Price v. Sery ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 06-35159
individual; JAMES JAHAR PEREZ, JR., D.C. No.
by and through his guardian ad
litem, Gwen Price,
 CV-04-01178-
MWM
Plaintiffs-Appellants,
OPINION
v.
JASON SERY; CITY OF PORTLAND, a
municipal corporation; SEAN
MACOMBER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted November 13, 2006
Submission withdrawn April 5, 2007
Resubmitted November 1, 2007
Portland, Oregon
Filed January 22, 2008
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
781
784 PRICE v. SERY
COUNSEL
Elden M. Rosenthal, Rosenthal & Greene, P.C., Portland,
Oregon, argued the cause and filed briefs for the plaintiffs-
appellants.
PRICE v. SERY 785
Harry Auerbach, Office of Chief Deputy City Attorney,
Office of City Attorney, Portland, Oregon, argued the cause
and filed a brief for the defendants-appellees.
OPINION
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 dece-
dent’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 com-
plaints 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.”
786 PRICE v. SERY
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 deter-
mination by a jury, it is undisputed that no more than 25 sec-
onds 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 (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:
PRICE v. SERY 787
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 cir-
cumstances:
a. Members may use deadly force to pro-
tect themselves or others from what
they reasonably believe to be an imme-
diate 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 sus-
pect poses a significant threat of death
or serious physical injury to the mem-
ber 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
1
On a motion for summary judgment, all reasonable inferences are
drawn in favor of the non-moving party. Anderson v. Liberty Lobby, 477
788 PRICE v. SERY
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 Der-
rick 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 Fox-
worth 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 disci-
plined by the PPB for the use of lethal force, though he does
acknowledge two unsuccessful attempts to discipline.
U.S. 242, 255 (1986). A district court properly grants summary judgment
“if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law.” Fed. R. Civ.P. 56(c).
PRICE v. SERY 789
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 lawmak-
ers or by those whose edicts or acts may fairly be said to rep-
resent official policy, inflicts the injury.” Monell, 436 U.S. at
790 PRICE v. SERY
694. A plaintiff may also establish municipal liability by dem-
onstrating that (1) the constitutional tort was the result of a
“longstanding practice or custom which constitutes the stan-
dard operating procedure of the local government entity;” (2)
the tortfeasor was an official whose acts fairly represent offi-
cial 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 sub-
ordinate.” 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 pol-
icy governing the use of lethal force by police officers vio-
lates the Fourth Amendment’s requirements, as explicated by
the Supreme Court in Tennessee v. Garner, 471 U.S. 1
(1985). Specifically, Price argues that the City’s policy,
expressed in G.O. § 1010.10, that an officer “reasonably
believe” a suspect poses an immediate threat of serious physi-
cal injury or death falls short of the “probable cause” require-
ment set forth in Garner and this court’s precedents. 471 U.S.
at 11-12; Brewer v. City of Napa, 210 F.3d 1093, 1098 (9th
Cir. 2000) (referring to Garner’s “probable cause” deadly
force standard as a “more specific and demanding standard”
than Graham’s excessive force standard for the use of non-
lethal force ).
Price contends that the Supreme Court’s decision in Garner
sets a requirement of “objective probable cause” for any use
of deadly force by a police officer. Price notes that the City’s
policy requires “objective probable cause” in the case of flee-
ing suspects, whereas for cases where an officer fears an
imminent threat of death or serious physical injury, the City’s
policy only requires that the officer “reasonably believe” that
he or she is confronted by an immediate threat. Price argues
that “reasonable belief” is a different, and lesser, standard
from “probable cause.”
PRICE v. SERY 791
1
[1] Both Garner and Graham v. O’Connor, 490 U.S. 386
(1989) are recognized as the leading Supreme Court cases
explicating the requirements for the use of force by law
enforcement officers under the Fourth Amendment. In Gar-
ner, the Supreme Court for the first time considered the con-
stitutionality of the common law rule permitting the use of
lethal force to prevent the escape of a fleeing felon (but not
of a misdemeanant). The Court held that the Fourth Amend-
ment’s reasonableness standard required “probable cause to
believe that the suspect poses a threat of serious physical
harm, either to the officer or to others” before using deadly
force. Garner, 471 U.S. at 11. In its lengthy analysis leading
to this conclusion, the Court noted that the movement away
from the common law rule in a number of states suggested
that what was “reasonable” was not frozen in time with the
common law. Id. at 13-20. In particular, the Court found it
significant that police departments were “overwhelmingly”
moving away from the common law rule. Id. at 18. Indeed, it
quoted approvingly from the Commission on Accreditation
for Law Enforcement Agencies’ language restricting the use
of deadly force “to situations where the officer reasonably
believes that the action is in defense of human life . . . or in
defense of any person in immediate danger of serious physical
injury.” Id. (internal quotation marks omitted and emphasis
added).
The narrow question in Garner was therefore whether, to
justify the use of deadly force, an officer must believe only
that a suspect is fleeing or also that the suspect represents a
serious and immediate threat to the officer or others. In either
case, the Court assumed that the belief would have to be rea-
sonable, an inquiry that under the Fourth Amendment always
depends upon objective factors and not upon sincerity of
belief.
792 PRICE v. SERY
2
In Graham, the question was whether excessive force
claims (a broader category than deadly force claims) should
be analyzed as substantive due process claims or as Fourth
Amendment claims. Graham, 490 U.S. at 388. Chief Justice
Rehnquist referred in a general way to the Fourth Amendment
as requiring an “objective reasonableness” standard—not
matching perfectly either the “reasonable belief” or “objective
probable cause” formulations. Id.
The Graham Court clarified that the reasonableness inquiry
turned upon the circumstances confronting the officer, rather
than the officer’s subjective beliefs or intentions: “As in other
Fourth Amendment contexts, however, the ‘reasonableness’
inquiry in an excessive force case is an objective one: the
question is whether the officer’s actions are ‘objectively rea-
sonable’ in light of the facts and circumstances confronting
them, without regard for their underlying intent or motiva-
tion.” Id. at 397.
[2] The Garner and Graham decisions are the Court’s lead-
ing cases bringing claims about the use of force—deadly or
allegedly excessive—by law enforcement officers under the
rubric of modern Fourth Amendment search-and-seizure anal-
ysis, rather than under the common law or substantive due
process. Both cases focused on the “totality of the circum-
stances” and the “perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Gra-
ham, 490 U.S. at 396; see also Garner, 471 U.S. at 9.
