Excessive force lawsuits against Calif. PD piling up after landmark settlement
Even though a Fresno prosecutor has ruled most officer-involved shootings justified, the civil lawsuits have exploded
By Pablo Lopez and John Ellis
The Fresno Bee
FRESNO, Calif. — Close to four years ago, a prominent San Francisco attorney vowed to put the entire Fresno Police Department on trial over what he said was a pattern of unjustified police shootings.
Arturo Gonzalez won a $1.3 million settlement from the city in that high-profile excessive-force case, which focused on the killing of Steven Vargas, an unarmed Fresno man who was high on drugs when a police sergeant shot him.
More important than the money, Gonzalez said at the time, was a promise by Police Chief Jerry Dyer to change his department's approach to officer-involved shootings. There had been 37 in the 31/2 years before the
December 2011 verdict, and Vargas was one of 11 people killed in those shootings.
In the ensuing 31/2 years, Fresno police have shot 30 people, killing 17, city records show. Some of the victims were unarmed. At least two were shot in the back.
One of those was 28-year-old Jaime Reyes Jr., who was unarmed and lying face down on the other side of a chain link schoolyard fence from a police officer when he was shot, a lawyer representing Reyes' family says.
All of the shootings — except for the two most recent, which are still under investigation — have been ruled justified by the Fresno Police Department's Internal Affairs Unit, meaning no officer was held criminally liable.
The Fresno County District Attorney also has ruled most of them justified; nine shootings are pending a ruling from prosecutors.
But in the civil arena, the shootings have sparked a new wave of excessive-force lawsuits against police and the city of Fresno. Two were filed by Gonzalez, who says nothing has changed since the Vargas verdict.
The lawsuits could cost Fresno millions at a time it is emerging from years of budget struggles. Outside lawyers are being hired to defend the lawsuits.
The new round of excessive-force lawsuits make Dyer bristle.
"This is not about change," he says, "this is about making money."
The vast majority of the people who were shot either aimed a gun or pulled a knife on officers, Dyer says. Many had criminal records. Some were identified as gang members. He stands by every shooting that has been cleared internally by his department investigators.
Still, Dyer says many significant changes have been made to Fresno Police Department policies since the Vargas verdict. This not only includes changes he promised as part of a settlement agreement reached with
Gonzalez, but additional policy tweaks above and beyond those pledges.
— a new officer-involved shooting review committee;
— work in a simulator that tests an officer's decision-making abilities to make sure they are sound before that person is allowed back into the field;
— a pledge to complete investigations within one year after the incident, and a promise to give reports to the victim's family no later than six months after the shooting and again when the investigation is finished.
The changes have made Fresno police a better unit, Dyer says, especially at a time when departments across the nation are being put under a microscope.
"Our officers are expected to know the unknown, to see the unseen, and to make split-second decisions with limited facts, knowing full well that they are going to be second-guessed after the fact by those people who have all the facts," Dyer says, "meaning facts that the officer didn't have at the time, and that could include, in some cases, determining that what the person had in their hand was not in fact a firearm, but the officer believed it was based on a number of circumstances."
Dyer has the backing of Fresno City Hall.
"While I can't address ongoing legal issues, I can state emphatically that the city has made significant progress in addressing officer-involved shootings and have dramatically lowered those numbers over the past few years," city spokesman Mark Standriff says. "At one time, we averaged more than one per month — but in 2014, the number of officer-involved shootings dropped 27% with no incidents reported for nearly eight months between October 2014 until June of this year. That's encouraging news."
Gonzalez and other lawyers who have sued the Fresno Police Department paint a dimmer picture. The police shootings, Gonzalez says, are part of a pattern, noting in a lawsuit that in seven fatal 2014 incidents, no officers were "properly disciplined."
The result, he says in a new federal lawsuit, is "a culture and belief ... that it is permissible to use deadly force against civilians and that no disciplinary action will be taken."
That's untrue, Dyer says. Officers who used their gun have been cleared criminally, but some have been disciplined for violating department policy. Dyer declines to name the officers or give details of any disciplinary action, but he strongly hints that the department is looking at firing officers who violated policy when they fired their gun in the line of duty.
To date, nobody has lost their job over a shooting during Dyer's tenure, but police officials note that doesn't mean there aren't "pending actions."
