FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY C. NELSON,
Plaintiff-Appellant,
v.
CITY OF DAVIS; JAMES HYDE, Chief
of Police, City of Davis; JOHN
WILSON, Sergeant; THE REGENTS OF No. 07-16905
THE UNIVERSITY OF CALIFORNIA;
JOYCE SOUZA; MICHAEL MASON, D.C. No.
CV-05-01193-MCE
Sergeant; BRUCE DAVIDSON,
Sergeant; FNU BATES, Sergeant; OPINION
JAVIER BARRAGAN, Officer;
BRANDON JONES, Officer; CALVIN
CHANG, Officer; M. GARCIA,
Officer; CALVIN HANDY, Chief of
Police,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
March 13, 2009—San Francisco, California
Filed July 7, 2009
Before: J. Clifford Wallace, Sidney R. Thomas and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Thomas
8357
NELSON v. CITY OF DAVIS 8359
COUNSEL
John L. Burris and Adanté D. Pointer; Law Offices of John
L. Burris; Oakland, California, for the appellant.
J. Scott Smith, Douglas R. Thorn, and John A. Whitesides;
Angelo, Kilday & Kilduff; Sacramento, California, for appel-
lees City of Davis, James Hyde, and John Wilson.
Michael T. Lucey, Don Willenburg, and Mar S. Posard; Gor-
don & Rees, LLP; San Francisco, California, for appellees
Javier Barragan, Mary Garcia, and Calivin Handy.
Kelli M. Kennaday and Kim Johnston; Wilke, Feury, Hoffelt,
Gould & Birney; Sacramento, California, for appellee Calvin
Chang.
8360 NELSON v. CITY OF DAVIS
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether the “sham
affidavit” rule precludes the introduction of testimony from
other witnesses that is arguably inconsistent with a plaintiff’s
deposition testimony. Under the circumstances presented by
this case, we conclude the doctrine does not extend that far,
and we vacate the judgment of the district court and remand
for reconsideration.
I
On the evening of April 16, 2004, 21-year-old University
of California, Davis student Timothy Nelson attended a large
party at the Sterling Apartment Complex in Davis, California.
Police estimated that up to 1000 people were at the party. The
party escalated out of control and approximately 30-40 city
and school police officers were dispatched to the scene.
The officers formed a skirmish line and attempted to sweep
the crowd toward the front of the apartment complex. The
officers gave numerous dispersal orders while they moved
through the crowd, and multiple officers stated that they were
under a constant barrage of thrown bottles while moving
through the property, and that many members of the crowd
were chanting, yelling, and cursing at them.
Some officers shot pepperballs1 at bottle-throwing students
1
Pepperball launchers are similar to paintball guns in both form and
function, but they launch projectiles full of the chemical irritant oleoresin
capsicum (“OC”) rather than paint. The pepperball launchers used at the
party fire the OC projectiles at a velocity of 350 to 380 feet per second.
The launchers combine the kinetic impact of the projectile with the dis-
comfort of the OC. Training documents submitted to the district court state
that suspects “can be accurately targeted up to 30 feet away with . . .
enough kinetic impact to shatter the projectile and leave a welt or bruise.”
NELSON v. CITY OF DAVIS 8361
and also at groups of people that did not move when told to
disperse. The purpose of shooting the pepperballs was two-
fold: (1) to specifically target those partygoers who were
throwing bottles at the police; and (2) to create “area denial”
or “area saturation” so that the OC would make it uncomfort-
able for any person to stay in the area.
Nelson and his group of friends eventually left the hallway
in which they were standing and entered an outside breeze-
way. The officers allegedly warned people in the breezeway
that they needed to disperse, and Sgt. John Wilson of the
Davis Police Department ordered the pepperball unit to fire
when he felt that the students were not dispersing properly.
After receiving the order, “[a]ll of the officers lined up. The
four officers lined up in a row and pointed their Pepperball
units down range[, and t]hey shot into the area of the crowd.”
Two officers testified that no one in the breezeway was
throwing bottles.
During his deposition Nelson testified regarding the period
when the police started shooting:
A. What I can recall? We were coming out the
doors and I heard shots being fired.
Q. What do you mean you heard shots being fired?
A. I heard the mace bullet of hitting of the win-
dows and I — . . . .
Q. At the moment something impacted your eye
what was the position of your body? Were you
standing straight up? Were you making — were
you in the process of making some kind of
motion?
A. I was just walking out. That’s all I remember is
walking out and when I saw that, then I got hit.
8362 NELSON v. CITY OF DAVIS
Q. So you didn’t make a motion to dive into the
bushes before that?
