CA9: Officer can’t presume a motorist reaching for waistband is going for a gun until they see it

A motorist reaching for his waistband as he gets from a car with five officers already drawn down on him can’t be presumed by the officers to be going for a weapon. Here, the unarmed Cruz was shot 20 times when he made such a reach, likely because he was tangled in the seatbelt he was still caught in when dead. Important to the court was the fact that the testimony might be considered by a jury simply self-serving and that one of the officers similarly shot an unarmed man two years earlier. Cruz v. City of Anaheim, 2014 U.S. App. LEXIS 16705 (9th Cir. August 28, 2014):

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.
. . .

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.

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 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-and dance.