Price v. Sery

513 F.3d 962, 2008 U.S. App. LEXIS 1196, 2008 WL 170205
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 22, 2008
Docket06-35159
StatusPublished
Cited by225 cases

This text of 513 F.3d 962 (Price v. Sery) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. Sery, 513 F.3d 962, 2008 U.S. App. LEXIS 1196, 2008 WL 170205 (9th Cir. 2008).

Opinions

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

O’SCANNLAIN, Circuit Judge:

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

I

On March 28, 2004, in the course of a routine traffic stop, City of Portland, Oregon Police Officer Jason Sery shot and killed James Jahar Perez, the driver of the stopped vehicle. Certain key facts surrounding the shooting are in dispute, but they are not relevant to this limited appeal. The district court, however, found a [964]*964number of facts to be undisputed, which we recite here to provide adequate context.

A

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

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

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

B

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

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

The Bureau recognizes that members may be required to use deadly force when their life or the life of another is jeopardized by the actions of others. Therefore, state statute and Bureau policy provide for the use of deadly force under the following circumstances:
a. Members may use deadly force to protect themselves or others from what they reasonably believe to be an immediate threat of death or serious physical injury.
b. A member may use deadly force to effect the capture or prevent the escape of a suspect where the member has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the member or others.
[965]*965c. If feasible, some warning has been given.
Members must be mindful of the risks inherent in employing deadly force. A member’s reckless or negligent use of deadly force is not justified in this policy or State statute. Members are to be aware that this directive is more restrictive than state statutes.

G.O. § 1010.10.

C

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

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

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

D

Price moved for partial summary judgment on her Monell claims, and the City [966]*966moved for summary judgment on all claims.

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513 F.3d 962, 2008 U.S. App. LEXIS 1196, 2008 WL 170205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-sery-ca9-2008.