F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J E N N I F E R C R

U Z , I ndividually

and on behalf of the estate of Ceasar Cruz

, and as g uardian ad litem for R.C., C.C., C.C., and M.C., all minors; T H E R E S A S M I T H , I ndividually , and as
g uardian ad litem for M.C., a minor; L E O N A R D C R U Z , I ndividually

, Plaintiffs-Appellants

,

v

.

T H E C I T Y O F A

N A H E I M , a Governmental Entity ; C H I E F J O H N W E L T E R ; D E P U T Y C H I E F C R A I G H U N T E R ; O F F I C E R M I C H A E L B R O W N , I ndividually ; O F F I C E R B R U C E L I N N , I ndividually ; O F F I C E R K E L L Y P H I L L I P S , I ndividually ; O F F I C E R N A T H A N S T A U B E R , I ndividually ; O F F I C E R P H I L L I P V A

R G A S , I ndividually

, Defendants-Appellees

. N o. 12-55481

D.C. No. 2:10-cv-03997- MMM-J EM

OPI NI ON

A ppeal from the United States District Court for the Central District of California Marg a ret M. Morrow, District J udg e, Presiding

Arg ued and Submitted J anuary 10, 2014—Pasadena, CaliforniaC R U Z V

. C I T Y O F A

N A H E I M 2

F iled Aug ust 28, 2014

B efore: Alex Koz inski, Chief J udg e , Richard R. Clifton, Circuit J u d g e, and J ed S. Rakoff, Senior District J udg e. *

O pinion by

Chief J udg e Koz inski

SUMMARY * *

Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judg ment a nd r e manded in a n a ction broug ht by the relatives of Cesar Cruz
, who w a s s h ot a nd killed by City o f Anaheim police officers.

Fo u r o f the officers alleg e d that they shot Cruz afte r h e

ex ited his vehicle a

nd reached for what they believed was a g un in the waistband of his pants. The panel held that g iven the curious and material factual discrepancies, including that Cruz did not have a g u n on him and was still suspended by his seat belt when he was shot, the distri c t c ourt erred in ruling that only an u nreasonable or speculative jury could disbelieve the offi c ers’ version of e v ents. As to those individual officers an d t h e City d efendants (the City o f

* T h e Ho n o rab le J ed S. Rak o f f

, Sen io r D istrict J u d g e fo r th e U .S. District Co u rt f

o r th e So u t

h ern District o f New Yo rk

, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C R U Z V

. C I T Y O F A

N A H E I M 3

Anaheim, Chief Welter and D eputy Chief Hunter), the panel

r e versed the district court’s summary judg ment. The pan el made no determination about the officers’ credibility

, leaving that issue to the jury

. The panel affirmed the summary judg ment in favor of a fi f t h o f f icer, who testified that he

c o u ldn’t see whether Cruz reached for his waistband, but fired because he perceived a n immedi a t e threat when he heard g unshots.

COUNSEL

Richard P. Herman (arg

ued) o f Newport B each, California for Plaintiffs-Appellants.

Michael R.W

. Houston and Greg g M. Audet (arg u ed) of the City Attorney ’s Office of A n a h eim, California for Defendants-Appellees.

OP INION

KOZ I NSKI , Chief J udg e :

Nobody likes a g a me of “ he said, she said,” but f a r worse is the g ame o f “ w e s a i d

, he’s dead.” Sadly

, this is too often what we face in police shooting cases like this one.

I.

I n early December 2 009, a confidential informant told Anaheim police officer Nathan Stauber that Ceasar Cruz was

a g ang member who sold methamphetamine and carried a g un. F ollowing this lead, Stauber determined that Cruz wasC R U Z V

. C I T Y O F A

N A H E I M 4

a disch a r ge d parolee whose prior convictions included a felony involving a firearm. L ater, the informant told Stauber where Cruz was, what his vehicle looked like and that he was armed with a nine-millimeter. The informant also r eported that Cruz was carry

ing the g un in his waistband and had made it clear that “he was n ot g oing back to prison.” Stauber sent this information out to several o ther Anaheim police officers and they converg ed on Cruz ’s location with multipl e p olice vehicles, both marked and unmarked.

