 546, 552–53 (9th Cir. 2010) (concluding
officer was justified in use of deadly force to protect fellow
officer from harm); Long v. City & Cty. of Honolulu,
511 F.3d 901, 906 (9th Cir. 2007) (concluding officer was
justified in use of deadly force where armed, agitated suspect
threatened to shoot); Blanford v. Sacramento Cty., 406 F.3d
1110, 1116 (9th Cir. 2005) (concluding officers were
justified in use of deadly force where armed suspect ignored
their warnings and commands to stop). Courts face a
difficult task in deciding where a particular factual
circumstance falls on the spectrum between reasonable and
unreasonable force, and we must always assess the force
actually employed from the perspective of a reasonable
officer on the scene, rather than with the benefit of 20/20
hindsight. See Graham, 490 U.S. at 396–97. That said, in
2002 our en banc court declared the force used in Robinson
was unreasonable. Construing the facts here in the light
most favorable to Thompson, I see no principled way to
distinguish Thompson’s case from Robinson’s.

    In Robinson, a neighbor called to report that the plaintiff
had shot two of her dogs and was “in the middle of the street
yelling at this time.” Robinson, 278 F.3d at 1010. When
officers arrived outside Robinson’s property shortly
thereafter, he approached them. Id. As he walked the
135 feet from his front door to where officers stood in the
street, Robinson identified himself by name and
acknowledged that he was indeed the subject of the
neighbor’s call to the police. Id. That gave the officers good
                     THOMPSON V. COPELAND                              21

reason to believe he had just used a gun. Robinson appeared
unarmed, but the officers had not had a chance to do a pat-
down to verify that he was. 2 Id. at 1011, 1014. From about
six feet away, one officer pointed a gun at Robinson’s head
and instructed him to put his hands above his head; another
officer also unholstered his gun and pointed it at Robinson.
Id. at 1010. As Robinson was raising his hands, the first
officer repeated his command, stepped forward, and thrust
his gun to within three or four feet of Robinson’s head. Id.
Robinson was then handcuffed and put in the back of a patrol
car. Id.

    Robinson’s jury deadlocked over whether the force the
officers employed to seize him was reasonable, but the
district court granted the officers’ Rule 50 motion for
judgment as a matter of law on the excessive force claim,
ruling that the officers were entitled to qualified immunity.
Id. at 1011. A three-judge panel of our court disagreed and
held that the officers were not entitled to qualified immunity
because the law governing excessive force was sufficiently
clear to put a reasonable officer on notice that pointing a gun
at Robinson’s head violated his constitutional rights. Id.

    We took Robinson en banc for the express purpose of
clarifying our court’s standard for constitutionally excessive
force and the scope of qualified immunity available in the
oft-repeated scenario that confronts officers effectuating
arrests of suspects who, like Robinson and Thompson, are
neither in cars nor otherwise situated where they might have
access to weapons. Id. at 1009. En banc, we observed that
Robinson was apparently unarmed, outnumbered, and
approaching officers peacefully; there were no “dangerous

    2
      In fact, Robinson had a four-inch utility knife strapped to his belt.
Robinson, 278 F.3d at 1011.
22                THOMPSON V. COPELAND

or exigent circumstances apparent at the time of the
detention” that justified aiming a gun at his head. Id. at 1014.
Even though Robinson was believed to have recently used a
gun and was not definitively known to be unarmed, we
concluded that the officers’ threatened use of lethal force
was excessive and in violation of the Fourth Amendment.
Id. at 1013–14. Nevertheless, we affirmed the district
court’s holding that the officers were entitled to qualified
immunity because Fourth Amendment law governing the
officers’ conduct was not clearly established when Robinson
was arrested. Id. at 1016–17.

    Robinson was decided in 2002. It cannot be questioned
that the rule from Robinson was clearly established when
Thompson was arrested in 2011.

     Today, the court agrees that Deputy Copeland used
unconstitutionally excessive force. It also agrees that, going
forward, qualified immunity should not be available to
officers who point guns at suspects under similar
circumstances. Yet the court grants Deputy Copeland
qualified immunity. It does so by concluding that, until now,
the law had not made it clear to an officer in Deputy
Copeland’s position that pointing a gun at the suspect’s head
would constitute excessive force. The court offers two
reasons for reaching this conclusion. Neither withstands
scrutiny. First, the court likens Thompson’s case to a traffic
stop. That comparison would be apt if Thompson had been
sitting in a car, because then a reasonable deputy might have
feared that Thompson could reach a hidden weapon. But
Thompson was outside of his car and well away from it, he
had already been frisked, and he was under the guard of a
second officer. The possibility of a secreted weapon did not
justify pointing a gun at Thompson’s head.
                  THOMPSON V. COPELAND                      23