3
[3] In this light, the Supreme Court’s careful discussion of
“probable cause” in a recent Fourth Amendment arrest con-
text in Maryland v. Pringle, 540 U.S. 366 (2003), is instruc-
tive. There, Chief Justice Rehnquist, the author of Graham,
wrote that “[t]he probable-cause standard is incapable of pre-
PRICE v. SERY 793
cise definition or quantification into percentages because it
deals with the probabilities and depends on the totality of the
circumstances” and “the substance of all the definitions of
probable cause is a reasonable ground for belief.” Pringle,
540 U.S. at 371 (internal quotation marks and citations omit-
ted). Pringle does not address “probable cause” in the context
of the use of deadly force by law enforcement officers. Never-
theless, the phrase “probable cause” itself should not mean
one thing in one context and something different elsewhere.
Rather, what an officer has probable cause to believe dictates
the level of force he may justifiably use in a given scenario.
In other words a law enforcement officer’s use of force will
be justified, or not, by what that officer reasonably believed
about the circumstances confronting him.
The Supreme Court very recently confirmed and clarified
this analysis of the relationship between Garner, Graham, and
the Fourth Amendment’s reasonableness requirement in Scott
v. Harris, 127 S. Ct. 1769 (2007). In considering the reason-
ableness of a police officer’s use of likely deadly force to end
a high-speed car chase, the Court noted that “Graham did not
establish a magical on/off switch that triggers rigid precondi-
tions whenever an officer’s actions constitute ‘deadly force.’
Garner was simply an application of the Fourth Amendment’s
‘reasonableness’ test to the use of a particular force in a par-
ticular type of situation.” Id. at 1777 (citing Graham, 490
U.S. at 388). The Court went on to state that “[w]hether or not
[the police officer’s] actions constituted application of ‘deadly
force,’ all that matters is whether [the officer’s] actions were
reasonable.” Id. at 1778 (emphasis added). Accord Acosta v.
Hill, 504 F.3d 1323, 1324 (9th Cir. 2007) (holding that, under
Scott, “there is no special Fourth Amendment standard for
unconstitutional deadly force”); United States v. Gorman, 314
F.3d 1105, 1111 (9th Cir. 2002) (“[W]e now hold that the
‘reason to believe,’ or reasonable belief standard . . .
embodies the same standard of reasonableness inherent in
probable cause.”).
794 PRICE v. SERY
4
For this reason, Price’s attempt to use Terry v. Ohio, 392
U.S. 1 (1968), to establish some daylight between “reasonable
belief” and “probable cause” is unavailing. Terry permitted
police officers to “stop and frisk” individuals where there is
“reason to believe” that the individual is “armed and danger-
ous” even absent “probable cause to arrest the individual for
the crime.” Id. U.S. at 27. But Terry was not addressed to the
quantity of evidence required for such belief, nor how much
confidence the officer must have in it. Rather, the distinction
was that a belief that an individual is armed and dangerous
could justify a brief detention, whereas arrest requires a belief
that the individual has committed a crime. Id. at 26-27 (“a
perfectly reasonable apprehension of danger may arise long
before the officer is possessed of adequate information to jus-
tify taking a person into custody for the purpose of prosecut-
ing him for a crime”). The Terry Court made clear that the
touchstone of the reasonableness inquiry was not the subjec-
tive strength of the officer’s belief, but its grounding in the
objective facts: “[I]n determining whether the officer acted
reasonably in such circumstances, due weight must be given,
not to his inchoate and unparticularized suspicion or ‘hunch,’
but to the specific inferences which he is entitled to draw
from the facts in light of his experience.” Id. at 27.
[4] That the phrases employed in the PPB’s General Order
are not distinguishable along the lines Price suggests is also
manifest in one of the lead cases upon which Price relies, Ting
v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991). There,
in order to conduct a qualified immunity analysis, we were
required to describe the state of the law as a California police
officer would have known it in a pre-Garner context. We con-
cluded that it “was generally established at the time of the
shooting that an officer could use deadly force to effect an
arrest if, under the circumstances, he reasonably believed
such force was necessary to protect himself or others from
death or serious bodily harm.” Ting, 927 F.2d at 1511
 PRICE v. SERY 795
(emphasis added). There, we were relying upon a leading Cal-
ifornia case dealing with the use of lethal force by police offi-
cers, Kortum v. Alkire, 138 Cal. Rptr. 26 (Ct. App. 1977).
Ultimately, considering Garner and Kortum together, we con-
cluded that “under both the U.S. Constitution and California
law, an officer may not use deadly force unless it is necessary
to prevent the escape and the officer has probable cause to
believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.” Ting, 927
F.3d at 1513. We cannot fairly read Ting to stand for the prop-
osition that there is a significant legal difference between the
terms “reasonably believes” and “has probable cause to
believe.”
5
Price draws our attention to several of our decisions to sug-
gest that there is a difference between the two phrases
employed in the PPB’s deadly force guidelines in G.O.
§ 1010.10(a) and § 1010.10(b): “reasonable belief” and “ob-
jective probable cause.” We examine each in turn.
In Brewer v. City of Napa, 210 F.3d 1093 (9th Cir. 2000),
which involved the use of police dogs, we had to decide
whether jury instructions in an excessive force claim were
required to invoke Garner’s “probable cause” language. In
considering both Garner and Graham, we stated that “the
existence of probable cause, a more specific and demanding
standard, was simply not relevant.” Id. at 1098. The opinion
did not specify, however, what was “more specific and
demanding” about the Garner formulation.
We declined to hold in Brewer that a jury instruction
should have required that the officer have probable cause to
believe that the plaintiff was armed in order to justify the use
of police dogs. Id. at 1097. Rather, we held that the less
demanding standard from Graham, requiring only that the
officer believe there was an “immediate threat to the safety of
796 PRICE v. SERY
the officers or others” was sufficient. Id. at 1098. The “more
specific and demanding” standard of Garner is more specific
and demanding in that it requires a specific belief—that a
fleeing suspect poses a threat of death or serious physical
harm.
Brewer was merely following this court’s precedent in
requiring less of a showing of threat to justify the use of
police dogs than to justify the use of deadly force. See, e.g.,
Vera Cruz v. Escondido, 139 F.3d 659, 661 (9th Cir. 1997)
(“[T]he Supreme Court in Garner established a special rule
concerning deadly force”) (overruled on other grounds, Smith
v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc)).
