                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JENNIFER CRUZ, Individually and on        No. 12-55481
behalf of the estate of Ceasar Cruz,
and as guardian ad litem for R.C.,           D.C. No.
C.C., C.C., and M.C., all minors;         2:10-cv-03997-
THERESA SMITH, Individually, and as         MMM-JEM
guardian ad litem for M.C., a minor;
LEONARD CRUZ, Individually,
                 Plaintiffs-Appellants,     OPINION

                  v.

THE CITY OF ANAHEIM, a
Governmental Entity; CHIEF JOHN
WELTER; DEPUTY CHIEF CRAIG
HUNTER; OFFICER MICHAEL BROWN,
Individually; OFFICER BRUCE LINN,
Individually; OFFICER KELLY
PHILLIPS, Individually; OFFICER
NATHAN STAUBER, Individually;
OFFICER PHILLIP VARGAS,
Individually,
               Defendants-Appellees.


      Appeal from the United States District Court
         for the Central District of California
     Margaret M. Morrow, District Judge, Presiding

                 Argued and Submitted
         January 10, 2014—Pasadena, California
2                   CRUZ V. CITY OF ANAHEIM

                      Filed August 28, 2014

    Before: Alex Kozinski, Chief Judge, Richard R. Clifton,
    Circuit Judge, and Jed S. Rakoff, Senior District Judge.*

                Opinion by Chief Judge Kozinski


                           SUMMARY**


                            Civil Rights

    The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
brought by the relatives of Cesar Cruz, who was shot and
killed by City of Anaheim police officers.

    Four of the officers alleged that they shot Cruz after he
exited his vehicle and reached for what they believed was a
gun in the waistband of his pants. The panel held that given
the curious and material factual discrepancies, including that
Cruz did not have a gun on him and was still suspended by
his seat belt when he was shot, the district court erred in
ruling that only an unreasonable or speculative jury could
disbelieve the officers’ version of events. As to those
individual officers and the City defendants (the City of


    *
      The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 CRUZ V. CITY OF ANAHEIM                    3

Anaheim, Chief Welter and Deputy Chief Hunter), the panel
reversed the district court’s summary judgment. The panel
made no determination about the officers’ credibility, leaving
that issue to the jury. The panel affirmed the summary
judgment in favor of a fifth officer, who testified that he
couldn’t see whether Cruz reached for his waistband, but
fired because he perceived an immediate threat when he
heard gunshots.


                        COUNSEL

Richard P. Herman (argued) of Newport Beach, California for
Plaintiffs-Appellants.

Michael R.W. Houston and Gregg M. Audet (argued) of the
City Attorney’s Office of Anaheim, California for
Defendants-Appellees.


                         OPINION

KOZINSKI, Chief Judge:

     Nobody likes a game of “he said, she said,” but far worse
is the game of “we said, he’s dead.” Sadly, this is too often
what we face in police shooting cases like this one.

                              I.

   In early December 2009, a confidential informant told
Anaheim police officer Nathan Stauber that Ceasar Cruz was
a gang member who sold methamphetamine and carried a
gun. Following this lead, Stauber determined that Cruz was
4                CRUZ V. CITY OF ANAHEIM

a discharged parolee whose prior convictions included a
felony involving a firearm. Later, the informant told Stauber
where Cruz was, what his vehicle looked like and that he was
armed with a nine-millimeter. The informant also reported
that Cruz was carrying the gun in his waistband and had made
it clear that “he was not going back to prison.” Stauber sent
this information out to several other Anaheim police officers
and they converged on Cruz’s location with multiple police
vehicles, both marked and unmarked.

    The officers noticed that Cruz’s vehicle had a broken tail
light, so they executed a traffic stop. After Cruz pulled into
a Walmart parking lot, the police surrounded him with their
vehicles. But Cruz attempted to escape, backing his SUV
into one of the marked patrol cars in the process. Cruz
eventually stopped, and the officers got out of their vehicles
with weapons drawn.

    Cruz opened his door, and the police shouted at him to get
on the ground as he was emerging from the vehicle.
According to four of the officers, he ignored their commands
and instead reached for the waistband of his pants. Fearing
that he was reaching for a gun, all five officers opened fire.
They fired about twenty shots in two to three seconds. A
bystander, Norman Harms, witnessed most of the event from
the other side of Cruz’s vehicle, but he could only see Cruz’s
feet and the top of his head at the time of the shooting, so he
didn’t see whether Cruz reached for his waistband.

