Jose Mendoza led police on a low-speed chase through the San Fernando Valley. The chase reached its end stages when Mendoza got caught in rush hour traffic. Mendoza’s large pickup truck crashed head-on into a small white Toyota, but the photographic evidence suggests that Mendoza was driving slowly enough that the smaller car sustained relatively minor damage. Mendoza then proceeded to drive under a freeway overpass at an estimated rate of between five and 15 miles per hour. He rammed several late-model cars, but their airbags did not deploy in any of the crashes. Mendoza was trying to push cars out of his way, but he was not crashing into them at any significant rate of speed. By the time a rookie police officer shot Mendoza in the head, three of his tires were flat. No one else was seriously injured.
Although the issue of whether deadly force was reasonable is a close one because Mendoza’s actions were obviously scary, I believe that he did not present an imminent threat of death or serious injury to himself or others. Shooting at Mendoza was unreasonable and may well have been a foolish option. A stray bullet could have injured one of the many people in the area, and the use of deadly force increased the risk of injury to others by causing Mendoza’s large vehicle to drive out of control. Although the record suggests that something went unexpectedly wrong with the plaintiffs’ case (their case-in-chief was much shorter than originally estimated), I believe that three errors in instructing the jury and in admitting certain evidence were not harmless.
First, the district court’s jury instruction about the use of deadly force misstated the rule of Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“[D]eadly force ... may not be used unless it is necessary to prevent the escape [of an apparently unarmed suspected felon] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”). See also State of Idaho v. Horiuchi, 253 F.3d 359, 367 (9th Cir.2001) (en banc) (“Law enforcement agents may use deadly force only if they reasonably believe that killing a suspect is necessary to prevent him from causing immediate physical harm to the agents or others, or to keep him from escaping to an area where he is likely to cause physical harm in the future.”). Ignoring Gamer’s necessity requirement, the instruction in the present case allowed the jury to believe that officers may use deadly force any time to prevent escape if there were a significant threat of harm and not only when necessary.
Second, the district court erred by instructing the jury not to consider whether the officer had less intrusive alternatives available to him. In order to determine whether the use of deadly force was necessary, the jury must ascertain whether “a reasonable non-deadly alternative existfed] for apprehending the suspect[J ... The alternative must be reasonably likely to lead to apprehension before the suspect can cause future harm.” See Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.1997).
Finally, the district court’s admission of evidence concerning Mendoza’s prior drug *521conviction and his cocaine blood levels at the time of his death was an abuse of discretion. This evidence not only prejudiced the jury, but it also prejudiced the majority in this appeal, which excused any errors in the jury instructions in part because Mendoza “was driving while under the influence of a large amount of cocaine____” Yet the evidence was simply not relevant to the crucial determination of whether Officer Olsen reasonably used deadly force. When Olsen fired the fatal shot, he did not know about Mendoza’s motives for fleeing police, and he did not know that Mendoza had ingested cocaine. The slight probative value of the evidence as impeachment is more than outweighed by its prejudicial nature. I respectfully dissent.