What is crucial is not the “objectivity” of the officers’ beliefs
but the object of those beliefs. That is, when there is objective
reason to fear for one’s safety (as in Brewer), but not one’s
life, then force short of deadly force might be justified; to jus-
tify deadly force, an objective belief that an imminent threat
of death or serious physical harm is required. In neither case
would a merely subjective sense of threat justify the use of
force; rather, the objectively describable totality of the cir-
cumstances would have to be such as to justify the use of
force. Sincerely held but unreasonable belief does not justify
the use of force under Garner, Graham, or our own prece-
dents.
[5] Nor do our cases turn on the quantum of evidence, as
it were, necessary to justify the use of force by a police offi-
cer. All the evidence in the world that a police dog might be
necessary to locate a suspect (as in Brewer) would not justify
the use of lethal force; not because the quantity of evidence
would be insufficient, but because the kind of evidence would
not justify the decision to use deadly force.2 It is the specifica-
2
Judge Fisher misconstrues our application of the term “quantum of evi-
dence.” We do not suggest that the objective strength of an officer’s belief
“has no relevance” for Fourth Amendment purposes, and we agree with
Judge Fisher that our articulation of the objective reasonableness standard
PRICE v. SERY 797
tion of the threat (as an immediate one involving death or
serious physical harm), not the putative difference between
“reasonable belief” and “probable cause,” that controls. Thus,
in Fikes v. Cleghorn, 47 F.3d 1011, 1014 n.2 (9th Cir. 1995),
when we stated in a footnote that, “[w]hile the use of ‘force’
is reasonable under the Fourth Amendment if it would seem
justified to a reasonable police officer in light of the surround-
ing circumstances, the use of ‘deadly force’ is only justified
if the officer has probable cause to believe that a suspect
poses a threat of serious physical harm to the officer or oth-
ers,” we were specifying the kind of surrounding circum-
stances that uniquely justify the use of deadly force—a threat
of serious physical harm or worse.3 The use of “probable
cause” is, as in Pringle, synonymous with “reasonable belief,”
and the use of deadly force is tied to the nature of the threat,
not to the quantum of evidence required to believe in it.4
6
Another case invoked by Price actually decisively demon-
strates our point. In Monroe v. City of Phoenix, 248 F.3d 851
“continues to incorporate [a] dangerousness element.” We merely note the
distinction between the strength of an officer’s belief and the requirement
that the belief pertain to a requisite type of dangerousness. That is, regard-
less of the objectivity of an officer’s belief, the threshold issue is whether
the object of that belief is sufficient. Where Graham and Garner differ is
in the latter; Scott requires the conclusion that the same strength of belief
is required in both cases.
3
In any event, as the district court noted in its decision here, in Fikes
we declined to reach the deadly force jury instruction issue altogether, as
the plaintiff had failed to present any evidence that the officers had used
deadly force. 47 F.3d at 1014.
4
Again, this usage merely reflects the standard meaning for probable
cause, which Black’s Law Dictionary defines in part as “reasonable
ground” or “sufficient cause.” Black’s Law Dictionary, 1239 (8th ed.
2004); see, inter alia, Wheeler v. Nesbitt, 65 U.S. 544 (1860) (approving
definition of “probable cause” as “the existence of such facts and circum-
stances as would excite . . . belief, in a reasonable mind”).
798 PRICE v. SERY
(9th Cir. 2001), we relied on the language from Brewer and
Fikes, inter alia, to hold that a Garner deadly force instruc-
tion was required where the use of deadly force was at issue,
rather than a more general instruction on excessive force.
Notably, we relied also upon our decision in Quintanilla v.
City of Downey, 84 F.3d 353, 357 (9th Cir. 1996), which itself
considered whether the Graham formula had not simply sub-
sumed the Garner formula. We found the error in Monroe to
be harmless because the jury had also been instructed that,
under Arizona law, deadly force could only be used when
“the police officer believes that deadly physical force is
immediately necessary to protect himself against the other’s
use or imminent use of unlawful deadly physical force.” 248
F.3d at 860. Because the jury found for the police officer on
that claim, we held that “the jury must have concluded that
Sgt. Sherrard had ‘probable cause to believe’ that Monroe
‘posed a threat of serious physical harm’ to him or others.” Id.
(quoting Garner, 471 U.S. at 11).
7
[6] We are satisfied that our case law does not support
Price’s contention that “reasonable belief” is a lesser standard
than “probable cause” as a matter of law. Both standards are
objective and turn upon the circumstances confronting the
officer rather than on the officer’s mere subjective beliefs or
intentions, however sincere. Our case law requires that a rea-
sonable officer under the circumstances believe herself or oth-
ers to face a threat of serious physical harm before using
deadly force. Moreover, as the Supreme Court clarified in
Scott, the touchstone of the inquiry is “reasonableness,” which
does not admit of an “easy-to-apply legal test.” 127 S. Ct. at
1777-78. The City’s policy requires that an officer have a rea-
sonable belief in an “immediate threat of death or serious
physical injury” and thus comports with the requirement.
[7] Accordingly, the district court correctly concluded that
the City’s policy governing the use of deadly force was not,
PRICE v. SERY 799
as written, contrary to the requirements of the Fourth Amend-
ment.
B
Price next contends that the City’s policy, as interpreted by
statements made in depositions by Chief Foxworth and the
City’s legal arguments before the district court, suffices to
sustain a Monell claim based on a “longstanding procedure,”
even if the City’s policy as written is constitutional. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970); see
also Ulrich, 308 F.3d at 984-85.
1
Price emphasizes the City’s concession in legal arguments
before the district court that “reasonable belief” was a label
for a standard “less specific and demanding” than “probable
cause.” As the discussion above has shown, the City was
tracking the language of Brewer and similar cases, which,
while admittedly confusing in their references to the Garner
and Graham framework, did not actually distinguish between
“reasonable belief” and “probable cause” but between the cir-
cumstances justifying the use of deadly force and those justi-
fying the use of lesser force.
[8] Moreover, the City’s legal argument before the district
court cannot, by itself, establish a “longstanding custom”
related to the shooting at issue here. As the City rightly notes,
this court is not bound by the concessions of parties concern-
ing the meaning of the law. United States v. Ogles, 440 F.3d
1095, 1099 (9th Cir. 2006) (en banc) (court “not bound by a
party’s concession as to the meaning of the law, even if that
party is the government and even in the context of a criminal
case”).
