Nobody likes a game of “he said, she said,” but far worse is the game of “we said, he’s dead.” Sadly, this is too often what we face in police shooting cases like this one . . .

The officers noticed that Cruz’s vehicle had a broken tail light, so they executed a traffic stop. After Cruz pulled into a Walmart parking lot, the police surrounded him with their vehicles. But Cruz attempted to escape, backing his SUV into one of the marked patrol cars in the process. Cruz eventually stopped, and the officers got out of their vehicles with weapons drawn.

Cruz opened his door, and the police shouted at him to get on the ground as he was emerging from the vehicle. According to four of the officers, he ignored their commands and instead reached for the waistband of his pants. Fearing that he was reaching for a gun, all five officers opened fire. They fired about twenty shots in two to three seconds . . .

To decide this case a jury would have to answer just one simple question: Did the police see Cruz reach for his waistband? If they did, they were entitled to shoot; if they didn’t, they weren’t. But for a judge ruling on the officers’ motion for summary judgment, this translates to a different question: Could any reasonable jury find it more likely than not that Cruz didn’t reach for his waistband? In ruling for the officers, the district court answered this question “No.” The evidence it relied on in reaching this conclusion—indeed, the only evidence that suggests this is what happened—is the testimony of the officers, four of whom say they saw Cruz make the fateful reach.

In this case, there’s circumstantial evidence that could give a reasonable jury pause. Most obvious is the fact that Cruz didn’t have a gun on him, so why would he have reached for his waistband?3 Cruz probably saw that he was surrounded by officers with guns drawn. In that circumstance, it would have been foolish—but not wholly implausible—for him to have tried to fast-draw his weapon

in an attempt to shoot his way out. But for him to make such a gesture when no gun is there makes no sense whatsoever.

A jury may doubt that Cruz did this. Of course, a jury could reach the opposite conclusion. It might believe that Cruz thought he had the gun there, or maybe he had a death wish, or perhaps his pants were falling down at the worst possible moment. But the jury could also reasonably conclude that the officers lied. In reaching that conclusion, the jury might find relevant the uncontroverted evidence that Officer Linn, one of Cruz’s shooters, recited the exact same explanation when he shot and killed another unarmed man, David Raya, two years later under very similar circumstances.

Perhaps the most curious similarity: According to the officers who shot the two unarmed men, both reached for their waistbands while the police had their guns trained on them. (One noteworthy difference: Raya was shot in the back because he was running away from Officer Linn when Linn saw him reach for his waistband.) “They both reached for the gun” might be a plausible defense from officers in the line of duty. “They both reached for no gun” sounds more like a song-and-dance.