FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY C. NELSON, 

Plaintiff-Appellant,

v.

CITY OF DAVIS; JAMES HYDE, Chief

of Police, City of Davis; JOHN

WILSON, Sergeant; THE REGENTS OF No. 07-16905

THE UNIVERSITY OF CALIFORNIA;

D.C. No. JOYCE SOUZA; MICHAEL MASON,  CV-05-01193-MCE Sergeant; BRUCE DAVIDSON,

Sergeant; FNU BATES, Sergeant; OPINION

JAVIER BARRAGAN, Officer;

BRANDON JONES, Officer; CALVIN

CHANG, Officer; M. GARCIA,

Officer; CALVIN HANDY, Chief of

Police,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

March 13, 2009—San Francisco, California

Filed July 7, 2009

Before: J. Clifford Wallace, Sidney R. Thomas and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Thomas

8357
COUNSEL

John L. Burris and Adanté D. Pointer; Law Offices of John

L. Burris; Oakland, California, for the appellant.

J. Scott Smith, Douglas R. Thorn, and John A. Whitesides;

Angelo, Kilday & Kilduff; Sacramento, California, for appellees City of Davis, James Hyde, and John Wilson.

Michael T. Lucey, Don Willenburg, and Mar S. Posard; Gordon & Rees, LLP; San Francisco, California, for appellees

Javier Barragan, Mary Garcia, and Calivin Handy. 

Kelli M. Kennaday and Kim Johnston; Wilke, Feury, Hoffelt,

Gould & Birney; Sacramento, California, for appellee Calvin

Chang. 

NELSON v. CITY OF DAVIS 8359
OPINION

THOMAS, Circuit Judge:

This appeal presents the question of whether the “sham

affidavit” rule precludes the introduction of testimony from

other witnesses that is arguably inconsistent with a plaintiff’s

deposition testimony. Under the circumstances presented by

this case, we conclude the doctrine does not extend that far,

and we vacate the judgment of the district court and remand

for reconsideration.

I

On the evening of April 16, 2004, 21-year-old University

of California, Davis student Timothy Nelson attended a large

party at the Sterling Apartment Complex in Davis, California.

Police estimated that up to 1000 people were at the party. The

party escalated out of control and approximately 30-40 city

and school police officers were dispatched to the scene.

The officers formed a skirmish line and attempted to sweep

the crowd toward the front of the apartment complex. The

officers gave numerous dispersal orders while they moved

through the crowd, and multiple officers stated that they were

under a constant barrage of thrown bottles while moving

through the property, and that many members of the crowd

were chanting, yelling, and cursing at them.

Some officers shot pepperballs1 at bottle-throwing students

1Pepperball launchers are similar to paintball guns in both form and

function, but they launch projectiles full of the chemical irritant oleoresin

capsicum (“OC”) rather than paint. The pepperball launchers used at the

party fire the OC projectiles at a velocity of 350 to 380 feet per second.

The launchers combine the kinetic impact of the projectile with the discomfort of the OC. Training documents submitted to the district court state

that suspects “can be accurately targeted up to 30 feet away with . . .

enough kinetic impact to shatter the projectile and leave a welt or bruise.”

8360 NELSON v. CITY OF DAVIS
and also at groups of people that did not move when told to

disperse. The purpose of shooting the pepperballs was twofold: (1) to specifically target those partygoers who were

throwing bottles at the police; and (2) to create “area denial”

or “area saturation” so that the OC would make it uncomfortable for any person to stay in the area. 

Nelson and his group of friends eventually left the hallway

in which they were standing and entered an outside breezeway. The officers allegedly warned people in the breezeway

that they needed to disperse, and Sgt. John Wilson of the

Davis Police Department ordered the pepperball unit to fire

when he felt that the students were not dispersing properly.

After receiving the order, “[a]ll of the officers lined up. The

four officers lined up in a row and pointed their Pepperball

units down range[, and t]hey shot into the area of the crowd.”

Two officers testified that no one in the breezeway was

throwing bottles. 

During his deposition Nelson testified regarding the period

when the police started shooting:

A. What I can recall? We were coming out the

doors and I heard shots being fired.

Q. What do you mean you heard shots being fired?

A. I heard the mace bullet of hitting of the windows and I — . . . . 

Q. At the moment something impacted your eye

what was the position of your body? Were you

standing straight up? Were you making — were

you in the process of making some kind of

motion?

A. I was just walking out. That’s all I remember is

walking out and when I saw that, then I got hit.

