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PRICE v. SERY

No. 06-35159.

513 F.3d 962 (2008)

Gwen PRICE, Personal Representative of the Estate of James Jahar Perez, deceased, James Jahar Perez, Jr., by and through his guardian ad litem, Gwen Price; Deborah Perez, an individual; James Jahar Perez, Jr., by and through his guardian ad litem, Gwen Price, Plaintiffs-Appellants, v. Jason SERY; City of Portland, a municipal corporation; Sean Macomber, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Submission withdrawn April 5, 2007.

Resubmitted November 1, 2007.

Filed January 22, 2008.

Attorney(s) appearing for the Case

Elden M. Rosenthal, Rosenthal & Greene, P.C., Portland, OR, argued the cause and filed briefs for the plaintiffs-appellants.

Harry Auerbach, Office of Chief Deputy City Attorney, Office of City Attorney, Portland, OR, argued the cause and filed a brief for the defendants-appellees.

Before: DIARMUID F. O'SCANNLAIN, EDWARD LEAVY, and RAYMOND C. FISHER, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Partial Concurrence and Partial Dissent by Judge FISHER.

O'SCANNLAIN, Circuit Judge:

The constitutionality of the City of Portland's policy on the use of deadly force by its, police officers is squarely presented by this appeal from grant of summary judgment by the decedent's estate.

I

On March 28, 2004, in the course of a routine traffic stop, City of Portland, Oregon Police Officer Jason Sery shot and killed...

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