Price specifically notes that in depositions related to this lit-
igation, Chief Foxworth stated that he believed there was a
800 PRICE v. SERY
difference between “reasonable belief” and “probable cause.”
In the first instance, Chief Foxworth agreed with a question
from an attorney that “there’s some difference in the amount
of confidence that the officer needs to have before using
deadly force for self-defense . . . that that’s a slightly different
standard than the probable cause standard where someone is
escaping?” But in the same colloquy, when pressed as to
whether a reasonable belief left “room for difference of opin-
ion,” Chief Foxworth replied, “no, that’s why I think they’re
pretty close.” Chief Foxworth’s descriptions of the need to
look at the circumstances, rather than the subjective beliefs of
the officer, are clear from the record.
That Chief Foxworth assumed there was some difference
between the two different phrases applying to two different
scenarios is nevertheless troubling, a point on which we agree
with our colleague in dissent. From the same deposition testi-
mony, Price points to a question which suggests that Chief
Foxworth thought the “reasonable belief” standard to be sub-
jective. The question and answer went as follows:
Q. All right. When we talk about subparagraph
A, when we talk about reasonable belief, I’ve read a
lot of the training material that the department has
put out. And there’s discussion about subjective rea-
sonable belief and objective reasonable belief, and
I’m wondering what your understanding is of a situa-
tion. And let’s just talk about self-defense rather than
defense of others.
If a police officer is in a situation where he or she
personally, reasonably, honestly believes that they’re
in a self-defense situation and they’re facing the
immediate threat of death or immediate serious
physical injury, is that sufficient to be within sub-
paragraph A, or does it have to be some objective,
you know, kind of imaginary objective officer who
has the reasonable belief?
PRICE v. SERY 801
A. It’s the first one that you’ve described.
This exchange between the lawyer and Chief Foxworth is
more ambiguous than Price suggests, since the question itself
includes both subjective and objective elements. The question
includes the term “reasonably” in the first scenario, and tracks
the language that “they’re facing the immediate threat of
death or immediate serious physical injury.” Thus, it is possi-
ble that Chief Foxworth was not embracing a subjective stan-
dard at all.
[9] To dispose of a case on summary judgment, however,
ambiguity in favor of the defendant is not sufficient. If a rea-
sonable person could side with the plaintiff’s interpretation of
events, the issue must survive for trial. We conclude that there
is a genuine issue of material fact as to whether the City’s
interpretation of the differing phrases in G.O. § 1010.10(a)
and § 1010.10(b) represents the sort of “longstanding” custom
or practice that can establish Price’s Monell claim even
though the formal written policy does not.
2
Price’s arguments about the application of the City’s deadly
force policy are not limited solely to the interpretation of the
policy. She also contends that the City has failed adequately
to discipline officers for the inappropriate use of deadly force,
and has trained them in such a fashion as to lead to the unjus-
tified use of deadly force. Price’s case depends largely upon
the Streed Declaration, which in turn relies upon the pur-
ported difference between “reasonable belief” and “objective
probability” discussed above. It is hard to know how much
weight to give an expert report that seems, as the district court
noted, to incorporate that assumption throughout its own anal-
ysis. In addition to the Streed Declaration, however, other evi-
dence in the record, such as the PARC report, could support
Price’s claims.
802 PRICE v. SERY
[10] The district court was unwilling to give the Streed
Declaration sufficient weight to survive summary judgment
once it found error in the legal distinction relied upon therein.
Further, the district court concluded that the City’s unsuccess-
ful attempts at discipline should be credited, and could not
serve as evidence that “no officer had been disciplined.”
While the district court’s conclusions concerning this evi-
dence may well be reasonable and even persuasive, those are
arguments for trial, and do not comport with the obligation of
the court, on summary judgment, to draw all inferences in
favor of the nonmoving party. Thus, we are unable to con-
clude that no rational trier of fact could agree with Price’s
interpretation of the City’s history of discipline and training
and its relevance to an allegedly unconstitutional “longstand-
ing” use of deadly force in situations where the objective facts
did not support such force.
C
[11] Finally, Price contends that the City’s alleged failure
to train its police officers appropriately as to the use of deadly
force amounts to a constitutional violation by itself. The “in-
adequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police
come into contact.” City of Canton v. Harris, 489 U.S. 378,
388 (1989). Price argues that her failure-to-train claim meets
the standard set by Harris and should itself suffice to make
out a Monell claim against the City.
Under Harris and progeny, one must demonstrate a “con-
scious” or “deliberate” choice on the part of a municipality in
order to prevail on a failure to train claim. See Blankenhorn
v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007). Harris’s
standard is objective in that it does permit a fact finder to infer
“constructive” notice of the risk where it was “obvious”—but
this is another way of saying that there needs to be some evi-
dence that tends to show a conscious choice. See Farmer v.
PRICE v. SERY 803
Brennan, 511 U.S. 825, 841 (1994) (“It would be hard to
describe the Canton understanding of deliberate indifference,
permitting liability to be premised on obviousness or con-
structive notice, as anything but objective.”).
[12] Price points to nothing in the record or in the Streed
Declaration that evinces the deliberate indifference that Har-
ris requires for a free-standing failure-to-train claim to suc-
ceed. The City’s description of the many hours of training
required for PPB officers is undisputed. Given our conclusion
that the City’s policy on the use of deadly force is constitu-
tional as written, the undisputed fact that the City trains
according to that policy does not advance Price’s argument.
Considering the high burden laid out in Harris, the district
court was correct to find that even if the City’s training may
not have been ideal, Price offers nothing that would establish
the kind of “conscious” or “deliberate” choice by the City to
risk a “likely” violation of constitutional rights. See Harris,
489 U.S. at 389.5
[13] Accordingly, construing the evidence in the light most
favorable to Price, we conclude that no rational finder of fact
could decide that the City violated Perez’s constitutional
rights by a failure to train. The district court properly granted
summary judgment to the City on the claim that its training
practices amount to a violation under Harris.
III
For the foregoing reasons, we agree with the district court
that the City’s official policy concerning the use of deadly
5
Judge Fisher also points to Chief Foxworth’s statement that “reason-
able belief” constitutes a lesser standard than “probable cause” as requir-
ing reversal on the failure to train claim. However, we fail to see how that
subjective misconception can give rise to an inference as to an actual defi-
ciency in police training, absent some greater showing of a link between
them.
