Price v. Sery

• Decision Date: 22 January 2008
• Docket Number: No. 06-35159.,06-35159.
• Citation: 513 F.3d 962
• Parties: Gwen PRICE, Personal Representative of the Estate of James Jahar Perez, deceased, James Jahar Perez, Jr., by and through his guardian ad litem, Gwen Price; Deborah Perez, an individual; James Jahar Perez, Jr., by and through his guardian ad litem, Gwen Price, Plaintiffs-Appellants, v. Jason SERY; City of Portland, a municipal corporation; Sean Macomber, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

513 F.3d 962

Gwen PRICE, Personal Representative of the Estate of James Jahar Perez, deceased, James Jahar Perez, Jr., by and through his guardian ad litem, Gwen Price; Deborah Perez, an individual; James Jahar Perez, Jr., by and through his guardian ad litem, Gwen Price, Plaintiffs-Appellants, v. Jason SERY; City of Portland, a municipal corporation; Sean Macomber, Defendants-Appellees.

No. 06-35159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 13, 2006.

Submission withdrawn April 5, 2007.

Resubmitted November 1, 2007.

Filed January 22, 2008.

Elden M. Rosenthal, Rosenthal & Greene, P.C., Portland, OR, argued the cause and filed briefs for the plaintiffs-appellants.

Harry Auerbach, Office of Chief Deputy City Attorney, Office of City Attorney, Portland, OR, argued the cause and filed a brief for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding. D.C. No. CV-04-01178-MWM.

Before: DIARMUID F. O'SCANNLAIN, EDWARD LEAVY, and RAYMOND C. FISHER, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Partial Concurrence and Partial Dissent by Judge FISHER.

O'SCANNLAIN, Circuit Judge:

The constitutionality of the City of Portland's policy on the use of deadly force by its, police officers is squarely presented by this appeal from grant of summary judgment by the decedent's estate.

I

On March 28, 2004, in the course of a routine traffic stop, City of Portland, Oregon Police Officer Jason Sery shot and killed James Jahar Perez, the driver of the stopped vehicle. Certain key facts surrounding the shooting are in dispute, but they are not relevant to this limited appeal. The district court, however, found a number of facts to be undisputed, which we recite here to provide adequate context.

A

Sery and another officer, Sean Macomber were on a routine patrol in the St. John's neighborhood of North Portland on Sunday afternoon, March 28, 2004, when Macomber noticed a white luxury sedan with tinted windows and chrome wheels that struck him as atypical "for cars driven in that working class neighborhood." The officers were aware of local complaints of illegal drug activity, and drove by the car for a closer look. Upon running a registration check and learning that the car was registered to a man born in the 1950s, Macomber concluded that the age of the driver did not match. He also felt that the car's two occupants "appeared nervous and did not want to make eye contact."

As the officers drove by, the car remained stopped at a stop sign, leading Macomber to suspect that the driver was waiting to leave the area without being observed by the officers. After passing the car, the officers temporarily lost visual contact with it. When the officers regained sight of the car, the driver was now the sole occupant. The officers witnessed the driver signal and make a right turn into a strip mall parking lot, but it did not comply with Oregon traffic laws requiring vehicles to signal continuously for at least 100 feet prior to executing a turn. Macomber parked the patrol car behind the parked car, blocking it from any means of exit.

Although what transpired after the officers exited their patrol car and confronted Perez is disputed and awaits determination by a jury, it is undisputed that no more than 25 seconds elapsed from the time the officers left their patrol car until the time that Sery shot Perez. At the time of his death, Perez's seatbelt remained fastened, and he was unarmed.

B

Gwen Price ("Price"), on behalf of Perez's estate and his son, and Deborah Perez, sued Sery, Macomber, and the City of Portland ("City") under 42 U.S.C. § 1983, alleging that the officers unconstitutionally used deadly force for which the City is liable under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In addition, the complaint alleged a state law claim for wrongful death based on negligent acts of the officers and the City, and other claims not relevant to this appeal.

