Killer-Cop Case Revived by 9th Circuit

(CN) - A jury must decide if a man reached for his gun before five Anaheim police officers opened fire and killed him, the 9th Circuit ruled Thursday.

Anaheim police had been acting on a tip from a confidential informant when they tracked suspected drug dealer and parole violator Ceasar Cruz to a Walmart parking lot in 2009.

An officer pulled Cruz over for a broken taillight and called in back-up. Knowing that the informant had described Cruz as armed and determined not to go back to prison alive, several marked and unmarked police cars rushed to the scene.

Surrounded by police, Cruz tried to escape by smashing his SUV into a cruiser. All five officers jumped out of their cars, weapons drawn.

Four of these officers would eventually testify that Cruz emerged from his vehicle and reached for the waistband of his pants. All five officers opened fire, getting off about 20 shots in a few seconds. The officers then had to untangle Cruz's dead body from his seatbelt. They retrieved a loaded nine-millimeter from the passenger seat.

Cruz's relatives sued Anaheim and the officers for wrongful death, claiming that the police department had "executed" Cruz with help from a confidential informant.

U.S. District Judge Margaret Morrow ruled for the city and the officers on summary judgment, but a three-judge appellate panel reversed on Thursday, nearly three weeks since the police shooting of an unarmed teenager in Ferguson, Mo., put such encounters under the microscope.

In Cruz's case, the version of events advanced by the Anaheim officers raises "circumstantial evidence that could give a reasonable jury pause," the court found.

"Most obvious is the fact that Cruz didn't have a gun on him, so why would he have reached for his waistband," Chief Judge Alex Kozinski asked, writing for the unanimous court.

Kozinski also questioned why a left-handed man would reach for his gun with his right hand, the panel found.

"A jury might find implausible other aspects of the officers' story," the decision continues. "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 reached for a non-existent weapon with his off hand."

Kozinski also said that a "jury might find relevant" the fact that one Cruz's shooters was also involved in the shooting of an unarmed suspect, David Raya, two years later, and that he had "recited the exact same explanation" in that case.

"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," Kozinski wrote. "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."

The panel remanded the case to Los Angeles for a possible jury trial.

"To decide this case a jury would have to answer just one simple question: Did the police see Cruz reach for his waistband?," Kozinski wrote. "If they did, they were entitled to shoot; if they didn't, they weren't."

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