    The only other justification the court offers for granting
qualified immunity is its suggestion that Robinson’s case did
not put Deputy Copeland on notice that threatening
Thompson with lethal force would be excessive because,
unlike Thompson, Robinson was “approach[ing] from the
area immediately surrounding . . . his home” when officers
pointed their guns at him. By citing to Florida v. Jardines,
569 U.S. 1, 6–7 (2013), the court implies that Robinson was
in the area the Supreme Court has designated as the
“curtilage” of his home, and therefore was entitled to special
Fourth Amendment protection. This is both factually and
legally wrong. The Supreme Court defines the curtilage of
a home as the common law did, the “area immediately
adjacent to the home,” Oliver v. United States, 466 U.S. 170,
180 (1984), that is “so associated with the activities and
privacies of domestic life that [it should be] deemed . . . as
part of [the] home,” United States v. Dunn, 480 U.S. 294,
303 (1987) (emphasis added); see also Jardines, 569 U.S. at
6–7 (concluding the front porch is “the classic exemplar” of
curtilage, because it “immediately surround[s] and [is]
associated with the home” (internal quotation marks
omitted)). Our court is not free to redefine “curtilage,” and
Robinson was nowhere near the curtilage of his home when
he was seized. In fact, our opinion specified that he was
135 feet from his front door when he approached officers
who were standing in a public street. Robinson, 278 F.3d at
1010.

    Inevitably, there are minor factual differences between
Robinson’s case and Thompson’s, but the Supreme Court
has repeatedly instructed that a plaintiff need not identify “a
case directly on point” for a right to be clearly established.
White v. Pauly, 137 S. Ct. 548, 551 (2017) (citing Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015)); see also Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011). “If qualified immunity
24                THOMPSON V. COPELAND

provided a shield in all novel factual circumstances, officials
would rarely, if ever, be held accountable for their
unreasonable violations of the Fourth Amendment.” Mattos
v. Agrano, 661 F.3d 433, 442 (9th Cir. 2011); see also Hope
v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be
on notice that their conduct violates established law even in
novel factual circumstances.”); Deorle v. Rutherford,
272 F.3d 1272, 1286 (9th Cir. 2001) (“Otherwise, officers
would escape responsibility for the most egregious forms of
conduct simply because there was no case on all fours
prohibiting that particular manifestation of unconstitutional
conduct.”). The question is whether existing precedent
“placed the statutory or constitutional question beyond
debate,” Mullenix, 136 S. Ct. at 308, such that a reasonable
officer in the defendant’s position would have known his
behavior was unlawful, see White, 137 S. Ct. at 551.

    Here, factual differences between Thompson’s case and
Robinson’s only underscore the strength of Thompson’s
excessive force claim: Deputy Copeland himself patted
down Thompson before he directed Thompson to sit on the
bumper of the patrol car. Thompson’s affect was calm, he
was under the supervision of another officer, he was seated
at least 10 to 15 feet away from the vehicle he had been
driving—and at least that far from the gun on its rear
floorboard. Like Robinson, Thompson was outnumbered by
officers. He was apologetic and uncombative. There were
“no dangerous or exigent circumstances apparent at the time
of the detention,” Robinson, 278 F.3d at 1014, nor any
allegation that Thompson was behaving erratically.
Robinson provided fair notice that pointing a gun at a
suspect’s head under these circumstances—where a fully
compliant suspect is unarmed, outnumbered, and
unthreatening—violates the Fourth Amendment.            The
court’s effort to distinguish Robinson by suggesting that
                     THOMPSON V. COPELAND                            25

Robinson was anywhere near the curtilage of his home
erodes our en banc effort to provide a clear standard for
police officers.

                                  III.

    We must take great care to “apply the ‘clearly
established’ rule in such a way that faithfully guards ‘the
need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the
vigorous exercise of official authority.’” Mattos, 661 F.3d
at 442 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982)). We allow “for the fact that police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 397.

    Individuals who serve the public by voluntarily taking on
the dangerous task of enforcing criminal laws are by no
means “required by the Fourth Amendment to take
unreasonable risks.” Washington v. Lambert, 98 F.3d 1181,
1186 (9th Cir. 1996). And we must be mindful that police
officers 3 and citizens alike have suffered the consequences
of tragic mistakes made in the rapidly unfolding and chaotic
circumstances that can attend arrests. For good reason, the
Fourth Amendment imposes limits on the force that may be
used or displayed to control a scene or subdue a suspect.

    3
       Statistics compiled by the FBI indicate that in 2016, an estimated
66 law enforcement officials were feloniously killed in the line of duty.
Federal Bureau of Investigation, FBI Releases 2016 Preliminary
Statistics for Law Enforcement Officers Killed in the Line of Duty (May
15,      2017),     https://www.fbi.gov/news/pressrel/press-releases/fbi-
releases-2016-preliminary-statistics-for-law-enforcement-officers-
killed-in-the-line-of-duty.
26                THOMPSON V. COPELAND