NELSON v. CITY OF DAVIS 8361
Q. So you didn’t make a motion to dive into the

bushes before that?

A. No, it was instantaneous of the sound. The

sounds and the feeling was instantaneous. It

wasn’t like five minutes had passed. It was,

boom, right then.

Nelson also presented the deposition testimony of Bridget

Collins and Alicia Vittitoe. Collins testified that she was

standing outside in front of the breezeway door with a group

of friends, “[i]ncluding Tim,” when the police opened fire.

Alicia Vittitoe testified that Nelson was standing “[w]ith the

group” in front of the door in the breezeway when the police

started shooting. Thus, while Nelson seemed to indicate that

he was not in the breezeway before the police fired, two supporting witnesses testified that he was included in the group

upon which the police fired the pepperballs, making him an

intended target of the shooting.

Nelson filed his lawsuit in the Eastern District of California

and made eleven separate claims for relief. He brought suit

under 42 U.S.C. § 1983 alleging violations of the Fourth and

Fourteenth Amendments, and he brought eight claims for

relief based on California state law grounds. Nelson claims

that he lost his football scholarship after the injury, suffered

temporary blindness and permanent disfigurement, and has

undergone a number of corrective surgeries. After the conclusion of discovery, all defendants moved for summary judgment or partial summary judgment.

The district court granted the defendants’ motions for summary judgment and dismissed Nelson’s claims without hearing oral argument. The district court decided that Nelson was

not an intended target of the pepperball unit because “[a]ny

inference in that regard that may be drawn from the equivocal

testimony of others, however, is nullified by Plaintiff’s own

clear version of what transpired during the period immedi8362 NELSON v. CITY OF DAVIS
ately surrounding his injury.” The district court relied on

Prosser v. Ross, 70 F.3d 1005 (8th Cir. 1995), and Kennedy

v. Allied Mutual Insurance Co., 952 F.2d 262 (9th Cir. 1991),

and found that Nelson could not “avoid summary judgment

by citing testimony allegedly inconsistent with his own testimony.”

We review summary judgment de novo. Blankenhorn v.

City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). We “may

not affirm a grant of summary judgment if there is any genuine issue of material fact . . . , [b]ecause ‘[c]redibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not

those of a judge.’ ” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986)). All justifiable inferences

must be drawn in Nelson’s favor, and we must deny summary

judgment if any rational trier of fact could resolve an issue in

his favor. Id.

II

[1] “The general rule in the Ninth Circuit is that a party

cannot create an issue of fact by an affidavit contradicting his

prior deposition testimony.” Kennedy, 952 F.2d at 266. Stemming from our decision in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975), this rule bars a

plaintiff from creating a factual dispute with himself for the

sole purpose of arguing that summary judgment is inappropriate until the dispute is settled. “ ‘[I]f a party who has been

examined at length on deposition could raise an issue of fact

simply by submitting an affidavit contradicting his own prior

testimony, this would greatly diminish the utility of summary

judgment as a procedure for screening out sham issues of

fact.’ ” Id. at 544 (quoting Perma Research & Dev. Co. v.

Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). 

[2] However, this rule has its limits. In Kennedy, we noted

that other circuits had “urged caution in applying the rule”

NELSON v. CITY OF DAVIS 8363
and concluded “that the Foster-Radobenko rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier testimony.”

Id. at 266-67. Accordingly, Kennedy required that “before

applying the Radobenko sanction, the district court must make

a factual determination that the contradiction was actually a

‘sham.’ ” Id. at 267.

[3] In addition, as we have noted in subsequent cases, the

“sham affidavit” rule does not preclude the non-moving party

“ ‘from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition’ ” and that

“ ‘minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis

for excluding an opposition affidavit.’ ” Scamihorn v. Gen.

Truck Drivers, 282 F.3d 1078, 1086 n.7 (9th Cir. 2002) (quoting Messick v. Horizon Indus. Inc., 62 F.3d 1227, 1231 (9th

Cir. 1995)); see also Sea-Land Serv., Inc. v. Lozen Int’l, LLC,

285 F.3d 808, 820 (9th Cir. 2002) (“[T]he statements in the

[ ] declaration supplemented, and did not directly contradict

[the] deposition statements. Accordingly, the district court

erred in excluding the declaration on the ground that it contradicted [the] deposition testimony.”) (footnote omitted).

