FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER CRUZ, Individually and on

behalf of the estate of Ceasar Cruz,

and as guardian ad litem for R.C.,

C.C., C.C., and M.C., all minors;

THERESA SMITH, Individually, and as

guardian ad litem for M.C., a minor;

LEONARD CRUZ, Individually,

Plaintiffs-Appellants,

v.

THE CITY OF ANAHEIM, a

Governmental Entity; CHIEF JOHN

WELTER; DEPUTY CHIEF CRAIG

HUNTER; OFFICER MICHAEL BROWN,

Individually; OFFICER BRUCE LINN,

Individually; OFFICER KELLY

PHILLIPS, Individually; OFFICER

NATHAN STAUBER, Individually;

OFFICER PHILLIP VARGAS,

Individually,

Defendants-Appellees.

No. 12-55481

D.C. No.

2:10-cv-03997-

MMM-JEM

OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

January 10, 2014—Pasadena, California
2 CRUZ V. CITY OF ANAHEIM

Filed August 28, 2014

Before: Alex Kozinski, Chief Judge, Richard R. Clifton,

Circuit Judge, and Jed S. Rakoff, Senior District Judge.*

Opinion by Chief Judge Kozinski

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in an action

brought by the relatives of Cesar Cruz, who was shot and

killed by City of Anaheim police officers. 

Four of the officers alleged that they shot Cruz after he

exited his vehicle and reached for what they believed was a

gun in the waistband of his pants. The panel held that given

the curious and material factual discrepancies, including that

Cruz did not have a gun on him and was still suspended by

his seat belt when he was shot, the district court erred in

ruling that only an unreasonable or speculative jury could

disbelieve the officers’ version of events. As to those

individual officers and the City defendants (the City of

* The Honorable Jed S. Rakoff, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CRUZ V. CITY OF ANAHEIM 3

Anaheim, Chief Welter and Deputy Chief Hunter), the panel

reversed the district court’s summary judgment. The panel

made no determination about the officers’ credibility, leaving

that issue to the jury. The panel affirmed the summary

judgment in favor of a fifth officer, who testified that he

couldn’t see whether Cruz reached for his waistband, but

fired because he perceived an immediate threat when he

heard gunshots.

COUNSEL

Richard P. Herman (argued) of Newport Beach, California for

Plaintiffs-Appellants.

Michael R.W. Houston and Gregg M. Audet (argued) of the

City Attorney’s Office of Anaheim, California for

Defendants-Appellees.

OPINION

KOZINSKI, Chief Judge:

Nobody likes a game of “he said, she said,” but far worse

is the game of “we said, he’s dead.” Sadly, this is too often

what we face in police shooting cases like this one.

I.

In early December 2009, a confidential informant told

Anaheim police officer Nathan Stauber that Ceasar Cruz was

a gang member who sold methamphetamine and carried a

gun. Following this lead, Stauber determined that Cruz was
4 CRUZ V. CITY OF ANAHEIM

a discharged parolee whose prior convictions included a

felony involving a firearm. Later, the informant told Stauber

where Cruz was, what his vehicle looked like and that he was

armed with a nine-millimeter. The informant also reported

that Cruz was carrying the gun in his waistband and had made

it clear that “he was not going back to prison.” Stauber sent

this information out to several other Anaheim police officers

and they converged on Cruz’s location with multiple police

vehicles, both marked and unmarked.

The officers noticed that Cruz’s vehicle had a broken tail

light, so they executed a traffic stop. After Cruz pulled into

a Walmart parking lot, the police surrounded him with their

vehicles. But Cruz attempted to escape, backing his SUV

into one of the marked patrol cars in the process. Cruz

eventually stopped, and the officers got out of their vehicles

with weapons drawn.

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

on the ground as he was emerging from the vehicle. 

According to four of the officers, he ignored their commands

and instead reached for the waistband of his pants. Fearing

that he was reaching for a gun, all five officers opened fire. 

They fired about twenty shots in two to three seconds. A

bystander, Norman Harms, witnessed most of the event from

the other side of Cruz’s vehicle, but he 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 ceased firing, the officers approached Cruz’s

body to find it tangled in his seat belt and hanging from it. 

