Price v. Sery

applying Washington state law to the prejudgment

award interest.

AFFIRMED. PRICE, Representative

Gwen Personal Perez, Estate of James Jahar

deceased, Perez, Jr., by James Jahar through guardian litem, his ad Price; Perez,

Gwen Deborah an indi

vidual; Jr., Perez, James Jahar

through guardian litem, his ad Gwen

Price, Plaintiffs-Appellants, SERY; City Portland,

Jason mu

nicipal corporation; Sean Macom

ber, Defendants-Appellees.

No. 06-35159.

United Appeals, States Court of

Ninth Circuit.

Argued and Submitted Nov. 2006.

Submission withdrawn April 2007.

Resubmitted Nov. 2007.

Filed Jan. Rosenthal, & M. Rosenthal

Elden P.C., Portland, OR, Greene, argued the plaintiffs- for the cause and filed briefs appellants. Auerbach, Deputy

Harry Office Chief City Attorney, Attorney, Office Portland, OR, the cause and filed a argued defendants-appellees. brief F. DIARMUID Before: LEAVY, O’SCANNLAIN, EDWARD FISHER, Judges. C. Circuit RAYMOND O’SCANNLAIN; by Opinion Judge Dissent and Partial Partial Concurrence by FISHER. Judge O’SCANNLAIN, Judge: Circuit City of Port- constitutionality of the on the use of land’s presented squarely officers is its summary judg- grant from this appeal by the decedent’s estate. ment I course of a in the On March Portland, Ore- stop, City of traffic routine Sery shot and Jason gon Police Officer Perez, the driver Jahar killed James key facts sur- vehicle. Certain stopped dispute, but shooting are rounding the ap- limited they are relevant however, court, found a district peal. The undisputed, number of facts to be which B provide adequate we recite here to context. (“Price”), Gwen Price on behalf of Per- son, ez’s estate and his and Deborah Per- A ez, Sery, Macomber, sued and the officer, Sery and another Macom- Sean (“City”) § Portland under 42 U.S.C. patrol ber on a routine in were the St. alleging that the unconstitutionally officers neighborhood John’s of North Portland on deadly usеd force for which the is Sunday afternoon, 28, 2004, March when Department liable under Monell v. So- Macomber luxury noticed a white sedan York, cial Services New with tinted windows and chrome wheels 56 L.Ed.2d 611 him atypical struck as “for cars driven (1978). addition, In complaint alleged working neighborhood.” class The a state law claim for wrongful death based officers were complaints aware of local on negligent acts of the officers and the illegal drug activity, by and drove the car City, and other claims not relevant to this for a closer Upon running regis- look. appeal. tration check learning that the car was 1950s, registered to a man born Because the Portland Police Bureau’s Macomber age concluded that the (“PPB”) policy, training, discipline driver did not match. He also felt that the practices respect with to the use of lethal car’s occupants “appeared two nervous and force are relevant to the constitutional eye did not want to make contact.” claims, we recite them as well. The use of As by, the officers drove the car re- governed by force is PPB General stopped mained stop sign, at a leading (“G.O.”) 1010.10, Order which reads in Macomber to suspect that thе driver was part relevant as follows: waiting to leave the area without being recognizes The Bureau that members by observed the officers. After passing may be to use force car, the officers temporarily lost visual when their life or the life of another is contact with it. When the officers re- jeopardized by the actions of others. gained car, sight of the the driver was now Therefore, state statute pol- and Bureau occupant. the sole The officers witnessed icy provide for the use of signal the driver right and make a turn following under the circumstances: into a strip lot, mall parking but it did not a. may Members use comply with Oregon traffic requiring laws protect themselves or others signal vehicles to continuously for at least they from what be- prior feet to executing a turn. Ma- lieve to immediate threat parked patrol comber car behind the of death or serious in- car, parked blocking it any from means of jury. exit. b. A member

Although what transpired after the offi- force to effect capture or cers patrol exited their car and confronted prevent the escape suspect of a Perez disputed and awaits determination where by a the member has jury, proba- undisputеd that no more than 25 ble cause to believe that elapsed seconds from the time the suspect poses officers left patrol significant their car until the time that Sery shot Perez. At the time of threat of death or physi- his serious death, fastened, Perez’s injury seatbelt remained cal to the member or oth- and he was unarmed. ers. report cited a further pleading warning has Price’s feasible, some If

c. Resource the Police Assessment issued given. been (“PARC”) August Center risks mindful of the must be Members present- report, the PARC findings of A deadly force. employing inherent Price, not reveal a failure did ed use of negligent or reckless member’s a need posited officers but discipline in this justified is not deadly force to re- approach in the PPB’s improvement to be Members are State statute. In incidents. addi- deadly force viewing restric- is more this directive aware submitted report, Price tion to the PARC than state statutes. tive tac- expert anof the declaration § 1010.10. G.O. Streed, Ph.D. Dec- tics, Streed’s Thomas Declaration”) (“Streed asserts laration C police shootings that, reviewing 30 after reviewing a district are we fifteen” years, Because least past “at over the summary for on a motion cause.” ruling “probable on court’s were not based al- facts no offi- also consider that repeats we must the contention judgment, Streed disciplined by decide the order to been yet proven cer has “ever” leged but force, though he com- lethal Price’s PPB the use of particular, for appeal.1 In at- concerning acknowledge the two unsuccessful does allegations makes plaint discipline. tempts for to officers history disciplining of City’s force, as deadly use of inappropriate concerning allegations also made Price alleg- training of officers. Price its well as in the officers training City’s that, to Portland according specifically es on the relies force. She use deposi- Foxworth’s Police Derrick Chief to Declaration contend Streed “ever” tion, police officer has no Portland scenarios, “no-win” so-called City’s shooting for “successfully disciplined” (also been its together with twenty last citizen “in the unarmed at an a mind-set en- training), creates part Judge Mosman’s But as District years.” and ask to “shoot first” officers couraging af- notes, Foxworth’s second Chief Declaration opinion later. Streed questions seal, indi- case, City’s under filed to the paragraph in the just fidavit one devоtes has demoted its conclusion Foxworth and training program, cates that Chief bases likely to use of inappropriate training “particularly” officer for PPB least one persons force, shooting Mark of unarmed former Chief lead between upon a distinction part for unsatis- significant an officer disciplined Kroeker cause,” “probable and belief’ use of leading to “reasonable factory performance (quoted § PPB 1010.10 in the G.O. as used Chief force, former and above). for an officer terminated Moose Charles justifica- without fleeing suspect