Using Deadly Force
The 30 police shootings in Fresno since January 2012 is high compared with other California cities. In Oakland, there have been 14 police shootings, three fatal, in that same time period. Bakersfield had 19 police shootings, resulting in 13 dead. Long Beach had 33 officer-involved shootings; 13 of those were fatal.
Fresno's recent rate of police shootings is about norm, says Deputy Chief Robert Nevarez, who says there are usually five to 10 officer-involved shootings (fatal or otherwise) in any year.
Nationally, an average of 420 people were killed by police each year from 2009 to 2013, according to the FBI's latest statistics. A vast majority of the subjects killed were armed with guns, the data shows. The FBI only tracks justifiable homicides by police, suggesting there are many more officer-involved shooting deaths than what is reported.
In general, police officers may use as much force as reasonably required to overcome the resistance of a suspect. Because police officers find themselves in dangerous or rapidly changing situations where split-second decisions are necessary, an officer's judgment at the time of the shooting determines whether the action was justified.
For decades, police have had wide latitude in shooting a fleeing felon. But a 1985 Supreme Court decision made it easier to sue police. In Tennessee v. Garner, the justices ruled that police couldn't shoot simply to prevent a felony suspect's escape. The suspect had to pose a significant threat of death or serious harm to either law enforcement officers or innocent bystanders for the shooting to be legally justified.
For deadly force to be constitutional, an officer must have reasonable belief that no other action will succeed. Taken into consideration are the severity of the offense, how much of a threat the suspect posed, and the suspect's attempts to resist or flee police.
When arresting someone for a misdemeanor, police have the right to shoot the offender only in self-defense. When police arrest someone for a felony, the courts have given them more leeway. That means police may use all the force that is necessary to overcome resistance, even if it means killing the person they are trying to arrest.
However, if it is proved that an officer used more force than was necessary, the officer can be held criminally and civilly liable.
That's what happened in the Vargas case, when the Fresno Police Department was held civilly liable.
In October 2009, Sgt. Mike Palomino shot and killed Vargas after he had crashed his SUV into a van parked in the driveway of a house — and after a witness had flagged down Palomino and told him that Vargas had a gun.
When Palomino walked toward the SUV, he ordered Vargas to get out. Police say Palomino shot Vargas eight times after Vargas reached toward the floor of his SUV as if to get a gun. No gun was found, but toxicology tests later found PCP — a powerful illegal drug that can cause violent behavior — in Vargas' body.
Two years later, Gonzalez and co-attorney Wesley Overson told jurors in U.S. District Court in Fresno that Vargas' death was not only unjustified, but was part of a pattern of unjustified shootings by Fresno police during Dyer's tenure.
Overson and Gonzalez said Fresno police not only escaped disciplinary actions for officer-involved shootings, but the department also failed to adequately train its officers to avoid such incidents.
The jury found the Police Department liable.
Under the settlement decree, Fresno police agreed to make a "good-faith effort" to complete all officer-involved shooting investigations within one year. If the investigation is not finished within six months, the city agreed to send a high-ranking Fresno officer to personally give a status update to the family of the person shot by police.
Dyer at the time also said he would do a better job of giving feedback to officers involved in a shooting, and vowed to continue "critically important" training efforts so officers "do not under react or overreact, but react appropriately."
Though Gonzalez says he doesn't know if Fresno has complied with the Vargas settlement agreement, Dyer says he has done more than what the settlement asked of his department.
Under the department's new officer-involved shooting review committee, a team is put together within 10 days of a shooting that looks at training, tactics, policy and equipment related to the incident. Soon after that, there is a meeting between the commander and the officer or officers involved in that shooting to provide them with feedback.
This is done within two to three weeks after a shooting.
Within 30 days, Dyer is briefed on any problems in those areas. He says this step has already resulted in some changes.
For example, there were several instances where officers fired at people in vehicles because they feared being run over. In response, Dyer says, the department developed a training video and put officers through simulations to outline steps they could take so they wouldn't be in the path of a vehicle.
This led to a new policy on shooting at vehicles. Now, the person in the vehicle must be the one posing a threat to the officer for the officer to fire his weapon.
It has worked, Dyer says. He says there hasn't been a single instance of an officer firing on a vehicle since the policy change.
"It's never the intent of an officer to kill someone," Dyer says. What's important "is the circumstances as to why officers responded in the manner in which they do."