   After they ceased firing, the officers approached Cruz’s
body to find it tangled in his seat belt and hanging from it.
After they cut the body loose, they found no weapon on it, but
a loaded nine-millimeter was later recovered from the
passenger seat.
                     CRUZ V. CITY OF ANAHEIM                               5

    Cruz’s relatives sued the City and the officers, alleging
Fourth and Fourteenth Amendment claims, as well as
wrongful death under California law. Their theory of the case
was that this was an “execution” committed by the Anaheim
Police Department with the help of the confidential
informant. Pursuant to that theory, they moved to amend
their complaint to add claims and parties relating to the
shooting of another unarmed man, David Raya, by Anaheim
police under very similar circumstances. Plaintiffs later
withdrew this motion to amend for reasons that aren’t clear
from the record.1

    The district court granted summary judgment to
defendants on all claims, finding that Cruz’s decedents hadn’t
presented anything to contest the officers’ version of events.

                                    II.

    Usually when we’re deciding whether to grant summary
judgment for the police in deadly force cases we must wade
through the “factbound morass of ‘reasonableness.’” Scott v.
Harris, 550 U.S. 372, 383 (2007). Not so here: It would be
unquestionably reasonable for police to shoot a suspect in
Cruz’s position if he reaches for a gun in his waistband, or
even if he reaches there for some other reason. Given Cruz’s
dangerous and erratic behavior up to that point, the police
would doubtless be justified in responding to such a
threatening gesture by opening fire. Conversely, if the
suspect doesn’t reach for his waistband or make some similar


 1
   Plaintiffs appeal the district court’s denial of their motion to amend, as
well as its denial of their motion to depose the confidential informant. We
affirm the district court on both counts for reasons we explain in a
memorandum disposition we file concurrently with this opinion.
6                   CRUZ V. CITY OF ANAHEIM

threatening gesture, it would clearly be unreasonable for the
officers to shoot him after he stopped his vehicle and opened
the door. At that point, the suspect no longer poses an
immediate threat to the police or the public, so deadly force
is not justified. See Tennessee v. Garner, 471 U.S. 1, 9–12
(1985); cf. Plumhoff v. Rickard, 572 U.S. ___, No. 12-1117,
slip op. at 11 (May 27, 2014).

     Thus, we need not worry about the intricacies of police
procedure or nuanced questions of force proportionality. To
decide this case a jury would have to answer just one simple
question: Did the police see Cruz reach for his waistband?
If they did, they were entitled to shoot; if they didn’t, they
weren’t.

    But for a judge ruling on the officers’ motion for
summary judgment, this translates to a different question:
Could any reasonable jury find it more likely than not that
Cruz didn’t reach for his waistband? In ruling for the
officers, the district court answered this question “No.” The
evidence it relied on in reaching this conclusion—indeed, the
only evidence that suggests this is what happened—is the
testimony of the officers, four of whom say they saw Cruz
make the fateful reach.2



   2
     The fifth, Officer Brown, was standing behind Cruz’s SUV on the
passenger side, so he couldn’t see whether Cruz reached for his waistband;
but he too fired because he “perceived that Cruz was exchanging gunfire
with” another officer.       Plaintiffs have presented no evidence,
circumstantial or otherwise, to doubt Officer Brown’s account that he
reasonably perceived an immediate threat when he heard gunshots that
could have been coming from his fellow officers’ weapons, a weapon
Cruz was firing or both. We therefore affirm summary judgment in favor
of Officer Brown.
                    CRUZ V. CITY OF ANAHEIM                             7

    But in the deadly force context, we cannot “simply accept
what may be a self-serving account by the police officer.”
Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Because
the person most likely to rebut the officers’ version of
events—the one killed—can’t testify, “[t]he judge must
carefully examine all the evidence in the record . . . to
determine whether the officer’s story is internally consistent
and consistent with other known facts.” Id.; see also
Gonzalez v. City of Anaheim, 747 F.3d 789, 794–95 (9th Cir.
2014) (en banc). This includes “circumstantial evidence that,
if believed, would tend to discredit the police officer’s story.”
Scott, 39 F.3d at 915.

    In this case, there’s circumstantial evidence that could
give a reasonable jury pause. Most obvious is the fact that
Cruz didn’t have a gun on him, so why would he have
reached for his waistband?3 Cruz probably saw that he was
surrounded by officers with guns drawn.              In that
circumstance, it would have been foolish—but not wholly
implausible—for him to have tried to fast-draw his weapon
in an attempt to shoot his way out. But for him to make such
a gesture when no gun is there makes no sense whatsoever.