The officers n oticed that Cruz ’s vehicle had a broken tail lig ht, so they ex ecuted a t raffic stop. After Cruz pulled into

a W a l mart parking lot, the police surrounded h im w ith their vehicles. B u t Cruz attempted to escape, backing his SUV into one of the marked patrol cars in the p r ocess. Cruz eventually stopped, and the o fficers g ot out of their vehicles with weapons drawn.

Cruz opened his door, and the police shouted at him to g et

on the g round as he was emerg ing from the vehicle. According to four o f the officers, he ig n ored their commands and instead reached for the w ais t b and of his p ants. F earing that he was reaching for a gu n , a ll five officers opened fire. They fired about twenty shots in two to thr e e s e c o n d s. A by stander, Norman Harms, witnessed most of the event from the other side o f Cruz ’s vehicle, b ut h e could only see Cruz ’s feet and the top of his head at the time of the shooting

, so he didn’t see whether Cruz reached for his waistband.

After they cease d fi ring

, the officers approached Cruz ’s body to find it tang led in his s e at belt and hang ing from it. After they cut the body loose, they found no weapon on it, but

a loaded nine-millime ter was later recovered from the
passeng er seat.C R U Z V

. C I T Y O F A

N A H E I M 5

Cruz ’ s r elatives sue d t h e City and the officers, alleg ing F ourth and F ourteenth Amendment c l a i m s, as well a s wrong ful death under California law. Their theory of the case

was that this w as an “ex e cution” committed by the Anaheim Police Department with the help of the confidential i n f o r m a nt. Pursuant to that theory

, they moved to amend their c omplaint to add cla i m s a n d parties relating to the shooting of another unarmed man, David Ray a, by Anaheim police under very similar c ircumstances. Plaintiffs later withdrew t h i s m o t ion to amend for reasons that aren’t clear from the record. 1

The district court g r an t ed summary judg ment to defendants o n a ll claims, finding that Cruz ’s decedents hadn’t presented any

thing to contest the officers’ version of events.

II.

Usually whe n we’re deciding whether to g rant summary judg ment for the police in deadly forc e c a ses we must wade throug h the “ factbound morass of ‘reasonableness.’” S cott v. Harris
, 550 U .S. 372, 383 (2007). Not so here: I t would be unquestionably reasonable for polic e t o s hoot a suspect in Cruz ’ s p osition if he r e a ch e s f or a g un in his waistband, o r

even if h e reaches there for some o ther reason. G iven Cruz ’s dang erous and erratic b e havior up to that point, the police would doubtless b e justified in responding to s u c h a threatening g esture by opening f ire. Conversely

, if the suspect doesn’t reach for his waistband or make some similar

1 P lain t if f s ap p eal th e d i strict co u rt’ s den ial o f t h eir m o tio n to am en d

, as

w ell as its d en ial o f th eir m o tio n to d ep o se th e co n f id en tial in f

o rm an t. W e af f irm th e d istrict co u r t o n b o th co u n ts f o r reaso n s w e ex

p lain in a

m em o ran d u m

d isp o s itio n

w e f ile co n cu rren tly

w ith th is o p in io n

.C R U Z V

. C I T Y O F A

N A H E I M 6

threatening g e sture, it w ould clearly be unreasonable for the officers to shoot him after he stopped his vehicle and opened the door. At that point, the suspect no long er p o s e s an immediate threat to the p olice or the public, so d e adly force i s n o t justified. See Tennessee v. Garner
, 471 U.S. 1, 9

– 1 2 (1985); cf. Plumhoff v. Rickard

, 572 U.S. ___, No. 12-1117, slip op. at 11 (May

27, 2014).

Thus, we n eed not worry about the intricacies o f p o l i ce procedure or nuanced questions of force proportionality

. T o decide this c ase a jury would have to answer just one simple
ques t i o n : Did the police see Cruz r each for his waistband? I f they did, they were entitled to shoot; if they didn’ t , they weren’t.