When an officer gives a command, a fearful arrestee may
require a longer-than-expected interval to understand the
order and follow it. See Estate of Lopez ex rel. Lopez v.
Gelhaus, 871 F.3d 998, 1002–03 (9th Cir. 2017) (after being
instructed to “drop the gun,” a 13-year-old holding a toy gun
did not do so immediately, but instead “paused a few
seconds and began to rotate his body clockwise,” prompting
the officer to shoot and kill him). In the heat of the moment,
officers have interpreted delayed responses as willful refusal
to cooperate, or failed to realize that a suspect has been given
inconsistent commands (e.g., “Put your hands up!” “Don’t
move!”). See, e.g., C.V. ex rel. Villegas v. City of Anaheim,
823 F.3d 1252, 1254 (9th Cir. 2016) (conflicting commands
given to a suspect holding a BB gun, suspect did not
immediately obey, officer shot and killed suspect). People
who are frightened and confused may speak or move
inadvertently, prompting even the most conscientious officer
to perceive the situation as more dangerous and the suspect
as more threatening than is actually the case. See, e.g.,
Longoria v. Pinal Cty., 873 F.3d 699, 703 (9th Cir. 2017)
(recently tased suspect “flinched and moved erratically” and
turned to put his empty hands above his head; officer fired
two rounds into the suspect’s back, killing him); A. K. H. ex
rel. Landeros v. City of Tustin, 837 F.3d 1005, 1009 (9th Cir.
2016) (officer resorted to use of deadly force almost
immediately after commanding suspect to remove his hand
from his pocket, fearing a heavy object in the suspect’s
sweatshirt pocket was a gun, when in fact it was a cell
phone). Trained, well-meaning officers sometimes make
mistakes, and even an additional split-second to perceive and
react can save lives. See, e.g., Torres v. City of Madera,
648 F.3d 1119, 1121 (9th Cir. 2011) (officer intending to use
stun gun accidentally drew and fired pistol, killing suspect).
Once a gun is aimed at a suspect’s head, even an accidental
slip can result in an errant, and fatal, shot. See, e.g., Stamps
                      THOMPSON V. COPELAND                               27

v. Town of Framingham, 813 F.3d 27, 31 (1st Cir. 2016)
(officer pointing a gun at fully compliant suspect’s head
inadvertently pulled the trigger, shooting and killing him).
Here, the court acknowledges that Thompson was “under
control” and “not in close proximity to an accessible
weapon.” But when tinderbox situations do arise, emotions
run high and mistakes are predictable. Even an additional
fraction of a second affords suspects a greater opportunity to
get their bearings and comply with commands, and officers
the chance to reconsider the use of lethal force.

      This court has seen an alarming number of officer
shooting cases in recent years, many involving
circumstances similar to those present here but with fatal
results. Police departments are to be commended for
acknowledging the problem and making efforts to address
it, 4 as are Blue Ribbon commissions convened to determine
how and why situations like this one too often escalate to
involve the use or threatened use of deadly force, and to
identify training tactics that reduce risks. 5 Hopefully, this

    4
      See Bernard D. Rostker et al., RAND Center on Quality Policing,
Evaluation of the New York City Police Department Firearm Training
and Firearm-Discharge Review Process at 88–89 (“Several aspects of
officer training might be modified to reduce the incidence of reflexive
shooting. Accidental reflexive discharges occur without an explicit
decision to shoot. The officer discharges the weapon because of a
problem with physical coordination or an involuntary physiological
response to a stimulus or inadvertently while struggling with a
suspect. . . . To prevent these types of accidental discharges, virtually all
firearm-safety training . . . highlights the need to keep one’s finger
outside the trigger guard except when actually firing the weapon.”).

    5
        The President’s Task Force on 21st Century Policing
recommended increased training on how to use de-escalation techniques
in lieu of force when possible. See An Evidence-Assessment of the
Recommendations of the President’s Task Force on 21st Century
28                   THOMPSON V. COPELAND

important work will continue. There will always be tension
between protecting individual rights and allowing officers
the flexibility they need to protect the public and themselves,
but the court’s job is to balance officers’ use of force against
intrusions on individuals’ Fourth Amendment rights.
Graham, 490 U.S. at 396. The facts of this case cannot be
meaningfully distinguished from those in Robinson, and we
have already made the judgment that on these facts the
balance tips in the suspect’s favor.

                                  IV.

    Robinson recognized the critical distinction between
pointing a gun at someone’s head and holding it in the low-
ready position. Deputy Copeland was justified in displaying
some degree of force, but accepting the allegations in the
complaint as true, he unquestionably used excessive force
when he aimed his gun at Thompson’s head and threatened
that if Thompson moved, he’d be dead. Because that rule
was clearly established long before Thompson was arrested,
I respectfully dissent.




Policing at 13, http://www.theiacp.org/Portals/0/documents/ICPR/IAC
P%20GMU%20Evidence%20Assessment%20Report%20FINAL.pdf.
And in response to several high-profile police-involved shooting
incidents and to this court’s caselaw, the San Francisco Police
Department amended its department general orders to elevate drawing
and pointing a firearm at a person (even without discharge) to a
reportable use-of-force instance. See Report of the Blue Ribbon Panel
on Transparency, Accountability, and Fairness in Law Enforcement at
63, 65, http://sfdistrictattorney.org/sites/default/files/Document/BRP_re
port.pdf (citing Espinosa v. City & Cty. of San Francisco, 598 F.3d 528
(9th Cir. 2010)).