  3
    In the usual case, we review the record “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989); Wilkinson v.
Torres, 610 F.3d 546, 551 (9th Cir. 2010) (explaining that “the critical
inquiry is what [the officer] perceived”). So the fact that Cruz did not
have a gun on him normally wouldn’t factor into the reasonableness
analysis because the officers couldn’t know what was (or wasn’t)
underneath Cruz’s waistband. But, because the officers killed Cruz, we
must examine whether the officers’ accounts are “consistent with other
known facts.” Scott, 39 F.3d at 915. One of those facts is that no gun was
found on Cruz (though a gun was found—with the safety on—on the car’s
passenger seat).
8                CRUZ V. CITY OF ANAHEIM

A jury may doubt that Cruz did this. Of course, a jury could
reach the opposite conclusion. It might believe that Cruz
thought he had the gun there, or maybe he had a death wish,
or perhaps his pants were falling down at the worst possible
moment. But the jury could also reasonably conclude that the
officers lied.

    In reaching that conclusion, the jury might find relevant
the uncontroverted evidence that Officer Linn, one of Cruz’s
shooters, recited the exact same explanation when he shot and
killed another unarmed man, David Raya, two years later
under very similar circumstances. Like Cruz, Raya was
tracked down after a confidential informant told police that he
had a gun and that he “wasn’t going back to prison,” and, as
with Cruz, the tip led to an altercation with Anaheim police
that ended with an unarmed Raya biting the dust. Perhaps the
most curious similarity: According to the officers who shot
the two unarmed men, both reached for their waistbands
while the police had their guns trained on them. (One
noteworthy difference: Raya was shot in the back because he
was running away from Officer Linn when Linn saw him
reach for his waistband.) “They both reached for the gun”
might be a plausible defense from officers in the line of duty.
“They both reached for no gun” sounds more like a song-and-
dance.

    A jury might find implausible other aspects of the
officers’ story. For starters, four of the officers said they saw
Cruz reach for his waistband. A jury might be skeptical that
four pairs of eyes had a line of sight to Cruz’s hand as he
stood between the open car door and the SUV. There is also
the fact that Cruz was left-handed, yet two officers attested
that they saw Cruz reach for his waistband with his right
hand. A reasonable jury could doubt that Cruz would have
                 CRUZ V. CITY OF ANAHEIM                      9

reached for a non-existent weapon with his off hand. Then
there is the officers’ claim that Cruz had “exited” the
Suburban, and “stood in the doorway,” but after he was killed
they had to cut him free from his seat belt because he was
“suspended” by it. How does a man who has “emerged fully”
from a vehicle, and “turn[ed] to face forward,” end up
hanging from his seat belt after he’s shot? Maybe it’s
possible. But it’s also possible that the officers didn’t wait
for Cruz to exit his car—or reach for his waistband—and
simply opened fire on a man who was trying to comply with
their instructions to “[g]et down on the ground.”

     The testimony of the only non-police eyewitness, Norman
Harms, indicates that Cruz’s feet indeed made it out of the
car, but that Cruz was “slipping on the ground, like kind of
falling down,” as if he were “tripping.” This paints a
different picture than the officers’ testimony that Cruz had
fully emerged from his SUV and was poised to attack. Based
on Harms’s testimony, a jury might find that Cruz was trying
to get out of the car (as he was ordered to do multiple times
after he opened his door) but got caught in his seat belt. Were
a jury to believe this version of events—which seems no less
likely than a man shot while standing next to a vehicle
becoming suspended by a seat belt—this would certainly cast
doubt on the officers’ credibility and lead the jury to find for
plaintiffs.

                   *           *          *

    Given these curious and material factual discrepancies,
the district court erred in ruling that only an unreasonable or
speculative jury could disbelieve Officers Phillips, Vargas,
Stauber and Linn’s version of events. As to these officers and
the Monell defendants (the City of Anaheim, Chief Welter
10              CRUZ V. CITY OF ANAHEIM

and Deputy Chief Hunter), we reverse. We make no
determination about the officers’ credibility, because that’s
not our decision to make. We leave it to the jury. We affirm
the summary judgment in favor of Officer Brown.

  AFFIRMED AS TO BROWN; REVERSED AND
REMANDED AS TO ALL OTHER DEFENDANTS.

    Appellants shall recover their costs against all
defendants other than Brown. Brown shall recover his
costs against appellants.