firing at a D some also reflects that The record tion. judg- summary partial for moved Price discipline officers PPB to decisions claims, City and the her Monell ment on by arbitrators. have been overturned interrogatories, depositions, answers summary judgment, all 1. On a motion file, together with the affida- on admissions in favor of are drawn reasonable inferences vits, genuine is no any, that there Liberty show v. party. Anderson non-moving that the any material fact 242, 255, issue as 106 S.Ct. Lobby, 477 U.S. judgment as to a party is entitled moving (1986). properly court A district L.Ed.2d 56(c). R. Civ.P. Fed. matter oflaw.” pleadings, judgment “if the summary grants judgment summary require moved for on all lates the Fourth Amendment’s ments, court denied claims. The district Price’s explicated by as Supreme motion, City’s granted motion for sum- Court in Tennessee U.S. claims, mary judgment as to Monell (1985). L.Ed.2d 1 Spe City’s summary motion for and denied the cifically, argues City’s that the poli judgment negligence on the state law cy, 1010.10, expressed in G.O. 54(b), claims. Pursuant to Fed.R.Civ.P. officer “reasonably suspect po believe” a final judgment the district court entered ses an immediate threat of serious claims, appeal to the Monell so that this injury “probable or death falls short of the jury to a prior be decided trial on could requirement cause” set forth in Gamer related issues. unresolved precedents. and this court’s 11-12, 1694; Brewer v. II 1098(9th Cir.2000) Napa, 210 F.3d principal arguments Price offers three (referring “probable to Gamer’s cause” that the under Monell for liable as a specific force standard “more alleged rights violation of Perez’s under and demanding standard” than Graham’s the Fourth Amendment use of excessive force of standard the use him. against force We consider force). non-lethal in turn. each the Supreme contends that Court’s requirement decision sets a of Garner A “objective probable any cause” for of use Supreme The Court has held by force officer. Price municipalities be held liable as City’s policy requires notes that the “ob “persons” under 1983 “when execution jective probable cause” the flee case of custom, a government’s policy or wheth ing suspects, whereas for cases an where by by er made its lawmakers or those officer fears an imminent threat of death may fairly whose edicts or acts be said to or physical injury, City’s serious the policy represent official policy, inju inflicts the only requires “reasonably that the officer Monell, 694, ry.” 98 S.Ct. believe” that she an he or is confronted A plaintiff may 2018. also establish mu immediate Price argues threat. that “rea (1) nicipal liability by demonstrating that different, lesser, sonable belief’ ais the constitutional tort the result of a standard “probable from cause.” “longstanding practice or custom which operating constitutes the standard proce (2) government entity;”

dure the local the tortfeasor official was an whose acts Connor, Both Garner and Graham v. fairly represent official such that the 490 U.S. S.Ct. L.Ed.2d challenged poli action constituted official (1989) recognized leading are as the (3) cy; or an with policy- official final Supreme explicating Court cases re making authority “delegated authority quirеments for the use of force law to, of, or ratified the decision a subor enforcement officers under the Fourth City County dinate.” Ulrich v. & San Gamer, Amendment. Supreme In Francisco, (9th 308 F.3d 984-85 Cir. Court for the first time ‍​‌‌‌​‌​​‌‌​‌​​​‌‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​​‍considered 2002). constitutionality of the common law rule that, permitting of lethal pre

Price first the use force to contends as writ ten, (but City’s fleeing vent the policy governing escape official felon misdemeanant). of lethal by police officers of a vio- The Court held that matching perfectly Amendment’s reasonableness dard —not either the the Fourth “probable cause to be standard “objective probable “reasonable belief’ or poses a threat of suspect lieve that cause” formulations. Id harm, either to the officer serious The Graham Court clarified that using deadly force. or to others” before inquiry upon reasonableness turned 1694. In officer, confronting circumstances leading to this conclu lengthy analysis its subjective rather than the officer’s beliefs sion, the Court noted the movement or intentions: “As in other Fourth Amend in a away from the common law rule num contexts, however, ment the ‘reasonable suggested of states that what was ber inquiry ness’ an excessive force case is wаs not frozen in time with “reasonable” question one: the is whether 13-20, Id at the common law. actions are ‘objectively officer’s reason particular, In found it 1694. Court fight able’ the facts and circumstances significant police departments were them, confronting regard for their without “overwhelmingly” moving away from the underlying intent or motivation.” Id at law rule. Id at common S.Ct. 397, 109 S.Ct. 1865. Indeed, it from quoted approvingly on Accreditation for Law Commission Gamer Graham decisions are Agencies’ language restrict Enforcement leading bringing the Court’s cases claims situations ing the use “to allegedly about the use of force— where the officer believes by law enforcement officers un excessive— human life ... the action is defense of der the rubric of modern Fourth Amend any person or in defense of in immediate analysis, ment search-and-seizure rather injury.” danger of serious Id than under the common law or substantive (internal and em quotation marks omitted process. due Both cases focused on the added). phasis “totality of the circumstances” and the question The narrow in was Gamer “perspective of a officer on reasonable whether, justify therefore to the use of scene, than rather with the vision 20/20 force, only an officer must believe Graham, 396, hindsight.” 490 U.S. at fleeing also that the suspect that a is or 1865; 9, see also 471 U.S. at S.Ct. suspect represents a serious and immedi- 105 S.Ct. ate threat to the officer or others. In case, either the Court assumed reasonable, an belief would have be fight, Supreme In care- Court’s Amendment inquiry that under the Fourth “probable ful cause” in a discussion always depends upon factors and Fourth Amendment arrest context recent upon sincerity of belief. not 366, 124 Maryland Pringle, 540 U.S. 795, (2003), is in- S.Ct. 157 L.Ed.2d 769 There, Rehnquist, structive. Chief Justice Graham, question In was whether Graham, wrote that “[t]he the author (a category claims broader excessive force incapable of probable-cause standard is claims) than should be ana- into precise quantification definition or lyzed process as substantive due claims or with the percentages because deals Graham, Fourth Amendment claims. totality of probabilities depends on the 388, at 490 U.S. 109 S.Ct. 1865. Chief the circumstances” and “the substance of Rehnquist general Justice referred a cause is a probable all the definitions of way requir- the Fourth Amendment as Pringle, “objective ground for belief.” ing an reasonableness” stan- reasonable 795(internal S.Ct. 540 U.S. omitted). citations quotation marks and reаson, attempt to use For this Price’s “probable cause” Pringle does not address Ohio, Terry v. context of the use of (1968), day- to establish some L.Ed.2d 889 Nevertheless, law enforcement officers. “reasonable belief’ and light between cause” itself should phrase “probable unavailing. Terry per- cause” is “probable thing in one context and not mean one “stop and frisk” police mitted officers Rather, elsewhere. something different to be- individuals where there “reason officer cause to be- what an has is “armed and lieve” the individual the level of force he lieve dictates cause to dangerous” “probable even absent given in a scenario. In