A. No, it was instantaneous of the sound. The
sounds and the feeling was instantaneous. It
wasn’t like five minutes had passed. It was,
boom, right then.
Nelson also presented the deposition testimony of Bridget
Collins and Alicia Vittitoe. Collins testified that she was
standing outside in front of the breezeway door with a group
of friends, “[i]ncluding Tim,” when the police opened fire.
Alicia Vittitoe testified that Nelson was standing “[w]ith the
group” in front of the door in the breezeway when the police
started shooting. Thus, while Nelson seemed to indicate that
he was not in the breezeway before the police fired, two sup-
porting witnesses testified that he was included in the group
upon which the police fired the pepperballs, making him an
intended target of the shooting.
Nelson filed his lawsuit in the Eastern District of California
and made eleven separate claims for relief. He brought suit
under 42 U.S.C. § 1983 alleging violations of the Fourth and
Fourteenth Amendments, and he brought eight claims for
relief based on California state law grounds. Nelson claims
that he lost his football scholarship after the injury, suffered
temporary blindness and permanent disfigurement, and has
undergone a number of corrective surgeries. After the conclu-
sion of discovery, all defendants moved for summary judg-
ment or partial summary judgment.
The district court granted the defendants’ motions for sum-
mary judgment and dismissed Nelson’s claims without hear-
ing oral argument. The district court decided that Nelson was
not an intended target of the pepperball unit because “[a]ny
inference in that regard that may be drawn from the equivocal
testimony of others, however, is nullified by Plaintiff’s own
clear version of what transpired during the period immedi-
NELSON v. CITY OF DAVIS 8363
ately surrounding his injury.” The district court relied on
Prosser v. Ross, 70 F.3d 1005 (8th Cir. 1995), and Kennedy
v. Allied Mutual Insurance Co., 952 F.2d 262 (9th Cir. 1991),
and found that Nelson could not “avoid summary judgment
by citing testimony allegedly inconsistent with his own testi-
mony.”
We review summary judgment de novo. Blankenhorn v.
City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). We “may
not affirm a grant of summary judgment if there is any genu-
ine issue of material fact . . . , [b]ecause ‘[c]redibility determi-
nations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of a judge.’ ” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)). All justifiable inferences
must be drawn in Nelson’s favor, and we must deny summary
judgment if any rational trier of fact could resolve an issue in
his favor. Id.
II
[1] “The general rule in the Ninth Circuit is that a party
cannot create an issue of fact by an affidavit contradicting his
prior deposition testimony.” Kennedy, 952 F.2d at 266. Stem-
ming from our decision in Radobenko v. Automated Equip-
ment Corp., 520 F.2d 540 (9th Cir. 1975), this rule bars a
plaintiff from creating a factual dispute with himself for the
sole purpose of arguing that summary judgment is inappropri-
ate until the dispute is settled. “ ‘[I]f a party who has been
examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of
fact.’ ” Id. at 544 (quoting Perma Research & Dev. Co. v.
Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).
[2] However, this rule has its limits. In Kennedy, we noted
that other circuits had “urged caution in applying the rule”
8364 NELSON v. CITY OF DAVIS
and concluded “that the Foster-Radobenko rule does not auto-
matically dispose of every case in which a contradictory affi-
davit is introduced to explain portions of earlier testimony.”
Id. at 266-67. Accordingly, Kennedy required that “before
applying the Radobenko sanction, the district court must make
a factual determination that the contradiction was actually a
‘sham.’ ” Id. at 267.
[3] In addition, as we have noted in subsequent cases, the
“sham affidavit” rule does not preclude the non-moving party
“ ‘from elaborating upon, explaining or clarifying prior testi-
mony elicited by opposing counsel on deposition’ ” and that
“ ‘minor inconsistencies that result from an honest discrep-
ancy, a mistake, or newly discovered evidence afford no basis
for excluding an opposition affidavit.’ ” Scamihorn v. Gen.
Truck Drivers, 282 F.3d 1078, 1086 n.7 (9th Cir. 2002) (quot-
ing Messick v. Horizon Indus. Inc., 62 F.3d 1227, 1231 (9th
Cir. 1995)); see also Sea-Land Serv., Inc. v. Lozen Int’l, LLC,
285 F.3d 808, 820 (9th Cir. 2002) (“[T]he statements in the
[ ] declaration supplemented, and did not directly contradict
[the] deposition statements. Accordingly, the district court
erred in excluding the declaration on the ground that it contra-
dicted [the] deposition testimony.”) (footnote omitted).