Because the Portland Police Bureau's ("PPB") policy, training, and discipline practices with respect to the use of lethal force are relevant to the constitutional claims, we recite them as well. The use of deadly force is governed by PPB General Order ("G.O.") § 1010.10, which reads in relevant part as follows:

The Bureau recognizes that members may be required to use deadly force when their life or the life of another is jeopardized by the actions of others. Therefore, state statute and Bureau policy provide for the use of deadly force under the following circumstances:

a. Members may use deadly force to protect themselves or others from what they reasonably believe to be an immediate threat of death or serious physical injury.

b. A member may use deadly force to effect the capture or prevent the escape of a suspect where the member has probable cause to, believe that the suspect poses a significant threat of death or serious physical injury to the member or others c. If feasible, some warning has been given.

Members must be mindful of the risks inherent in employing deadly force. A member's reckless or negligent use of deadly force is not justified in this policy or State statute. Members are to be aware that this directive is more restrictive than state statutes.

G.O. § 1010.10.

C

Because we are reviewing a district court's ruling on a motion for summary judgment, we must also consider facts alleged but not yet proven in order to decide this appeal.¹ In particular, Price's complaint makes allegations concerning the City's history of disciplining officers for the inappropriate use of deadly force, as well as its training of officers. Price alleges specifically that, according to Portland Chief of Police Derrick Foxworth's deposition; no Portland police officer has "ever" been "successfully disciplined" for shooting at an unarmed citizen "in the last twenty years." But as District Judge Mosman's opinion notes, Chief Foxworth's second affidavit in the case, filed under seal, indicates that Chief Foxworth has demoted at least one officer for inappropriate use of deadly force, that former Chief Mark Kroeker disciplined an officer for unsatisfactory performance leading to the use of deadly force, and that former Chief Charles Moose terminated an officer for firing at a fleeing suspect without justification. The record also reflects that some decisions by the PPB to discipline officers have been overturned by arbitrators.

Price's pleading further cited a report issued by the Police Assessment Resource Center ("PARC") in August 2003. The findings of the PARC report, as presented by Price, did not reveal a failure to discipline officers but posited a need for improvement in the PPB's approach to reviewing deadly force incidents. In addition to the PARC report, Price submitted the declaration of an expert in police tactics, Thomas Streed, Ph.D. Streed's Declaration ("Streed Declaration") asserts that, after reviewing 30 police shootings over the past 20 years, "at least fifteen" were not based on "probable cause." Streed repeats the contention that no officer has "ever" been disciplined by the PPB for the use of lethal force, though he does acknowledge two unsuccessful attempts to discipline.

Price also made allegations concerning the City's training of police officers in the use of deadly force. She relies on the Streed Declaration to contend that the City's use of so-called "no-win" scenarios, together with its deadly force policy (also a part of training), creates a mind-set encouraging officers to "shoot first" and ask questions later. The Streed Declaration devotes just one paragraph to the City's training program, and bases its conclusion that PPB training is "particularly" likely to lead to shooting of unarmed persons in significant part upon a distinction between "reasonable belief' and "probable cause," as used in the PPB G.O. § 1010.10 (quoted above).

D

Price moved for partial summary judgment on her Monell claims, and the City moved for summary judgment on all claims. The district court denied Price's motion, granted the City's motion for summary judgment as to the Monell claims, and denied the City's motion for summary judgment on the state law negligence claims. Pursuant to Fed.R.Civ.P. 54(b), the district court entered a final judgment as to the Monell claims, so that this appeal could be decided prior to a jury trial on the related unresolved issues.

II

Price offers three principal arguments that the City is liable under Monell for the alleged violation of Perez's rights under the Fourth Amendment by the use of deadly force against him. We consider each in turn.

A

The Supreme Court has held that municipalities may be held liable as "persons" under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 694, 98 S.Ct. 2018. A plaintiff may also establish municipal liability by demonstrating that (1) the constitutional tort was the result of a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity;" (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority "delegated that authority to, or ratified the decision of, a subordinate." Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002).

Price first contends that, as written, the City's official policy governing the use of lethal force by police officers violates the Fourth Amendment's requirements, as explicated by the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Specifically, Price argues that the City's...