Family Can Sue Officer, Fresno PD Over Shooting

FRESNO (CN) - The family of a man shot and killed by a police officer can proceed with wrongful death, negligence and civil rights claims against the officer, city police chief Jerry Dyer and the Fresno Police Department, a federal judge ruled.

According to court documents, a bystander flagged down Fresno police officer Mike Palomino after he saw a red Suburban swerve across traffic and onto a sidewalk before it came to a stop in a nearby driveway.

The bystander told Palomino he believed the driver of the Suburban, Steven Anthony Vargas, was high on PCP and might have a gun. When Vargas did not show his hands as Palomino ordered, the officer fired three rounds of shots into the car, hitting Vargas nine times.

In support of their claims against the Fresno Police Department, Vargas's provided evidence that "a total of 19 of the 51 officer-involved shootings that occurred during the period between 2005 and 2010 reflected unreasonable use of force and that in none of those instances were corrective measures taken."

Defendants responded that only one of the officer-involved shootings was found to be a case of the use of excessive force and that officer was fired.

But U.S. District Judge Anthony Ishii of California's Eastern District pointed to one little-discussed fact in regards to plaintiffs' Fourth Amendment claim: Palomino never saw anything in Vargas' hands.

Ishii went on to note that there is no law or precedent to justify the use of lethal force when there is no "observable" evidence that the decedent possessed a weapon.

Although Palomino may have faced a threat of violence, there is little to no indication that Vargas was contemplating an escape from the car, that he intended to hurt anyone, or that the situation would escalate to threaten the lives of others, Ishii said.

The judge noted that there is also no evidence that Palomino warned Vargas that he might shoot.

Judge Ishii determined that issues of fact remain as to whether the Fresno Police Department may be held liable on theories of failure to investigate and discipline, failure to monitor or supervise, and failure to properly train its officers.

Ishii found the family provided credible evidence that Fresno's raw number of officer-involved shootings between 2005 and 2010 was "significantly higher" than comparable municipalities such as San Jose or Sacramento, and that many of these shootings were "unjustified."

While the Fresno Police Department was accredited by the Commission on Accreditation for Law Enforcement Agencies at the time of the shooting, defendants admitted that during a 2011 assessment, the public expressed concern over the high rate of officer-involved shootings and that investigation of those shootings remained open for an extensive period of time.

In its defense the department said its standard practice is "to wait for the Fresno County District Attorney's office to conclude their criminal investigation into all officer-involved shootings prior to concluding their own internal affairs investigation."

However, the department did concede that as a result of this policy, resolution of an internal affairs investigation typically takes years, not months.

Vargas's family said these investigative delays effectively boiled down to justice denied as, "any determination of officer culpability, if found, would usually be returned well after the period of time during which effective corrective action can be taken."

Ishii also ruled that Fresno Police Chief Jerry Dyer is also not immune from suit.

Dyer was the "administrative driving force behind policies and practices that determined both the timeliness of investigation of officer involved shootings and the application or lack of application of corrective measures should any have been required," the judge found; therefore, summary judgment is not warranted on claims against him.

Because defendants failed to show that Palomino's decision to shoot Vargas was in any way reasonable, plaintiffs can also proceed with state law claims for wrongful death and negligence, Ishii said.

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