Cruz ex rel. Estate of Cruz v. City of Anaheim

• Decision Date: 28 August 2014
• Docket Number: No. 12–55481.,12–55481.
• Citation: 765 F.3d 1076
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

765 F.3d 1076

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.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 2014.

Filed Aug. 28, 2014.

Richard P. Herman (argued) of Newport Beach, CA, for Plaintiffs–Appellants.

Michael R.W. Houston and Gregg M. Audet (argued) of the City Attorney's Office of Anaheim, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:10–cv–03997–MMM–JEM.

Before: ALEX KOZINSKI, Chief Judge, RICHARD R. CLIFTON, Circuit Judge, and JED S. RAKOFF, Senior District Judge.^*

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 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'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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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 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, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); cf. Plumhoff v. Rickard, 572 U.S. ––––, 134 S.Ct. 2012, 2022, 188 L.Ed.2d 1056 (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

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. 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...