Federal Judiciary

Is There a Difference Between ?Reasonable Belief? and ?Probable Cause??

By Robert Loblaw

Price v. Sery, 06-35159 (9^th Cir., Jan. 21, 2008)

This Ninth Circuit decision focuses on a fascinating semantic issue in Fourth Amendment law: is there a legally significant difference between reasonable belief and probable cause? The question arises in the context of a Portland policy that authorizes deadly force if an officer “reasonably believes” that the suspect presents an immediate threat of death or serious physical injury.

The plaintiff is the estate of an unarmed driver who was shot and killed seconds after being pulled over for driving a luxury sedan with tinted windows in a working class neighborhood known for drug activity. Or perhaps it was because he failed to activate his turn signal a full 100 yards before making a right turn, as required by Oregon law. At any rate, his estate sued the City of Portland, claiming among other things that the City?s policy on the use of deadly force is constitutionally unsound. The district court granted summary judgment in favor of the City, and a divided panel of the Ninth Circuit largely affirms.

The plaintiff argued that Supreme Court case law requires “objective probable cause” before deadly force may be used, and that Portland?s reasonable belief standard falls short of this requirement. But the majority of Judges O?Scannlain and Leavy rejects this argument, holding that there is no meaningful difference between the phrases “reasonably believes” and “has probable cause to believe.” Extending this reasoning, the majority also rejects the plaintiff?s claim that the City is liable for failing to train its officers properly in the use of deadly force.

Judge Fisher concurs with the first aspect of the panel decision, although he worries that the majority?s opinion is dangerously imprecise about the constitutional standard for using deadly force.  But Judge Fisher dissents from the majority?s rejection of the failure to train claim, pointing to ample evidence that the City?s training methods instilled a “shoot first, ask questions later” mentality in its officers. Among other things, the plaintiff presented evidence that the City used

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. [In addition,] officers are trained on a computer simulation system in which suspects invariably attempt to kill the officer being trained. [The plaintiff?s expert] ultimately concluded that the City?s training program “creat[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.”

Finally, the Court unanimously reverses summary judgment on the plaintiff?s Monell claim. All three panelists agree that a jury needs to resolve the question of whether the City has a longstanding custom or practice of enforcing its deadly force policy in an unconstitutional manner

Full post as published by Decision of the Day on January 22, 2008 (boomark / email).