dissenting:
John Scott lived in a two-story apartment house -in a residential neighborhood in Butte, Montana. On August 4, 1984, Mr. Scott had attempted to evict some troublesome tenants. Twice that day, Mr. Scott called the Butte-Silver Bow Law Enforcement Agency complaining of disturbances caused by these tenants. Among the police officers who responded to the calls and talked to Scott in person was Officer James Henrieh. Later the same day, a neighbor called the police and reported hearing gunshots in front of Mr. Scott’s building. When Officers Henrieh and David Flamand of the Butte-Silver Bow Law Enforcement Agency responded to the call, they were informed that the man who allegedly fired the shots was acting “crazy” and had entered a nearby apartment.
*917As the District Court described the scene, the officers, with “weapons drawn ... immediately approached the door of the apartment where they had been advised the perpetrator had entered.” Scott v. Henrich, Memorandum and Order (No. CV-87-003-BU) (January 3, 1991), p. 2-3. The officers then “banged and kicked the door and yelled ... ‘Police, police officers, open up.’ ” Majority Opinion, at 914. A man, later identified as John Scott, opened the door holding a gun. Believing Scott had raised his weapon, Officer Henrich fired a shot. Officer Flamand then fired four shots into the doorway because he believed the initial shot fired came from Scott’s weapon rather than from his partner’s. One of his shots killed Mr. Scott. His widow, Doris A. Scott, sued on a theory that her husband’s death was caused by an excessive use of force.
On appeal, faced with the harsh reality of her deceased husband’s unavailability to testify, Mrs. Scott has abandoned her opposition to summary judgment based on what occurred after the officers assaulted the door. Instead, Mrs. Scott relies solely on her alternative summary judgment theory that focuses on the interval of time before the officers assaulted the door. The premise of this theory is that the officers used excessive force by creating an unreasonable risk of armed confrontation with Mr. Scott when they stormed the door without first trying to defuse a potentially deadly situation.
The majority dismisses Mrs. Scott’s appellate argument with the simple statement that “the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them.” Majority Opinion, at 915. The majority, however, mischaracterizes Mrs. Scott’s argument. She does not argue, as the majority says, that “the officers should have used alternative measures,” but rather that the alternative they did choose was objectively unreasonable. The cases the majority cites are inapposite because they hold only that the availability of less intrusive alternatives does not make otherwise reasonable police conduct unreasonable. See Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n. 12, 96 S.Ct. 3074, 3082 n. 12, 49 L.Ed.2d 1116 (1976); Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973) (the availability of less intrusive means does not “by itself, render [the police action] unreasonable”). Mrs. Scott does.not argue that the. officers’ conduct was less reasonable than the alternatives. She argues simply that the decision to rush the door immediately was itself unreasonable because it created an unnecessarily high risk of an armed confrontation. See, e.g., Alexander v. City and County of San Francisco, 29 F.3d 1355, 1368 (9th Cir.1994) (“I seriously doubt a reasonable judicial officer would have authorized the immediate storming of [plaintiffs] residence by a heavily armed tactical team. Instead, he might have required exhaustion of less intrusive alternatives, like using tear gas or waiting [the plaintiff] out”).
In opposition to the summary judgment motion, Mrs. Scott filed a detailed affidavit in which an expert witness expressed the opinion that the officers’ conduct created an unreasonable risk of armed confrontation. The expert testified that by rushing the door heavily armed, the officers clearly violated the internal police guidelines of the Butte-Silver Bow Law Enforcement Agency. He cites the following guideline:
A barricaded suspect poses an extreme danger_ Officers should not immediately flush a barricaded suspect. Rather they should develop and proceed with a tactical plan. Officers should seal off avenues of escape and call for assistance. When a suspect is isolated, time is normally on the side of the officers.... All efforts should be made to persuade the suspect to surrender before force is used.
See Payne Affidavit, CR 122, Exh. E, at 16 (quoting Butte-Silver Bow Law Enforcement Agency Manual). The expert explained that Officers Henrich and Flamand should not have tried to flush Mr. Scott out immediately, but instead should have developed a tactical plan, sealed possible escape paths, called for back up, and tried to coax Scott into *918surrendering. See Payne Affidavit, CR 122, Exh. E, at 14-17.
Internal police regulations and guidelines are relevant to the question of the reasonableness of the force officers use in apprehending suspects. See Tennessee v. Garner, 471 U.S. 1, 18-19, 105 S.Ct. 1694, 1704-05, 85 L.Ed.2d 1 (1985) (considering police department policies as relevant in deciding the constitutionality of the use of deadly force); Maddox v. City of Los Angeles, 792 F.2d 1408, 1414 (9th Cir.1986) (considering the rules promulgated by the Los Angeles Police Commission, a local civilian oversight body, in determining whether a police choke-hold was reasonably applied); Peraza v. Delameter, 722 F.2d 1455, 1456 (9th Cir.1984) (approving use of police department’s canine policy as evidence). The majority holds these guidelines to be irrelevant here because the guidelines were intended to protect police officers not suspects such as Mr. Scott. Majority Opinion, at 915-16. This holding is contradicted by the deposition testimony of Undersheriff Lee that the guidelines are meant, at least in part, to protect the safety of the suspect. See Second Petition for Rehearing, at 2-4. Thus, at the very least, Undersheriff Lee’s testimony creates a triable issue of fact as to whether the guidelines are in fact relevant.
Mrs. Scott’s expert further opined that not only did the officers’ conduct violate Butte-Silver Bow Law Enforcement Agency’s guidelines, they also violated contemporary police practices:
Contemporary accepted police practices recognize that immediate entry into a dwelling or other building for an armed suspect should only be attempted if there are hostages and one has information that a hostage may die or be seriously injured if one does not act immediately.
Id. at 12. The expert emphasized that under contemporary police practices, the officers should have gathered more intelligence about the identity of the person, his intentions, and his mental state. See id. at 11-12. If the officers had paused to ask just a few questions, stated the expert, they could have learned that “Mr. Scott was the landlord, that he had been drinking with [the evicted tenants], that he was fearful of them, that he had been threatened by them, and would have been happy to have the police on hand.” Id. at 13. Since “[p]assage of time, without immediate resort to an assault tactic, could have diffused [sic] this situation,” the expert stated that it was unreasonable for the officers to storm the door without first using a telephone or a bullhorn to try to get Scott to surrender. Id.
Viewing the' evidence, especially the expert’s affidavit, in a light most favorable to Mrs. Scott, see Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983), I believe there are triable issues of fact whether it was reasonable to storm the door without first pursuing less confrontational alternatives.
It is true that defendants have offered deposition testimony from law enforcement officers that Officers Henrich and Flamand reacted in accordance with departmental guidelines and conventional police practices. However, Scott’s expert specifically controverts such testimony and thereby creates a battle of experts on a material issue of fact, which cannot be decided at summary judgment as a matter of law. See Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993) (“If a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial.”).
I respectfully dissent.