B u t for a judg e ruling o n the officers’ mo t i o n for
summary judg ment, this translates to a di f ferent question: Could any reasonable jury f ind it more likely t han not that Cruz didn’t reach f

or h is waistband? I n ruling for the officers, the district court answered this question “No.” The evidence it r elied on in reaching this conclusion—indeed, the only evidence that sug g ests this is what happene d

— is the testimony of the officers, four o f whom sa y t h e y saw Cruz make the fateful reach. 2

2 T h e f if t h

, Of f icer B ro w

n , w as st an d in g b eh in d Cru z’ s SUV o n th e p assen g er sid e, so h e co u ld n ’ t see w h eth er Cru z reach ed f

o r h is w aistb an d ; b u t h e to o f

ired b ecau se h e “ p erceiv ed th at C ru z w as ex ch an g in g g u n f ire

w ith ” an o th er o f

fi c e r

. P lain tif

f s h av e p resen ted n o ev id en ce, circu m s ta n t ial o r o th erw ise, t o d ou b t Of f i cer B ro w

n ’ s acco u n t t h at h e

reaso n ab ly p erceiv ed an im m ed iate th r eat w

h en h e h eard g u n sh o ts th at

co u ld h a v e b een co m in g f ro m h is f ello w of f icers’ w eap o n s , a w eap on Cru z w as f

irin g o r b o th

. W e th eref

o re af f irm su m m ary j u d g m en t i n f

av or

o f Of f icer B ro w n

.C R U Z V

. C I T Y O F A

N A H E I M 7

B u t in the deadly force contex t, we cannot “simply accept

w h a t may be a self-serving account b y the police o fficer

. ” Scott v. Henrich

, 39 F .3d 912, 915 (9th Cir. 1994). B ecause the person most likely to rebut the officers’ v ers i o n o f events—the one killed—can’t testify

, “[ t] he judg e must carefully ex amine all the ev i d en c e in the r ecord

. . . to determine whether the officer’s story is internally

consistent and consistent with othe r known facts.” Id. ; see also Gonzalez v. City of

Anaheim

, 7 47 F .3d 789, 794–95 (9th Cir. 2014) ( en banc). This includes “circumstantial evidence that, if believed, would tend to discredit the police officer’s story

. ” Scott , 39 F .3d at 915.

I n this case, there’s ci r c u m s tantial evidence that could
g ive a r e a s o n a ble jury pause. Most obvious is the fact that Cruz didn’t have a g un on him, so w h y w o u l d he have

r e a ched f o r h is waistband? 3 Cruz probably saw that he w a s

surr o u n d e d by o fficers w ith g uns drawn. I n that circumstance, it would have b een foolish—b u t n o t wholly implausible—for him to have tried to fa s t

- d r a w his weapon in an a ttempt to shoot his w ay out. B ut for him to make such

a g esture when no g un is there makes no s e n s e w h atsoever.

3 In th e u su al case, w e rev iew th e reco rd “ f ro m th e p e r s p ectiv e of a

reaso n ab le o f

f icer o n t h e s cen e, rath er th an w ith th e 2 0 / 2 0 v isio n of h in d sig h t.” G ra h a m v

. Co n n o r , 4 90 U.S. 3 8 6 , 3 9 6 (1 9 89 ); W ilkin so n v

. T o r r e s , 6 1 0 F.3 d 5 4 6
, 5 51 (9 th Cir. 2 01 0 ) (ex p lain in g th at “ th e critica l in q u iry i s w

h at [th e o f

f icer] p erc e i v e d ” )

. S o th e f act th at Cru z d id n o t h av e a g u

n o n h im n o rm a l l y w o u l d n ’ t f acto r in to th e reaso n ab len ess

a n a l y s is b ecau se th e o f f icers co u l d n ’ t k

n o w w h at w as (o r w asn ’t )

u n d ern eath Cru z ’s w aistb an d

. B u t, b ecau se th e o f f icers k illed Cru z, w e

m u st ex am in e w

h eth er th e of

f icers’ a c c o u n t s are “ co n sisten t w i t h o th er k n o w n f acts.” S co tt , 3 9 F.3 d at 9 1 5

. On e o f th o se f acts is th at n o g u n w as f o u n d o n Cru z (th o u g h a g u n w as f ou n d —w i th th e saf

ety o n —o n th e car’ s p assen g er seat).C R U Z V

. C I T Y O F A

N A H E I M 8

A jury may doubt that Cruz did this. Of course, a jury could

r e a c h the opposite conclusion. I t mig h t believe that Cr u z thought he had the g

un there, or may

be he had a death wish,

or perhaps his pants were f alling down a t the worst possible
moment. B ut the jury could a lso reasonably conclude that the officers lied.