justifiably use the individual for the crime.” Id. at arrest officer’s other words law enforcement Terry But was not 88 S.Ct. 1868. not, justified, will of force quantity addressed to the of evidence re- what that officer believed about belief, nor how much confi- quired for such confronting him. the circumstances Rather, dence the officer must have in it. Supreme very recently Court con The that an the distinction was that belief analysis firmed and clarified this of the dangerous armed and could individual is Gamer, Graham, relationship between detention, justify a brief whereas arrest the Fourth Amendment’s reasonableness , requires a belief that the individual has — requirement Scott v. Harris 26-27, committed a crime. Id. —, 167 L.Ed.2d 686 S.Ct. 1868(“a apprehension perfectly reasonable (2007). considering In the reasonableness danger may long before the officer arise likely of a officer’s use of possessed adequate information to chase, high-speed force to end a car justify custody into for the taking person Court noted “Graham did estab crime”). magical triggers lish a switch that him for a purpose prosecuting on/off rigid preconditions whenever an officer’s Terry Court made clear that ‘deadly force.’ actions constitute Gamer inquiry touchstone of reasonableness simply application of the Fourth subjective strength was not Amendment’s ‘reasonableness’ test to belief, grounding officer’s but its particular particular use of a in a force objective determining facts: whether “[I]n type (citing of situation.” Id. at 1777 Gra reasonably in cir- the officer acted such 1865). ham, 388, 109 490 at S.Ct. cumstances, weight given, due must be not “[wjhether on that Court went to state or unparticularized suspi- to his inchoate and police not actions constituted [the officer’s] ‘hunch,’ specific cion or but to the infer- force,’ application ‘deadly all that mat ences which he is entitled to draw from the ters is whether actions were [the officer’s] in light experience.” facts of his Id. at (emphasis reasonable.” Id. at 1778 add 88 S.Ct. 1868. ed). Hill, Accord v. 504 Acosta F.3d phrases employed That the in the PPB’s (9th Cir.2007) that, 1324 (holding under distinguishable General Order are not Scott, special “there is no Fourth Amend mani- along suggests the lines Price is also deadly ment standard for unconstitutional upon in one of the lead eases which fest force”); Gorman, United States v. 314 States, relies, Ting v. 927 United (9th Cir.2002) (“[W]e 1105, 1111 F.3d now (9th Cir.1991). There, in F.2d 1511 believe,’ hold that the ‘reason to or reason immunity qualified order to conduct a able belief standard ... embodies the analysis, required we were to describe the same standard of reasonableness inherent cause.”). probable in of the law as a California state

969 specific in and pre-Gar demanding” would have known it a “more about officer concluded that it “was formulation. ner context. We Gamer at the time established generally in We declined to hold Brewer that a that an officer could use shooting jury should have instruction if, cir force to effect an arrest under the probable officer have cause to believe cumstances, he believed such that the in plaintiff was armed order to necessary protect force was to himself justify police dogs. the use of Id. at 1097. bodily from death or serious harm.” others Rather, demanding we held the less added). (emphasis F.2d at Ting, 927 Graham, only standard from requiring There, relying upon leading we were a that the officer believe “im- there was an dealing with the California case safety mediate threat to the of the officers officers, by police lethal force Kortum v. or others” was sufficient. Id. Alkire, Cal.Rptr. Cal.App.3d specific The “more and demanding” stan- (1977). Ultimately, considering Gamer specific dard of Gamer is more and de- together, Kortum we concluded that manding in requires specific that it be- “under both the U.S. Constitution and Cal fleeing suspect lief—that a poses a threat law, ifornia an officer not use physical of death or serious harm. necessary prevent force unless it is to merely following Brewer was this court’s escape and the officer has cause precedent requiring showing less of a suspect poses signifi to believe justify threat to of police dogs the use than cant threat of death or serious See, justify to the use of e.g., force. injury Ting, to the officer or others.” Escondido, Vera v. Cruz 139 F.3d fairly cannоt read Ting F.2d 1513. We (9th Cir.1997) (“[T]he Supreme Court proposition to stand for the that there is a a special Gamer established rule concern significant legal difference between the force”) (overruled ing deadly on other “reasonably terms believes” and “has Hemet, grounds, 394 F.3d Smith probable cause to believe.” (9th Cir.2005) (en banc)). What “objectivity” crucial is not the of the offi object cers’ beliefs but the of those beliefs. Price draws our attention to several of is, objective That when there is reason suggest our decisions there is (as Brewer), safety fear for one’s but phrases difference between the two em- life, then force short of one’s ployed guide- in the PPB’s justified; justify deadly might 1010.10(a) 1010.10(b): § lines G.O. force, belief an imminent “objective probable “reasonable belief’ and physical harm is threat of death or serious cause.” We examine each turn. required. merely In case a neither would Napa, In v. 210 Brewer F.3d of subjective justify of threat the use of sense (9th Cir.2000), 1093 which involved the use force; rather, objectively describable police dogs, we had to decide whether of totality circumstances would have to of the jury instructions in an excessive force justify be such as to the use of force. required claim wеre to invoke Gamer’s belief Sincerely held but unreasonable ‍​‌‌‌​‌​​‌‌​‌​​​‌‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​​‍“probable language. cause” In consider- justify not the use of force under does Graham, ing both Gamer and we stated Garner, Graham, own precedents. or our cause, probable a that “the existence of quantum Nor do our cases turn on the standard, demanding specific more were, evidence, justify necessary of as simply was not relevant.” Id. at 1098. however, All by police officer. opinion specify, did not what the use of force 970 police dog that a in the world