804 PRICE v. SERY
force, as written, does not violate the requirements of the
Constitution. Further, we agree with the district court that
Price has not made a sufficient showing of a failure to train
on the part of the City to survive summary judgment. We con-
clude, however, that a genuine issue of material fact exists as
to whether a “longstanding” practice or custom of the City
might in fact have deprived Perez of his constitutional rights.
The decision of the district court is therefore
AFFIRMED in part, REVERSED in part, and
REMANDED.
FISHER, Circuit Judge, concurring in part, dissenting in part
and concurring in the judgment:
No decision is more important or difficult in police offi-
cers’ performance of their duties than whether to resort to the
use of deadly force against a suspect, and none has such cata-
strophic consequences for the target of such force. The major-
ity brings a degree of clarity to the law of deadly force, but
I fear that some of its analysis may confuse the issue, and I
therefore cannot adopt all of its reasoning as I shall explain.
The practical impact of rank-and-file police officers’ under-
standing of what the Fourth Amendment deadly force stan-
dard requires is quite literally a matter of life or death, both
for officers and for the public, and we need to give law
enforcement the clearest directives possible. I also write sepa-
rately to dissent from the majority’s affirmance of summary
judgment for the City of Portland on Price’s claim that it
failed to train its police officers properly.
I.
The need for clarity in articulating the standard for use of
deadly force is illustrated graphically — perhaps tragically, if
PRICE v. SERY 805
Price’s theory of what resulted in Officer Sery’s fatal shooting
of James Perez proves correct — by the Portland Police
Bureau’s (“PPB”) apparent misunderstanding of the deadly
force policy at issue here. Amplifying the majority’s factual
summary of the contextual background makes this need even
more obvious.
A.
On March 28, 2004, Perez was driving in North Portland
when he failed to properly signal a right turn into a strip mall.
Portland Police Officers Sery and Sean Macomber had been
tailing Perez in their patrol car because Perez’s car, age and
nervousness aroused their suspicions that he might be
involved in illegal drug activity. They followed Perez into the
parking lot, turned on their car’s overhead lights and parked
behind him. Twenty-four seconds later Officer Sery, who had
approached the car from the driver’s side, shot Perez through
the open driver’s side window, killing him.
What happened during this brief period is subject to dis-
pute. The officers testified that Perez had been resistant when
they asked him for identification and that when they tried to
physically subdue him he reached into his pocket and began
digging for something. Officer Sery claims that he fired his
gun only after Perez failed to follow repeated commands to
show his hands and after it appeared that Perez had pulled
something from his pocket. Several eyewitnesses told a radi-
cally different story, in which the officers approached Perez’s
car with guns drawn and Perez complied with the officers’
instructions. One eyewitness further testified that Perez did
not put his hands in his pockets at all, and instead put his right
hand in the air while attempting to unbuckle his seatbelt with
his left hand to comply with the officers’ instructions to exit
the car. It is undisputed that Perez’s seatbelt was still buckled
when he was shot and that he was unarmed.
806 PRICE v. SERY
B.
Because it is central to our disposition of the case, I repeat
PPB General Order (“G.O.”) § 1010.10’s specific language
below:
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 cir-
cumstances:
a. Members may use deadly force to pro-
tect 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 sus-
pect poses a significant threat of death
or serious physical injury to the mem-
ber 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.
PRICE v. SERY 807
G.O. § 1010.10 (emphasis added) (hereinafter “the PPB Poli-
cy”).1
Police Chief Foxworth indicated that he interpreted this
policy to mean that the “reasonable belief” required to shoot
an attacking suspect was a “less specific and demanding”
standard than the “probable cause” required to shoot a fleeing
suspect. He understood probable cause to mean a level of
confidence of “more likely than not,” which others might “de-
scribe [ ] as 51 percent versus 49 percent.” Although he
thought reasonable belief was “pretty close . . . if not the
same,” when asked if “there’s some difference in the amount
of confidence that the officer needs to have before using
deadly force for self-defense . . . that that’s a slightly different
standard than the probable cause standard where someone is
escaping,” he responded that “I believe that, yes, there is. I
believe they’re close, but I believe there is a difference.”
(Emphasis added.).
1. The objective reasonableness standard
The crux of this case is what the Fourth Amendment’s
objective reasonableness standard requires before an officer
may resort to deadly force. The majority frames this issue as
presenting two questions: First, is there a legal distinction
under the Fourth Amendment between the “probable cause”
and “reasonably believe” formulations? Second, insofar as the
City and PPB understood and applied the PPB Policy in prac-
tice, was there an actual distinction between these formula-
tions, one that encouraged or tolerated police officers’ using
1
The district court incorrectly suggested that a lesser standard might
apply to the use of deadly force when an officer is confronting an attack-
ing rather than a fleeing suspect. The standard is the same in either cir-
cumstance. See, e.g., Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir.
2002); Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994); Ting v. United
States, 927 F.2d 1504, 1510 n.3 (9th Cir. 1991). Of course, that a suspect
is fleeing rather than attacking may be relevant to whether or not he poses
a risk of harm to anyone.
808 PRICE v. SERY
deadly force when it was objectively unreasonable to do so?
I generally agree with the majority’s conclusions that the pol-
icy as written can be construed to be constitutional, but that
in practice it might have been understood to allow constitu-
tionally impermissible uses of deadly force. I am concerned,
however, that the majority’s opinion could be read to describe
incorrectly what is embodied in the Fourth Amendment’s
objective reasonableness standard.
I agree with the majority that an officer’s use of deadly
force is justified only if the totality of the circumstances sup-
port an “objective[ly reasonable] belief that an imminent
threat of death or serious physical harm” exists. Op. at 796.
In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme
Court formulated the objective reasonableness standard in the
deadly force context in terms of probable cause, holding that
it “may not be used . . . unless the officer has probable cause
to believe that a suspect poses a threat of serious physical
harm to the officer or others.” Id. at 3. Since then, we have
often distinguished the deadly force context by using the
probable cause formulation instead of the more general rea-
sonableness standard articulated for the non-deadly force con-
text in Graham v. O’Connor, 490 U.S. 386 (1989). Typical of
this distinction is Fikes v. Cleghorn, 47 F.3d 1011 (9th Cir.