I n reaching that c onclusion, the jury mig ht find relevant the uncontroverted evidence that Officer L inn, one o f Cruz ’s shooters, recited the ex act same ex planation when he shot a nd ki l led a nother unarmed man, David Ray a, two y ears later

u n d er very similar circumstances. L ike Cruz
, Ray a w a s tracked down after a confidential informant told p olice that he had a g un and that he “wasn’t g oing back to prison,” and, a s with Cr uz , the tip led to an altercation with Anaheim police that ended with an unarmed Ray a biting the dust. Perhaps the

m o st c urious similarity : According to the officers who s h o t the two unarmed men, both reached f or their w aistbands while the p olice had their g uns trained on them

. ( O ne noteworthy difference: Ray a was shot in the back because he

was running away from Officer L in n when L inn saw him reach for h is waistband.) “They bot h r e ached for the g u n” mig ht be a plausible defense from o fficers in the line of duty

. “They both reached for no g un” sounds more like a song -anddance.

A jury m i gh t find implausible other a spects of the officers’ story

. F or starters, four of the officers said they saw Cruz reach for his waistband. A jury mig ht be skeptical that four pair s o f ey e s had a line o f sig ht to Cruz ’s hand as he stood between the open c ar door and the SUV. There is also the fact that Cruz was l e ft-handed, y et two officers attested that they saw Cruz reach for his w aistband with his r i gh t hand. A reasonable jury could d oubt that Cruz would h aveC R U Z V

. C I T Y O F A

N A H E I M 9

reached f or a non-ex istent weapon w ith his off hand. The n there is the o f

f icers’ claim that Cruz had “ex ited” the Suburban, and “stood in the d oorway ,” but after he was killed they had to cut him free from his seat belt because he was “suspended” b y it. H ow does a man who has “emerg ed fully ” from a veh i c l e , a nd “turn[ ed] to face forward,” e nd up hang ing from his seat belt after he’s shot? May be it’s possib l e

. Bu t it’s also p o ssible that the officers didn’t w ait for Cruz to ex it his car—or r each for his waistband—and simply opened fire on a man who was try ing to comply with their instructions to “[ g ] e t down on the g round.”

The testimony o f the o nly non-police ey ewitness, Norman H a r m s , indicates that Cruz ’s feet indeed made it o ut of t h e car, bu t that Cruz was “slipping o n the g round, like kind o f falling down,” as if h e wer e “ t r i p ping .” This paints a d ifferent picture than the officers’ testimony that Cruz h a d fully emerg e d from his SUV and was poised to attack. B ased

on Harms’s testimony

, a jury mig ht find that Cruz w as try ing
to g et o ut of the car ( as he was o rdered to do m u l t i p l e t imes after he opened his door) but g ot caug ht in his seat belt. W e re

a jury to believe this version of events—which seems no less likely t h a n a man shot while standing nex t to a vehicle becoming suspended by a seat belt—this would certainly cast doubt on the o fficers’ credibility a nd lead the jury to find for plaintiffs.

* * *

Given these curious and material factual d i s c r epancies, the district court erred in ruling that only an unreasonable or speculative jury could disbelieve Officers P h illips, Varg as, Stauber and L inn’s version of events. As to these officers a nd the Monell defendants (the C i t y o f Anaheim, Chief W elterC R U Z V

. C I T Y O F A

N A H E I M 10

and Deputy Chief Hunter), we reverse. W e m ake no determination about the officers’ credibility

, b eca u se that’s
not our decision to make. W e leave it to the jury

. W e affirm the summary judg ment in favor of Officer B rown.

AF F IRMED AS TO BROWN; RE V E RSED AND REMANDED AS TO ALL OTHER DEF ENDANTS.

Appellants shall recover their costs against all def endants other than Brow n
. Brow n shall recover his costs against appellants.