evidence (as suspect might necessary to locate actually Another case invoked Brewer) justify the use of would not In decisively point. demonstrates our force; of quantity not because the lethal Phoenix, F.3d Monroe of insufficient, but because evidence would be (9th Cir.2001), language on the we relied justify not the kind of evidence would Fikes, alia, inter to hold from Brewer deadly It to use force.2 decision instruction was deadly that a force Gamer (as the threat an immediate specification of where the use of involving physical one death or serious issue, in general rather than a more harm), putative not the difference between Notably, we struction on excessive force. cause,” “probable belief’ and “reasonable Quintanil upon our decision in relied also Thus, Cleghorn, in Fikes v. that controls. (9th City Downey, la v. 84 F.3d (9th Cir.1995), 1014 n. F.3d Cir.1996), considered whether which itself “[wjhile that, when we stated a footnote simply formula had not sub Graham ‘force’ is reasonable under the the use of sumed the formula. We found the Gamer justi if it would seem Fourth Amendment error in Monroe to be harmless because police light officer in fied to a reasonable that, jury had also been instructed circumstances, surrounding the use of the law, deadly only force could under Arizona ‘deadly only justified force’ is police be used when “the officer believes cause to believe that a probable officer has immediately deadly physical force is physical suspect poses threat serious necessary protect against himself others,” harm we were to the officer or imminent use of unlawful other’s use specifying surrounding the kind of circum force.” F.3d at 860. physical justify uniquely stances that the use of jury offi Because the found for physical deadly force—a threat of serious claim, jury cer on that we held “the “probable harm or worse.3 The Sgt. must have concluded that Sherrard is, Pringle, synonymous with cause” as belief,” ‘probable had cause to believe’ Mon and the “reasonable use of threat, ‘posed roe a threat of serious force is tied to the nature of the not (quoting him required to harm’ to or others.” Id. quantum to the of evidence 1694). in it.4 believe event, any 2.Judge application our 3. In as the district court noted in Fisher misconstrues here, we "quantum evidence." We do its decision in Pikes declined to of the term jury strength reach the instruction issue suggest that the of an plaintiff altogether, pres- had as the failed officer’s belief "has no relevance” for Fourth any agree ent evidence that the officers had used purposes, Amendment and we with 47 F.3d at 1014. Judge force. Fisher that our articulation of ob- jective standard "continues to reasonableness incorporate dangerousness element.” We [a] Again, usage merely reflects the stan- cause, merely note the distinction between the meaning dard which strength require- of an officer's belief and the Dictionary part Black’s Law defines in pertain requisite type ment that the belief to a ground” "reasonable or "sufficient cause.” is, regardless (8th 2004); dangerousness. Dictionary, That Law ed. Black’s belief, see, alia, Nesbitt, objectivity an the threshold officer’s inter Wheelerv. 65 U.S. (1860) object (approving whether the of that belief is issue is 24 L.Ed. How. 765 "probable and differ sufficient. Where Graham Garner cause” as "the exis- definition of latter; requires is in the Scott the conclusion tence of facts and circumstances as such belief, strength that the same of belief is excite ... in a reasonable would mind”). both cases. shown, sion above has was track- ing the language of Brewer and similar that our case law does We are satisfied cases, which, admittedly while confusing in Price’s contention that “rea- support their references to the Gamer and Gra- belief’ is a lesser standard than sonable framework, actually ham did not distin- “probable cause” as a matter of law. Both guish between “reasonable belief’ and upon standards are and turn “probable cause” but between the circum- confronting circumstances the officer rath- stances justifying the use of subjective er than on the officer’s mere and those justifying the use of lesser force. intentions, however sincere. beliefs requires law that a reasonable Our case Moreover, City’s legal argument be- officer under the circumstances believe cannot, itself, by fore the district court herself or others to face a threat of serious establish a “longstanding custom” related using deadly harm before force. shooting to the issue here. As the Moreover, Supreme as the Court clarified notes, rightly this court is not bound Scott, inquiry the touchstone of the parties the concessions of concerning the “reasonableness,” which does not admit of meaning of the law. United States v. “easy-to-apply legal an test.” 127 S.Ct. at (9th Cir.2006) Ogles, 440 F.3d City’s policy requires 1777-78. The banc) (court (en party’s “not bound a an officer have a reasonable belief law, meaning concession as to the threat death or “immediate serious party government even is the and physical injury” comports with thus case”). even in the context a criminal requirement. specifically Price notes that in deposi- Accordingly, correctly the district court tions related to this litigation, Chief Fox- City’s policy governing concluded that the worth stated that he believed there was not, written, the use of force was as difference between “reasonable belief’ and contrary requirements to the of the Fourth instance, “probable cause.” In the first Amendment. agreed question Chief Foxworth with a attorney from an that “there’s some differ- B ence in the amount of сonfidence that the City’s next poli- Price contends that using deadly officer needs to have before cy, interpreted by statements made ... force for self-defense that’s depositions by Chief Foxworth and the slightly proba- different standard than the City’s legal arguments before the district ble cause standard where someone is es- court, suffices to sustain a Monell claim caping?” colloquy, But the same when “longstanding procedure,” based on a even pressed as to whether a reasonable belief City’s policy if the as written is constitu- opinion,” left “room for difference of Chief Co., tional. See Adickes v. S.H. Kress & “no, replied, why Foxworth that’s I think 144, 168, they’re pretty close.” Foxworth’s Chief Ulrich, (1970); L.Ed.2d see also descriptions of the need to look at the F.3d at 984-85. circumstances, subjective rather than the officer, beliefs of the are clear from the record. emphasizes City’s conces That there was Chief Foxworth assumed legal arguments sion in before the district difference between the two different some court that “reasonable belief’ was a label applying to two different scenarios phrases for a specific standard “less demand troubling, point than is nevertheless on which ing” “probable causе.” As the discus- 1010.10(a) § and colleague differing phrases in dissent. G.O. with our agree we 1010.10(b) testimony, Price deposition “long- the sort of represents From the same that suggests which points question to a standing” practice custom or that can es- thought the “reasonable Chief Foxworth though claim tablish Price’s Monell even subjective. The belief’ standard to be policy does not. the formal written question and answer went as follows:

Q. right. All we talk about When A, when we talk about subparagraph arguments appli Price’s about the belief, I’ve a lot of the reasonable read City’s deadly cation of the are department training material solely interpretation not limited to the And there’s put has out. discussion contends that policy. She also subjective reasonable belief and about adequately discipline to of has failed belief, objective reasonable and I’m won- inappropriate for use of ficers your understanding is of a dering what force, and has trained them in such a just talk situation. And let’s about self- unjustified fashion as to lead to the use of than defense of others. defense rather depends largely force. Price’s case If a officer is a situation Declaration, upon the which in turn Streed personally, reasonably, where he or she upon purported relies difference be they’re in honestly believes that a self- “objective tween “reasonable belief’ and they’re facing defense situation and probability” discussed above. It is hard to immediate threat death immediate give much to weight expert know how sufficient injury, is that physical serious seems, report as the district court A, subparagraph to be within or does noted, incorporate assumption know, objective, you have to be some throughout analysis. its own In addition imaginary objective officer who kind of Declaration, however, to the Streed other has the reasonable belief? record, evidence in the such as the PARC you’ve A. It’s the first one de- report, support could Price’s claims. scribed. unwilling give The district court was lawyer exchange This between the and weight the Streed Declaration sufficient ambiguous Foxworth is more than Chief summary judgment survive once it found suggests, question since the itself legal upon error distinction relied subjective includes both and ele- Further, therein. the district con- court question ments. The includes the term City’s cluded that at- scenario, unsuccessful “reasonably” in the first and credited, tempts discipline should be language “they’re facing tracks the as evidence that “no the immediate threat of death or immedi- could serve Thus, injury.” disciplined.” ate it is officer had serious been While possible that Foxworth not em- concerning Chief district court’s conclusions subjective standard at all. bracing evidence well be reasonable and even trial, persuasive, arguments those are dispose summary judg- To of a case on comport obligation and do not with the ment, however, ambiguity in favor of the court, summary judgment, on to draw defendant is not sufficient. If a reason- nonmoving all in favor of inferences person plaintiffs able could side with the Thus, party. we are unable to conclude events, interpretation of the issue must agree that no rational trier of fact could survive for trial. We conclude that there City’s interpretation material with Price’s of the genuine is a issue of fact as to City’s history discipline interpretation training whether the and its allegedly points nothing to an unconstitutional Price relevance the rec of force in situa- ord or in “longstanding” use the Streed Declaration that tions the facts did evinces the deliberate where indifference that requires such force. Harris for a support free-standing failure- to-train claim to City’s succeed. The de C many of scription hours of training PPB officers is undisputed. Finally, Price contends that City’s Given our conclusion that City’s police failure to train its alleged on the use of force is constitutional appropriately officers as to the use of written, undisputed as fact that deadly force amounts to a constitutional City according trains to that policy does by “inadequacy itself. The of violation argument. not advance Price’s Consider the basis for police training serve as Harris, ing high out in burden laid liability only where the failure to district court was correct to find that even train amounts to deliberate indifference to City’s if the training may not have been rights persons police with whom the ideal, nothing Price offers es would City into come contact.” Canton tablish the kind of “conscious” or “deliber Harris, 378, 388, City ate” choice “likely” to risk a (1989). argues 103 L.Ed.2d 412 rights. violation constitutional See Har failure-to-train claim meets the stan her ris, 389, 109 489 U.S. at S.Ct. 1197.5 set Harris and should itself suffice dard claim against to make out a Monell Accordingly, construing the evidence in City. Price, light most favorable to con- we clude that no rational finder of fact could progeny,