1995), which noted that:
While the use of “force” is reasonable under the
Fourth Amendment if it would seem justified to a
reasonable police officer in light of the surrounding
circumstances, the use of “deadly force” is only jus-
tified if the officer has probable cause to believe that
a suspect poses a threat of serious physical harm to
the officer or others.
Id. at 1014 n.2 (Leavy, J.) (citing Garner) (emphasis added);
see also Brewer v. City of Napa, 210 F.3d 1093, 1098 (9th
Cir. 2000) (O’Scannlain, J.) (stating that “probable cause” is
“a more specific and demanding standard” than the more gen-
PRICE v. SERY 809
eral reasonableness standard applied in non-deadly force
cases);2 Vera Cruz v. City of Escondido, 139 F.3d 659, 661
(9th Cir. 1996) (noting that “Garner established a special rule
concerning deadly force”), overruled on other grounds by
Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en
banc); Quintanilla v. City of Downey, 84 F.3d 353, 357 (9th
Cir. 1996) (“Garner and Graham set forth somewhat different
standards for proving a Fourth Amendment excessive force
violation. The Garner standard . . . can apply only when
deadly force has been used.”) (internal citations omitted).3
The majority’s reading of the Supreme Court’s most recent
pronouncement on the use of deadly force in Scott v. Harris,
127 S. Ct. 1769 (2007), however, introduces some uncertainty
about this longstanding emphasis on the special nature of the
use of deadly force. See, e.g., Op. at 793, 798.4 The majority
summarizes its understanding of Scott as follows:
2
I accept that what Brewer meant by “a more specific and demanding
standard” is “more specific and demanding in that it requires a specific
belief — that a . . . suspect poses a threat of death or serious physical
harm.” Op. at 796.
3
See, e.g., Bouggess v. Mattingly, 482 F.3d 886, 890 (6th Cir. 2007)
(holding in a case of deadly force, “the question is . . . whether . . . Mat-
tingly had probable cause to believe that Newby posed a threat of serious
physical harm to Mattingly or to others”); Billingsley v. City of Omaha,
277 F.3d 990, 993 (8th Cir. 2002) (“In Garner, the Supreme Court estab-
lished, absent probable cause of an immediate threat of death or serious
bodily injury, use of deadly force is not objectively reasonable.”); Gutier-
rez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (“As a subset
of excessive force claims, in Garner, the Supreme Court held that police
use of “deadly force,” violates the Fourth Amendment unless ‘the officer
has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others [.]’ ”) (internal citations
omitted).
4
See also Acosta v. Hill, No. 05-56575, 2007 WL 3013451, at *1 (9th
Cir. Oct. 17, 2007) (holding, after Scott, that the district court did not err
by refusing to give a separate deadly force instruction when the jury
received an excessive force instruction).
810 PRICE v. SERY
The Supreme Court very recently confirmed and
clarified this analysis of the relationship between
Garner, Graham, and the Fourth Amendment’s rea-
sonableness requirement in Scott v. Harris, 127
S. Ct. 1769 (2007). In considering the reasonable-
ness of a police officer’s use of likely deadly force
to end a high-speed car chase, the Court noted that
“Garner did not establish a magical on/off switch
that triggers rigid preconditions whenever an offi-
cer’s actions constitute ‘deadly force.’ Garner was
simply an application of the Fourth Amendment’s
‘reasonableness’ test to the use of a particular force
in a particular type of situation.” Id. at 1777 (citing
Graham, 490 U.S. at 388). The Court went on to
state that “[w]hether or not [the police officer’s]
actions constituted application of ‘deadly force,’ all
that matters is whether [the officer’s] actions were
reasonable.” Id. at 1778 (emphasis added).
Op. at 793.
I am troubled by the majority’s special emphasis on the
phrase: “all that matters is whether [the officer’s] actions were
reasonable.” By emphasizing this one passage, the majority
risks being read as incorrectly expanding the Court’s holding
in Scott, and removing from the reasonableness equation in
deadly force cases the well-established requirement that the
suspect must reasonably be thought to pose a threat of death
or serious injury.5 I understand the majority has no intent to
do so, given its later statement that:
5
I believe it would be incorrect, and very dangerous, to reduce the
deadly force standard to such a high level of generality by taking the
Supreme Court’s statement out of context. The full paragraph from which
the quote is taken begins with the Court’s statement that Garner “did not
establish a magical on/off switch that triggers rigid preconditions when-
ever an officer’s actions constitute ‘deadly force.’ ” Scott, 127 S. Ct. at
1777. The Court characterized Scott’s “attempt to craft an easy-to-apply
PRICE v. SERY 811
We are satisfied that our case law does not support
Price’s contention that “reasonable belief” is a lesser
standard than “probable cause” as a matter of law.
Both standards are objective and turn upon the cir-
cumstances confronting the officer rather than on the
officer’s mere subjective beliefs or intentions, how-
ever sincere. Our case law requires that a reasonable
officer under the circumstances believe herself or
others to face a threat of serious physical harm
before using deadly force. Moreover, as the Supreme
Court clarified in Scott, the touchstone of the inquiry
is “reasonableness,” which does not admit of an
“easy-to-apply legal test.” 127 S. Ct. at 1777-78. The
City’s policy requires that an officer have a reason-
able belief in an “immediate threat of death or seri-
ous physical injury” and thus comports with the
requirement.
Op. at 798 (emphasis added).
There can be no doubt that Scott was not abandoning Gar-
ner’s prescription that a critical component of the reasonable-
ness standard in deadly force situations is whether the officer
has “an objective belief that an imminent threat of death or
serious physical harm” exists. Garner, 471 U.S. at 3 (empha-
sis added). The Court extensively discussed the facts of the
car chase and the high risk of danger that the fleeing suspect’s
high speed, evasive driving posed to others. See Scott, 127
S. Ct. at 1775-76. Plainly, the “reasonableness” inquiry the
Court envisions continues to encompass the well-established
legal test” as “admirable,” but concluded that “in the end we must still
slosh our way through the factbound morass of ‘reasonableness.’ Whether
or not Scott’s actions constituted application of “deadly force,” all that
matters is whether Scott’s actions were reasonable.” Id. at 1777-78
(emphasis added). In context, the Court was merely dismissing the respon-
dent’s argument that Garner prescribed certain preconditions that if not
met would mean the use of deadly force was “per se unreasonable.”