For this reason, Dyer says, it is "a very unfair and incorrect representation that things have not changed in our department. There have been significant changes and progress made and to say we've had one officer-involved shooting in eight months is not by chance."
Good Cop? Or Bad Cop?
Seven lawsuits have been filed on behalf of shooting victims and their families since the Vargas verdict. One has been dismissed; the others remain active.
Public reaction has been muted. There have been small City Hall protests and demonstrations on the streets of Fresno, but nothing like the visceral reactions that followed police killings in other parts of the nation such as Baltimore and Ferguson, Missouri.
But at least one longtime local activist says the shootings are a sign that Dyer needs to be replaced as the department's top cop.
"He should have been gone a long time ago," Ellie Bluestein says.
Bluestein, 86, says she understands Fresno has serious problems with drugs and gangs.
But civil rights abuses have gotten so bad, Bluestein says, that minorities have complained about Fresno police officers stopping them for no reason and asking them if they are on probation or parole.
Bluestein says she's hopeful a recent move by the city is a good one. Mark Scharman, recently hired as director of internal audit in the city's Office of Independent Review, will help police auditor Richard "Rick"
Rasmussen go over the Police Department's policies and procedures to see if officers are following them.
"This is a good move by the city," Bluestein says, "because it has gotten to the point where some people are afraid of the police."
Roselyn Clark, 80, who is president of the Neighborhood Watch Association in Fresno, says it would be a mistake for Dyer to leave. She has served as association president for more than 25 years and dealt with four police chiefs.
Clark also says the public shouldn't try to curb an officer's right to draw his gun: "If we do that, innocent people could end up killed."
The problem, Clark says, isn't with Dyer and his officers. It's with a segment in society that hate police. She says she has been on ride-alongs when officers are cursed, spit at and threatened. On some of those rides, she says she has seen officers pull their guns to gain control of the situation. "It's an extremely difficult job," she says.
Exactly, Dyer says.
"It's easy to coach a football game from the stands, and it's easy to be a police officer after the fact when you're looking at all of the facts and you're not thrust into that dark environment where people are screaming and weapons are involved," he says. "It's never the intent of an officer to kill someone."
A closer review of some of the recent cases shows some common complaints.
Civil Suits Cite Race As A Factor
Of the 30 police shootings, a vast majority of the deceased and wounded subjects were minorities. But not all of them had criminal records, according to Fresno County Superior Court records.
All but one of the 30 subjects shot by police were men. All of the officers who fired their weapons were male.
And five officers were involved in more than one shooting.
For example, officer Colin Lewis fatally shot 18-year-old Joseph Ma on Feb. 23, 2014. Four months later, Lewis was one of two officers who shot and killed Miguel Moreno Torrez.
The killings of Ma and Torrez have resulted in lawsuits against the Fresno Police Department.
Ma's death certificate describes him as Mexican-American. He died after being shot in the left side of his back, the certificate says. The Superior Court records system says Ma didn't have a rap sheet.
Police say Ma was a passenger in a car that was pulled over for a traffic violation near Lorena and Bardell avenues in southwest Fresno about 5:40 p.m. on Feb. 23, 2014. Once the car stopped, police contend Joseph
Ma ran from the car with a gun in his hand. But the lawsuit filed by Ma's family says he was running away from police "with nothing in his hands."
The lawsuit contends Ma "lawfully left the scene of the traffic stop" and that police "had no probable cause to believe that Ma posed a danger to himself or others in the community" and therefore had no legal justification to shoot him.
In court papers, Stanley Ma, the attorney for the family, accuses Fresno police officers of carrying out "an official policy or de facto custom that presumes all Hispanic male individuals are violent, and must be approached with the intent of subduing them."
Stanley Ma says Dyer has created within his department "an atmosphere of lawlessness."
Dyer, says race has nothing to do with the police shootings: "When an officer is confronted with a life-and-death situation, the race and gender of the individual posing that threat has no bearing on the decision of that officer to use deadly force or not."
Four months after Joseph Ma was killed, Lewis and officer Jordan Wamhoff shot and killed Miguel Moreno Torrez, a Spanish-speaking farmworker.
Police say Torrez, 22, got into an argument with his brother at their home on Tulare Street in southwest Fresno on June 11, 2014. After their roommate called 911, police were dispatched to the brothers' home.