Under Harris and one must decide that the City violated Perez’s con- a “conscious” or “deliberate” demonstrate rights by a stitutional failure to train. The part municipality choice on the of a properly granted summary district court prevail train claim. order to on failure to judgment City to the on the claim that its Orange, See Blankenhorn v. training practices to a amount violation (9th Cir.2007). F.3d Harris’s under Harris. objective in permit standard is that it does a fact finder to infer “constructive” notice Ill of the risk where was “obvious”—but reasons, way saying foregoing agree this is another there For the we City’s needs to be evidence that to with the court that the offi- some tends district cial policy concerning show conscious choice. See Farmer v.

Brennan, force, 825, 841, written, as does not violate the re- (1994) (“It Further, quirements 128 L.Ed.2d 811 would be of the Constitution. understanding agree hard to describe the we with the district court that Price Canton indifference, permitting showing of deliberate liabil has not made a sufficient of a ity premised part to be on obviousness or con failure to train on the notice, conclude, anything objec summary judgment. structive but survive We tive.”). however, genuine that a issue of material Judge points subjective misconception give can to an Fisher also to Chief Fox- rise worth’s belief” dеficiency statement that “reasonable inference as to an actual “probable a lesser standard than constitutes training, greater showing absent some of a requiring cause” as reversal on the failure to link between them. However, we train claim. fail to see how that “longstanding” a A. as to whether fact exists in might of the practice or custom 28, 2004, in driving Perez was On March of his constitu- deprived fact have Perez properly North Portland when he failed to rights. tional ‍​‌‌‌​‌​​‌‌​‌​​​‌‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​​‍signal right strip turn into a mall. Port- district court is The decision of the Sery and Sean Ma- land Police Officers therefore in their tailing comber had been Perez car, and patrol age car because Perez’s part, in

AFFIRMED in REVERSED suspicions aroused their nervousness part, and REMANDED. illegal drug activi- might he be involved FISHER, concurring in Judge, Circuit They parking ty. followed Perez into part, dissenting part concurring and lot, lights turned on their car’s overhead judgment: Twenty-four behind him. sec- parked and Sery, ap- later who had important No is more or diffi- onds Officer decision side, performance of their police proached cult in officers’ the car from the driver’s duties than whether to resort to the use of through open driver’s side shot Perez against suspect, force and none window, killing him. catastrophic consequences for the has such happened during period this brief What majority brings target of such force. The subject dispute. The officers testified degree clarity to the law of they that Perez had been resistant when force, analysis I but fear some its him for identification and that when asked issue, may and I therefore confuse they physically tried to subdue him he reasoning I adopt cannot all of its shall pocket began digging reached into his impact of rank-and- explain. practical Sery something. Officer claims he police understanding file officers’ of what only failed gun fired his after Perez deadly force the Fourth Amendment stan- repeated follow commands to show his quite literally a matter of requires dard appeared hands and after it that Perez had death, both for officers and for the life or pulled something pocket. from his Several public, give and we need to law enforce- eyewitnesses radically told a different sto- possible. ment the clearest directives I ry, approached in which the officers Per- separately also write to dissent from guns ez’s car with drawn and Perez com- majority’s summary judg- affirmance of plied with the officers’ instructions. One ment for the of Portland on Price’s eyewitness further testified that Perez did claim that it to train its offi- failed all, pockets his hands in his put properly. cers put right instead his hand in the air while attempting to unbuckle his seatbelt with

I. comply his left hand to with the officers’ clarity articulating The need for undisput- instructions to exit the car. It is for use of force standard is illus- ed that Perez’s seatbelt was still buckled graphically perhaps tragically, trated — he and that he was un- when was shot theory Price’s of what resulted Officer armed. Sery’s shooting fatal of James Perez Bu-

proves the Portland Police correct — B. (“PPB”) misunderstanding apparent reau’s disposition Because is central to our here. issue case, repeat I PPB General Order Amplifying majority’s summary factual (“G.O.”) § specific language 1010.10’s be- background of the contextual makes this need even low: more obvious. same,” ... recognizes

The Bureau that members if not when asked if to use “there’s some difference in the amount of when their or the another is confidence that the officer needs to have life life of jeopardized the actions others. using deadly before force for self-defense Therefore, pol- state statute and Bureau ... a slightly that’s different standard iсy provide deadly for the use of force probable than the cause standard where following under the circumstances: someone is escaping,” responded he that “I that, may deadly a. Members use yes, force believe there is. I they’re believe close, protect themselves or others from but I believe there is a difference.” added.). they what believe to anbe (Emphasis immediate threat death or serious objective The reasonableness stan- physical injury. dard may