After they cut the body loose, they found no weapon on it, but

a loaded nine-millimeter was later recovered from the

passenger seat.
CRUZ V. CITY OF ANAHEIM 5

Cruz’s relatives sued the City and the officers, alleging

Fourth and Fourteenth Amendment claims, as well as

wrongful death under California law. Their theory of the case

was that this was an “execution” committed by the Anaheim

Police Department with the help of the confidential

informant. Pursuant to that theory, they moved to amend

their complaint to add claims and parties relating to the

shooting of another unarmed man, David Raya, by Anaheim

police under very similar circumstances. Plaintiffs later

withdrew this motion to amend for reasons that aren’t clear

from the record.1

The district court granted summary judgment to

defendants on all claims, finding that Cruz’s decedents hadn’t

presented anything to contest the officers’ version of events.

II.

Usually when we’re deciding whether to grant summary

judgment for the police in deadly force cases we must wade

through the “factbound morass of ‘reasonableness.’” Scott v.

Harris, 550 U.S. 372, 383 (2007). Not so here: It would be

unquestionably reasonable for police to shoot a suspect in

Cruz’s position if he reaches for a gun in his waistband, or

even if he reaches there for some other reason. Given Cruz’s

dangerous and erratic behavior up to that point, the police

would doubtless be justified in responding to such a

threatening gesture by opening fire. Conversely, if the

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

1 Plaintiffs appeal the district court’s denial of their motion to amend, as

well as its denial of their motion to depose the confidential informant. We

affirm the district court on both counts for reasons we explain in a

memorandum disposition we file concurrently with this opinion.
6 CRUZ V. CITY OF ANAHEIM

threatening gesture, it would clearly be unreasonable for the

officers to shoot him after he stopped his vehicle and opened

the door. At that point, the suspect no longer poses an

immediate threat to the police or the public, so deadly force

is not justified. See Tennessee v. Garner, 471 U.S. 1, 9–12

(1985); cf. Plumhoff v. Rickard, 572 U.S. ___, No. 12-1117,

slip op. at 11 (May 27, 2014).

Thus, we need not worry about the intricacies of police

procedure or nuanced questions of force proportionality. To

decide this case a jury would have to answer just one simple

question: Did the police see Cruz reach for his waistband?

If they did, they were entitled to shoot; if they didn’t, they

weren’t.

But for a judge ruling on the officers’ motion for

summary judgment, this translates to a different question: 

Could any reasonable jury find it more likely than not that

Cruz didn’t reach for his waistband? In ruling for the

officers, the district court answered this question “No.” The

evidence it relied on in reaching this conclusion—indeed, the

only evidence that suggests this is what happened—is the

testimony of the officers, four of whom say they saw Cruz

make the fateful reach.2

2 The fifth, Officer Brown, was standing behind Cruz’s SUV on the

passenger side, so he couldn’t see whether Cruz reached for his waistband;

but he too fired because he “perceived that Cruz was exchanging gunfire

with” another officer. Plaintiffs have presented no evidence,

circumstantial or otherwise, to doubt Officer Brown’s account that he

reasonably perceived an immediate threat when he heard gunshots that

could have been coming from his fellow officers’ weapons, a weapon

Cruz was firing or both. We therefore affirm summary judgment in favor

of Officer Brown.
CRUZ V. CITY OF ANAHEIM 7

But in the deadly force context, we cannot “simply accept

what may be a self-serving account by the police officer.” 

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Because

the person most likely to rebut the officers’ version of

events—the one killed—can’t testify, “[t]he judge must

carefully examine all the evidence in the record . . . to

determine whether the officer’s story is internally consistent

and consistent with other known facts.” Id.; see also

Gonzalez v. City of Anaheim, 747 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.

In this case, there’s circumstantial evidence that could

give a reasonable jury pause. Most obvious is the fact that

Cruz didn’t have a gun on him, so why would he have

reached for his waistband?3 Cruz probably saw that he was

surrounded by officers with guns drawn. In that

circumstance, it would have been foolish—but not wholly

implausible—for him to have tried to fast-draw his weapon

in an attempt to shoot his way out. But for him to make such

a gesture when no gun is there makes no sense whatsoever. 

3

In the usual case, we review the record “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989); Wilkinson v.