812 PRICE v. SERY
constitutional principle that resort to deadly force is only jus-
tified “to prevent ‘serious physical harm, either to the officer
or others.’ ” Id. at 1777 n.9 (quoting and explaining Garner).6
It is important that this fundamental prerequisite to the use
of deadly force not be watered down or made ambiguous.
Police officers need to have clear guidelines about the use of
deadly force, as this case illustrates. In the aftermath of a fatal
shooting, a court or jury must “slosh through the factbound
morass of reasonableness.” Id. at 1778. However, the officer
in the field must have a clear set of guidelines that he or she
can be taught to invoke instinctively when confronted with a
potentially dangerous situation, when the awful decision of
whether to shoot someone dead might have to be made in split
seconds that do not allow for much, if any, “sloshing” and
where the wrong choice can result in the death of an actually
harmless, even innocent suspect. For this reason, I underscore
Scott’s emphasis in its reasonableness analysis on the nature
of the danger that justified deadly force in that case. And I
concur in my colleagues’ articulation of the objective reason-
ableness standard with the understanding that it continues to
incorporate this dangerousness element.
I am also quite troubled by the majority’s curious sugges-
tion that the amount of “confidence” the officer has in his
belief that the requisite threat exists, Op. at 794, or the “quan-
tum of evidence” supporting it, Op. at 796-97, has no rele-
vance in the Fourth Amendment analysis of reasonableness.
I disagree.
An officer must have a sufficient basis for and confidence
in his or her belief that the suspect really does pose a immi-
6
See Scott, 127 S. Ct. at 1779 (Ginsburg, J., concurring) (“I do not read
today’s decision as articulating a mechanical, per se rule. The inquiry
described by the Court is situation specific. Among relevant consider-
ations: Were the lives and well-being of others (motorists, pedestrians,
police officers) at risk?”) (internal citations omitted).
PRICE v. SERY 813
nent threat of death or serious physical injury. As the majority
acknowledges, it is not enough that the officer idiosyncrati-
cally apprehends a threat to be real. Op. at 796. Plainly, if an
officer’s fears rest on the flimsiest of grounds, then not even
the sincerest conviction that only deadly force can avert an
otherwise inevitable calamity will justify its use. The officer
must have a reasonable belief, not just a belief, in the exis-
tence of that threat. Thus, we must be clear that the objective
reasonableness analysis takes into account both the nature of
the perceived threat and the soundness of the officer’s basis
for making that assessment.
My concurrence is therefore directly conditioned on the
understanding that reasonable belief in the deadly force con-
text does not water down the degree of reliability and confi-
dence that has been inherent in the traditional probable cause
formulation. See United States v. Gorman, 314 F.3d 1105,
1111 (9th Cir. 2002) (“We now hold that the . . . reasonable
belief[ ] standard . . . embodies the same standard of reason-
ableness inherent in probable cause.”). Only if the officer’s
beliefs are objectively reasonable can he or she be justified in
taking a life.
We should not underestimate the significance of improp-
erly discounting the reliability component of objective reason-
able belief. Fourth Amendment jurisprudence establishes that
we must scrutinize the probative quality of the evidence sup-
porting an officer’s belief. As early as the nineteenth century,
Chief Justice Marshall explained that “the term ‘probable
cause,’ according to its usual acceptation, means less than evi-
dence which would justify condemnation.” Locke v. United
States, 11 U.S. (7 Cranch) 339, 348 (1813) (emphasis added).
Quoting Chief Justice Marshall with approval, Illinois v.
Gates, 462 U.S. 213 (1983), elaborated by noting “probable
cause does not demand the certainty we associate with formal
trials. It is enough that there was a fair probability.” Id. at
235, 246 (emphasis added).7 The Court’s description of the
7
See also id. at 232 (“Probable cause is a fluid concept — turning on
the assessment of probabilities in particular factual contexts . . . .”); United
814 PRICE v. SERY
totality-of-the-circumstances analysis, the very approach the
majority endorses, Op. at 796, has similarly considered the
“quantum of evidence” supporting the officer’s beliefs:
[P]robable cause[ ] is dependent upon both the con-
tent of information possessed by police and its
degree of reliability. Both factors — quantity and
quality — are considered in the ‘totality of the cir-
cumstances, the whole picture’ that must be taken
into account . . . . Thus, if a tip has a relatively low
degree of reliability, more information will be
required to establish the requisite quantum of suspi-
cion than would be required if the tip were more reli-
able.
Alabama v. White, 496 U.S. 325, 330 (1990).
Contrary to the majority’s suggestion, Maryland v. Pringle,
540 U.S. 366 (2003), which stated that “[t]he probable-cause
standard is incapable of precise definition or quantification
into percentages because it deals with probabilities,” is
entirely consistent with my view. Id. at 371 (emphasis added).
We do not require officers to be absolutely sure that a threat
of death or serious physical injury is real before using deadly
force. But we do require that officers have an objectively rea-
sonable basis for believing that the threat is real. And in mak-
ing that assessment, we look to factors like the “quantity,”
“quality,” “content” and “reliability” of the information sup-
porting the officer’s belief. See White, 496 U.S. at 330.
Scott itself recognized that the soundness of an officer’s
belief that a threat exists is a part of the Fourth Amendment
States v. Sokolow, 490 U.S. 1, 7 (1989) (“We have held that probable
cause means ‘a fair probability . . . .”); Brinegar v. United States, 338 U.S.
160, 175 (1949) (“In dealing with probable cause . . . as the very name
implies, we deal with probabilities.”).
PRICE v. SERY 815
reasonableness analysis. In affirming the officer’s use of force
in a high speed car chase in that case, the Court relied on both
the nature of the threat and how apparent that threat must
have appeared to the officer at the time of the incident. See
Scott, 127 S. Ct. at 1778. That the latter was an important
ground for the Court’s holding is shown by Justice Scalia’s
extensive discussion of the videotape of the chase, which
“quite clearly contradict[ed] the version of the story told by
respondent” by graphically revealing the dangerously high
threat posed by the fleeing suspect. Id. at 1775. As Justice
Scalia emphasized, it was “clear from the videotape” that the
officer had an objectively sufficient basis to believe that the
suspect posed a real danger. See id. at 1778. Unlike most
cases, the Court was able to see from the officer’s perspective
the actual conditions that led the officer to believe deadly
force was necessary. Given that perspective, the only issue
remaining was how to “ ‘balance the nature and quality of the
intrusion . . . against the importance of the governmental
interests alleged to justify the intrusion.’ ” Id. (quoting United
States v. Place, 462 U.S. 696, 703 (1983)).