b. A deadly member crux The of this case is what capture prevent force to effect the the Fourth objective Amendment’s escape suspect of a where the reasonableness probable standard requires member before an has cause to be- officer deadly lieve that resort suspect poses signifi- majority force. The physi- cant threat death or serious frames this issue as presenting ques- two First, injury cal to the member or tions: legal others. is there a distinction under the Fourth feasible, Amendment between the c. If some warning has “probable “reasonably cause” and believe” given. been Second, formulations? insofar City as the Members must be mindful of the risks PPB applied understood and the PPB deadly inherent in employing force. A Policy practice, was there an actual negligent member’s reckless or use of formulations, distinction between these one deadly justified in policy force is not this that encouraged or tolerated offi- or State statute. Members are to be using deadly cers’ objec- force when it was aware that this directive is more restric- tively generally unreasonable to do so? I than state tive statutes. agree majority’s with the conclusions that added) (hereinaf- (emphasis G.O. 1010.10 policy as written can be construed to Policy”).1 ter PPB “the constitutional, in practice but it Police Chief Foxworth indicated that he might have been understood to allow con- interpreted to mean that stitutionally impermissible uses of “reasonable required belief’ to shoot an concerned, however, I am force. that the attacking suspect specific was a “less majority’s opinion could be read to de- demanding” standard than “probable incorrectly scribe what embodied in fleeing suspect. cause” to shoot a Fourth Amendment’s reasonable- probable He understood cause to mean a ness standard. likely level of confidence of “more than not,” I might agree mаjority which others “describe with the that an offi- [ ] as percent percent.” Although justified only versus 49 use of he cer’s force is thought “pretty totality reasonable close support the circumstances belief Henrich, (9th Cir.2002); incorrectly suggested 1. The district court Scott v. 39 F.3d (9th States, Cir.1994); might apply Ting a lesser standard to the use of v. United (9th Cir.1991). confronting force when an officer is an 927 F.2d 1510 n. Of course, attacking fleeing suspect. suspect fleeing rather than a that a than rather attacking may standard is the same in either circumstance. be relevant to whether or not See, Smith, e.g., Billington poses anyone. v. 292 F.3d he a risk of harm to (9th 1093, 1098 Cir. Napa, that an 210 F.3d reasonable] belief “objective[ly J.) 2000) physi (O’Scannlain, (stating “prob death or serious imminent threat of at 969. In Tennes Op. specific cal harm” exists. “a more and de able cause” is see general than the more manding standard” (1985), Supreme Court L.Ed.2d in non- applied standard reasonableness objective reasonableness formulated cases);2 Cruz v. Vera context in standard (9th Escondido, 659, 661 Cir. 139 F.3d cause, holding that probable terms of 1997) (noting that “Gamer established ... unless the officer “may not be used force”), concerning deadly special rule that a sus cause to believe has grounds by Smith v. overruled on other a threat of serious pect poses (9th Cir.2005) Hemet, 394 F.3d 3, Id. at to the officer or others.” harm (en banc); Quintanilla Downey, City v. of then, we have often 105 1694. Since S.Ct. (9th Cir.1996) (“Gamer 353, 84 F.3d 357 deadly force context distinguished forth somewhat different and Graham set in using probable cause formulation Amend proving standards for a Fourth general of the more reasonableness stead The ment excessive force violation. Gar non-deadly standard articulated for apply only ... can when ner standard Connor, v. 490 force context Graham used.”) (internal deadly force has been ci 386, 1865, 104 L.Ed.2d 443 U.S. omitted).3 tations (1989). of this distinction is Fikes Typical majority’s Supreme of reading The 1011(9th Cir.1995), Cleghorn, 47 F.3d v. on the pronouncement Court’s most recent which noted that: — Harris, v. use of Scott of “force” is reasonable While the use U.S. —, 1769, 127 L.Ed.2d 686 S.Ct. 167 if it under the Fourth Amendment (2007), however, uncer introduces some justified po- a would seem to reasonable tainty longstanding emphasis about this on surrounding light lice officer in of the of special nature of the use circumstances, “deadly use of force” See, 986, e.g., Op. at 970-71.4 The force. proba- has only justified the officer of majority understanding summarizes its suspect poses ble cause to believe that a Scott as follows: physical a harm to the threat of serious officer or others. very recently con Supreme Court J.) Garner) analysis and clarified this firmed (Leavy, (citing Id. at 1014 n. 2 Garner, Graham, added); (emphasis City relationship see also Brewer v. between objectively accept 2. I Brewer meant "a more use of force is not reason- what Antonio, able.”); specific demanding standard” is "more v. San 139 Gutierrez specific demanding requires a 441, (5th Cir.1998) ("As in that it F.3d 446 a subset of specific suspect poses belief—that a ... claims, the Su- excessive force physical threat of death or serious harm.” "deadly preme police use of Court held Op. at 970. force,” the Fourth Amendment unless violates probable 'the officer has cause to believe that See, Mattingly, e.g., Bouggess v. 482 F.3d physical suspect poses a threat of serious Cir.2007) (6th (holding case ”) harm, others[.]’ either to the officer or to force, question ... whether ... "the (internal omitted). citations Mattingly probable believe that had cause to physical Newby posed a threat of serious Hill, F.3d 4.See also Acosta v. others”); Billingsley Mattingly harm to or to Scott, (9th Cir.2007) (holding, after Omaha, (8th F.3d by refusing give Cir.2002) Gamer, court did not err ("In district Supreme Court es- tablished, separate deadly when the force instruction of an imme- absent cause instruction). bodily injury, jury diate received an excessive force threat of death or serious and the Fourth Amendment’s reason We are satisfied that our case law does Harris, requirement ableness in Scott v. not support Price’s contention that “rea- — —, S.Ct. sonable belief’ is a lesser standard than (2007). In considering “probable L.Ed.2d 686 cause” as a matter of law. of a officer’s use Both reasonableness standards are and turn likely deadly high- upon force to end a the circumstances confronting the chase, speed car Court noted officer rather than on the officer’s mere did not a magical subjective intentions, “Gamer establish beliefs however on/ that triggers rigid precondi off switch requires sincere. Our case law that a tions whenever an officer’s con actions reasonable officer under the circum- ‘deadly stitute force.’ Gamer was sim stances believe herself or others to face ply application the Fourth a threat serious harm before using Moreover, Amendment’s ‘reasonableness’ test as the force. particular partic Supreme Scott, the use of a force in a Court clarified in 1777(cit type ular of situation.” Id. at inquiry touchstone оf the is “reasonable- Graham, ness,” ing 490 U.S. at which does not admit “easy- of an 1865). The Court went on to state that to-apply legal test.” 127 S.Ct. at 1777- “[wjhether or not City’s policy requires [the officer’s] 78. The that an application ‘deadly actions constituted officer have a reasonable in an belief force,’ all that matters is whether “immediate threat [the death or serious ” actions were physical reasonable.” Id. injury comports and thus officer’s] added). (emphasis at 1778 requirement. with the added). Op. at 968. Op. at 970-71 (emphasis I am troubled the majority’s special There can be no doubt that Scott was emphasis phrase: on the “all abandoning that matters not prescription Gamer’s is whether [the actions were rea- a component officer’s] critical of the reasonableness By emphasizing pas- sonable.” this one in deadly standard force situations is sage, majority risks in- being read as whether the officer has “an belief correctly expanding the holding Court’s that an imminent threat death or seri Scott, and removing from the reasonable- physical ous harm” exists. equation added). ness in deadly force cases the 1694(emphasis U.S. at well-established requirement that the sus- extensively The Court discussed the facts pеct must thought pose be to a of the ear high chase and the risk of injury.5 threat of death or serious I un- danger fleeing suspect’s high majority derstand the has no speed, driving posed intent to do evasive to others. so, given Scott, its later statement that: See 127 S.Ct. at 1775-76. Plainly, incorrect, 5. I very believe it would be but concluded that "in the end we must still dangerous, deadly to reduce the force stan- way through slosh our morass factbound high generality by dard to such a level of 'reasonableness.' Whether or not Scott’s taking Supreme Court’s statement out of application "deadly actions constituted paragraph context. full from which the force,” all that matters is whether Scott’s ac- quote begins is taken with the Court’s state- (em- tions were reasonable." Id. 1777-78 magical ment that Gamer "did not a establish context, added). phasis In the Court was triggers rigid preconditions switch that on/off merely dismissing respondent’s argument whenever an officer's actions constitute ” prescribed preconditions that Gamer certain Scott, ‘deadly force.' 127 S.Ct. at 1777. The that if not met would mean the use of "attempt Court characterized Scott’s to craft "admirable,” easy-to-apply legal "per test" as force was se unreasonable.” a imminent really pose does suspect en inquiry the Court the “reasonableness” injury. physical encompass the well- threat of death or serious continues visions that re not principle acknowledges, it is majority constitutional established As only justified “to force is idiosyncratically enough sort to the officer harm, either prevent Op. ‘serious a threat to be real. apprehends ” at 1777 n. 9 Id. or others.’ the officer fears rest on Plainly, if an officer’s ).6 explaining Gamer (quoting then not even the grounds, the flimsiest of only deadly sincerest conviction this fundamental important It calamity an otherwise inevitable can avert not use of to the prerequisite officer must have justify Po- its use. The ambiguous. made will down or be watered belief, guidelines belief, in the just to have clear a need a reasonable lice officers force, this case Thus, the use of we about of that threat. must existence a fatal In the aftermath of illustrates. objective reasonableness clear that jury must “slosh shooting, court the nature analysis takes into account both of reason- factbound morass through the threat and the soundness perceived However, the offi- Id. at 1778. ableness.” making that as- of the officer’s basis must have clear set cеr in the field sessment. taught can be that he or she guidelines directly My concurrence is therefore with instinctively when confronted invoke understanding that rea- conditioned on the situation, dangerous when potentially force context sonable belief whether to shoot some- awful decision of degree of reliabil- does not water down split have to be made might one dead that has been inherent ity and confidence much, any, not allow for seconds that do cause formula- in the traditional can wrong where the choice “sloshing” and Gorman, States v. tion. See United harmless, actually in the death of result Cir.2002) (“We (9th 1105, now F.3d reason, For I suspect. innocent this even ... stan- ] hold that the reasonable belief! in reason- emphasis its underscore Scott’s the same standard of dard ... embodies analysis on the nature of the dan- ableness in reasonableness inherent deadly force in that case. ger ‍​‌‌‌​‌​​‌‌​‌​​​‌‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​​‍justified that cause.”). Only if the officer’s beliefs are articulation my colleagues’ And I concur in objectively can he or she be reasonable objective reasonableness standard of the taking in a life. justified understanding that it continues to with the incorporate dangerousness element. signifi- underestimate the We should not improperly discounting the relia- by majori- cance of quite