[4] The differences between the evidence tendered in this

case and the paradigmatic “sham affidavit” case are quite evident. There is, of course, no affidavit at issue here, much less

the plaintiff’s own affidavit. Rather, plaintiff points to deposition testimony given under oath by other percipient witnesses

who had a different viewpoint from the plaintiff’s and who

had not suffered head injuries sufficient to cause temporary

blindness.

[5] The rationale underlying the sham affidavit rule is that

a party ought not be allowed to manufacture a bogus dispute

with himself to defeat summary judgment. That concern does

not necessarily apply when the dispute comes from the sworn

deposition testimony of another witness. See Lane v. Celotex

8364 NELSON v. CITY OF DAVIS
Corp., 782 F.2d 1526, 1531 (11th Cir. 1986) (“[W]hile a district court may find that a party’s contradictory affidavit constitutes a sham, . . . we would be unable, absent great

trepidation, to affirm a similar finding with respect to a disinterested witness’ contradictory affidavit.”) (internal citation

and footnote omitted).

[6] The more appropriate analysis is the traditional summary judgment standard. A district court has the responsibility to construe all facts in the light most favorable to the nonmoving party: 

[A]t this stage of the litigation, the judge does not

weigh disputed evidence with respect to a disputed

material fact. Nor does the judge make credibility

determinations with respect to statements made in

affidavits, answers to interrogatories, admissions, or

depositions. These determinations are within the

province of the factfinder at trial.

Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027,

1036 (9th Cir. 2005) (internal quotation marks omitted). Here,

the district court ruled that testimony from Collins and Vittitoe was “equivocal” as compared to “Plaintiff’s own clear

version of what transpired.” That is just the type of credibility

determination that must be left to the factfinder, and not made

by a judge on summary judgment. A judge must not grant

summary judgment based on his determination that one set of

facts is more believable than another. Collins and Vittitoe

both stated that Nelson was standing with them outside in the

breezeway when the officers opened fire. If the testimony is

credited, a reasonable juror could find that Nelson was part of

the breezeway group and therefore an intended target of the

police officers. As an intended target, Nelson could attempt to

distinguish the bystander cases the district court relied upon,

and support his Fourth Amendment claim by proving there

was “a governmental termination of movement through

means intentionally applied.” Brower v. County of Inyo, 489

NELSON v. CITY OF DAVIS 8365
U.S. 593, 597 (1989). The contradictory deposition testimony

was sufficient to create a genuine issue of material fact and

critical to this important question.

[7] The defendants rely on Prosser v. Ross, 70 F.3d 1005

(8th Cir. 1995), and argue that we should extend the sham

affidavit rule to cover all instances when evidence conflicts

with the plaintiff’s testimony. In Prosser, the court found that

a plaintiff could not “avoid summary judgment by proffering

testimony from another person that contradicts the plaintiff’s

own testimony.” Id. at 1008. The court also found, however,

that its decision was strengthened by the fact “no reasonable

jury could return a verdict for Prosser based on [the witness’]

testimony.” Id. at 1009. To the extent the Eighth Circuit found

that a contradictory deposition can never create an issue of

fact, we must disagree with our sister circuit, and we decline

to extend our sham affidavit jurisprudence to preclude the

consideration of testimony from third parties that is arguably

inconsistent with a party’s own testimony.2

Because the district court’s entry of summary judgment

was predicated on this extension of the “sham affidavit” rule,

we must vacate the judgment and remand for further proceed2We emphasize, however, that nothing in this opinion should be read as

curbing a trial judge’s existing discretion to grant summary judgment

when a party fails to create a legitimate genuine issue of fact, either with

her own affidavit or testimony from supporting witnesses. See, e.g., Sanders v. Brown, 504 F.3d 903, 910 (2007) (“Conclusory allegations and

unreasonable inferences, however, are insufficient to defeat a motion to

dismiss.”); FTC v. Publ’g Clearing House, 104 F.3d 1168, 1171 (1997)

(“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material

fact.”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996)

(“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”). Nor does anything in this opinion preclude

a trial judge from excluding a third party affidavit in an appropriate case,

with findings supporting the conclusion that it is truly a “sham affidavit,”

manufactured for the purpose of avoiding summary judgment by creating

a genuine issue of material fact. 

8366 NELSON v. CITY OF DAVIS
ings. We need not, and do not, reach any other issue in the

case, leaving those issues to be determined in the first

instance by the district court on remand.

VACATED AND REMANDED.

NELSON v. CITY OF DAVIS 8367