[4] The differences between the evidence tendered in this
case and the paradigmatic “sham affidavit” case are quite evi-
dent. There is, of course, no affidavit at issue here, much less
the plaintiff’s own affidavit. Rather, plaintiff points to deposi-
tion testimony given under oath by other percipient witnesses
who had a different viewpoint from the plaintiff’s and who
had not suffered head injuries sufficient to cause temporary
blindness.
[5] The rationale underlying the sham affidavit rule is that
a party ought not be allowed to manufacture a bogus dispute
with himself to defeat summary judgment. That concern does
not necessarily apply when the dispute comes from the sworn
deposition testimony of another witness. See Lane v. Celotex
NELSON v. CITY OF DAVIS 8365
Corp., 782 F.2d 1526, 1531 (11th Cir. 1986) (“[W]hile a dis-
trict court may find that a party’s contradictory affidavit con-
stitutes a sham, . . . we would be unable, absent great
trepidation, to affirm a similar finding with respect to a disin-
terested witness’ contradictory affidavit.”) (internal citation
and footnote omitted).
[6] The more appropriate analysis is the traditional sum-
mary judgment standard. A district court has the responsibil-
ity to construe all facts in the light most favorable to the non-
moving party:
[A]t this stage of the litigation, the judge does not
weigh disputed evidence with respect to a disputed
material fact. Nor does the judge make credibility
determinations with respect to statements made in
affidavits, answers to interrogatories, admissions, or
depositions. These determinations are within the
province of the factfinder at trial.
Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027,
1036 (9th Cir. 2005) (internal quotation marks omitted). Here,
the district court ruled that testimony from Collins and Vitti-
toe was “equivocal” as compared to “Plaintiff’s own clear
version of what transpired.” That is just the type of credibility
determination that must be left to the factfinder, and not made
by a judge on summary judgment. A judge must not grant
summary judgment based on his determination that one set of
facts is more believable than another. Collins and Vittitoe
both stated that Nelson was standing with them outside in the
breezeway when the officers opened fire. If the testimony is
credited, a reasonable juror could find that Nelson was part of
the breezeway group and therefore an intended target of the
police officers. As an intended target, Nelson could attempt to
distinguish the bystander cases the district court relied upon,
and support his Fourth Amendment claim by proving there
was “a governmental termination of movement through
means intentionally applied.” Brower v. County of Inyo, 489
8366 NELSON v. CITY OF DAVIS
U.S. 593, 597 (1989). The contradictory deposition testimony
was sufficient to create a genuine issue of material fact and
critical to this important question.
[7] The defendants rely on Prosser v. Ross, 70 F.3d 1005
(8th Cir. 1995), and argue that we should extend the sham
affidavit rule to cover all instances when evidence conflicts
with the plaintiff’s testimony. In Prosser, the court found that
a plaintiff could not “avoid summary judgment by proffering
testimony from another person that contradicts the plaintiff’s
own testimony.” Id. at 1008. The court also found, however,
that its decision was strengthened by the fact “no reasonable
jury could return a verdict for Prosser based on [the witness’]
testimony.” Id. at 1009. To the extent the Eighth Circuit found
that a contradictory deposition can never create an issue of
fact, we must disagree with our sister circuit, and we decline
to extend our sham affidavit jurisprudence to preclude the
consideration of testimony from third parties that is arguably
inconsistent with a party’s own testimony.2
Because the district court’s entry of summary judgment
was predicated on this extension of the “sham affidavit” rule,
we must vacate the judgment and remand for further proceed-
2
We emphasize, however, that nothing in this opinion should be read as
curbing a trial judge’s existing discretion to grant summary judgment
when a party fails to create a legitimate genuine issue of fact, either with
her own affidavit or testimony from supporting witnesses. See, e.g., Sand-
ers v. Brown, 504 F.3d 903, 910 (2007) (“Conclusory allegations and
unreasonable inferences, however, are insufficient to defeat a motion to
dismiss.”); FTC v. Publ’g Clearing House, 104 F.3d 1168, 1171 (1997)
(“A conclusory, self-serving affidavit, lacking detailed facts and any sup-
porting evidence, is insufficient to create a genuine issue of material
fact.”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996)
(“[M]ere allegation and speculation do not create a factual dispute for pur-
poses of summary judgment.”). Nor does anything in this opinion preclude
a trial judge from excluding a third party affidavit in an appropriate case,
with findings supporting the conclusion that it is truly a “sham affidavit,”
manufactured for the purpose of avoiding summary judgment by creating
a genuine issue of material fact.
NELSON v. CITY OF DAVIS 8367
ings. We need not, and do not, reach any other issue in the
case, leaving those issues to be determined in the first
instance by the district court on remand.
VACATED AND REMANDED.