I am also troubled the bility component that the amount of reasonable ty’s suggestion curious in belief jurisprudence “confidence” the officer has his belief. Fourth Amendment exists, Op. threat at requisite that the scrutinize the establishes that we must supporting “quantum of evidence” the support- evidence probative quality of the it, 969-70, has no relevance the Op. at early belief. As as ing an officer’s analysis Fourth Amendment of reasonable- Marshall century, Chief Justice nineteenth I disagree. ness. cause,’ ‘probable explained that “the term acceptation, means according to its usual An must have a sufficient basis officer justify which would eon- less than evidence and confidence his or her belief for J., Scott, specific. Among considerations: (Ginsburg, relevant S.Ct. at 1779 6. See (mo- well-being ("I today's Were lives and of others concurring) read decision do not officers) risk?”) torists, mechanical, pedestrians, police per articulating se rule. The omitted). (internal citations by situation inquiry described the Court is States, 11 using deadly demnation.” Locke v. United before force. But we do (7 Cranch) 339, 348, 3 L.Ed. 364 require that officers have an objectively (1813) added). (emрhasis Quoting Chief reasonable basis for believing that approval, Justice Marshall with Illinois v. making threat is real. And in that assess- Gates, 462 U.S. 76 ment, we look to factors “quanti- like the (1983), by noting L.Ed.2d 527 elaborated ty,” “quality,” “content” and “reliability” of “probable cause does demand the cer- supporting information the officer’s be- tainty associate with formal It we trials. White, lief. See 496 U.S. at enough probabili- that there was a fair 235, 246, (em- ty.” Id. at S.Ct. recognized Scott itself the sound- added).7 phasis description The Court’s ness of an officer’s belief that a threat totality-of-the-circumstances analysis, part exists is a of the Fourth Amendment endorses, very approach majority analysis. reasonableness In affirming the Op. similarly has considered the officer’s use of high speed car “quantum supporting of evidence” the offi- case, chase the Court relied on both cer’s beliefs: the nature of the threat and how [Pjrobable apparent is dependent upon cause[] threat must have appeared to the both the content of information pos- officer at the time of the incident. See by police degree sessed and its of relia- Scott, 127 S.Ct. at 1778. That the latter bility. Both quantity qual- factors — an important ground ity the Court’s ‘totality considered of the —are circumstances, holding is shown Justice Scalia’s picture’ whole exten- Thus, must be taken into account.... sive discussion of videotape chase, a tip relatively degree has a low of relia- “quite clearly which contradicted] bility, more required information will be story the version of the by respon- told requisite quantum to establish the dent” graphically revealing danger- suspicion than would be if the ously high posed by threat fleeing tip were more rehable. suspect. Id. at 1775. As Justice Scalia emphasized, White, it was “clear from the video- 325, 330, Alabama v. (1990). 2412, tape” objectively the officer had an S.Ct. 110 L.Ed.2d 301 suspect sufficient basis to believe that the Contrary majority’s suggestion, to the posed danger. a real id. at See 1778. 366, Maryland Pringle, v. 540 124 U.S. cases, Unlike most the was Court able to 795, (2003), S.Ct. 157 L.Ed.2d 769 which see perspective from the officer’s the actu- probable-cause stated standard “[t]he al conditions that led the officer to believe incapable precise is quanti- definition or necessary. force was Given that percentages fication into because it deals perspective, only remaining issue probabilities,” entirely with consistent “ 371, quality how to ‘balance the nature and my with view. Id. at 124 795 S.Ct. addеd). ... against importance the intrusion (emphasis require We do not offi- governmental alleged justi- interests to absolutely cers to be sure that a threat of ” fy death or physical injury (quoting serious is real the intrusion.’ Id. United 232, ("Proba- ”); probability....’ Brinegar 7. See also id. at 103 S.Ct. 2317 means 'a fair v. concept turning States, 160, 175, ble cause is a fluid on the United 338 U.S. 69 S.Ct. — probabilities particular assessment of factu- 1302, (1949) (“In dealing 93 L.Ed. 1879 with contexts....”); Sokolow, al United v. States probable very implies, cause ... as the name 1, 7, U.S. 490 (1989) (“We 109 S.Ct. 104 L.Ed.2d 1 probabilities.”). we deal with probable have held that cause 1694) 696, 703, 103 at 105 S.Ct. Place, U.S. S.Ct. 462 U.S. States added). (1983)). (emphasis 2637, L.Ed.2d the reasonable belief formu- up, To sum the bedrock thus left unaltered Scott Amendment lation of the Fourth objective reasonableness principle that in the context of reasonableness standard only examine not us to requires standard stringent no than the deadly force is less believes, be why but he what an officer Gorman, cause See probable formulation. quality” “nature and it. When lieves jus- Both formulations F.3d at 1115.8 ], oppos ... “minimal[ are of the intrusion only when use of such force tify an officer’s support can interests” enforcement ing law nature of light of the appropriate it is than less the intrusion “based on the officеr’s posed threat when and Place, 462 U.S. cause.” See threat of that belief the existence “nature Conversely, when the S.Ct. by sufficiently objectively supported reli- great, are of the intrusion quality” An officer able evidence. used, the Fourth deadly force is when support the circumstances only when stan objective reasonableness Amendment belief that objectively an reasonable beliefs requires dard officer’s threat of death suspect poses an imminent firmer, pre more about the threat have serious harm. cise basis. fur of Gamer Scott’s characterization II. continuing importance ther reinforces majority’s reversal I- also concur “quantum of evidence” assessing summary judgment “long- on Price’s per that a an officer’s belief supporting discipline to standing practice” failure Gamer, the Court threat exists. ceived however, dissent, from claims. I must its wrote, of the simply application “was present that Price failed to suf- conclusion ‘reasonableness’ test Amendment’s Fourth genuine dispute ficient evidence to create a in a type of force particular to the use of a failure regarding of material fact her In that Id. at 1777. particular situation.” holding, majority In theory. train so case, for the officer it was unreasonable “ for imposes requirement either a novel ” — ‘in of the head’ the back shoot Garner failure under a establishing liability posed Garner to use force—because Harris, theory City Canton v. train Garner, (quoting Id. no threat. 1197, 103 L.Ed.2d 1694). agreed The Court (1989), inappropri- contain or does not the officer ‘“could ’” for ately summary elevates the standard view have believed otherwise judgment review. contrary belief: Gar support any scant ” “ police train its municipality’s A to slight, and unarmed’ failure ‘young, ner was may serve a basis for 1983 (quoting Id. officers “running away on foot.” however, proposi proceeding holding today, (quoting White for the Nothing in our Gorman, probable tion); 1115-16(finding cause or equate read to should be 314 F.3d at suspicion. reasonable reasonable belief with “equated the court error when the district Ohio, Terry Op. (discussing 392 at 968 ... with Cf. 'reason to believe’ ‘reason standard 1, 1868, (1968)). 20 L.Ed.2d 889 U.S. 88 S.Ct. cause”); probable suspicion’ of able instead ''[rjeasonable suspicion explained, is As White Sokolow, 7, (ex 109 S.Ct. 1581 490 U.S. at probable demanding than a less standard Terry's ‍​‌‌‌​‌​​‌‌​‌​​​‌‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‌​‌​‌‌​​​‍suspicion plaining that reasonable “is 330, 2412; see 496 U.S. at 110 S.Ct. cause.” demanding proba obviously than that for less 586, Michigan, also Hudson v. cause”). ble 2182, (2006) 2159, L.Ed.2d S.Ct. liability where the failure to tram system ulation m suspects which invariably amounts to deliberate Gib indifference.” attempt kill to the being officer trained. Washoe, County 1175, son v. 290 F.3d Dr. ultimately Streed concluded that the of (9th Cir.2002) (quoting City Can City’s training program “create[ed] of ton, 1197). 388, 489 U.S. In mindset for every Portland officers that indifference, prove order to deliberate the citizen encountered have a gun, and plaintiff that municipali need not show there is nothing police officer can do to ty to intended violate the rights avoid being guy’ killed a ‘bad unless the parties concerned. See id. at 1195. Rath officer first.” shoots er, “the where need for more different A jury reasonable could conclude on obvious, training is so inadequacy and the evidence, basis of light this viewed in the likely so to result in the violation of consti Price, most favorable that the rights, tutional “dis- policymakers regarded a known or city can obvious consequence” to have said deliberately need, training practices. been indifferent” of its Gibson, this See provide then “the failure to training F.3d at proper 1194. The Streed Declaration rea- may fairly be said to represent policy sonably that, supports the inference quite city which responsible.” City apart from the City’s letter of the Canton, 390, 489 U.S. at 109 S.Ct. 1197. policy, force officers were being instilled alleges City’s Price force with a “shoot first” mindset that foresee- training sowas deficient that it amounted ably unjustified would result applica- to deliberate indifference. See id. at 390 tions of deadly Canton, force. Cf. 10, 109 n.& S.Ct. 1197. 489 U.S. at 390 n. 109 S.Ct. 1197. majority concedes that the deliber- addition, In a logical inference from ate indifference is “objective” standard Chief Foxworth’s City’s admission—as the permits “a it fact finder to infer ‘con- highest ranking police officer and head of notice structive’ of the risk it where was Police Portland Bureau —that he erro- see, 973; Op. ‘obvious.’” Long v. e.g., neously thought that reasonable belief em- County Angeles, Los 442 F.3d bodied a lesser standard than (9th Cir.2006); Anderson v. Lib- cf. cause City’s within context of the dead- erty Lobby, ly training is that the (1986) 91 L.Ed.2d 202 (leaving police force also reflected this mistaken weighing of the jury). evidence to I understanding. A jury reasonable could provided believe the declaration by Price’s training conclude based on misconcep- Streed, expert, Dr. Thomas sufficient tion constituted a failure to train. There- require jury determination here. fore, I permit would pursue also to Dr. opined Streed City’s train- theory liability on remand. ing program for the use of made inevitable that officers persons.

would shoot unarmed specifi- He

cally City’s cited the use of a so-called

“slumper” training regimen, scenario its sleeping which officers encounter a sus- who,

pect awakened, upon being car

immediately pulls out a gun hidden

fires the officer. He also that the noted

officers are trained on a computer sim-

Case Details

Case Name: Price v. Sery

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 22, 2008

Citation: 513 F.3d 962

Docket Number: 06-35159

Court Abbreviation: 9th Cir.