Officers say Torrez had a knife and they gave him verbal commands to surrender. Some witnesses say one of the brothers possibly had a knife, while others say neither brother had a knife and that they were only
yelling, pushing and fist-fighting.
The killing resulted in Torrez's family suing police. Torrez did not speak English, so therefore he did not understand the officers' commands, the lawsuit says. The family's attorney, James Segall-Gutierrez of Whittier, says Torrez also had his hands in the air or was raising his hands in shock as he heard the unintelligible commands.
Deputy Chief Nevarez says the two officers who responded to the scene pointed guns at Torrez and yelled for him to drop the knife. "That's universal language, I would think," Nevarez says. "If you're in possession of a deadly weapon and a police officer yells at you to drop the weapon, that's pretty clear."
Palomino, the sergeant who fatally shot Vargas, was involved with officer Charles Renfro in another shooting in March 2013 that has led to a lawsuit. During his arrest, Jerel Stanfield was shot in the head and back after he crashed an SUV near Arthur and Strother avenues in southwest Fresno.
Police recovered a loaded .40-caliber handgun near Stanfield, who survived the shooting.
Stanfield, a high-ranking member of the Strother Boys street gang, remains in the Fresno County Jail awaiting trial in the March 31, 2013 slaying of William Simpson, a member of the Dog Pound street gang. Police say the Dog Pound has a long-running feud with the Strother Boys.
Martin Figueroa: Shot Inside His Home
Gonzalez, who sued and won on behalf of Vargas' family back in 2011, has two excessive-force lawsuits against Fresno police.
In one, filed on behalf of Martin Figueroa, Gonzalez contends the 27-year-old would be alive today if police had exercised restraint in the late afternoon of May 20, 2014.
Police say Figueroa's sister, Lizette Figueroa, called 911, asking for help for her brother who had been acting strange while in the family home on Clinton Avenue, just north of Fresno City College.
When officers arrived, Martin Figueroa was in the home alone and not posing a threat to anyone, the lawsuit says. Officers went inside with a police dog, and police say Figueroa threatened them with a steak knife.
Police say Figueroa was screaming at the officers, was believed to be high on methamphetamine and appeared to be hallucinating.
The lawsuit says the officers, Robert Alvarez and Mikal Clement, shot Figueroa four times. An autopsy revealed that Figueroa had multiple dog bites to his arms. "There was no legitimate reason for Fresno police officers to use a police canine," the lawsuit says.
In a recent interview, Lizette Figueroa, 26, and her mother, Aurora Figueroa, say they are angry with the Fresno Police Department.
"We wanted the police to help us. Instead they murdered my brother," Lizette Figueroa says.
Though Dyer said at the time of the shooting that Martin Figueroa had a history of violence, the Figueroas say Martin was living a good life, going to church regularly, attending Fresno City College to learn mechanics, and staying out of trouble. His family says he liked to take his nephews to the park.
Court records indicate that Figueroa had a minor criminal record. In 2009, he was charged with assault with a deadly weapon, resisting arrest and being a member of a street gang. In a plea agreement, he pleaded no contest to the gang charge and was sentenced to probation.
He violated probation in June 2013 and spent some time in jail.
The Figueroas say no one from the Police Department has ever explained why the officers had to shoot Martin. "Why couldn't they use a bean-bag shotgun or wait for the police negotiator?" Lizette Figueroa says.
Since the killing, the Figueroas have become more active in the community, attending protests against police brutality and officer-involved-shootings. "If I could say one thing, I would tell families don't call police when you need help, because if you do, someone you love could be killed," Lizette Figueroa says.
Veronica Canter: Officers Were Responding To Disturbance
Gonzalez's other lawsuit is on behalf of the family of Veronica Canter, who was shot and killed by police in the afternoon of March 7, 2014.
At the time of the shooting, Dyer said Canter attacked the officers with a kitchen carving knife.
According to Dyer, officers were dispatched to an apartment complex on San Bruno Avenue near Bulldog Stadium on a 911 report of Canter dancing outside and acting erratically.
When officers arrived, Canter went inside an apartment. A man, whom police said had some type of relationship with Canter, asked officers to remove Canter from the apartment because she was trespassing, Dyer said.
