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.

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.

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 lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694. A plaintiff may also establish municipal liability by demonstrating that (1) the constitutional tort was the result of a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity;” (2) the tortfeasor was an official whose acts fairly represent official 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 subordinate.” 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 policy governing the use of lethal force by police officers violates 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 physical injury or death falls short of the “probable cause” requirement 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 nonlethal force ).

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 unjustified use of deadly force. Price’s case depends largely upon the Streed Declaration, which in turn relies upon the purported 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 analysis. In addition to the Streed Declaration, however, other evidence in the record, such as the PARC report, could support Price’s claims. 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.

The “inadequacy 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).

Under Harris and progeny, one must demonstrate a “conscious” 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 evidence that tends to show a conscious choice. See Farmer v.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 constructive notice, as anything but objective.”).

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.

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 circumstances justifying the use of deadly force and those justifying the use of lesser force.

Price specifically notes that in depositions related to this litigation, Chief Foxworth stated that he believed there was a 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 opinion,” 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 testimony, Price points to a question which suggests that Chief Foxworth thought the “reasonable belief” standard to be subjective.

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 reasonable belief and objective reasonable belief, and I’m wondering what your understanding is of a situation. 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 subparagraph A, or does it have to be some objective, you know, kind of imaginary objective officer who has the reasonable belief?

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 possible that Chief Foxworth was not embracing a subjective standard at all.

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.

...we are unable to conclude 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 “longstanding” use of deadly force in situations where the objective facts did not support such force.

FISHER, Circuit Judge, concurring in part, dissenting in part and concurring in the judgment:

...the Portland Police Bureau’s (“PPB”) apparent misunderstanding of the deadly force policy at issue here.

Officer Sery, who had approached the car from the driver’s side, shot Perez through the open driver’s side window, killing him

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 radically 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.

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 “describe [ ] 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.”

The crux of this case is what the Fourth Amendment’s objective reasonableness standard requires before an officer may resort to deadly force.

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 practice, was there an actual distinction between these formulations, one that encouraged or tolerated police officers’ using deadly force when it was objectively unreasonable to do so? I generally agree with the majority’s conclusions that the policy as written can be construed to be constitutional, but that in practice it might have been understood to allow constitutionally impermissible uses of deadly force.

I agree with the majority that an officer’s use of deadly force is justified only if the totality of the circumstances support 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 reasonableness standard articulated for the non-deadly force context 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 justified 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 general 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.”)

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.

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 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 reasonable belief in an “immediate threat of death or serious physical injury” and thus comports with the requirement.

There can be no doubt that Scott was not abandoning Garner’s prescription that a critical component of the reasonableness 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. Plainly, the “reasonableness” inquiry the Court envisions continues to encompass the well-established constitutional principle that resort to deadly force is only justified “to prevent ‘serious physical harm, either to the officer or others.’ ”

An officer must have a sufficient basis for and confidence in his or her belief that the suspect really does pose a imminent threat of death or serious physical injury. As the majority acknowledges, it is not enough that the officer idiosyncratically 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 existence 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 context does not water down the degree of reliability and confidence 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 reasonableness inherent in probable cause.”). Only if the officer’s beliefs are objectively reasonable can he or she be justified in taking a life.

[P]robable cause[ ] is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances, the whole picture’ that must be taken into account . . . .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  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 reasonable basis for believing that the threat is real. And in making that assessment, we look to factors like the “quantity,” “quality,” “content” and “reliability” of the information supporting the officer’s belief. See White, 496 U.S. at 330.

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 intrusion 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 precise basis.

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.

An officer may use deadly force only when the circumstances support an objectively reasonable belief that the suspect poses an imminent threat of death or serious physical harm.

...where “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation 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.

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, 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 encountered 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 evidence, viewed in the light most favorable to Price, that the City “disregarded a known or obvious consequence” of its training practices. 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 theory of liability on remand.

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Editor's Comment: The reader is encouraged to provide this information to their agency's Legal Advisor for clarification and understanding as it relates to their respective Constitutional and Statutory law as filtered through their respective agency Use of Force Policy.