Scott thus left unaltered the bedrock principle that the
objective reasonableness standard requires us to examine not
only what an officer believes, but why he believes it. When
the “nature and quality” of the intrusion are “minimal[ ], . . .
opposing law enforcement interests” can support the intrusion
“based on less than probable cause.” See Place, 462 U.S. at
703. Conversely, when the “nature and quality” of the intru-
sion are great, as when deadly force is used, the Fourth
Amendment objective reasonableness standard requires that
the officer’s beliefs about the threat have a firmer, more pre-
cise basis.
Scott’s characterization of Garner further reinforces the
continuing importance of assessing the “quantum of evi-
dence” supporting an officer’s belief that a perceived threat
exists. Garner, the Court wrote, “was simply an application
of the Fourth Amendment’s ‘reasonableness’ test to the use of
816 PRICE v. SERY
a particular type of force in a particular situation.” Id. at 1777.
In that case, it was unreasonable for the officer to shoot Gar-
ner “ ‘in the back of the head’ ” — to use deadly force —
because Garner posed no threat. Id. (quoting Garner, 471 U.S.
at 4). The Court agreed that the officer “ ‘could not reason-
ably have believed’ ” otherwise in view of the scant support
for any contrary belief: Garner was “ ‘young, slight, and
unarmed’ ” and “running away on foot.” Id. (quoting Garner,
471 U.S. at 21) (emphasis added).
To sum up, the reasonable belief formulation of the Fourth
Amendment objective reasonableness standard in the context
of deadly force is no less stringent than the probable cause
formulation. See Gorman, 314 F.3d at 1115.8 Both formula-
tions justify an officer’s use of such force only when it is
appropriate in light of the nature of the threat posed and when
the officer’s belief in the existence of that threat is objectively
supported by sufficiently reliable evidence. An officer may
use deadly force only when the circumstances support an
objectively reasonable belief that the suspect poses an immi-
nent threat of death or serious physical harm.
II.
I also concur in the majority’s reversal of summary judg-
ment on Price’s “longstanding practice” and failure to disci-
pline claims. I must dissent, however, from its conclusion that
Price failed to present sufficient evidence to create a genuine
8
Nothing in our holding today, however, should be read to equate prob-
able cause or reasonable belief with reasonable suspicion. Cf. Op. at 794
(discussing Terry v. Ohio, 392 U.S. 1 (1968)). As White explained,
“[r]easonable suspicion is a less demanding standard than probable cause.”
496 U.S. at 330; see also Hudson v. Michigan, 126 S. Ct. 2159, 2182
(2006) (quoting White for the proceeding proposition); Gorman, 314 F.3d
at 1115-16 (finding error when the district court “equated the ‘reason to
believe’ standard . . . with ‘reasonable suspicion’ instead of probable
cause”); Sokoloaw, 490 U.S. at 7 (explaining that Terry’s reasonable sus-
picion “is obviously less demanding than that for probable cause”).
PRICE v. SERY 817
dispute of material fact regarding her failure to train theory.
In so holding, the majority either imposes a novel requirement
for establishing liability under a failure to train theory that
City of Canton v. Harris, 489 U.S. 378 (1989), does not con-
tain or inappropriately elevates the standard for summary
judgment review.
A municipality’s failure to train its police officers may
serve as a basis for § 1983 liability “where the failure to train
amounts to deliberate indifference.” Gibson v. County of
Washoe, 290 F.3d 1175, 1194 (9th Cir. 2002) (quoting City
of Canton, 489 U.S. at 388). In order to prove deliberate indif-
ference, the plaintiff need not show that the municipality
intended to violate the rights of the parties concerned. See id.
at 1195. Rather, where “the need for more or different training
is so obvious, and the inadequacy so likely to result in the vio-
lation of constitutional rights, that the policymakers of the city
can reasonably be said to have been deliberately indifferent”
to this need, then “the failure to provide proper training may
fairly be said to represent a policy for which the city is
responsible.” City of Canton, 489 U.S. at 390. Price alleges
that the City’s deadly force training was so deficient that it
amounted to deliberate indifference. See id. at 390 & n.10.
The majority concedes that the deliberate indifference stan-
dard is “objective” and that it permits “a fact finder to infer
‘constructive’ notice of the risk where it was ‘obvious.’ ” Op.
at 802; see, e.g., Long v. County of Los Angeles, 442 F.3d
1178, 1190 (9th Cir. 2006); cf. Anderson v. Liberty Lobby,
477 U.S. 242, 245 (1986) (leaving weighing of the evidence
to the jury). I believe the declaration provided by Price’s
expert, Dr. Thomas Streed, is sufficient to require a jury
determination here.
Dr. Streed opined that the City’s training program for the
use of deadly force made it inevitable that police officers
would shoot unarmed persons. He specifically cited the City’s
use of a so-called “slumper” scenario in its training regimen,
818 PRICE v. SERY
in which officers encounter a sleeping suspect in a car who,
upon being awakened, immediately pulls out a hidden gun
and fires at the officer. He also noted that the officers are
trained on a computer simulation system in which suspects
invariably attempt to kill the officer being trained. Dr. Streed
ultimately concluded that the City’s training program “create-
[ed] a mindset for Portland officers that every citizen encoun-
tered may have a gun, and there is nothing the police officer
can do to avoid being killed by a ‘bad guy’ unless the officer
shoots first.”
A reasonable jury could conclude on the basis of this evi-
dence, viewed in the light most favorable to Price, that the
City “disregarded a known or obvious consequence” of its
training practices. See Gibson, 290 F.3d at 1194. The Streed
Declaration reasonably supports the inference that, quite apart
from the letter of the City’s deadly force policy, officers were
being instilled with a “shoot first” mindset that foreseeably
would result in unjustified applications of deadly force. Cf.
City of Canton, 489 U.S. at 390 n.10.
In addition, a logical inference from Chief Foxworth’s
admission — as the City’s highest ranking police officer and
head of the Portland Police Bureau — that he erroneously
thought that reasonable belief embodied a lesser standard than
probable cause within the context of the City’s deadly force
policy is that the training of the police force also reflected this
mistaken understanding. A reasonable jury could conclude
training based on this misconception constituted a failure to
train. Therefore, I would permit Price also to pursue that the-
ory of liability on remand.