Torres, 610 F.3d 546, 551 (9th Cir. 2010) (explaining that “the critical

inquiry is what [the officer] perceived”). So the fact that Cruz did not

have a gun on him normally wouldn’t factor into the reasonableness

analysis because the officers couldn’t know what was (or wasn’t)

underneath Cruz’s waistband. But, because the officers killed Cruz, we

must examine whether the officers’ accounts are “consistent with other

known facts.” Scott, 39 F.3d at 915. One of those facts is that no gun was

found on Cruz (though a gun was found—with the safety on—on the car’s

passenger seat).
8 CRUZ V. CITY OF ANAHEIM

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

reach the opposite conclusion. It might believe that Cruz

thought he had the gun there, or maybe he had a death wish,

or perhaps his pants were falling down at the worst possible

moment. But the jury could also reasonably conclude that the

officers lied.

In reaching that conclusion, the jury might find relevant

the uncontroverted evidence that Officer Linn, one of Cruz’s

shooters, recited the exact same explanation when he shot and

killed another unarmed man, David Raya, two years later

under very similar circumstances. Like Cruz, Raya was

tracked down after a confidential informant told police that he

had a gun and that he “wasn’t going back to prison,” and, as

with Cruz, the tip led to an altercation with Anaheim police

that ended with an unarmed Raya biting the dust. Perhaps the

most curious similarity: According to the officers who shot

the two unarmed men, both reached for their waistbands

while the police had their guns trained on them. (One

noteworthy difference: Raya was shot in the back because he

was running away from Officer Linn when Linn saw him

reach for his waistband.) “They both reached for the gun”

might be a plausible defense from officers in the line of duty. 

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

A jury might find implausible other aspects of the

officers’ story. For starters, four of the officers said they saw

Cruz reach for his waistband. A jury might be skeptical that

four pairs of eyes had a line of sight to Cruz’s hand as he

stood between the open car door and the SUV. There is also

the fact that Cruz was left-handed, yet two officers attested

that they saw Cruz reach for his waistband with his right

hand. A reasonable jury could doubt that Cruz would have
CRUZ V. CITY OF ANAHEIM 9

reached for a non-existent weapon with his off hand. Then

there is the officers’ claim that Cruz had “exited” the

Suburban, and “stood in the doorway,” but after he was killed

they had to cut him free from his seat belt because he was

“suspended” by it. How does a man who has “emerged fully”

from a vehicle, and “turn[ed] to face forward,” end up

hanging from his seat belt after he’s shot? Maybe it’s

possible. But it’s also possible that the officers didn’t wait

for Cruz to exit his car—or reach for his waistband—and

simply opened fire on a man who was trying to comply with

their instructions to “[g]et down on the ground.”

The testimonyof the only non-police eyewitness, Norman

Harms, indicates that Cruz’s feet indeed made it out of the

car, but that Cruz was “slipping on the ground, like kind of

falling down,” as if he were “tripping.” This paints a

different picture than the officers’ testimony that Cruz had

fully emerged from his SUV and was poised to attack. Based

on Harms’s testimony, a jury might find that Cruz was trying

to get out of the car (as he was ordered to do multiple times

after he opened his door) but got caught in his seat belt. Were

a jury to believe this version of events—which seems no less

likely than a man shot while standing next to a vehicle

becoming suspended by a seat belt—this would certainly cast

doubt on the officers’ credibility and lead the jury to find for

plaintiffs.

* * *

Given these curious and material factual discrepancies,

the district court erred in ruling that only an unreasonable or

speculative jury could disbelieve Officers Phillips, Vargas,

Stauber and Linn’s version of events. As to these officers and

the Monell defendants (the City of Anaheim, Chief Welter
10 CRUZ V. CITY OF ANAHEIM

and Deputy Chief Hunter), we reverse. We make no

determination about the officers’ credibility, because that’s

not our decision to make. We leave it to the jury. We affirm

the summary judgment in favor of Officer Brown.

AFFIRMED AS TO BROWN; REVERSED AND

REMANDED AS TO ALL OTHER DEFENDANTS.

Appellants shall recover their costs against all

defendants other than Brown. Brown shall recover his

costs against appellants.