A federal court drew a line in the sand that even cops can’t cross

Ian Millhiser
Justice Editor, ThinkProgress.

Officer Osvaldo Villarreal claims an unarmed suspect named Benny Herrera had a weapon before Villarreal shot and killed Herrera. Villarreal also claims that Herrera “charged” him?—?or, at least, that Herrera “closed the distance . . . very quickly”?—?after the officer ordered the suspect to remove his hand from his pocket.

Video of the incident disagrees. That video, according to a federal appeals court, “shows that the command and the shots were almost simultaneous, separated by less than a second.”

These facts, in addition to a few others that should have been enough to convince a police officer that he could not simply open fire on Herrera, were enough for the United States Court of Appeals for the Ninth Circuit to reject Villarreal’s bid to end the lawsuit brought against him by Herrera’s survivors. As the court explains in A.K.H. v. City of Tustin, even the broad legal immunity available to cops accused of violating a suspect’s constitutional rights are not enough to protect Officer Villarreal, at least at this stage in the litigation.

As the Ninth Circuit lays out the facts of the case, Herrera does not appear to have been a model citizen. The police were after Herrera because his ex-girlfriend claimed that he stole her phone and that he had hit her at least once in the head while doing so. The dispatcher also told officers that Herrera had a gang affiliation, a criminal record, and a possible warrant for his arrest.

None of these alleged offenses, however, warrant the death penalty. And they certainly do not warrant summary execution by cop. As the Supreme Court explained in Tennessee v. Garner, lethal force is only permitted “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” And neither of these factors were in play here.

To the contrary, the same ex-girlfriend who claim that Herrera stole her phone “told the police dispatcher that Herrera had not used a weapon to take her phone, that Herrera did not carry any weapons, and that Herrera had never been violent with her before.” When police found Herrera, he was walking down a nearby street. Herrera did not comply with police orders to stop moving and “get down,” but he did comply with Villareal’s order to get his hand out of his pocket. Villareal admits that he he never saw anything in Herrera’s hands.

And, of course, the video shows that Villareal shot Herrera almost immediately after Herrera began to comply with the officer’s order.

Under longstanding Supreme Court precedents, the simple fact that cop violated a suspect’s constitutional rights?—?in this case, Herrera’s Fourth Amendment right against “unreasonable searches and seizures”?—?is not enough to hold the cop accountable in a civil lawsuit. Rather, a court may side with the plaintiff in such a case only when “the right which was violated was clearly established at the time of the violation.” In this case, the Ninth Circuit held that Villareal’s alleged actions did not grant him immunity from suit, in large part because the allegations against Villareal are even more egregious than the police conduct the Supreme Court said was forbidden in Garner.
So there is a line that a cop can cross when the law will finally come down upon them like a ton of bricks.

That said, there is still some remaining uncertainty about whether this is that case. The Ninth Circuit’s rejected Villareal’s request for “summary judgment,” which means that this case could still conceivably proceed to a trial where Villareal or the city could dispute that plaintiffs’ version of the facts. That’s likely to be a heavy lift, however, given the fact that video exists of the shooting. But this case, at least for now, is not entirely over.

https://thinkprogress.org/cop-who-shot-and-killed-unarmed-latino-man-handed-big-loss-by-federal-appeals-court-711a71ed559e#.pw0nnciu4