9th Cir: Judge Kozinski Skeptical of Officer-Involved Shooting

In case of what Chief Judge Alex Kozinski called "we said, he's dead," the Ninth Circuit affirmed in part and reversed in part a district court's finding that police were not liable for the death of Cesar Cruz, who was shot and killed by Anaheim police officers in 2009.

Here's One Possibility

In the first instance, Kozinski said that there would be no reason to alter the district court's determination if events had unfolded as police claimed. Cruz, a parolee who police were told sold methamphetamine and carried a gun, was stopped for a broken taillight in a Walmart parking lot. He tried to escape, but eventually stopped. He opened the car door and -- according to police -- instead of getting on the ground, reached for his waistband. Police thought he was going for a gun and shot him dead. His body was tangled in the seat belt, so they had to cut him loose. He didn't have a gun on his person, but there was one in the passenger seat.

An Alternate Ending

At least, that's how it could have happened. Summary judgment is appropriate where there are no material facts in dispute and the court make a decision based on the law alone. Four officers claimed they saw Cruz reach for his waistband. A little detective work in the facts, however, revealed a glaring inconsistency: "Cruz didn't have a gun on him, so why would he have reached for his waistband?" It would have been one thing, said Kozinski, if Cruz had tried to "fast-draw his weapon in an attempt to shoot his way out." This, however, ignores the problem: he didn't have a gun in his waistband.

Thinly Veiled Skepticism

Reading between the lines, it's clear that Judge Kozinski thought the police were outright lying: "[T]he 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." Also curious were the police officers' claims that Cruz fully exited his SUV and stood in the car's doorway; yet, police had to untangle his body from his seat belt, which was still securing him in the car.

This is all dicta of course, because the point is not to judge whether police were telling the truth, only to determine if a reasonable jury could find for the non-moving party. "Given these curious and material factual discrepancies," yes, a jury certainly could. Recent events in certain southern states have properly called police accounts of such shooting incidents into question.

The suggestion that police aren't always entirely truthful when they claim someone was reaching for a gun is nothing new. In 2012, The New York Times editorial board criticized the city's stop-and-frisk program by observing, "More than half of all [685,724] stops were conducted because the individual displayed 'furtive movements' -- which is so vague as to be meaningless."

Almost 350,000 people reach for guns when approached by police? That's a suspiciously large number of very unwise people. Until today. Cesar Cruz was considered a member of that club.

Related Resources:

• Court revives lawsuit in fatal police shooting in Anaheim (Orange County Register)
• Another (Much Higher) Count Of Homicides By Police (FiveThirtyEight)
• Anaheim 'Fast and Furious' Police Shooting Gets En Banc Rehearing (FindLaw's US Ninth Circuit Blog)
• 5th Clearly Botched Police Shooting Case; Was it SCOTUS-Worthy? (FindLaw's US Fifth Circuit Blog)