When officers entered the apartment, Canter came out of the kitchen and threatened them with an 8-inch carving knife, the chief said. Officers ordered her to drop the knife, but she refused. One officer tried to subdue her with a stun gun. but the device had no effect on Canter. When Canter advanced with the knife, the other officer, Edward Louchren, shot and killed her.
Gonzalez's lawsuit says police responded to a disagreement among friends and "their hasty and disproportionate response quickly resulted in Ms. Canter's violent death."
She wasn't a threat, the suit says, but police still kicked down the front door. Louchren shot Canter after a single failed Taser shot, the suit says.
Canter — who had no criminal record, according to Superior Court records — was pronounced dead by paramedics. Both Fresno police and the Fresno County District Attorney's Office subsequently found the shooting justified.
Gonzalez singles this case out for concern, saying it came after Canter "was involved in a minor domestic dispute." He also notes that from the time officers arrived at the scene, only five minutes elapsed before reports of shots fired.
Jamie Reyes: Shot On Schoolyard While Running Away
Police also have been sued in connection with the fatal shooting of Jaime Reyes Jr., 28. He was shot on the campus of Aynesworth Elementary School in southeast Fresno in the afternoon of June 6, 2012.
At the time of the shooting, Dyer said Reyes was carrying an unloaded semi-automatic handgun when he was shot while running away from officers. Because an afterschool program was in session, Dyer said Reyes "posed a risk not only to officers but also to students."
The chief said Reyes' family had told police that they had seen him with a handgun earlier that day. Because Reyes had a prison record and was a felon in possession of a firearm, Dyer said police had grounds to arrest him.
Around 3:30 p.m., two officers saw Reyes, who lived a few blocks from the Aynesworth campus, walking along Church Avenue. Dyer said the officers ordered Reyes to stop, but instead he reached toward the waistband of his pants. When officers ordered Reyes to show his hands, he ran toward the campus.
Officer Juan Avila shot Reyes four times when Reyes refused to stop, Dyer said.
The federal lawsuit filed against Fresno police by Reyes' parents tells a different story.
Avila, the lawsuit says, fired two separate sets of shots. The first rounds wounded Reyes as he climbed the fence into the Aynesworth campus. Reyes fell to the ground inside the school. Avila fired again from the other side of the fence, hitting Reyes as he laid face down and motionless.
"What the police said is untrue, and they know it," says Oakland attorney Michael J. Haddad, who represents Reyes' family.
He says the gun Reyes had was unloaded and wrapped in a plastic bag inside one of his pants pockets. Second, Reyes did have a criminal record, but no record of violence. The most serious charge, Haddad says, was for being a felon in possession of ammunition. He pleaded guilty to a felony charge in July 2010 and was sentenced to two years in prison, court records show.
Reyes' mother told police that her son was suffering from a mental disturbance due to methamphetamine use, the lawsuit says, so they should use "special police procedures and tactics" in dealing with him.
The lawsuit also says that when Reyes ran from police on Church Avenue, he had had his back to the officers, nothing in his hands, and was headed to a schoolyard where no children were playing.
"Jaime Jr. had not made any threatening gestures or statements, and had simply been running away from the officers with open hands," Haddad writes in his lawsuit.
Mortally wounded, Reyes was denied first aid by Avila and his partner, Miguel Alvarez, the lawsuits says. Instead, the officers frisked him for weapons and handcuffed him. About 20 minutes passed before paramedics arrived to take Reyes to the hospital. He died during surgery.
The lawsuit accuses Avila and Alvarez of failing to give Reyes any warning before shooting.
Haddad says a woman — who didn't know Reyes — witnessed the shooting and corroborates the lawsuit's version of what happened. Her words were captured on a recorded 911 call at the time of the shooting, Haddad says.
"The use of deadly force," Haddad says in the lawsuit, "was not justified or lawful under the circumstances."
Dyer, however, says his officers did nothing wrong and he plans to vigorously defend not just Avila and Alvarez in the Reyes lawsuit, but every current legal action against Fresno police. None, he says, have merit.
"These incidents where we're being sued upon, I don't believe that it's about making change as much as it is about making money, and we understand that in law enforcement," he says. "In today's national climate where police officers are continually being scrutinized and criticized and videotaped and law enforcement across the country is under this tremendous magnifying glass, it creates a climate in which plaintiffs' attorneys hope they can take advantage of, and we understand that's the environment we are in today."
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