SACRAMENTO, Calif. (CN) --- Buzzed and baffled by the midnight arrival of police to his mother’s door, Jesse Montelongo learned an unlucky lesson after a night of drinking: Don’t throw books at police officers.
Over six years after surviving a shot to the chest, Montelongo is finally making progress in his case against the city of Modesto, California, after a federal judge on Tuesday ruled the man shot in front of his children in a crowded living room ought to have his day in court.
The 2014 incident, captured on tape, should go before a jury, U.S. District Judge Troy Nunley ruled.
“Looking at the evidence in the light most favorable to plaintiffs and drawing all reasonable inferences in their favor, it appears Mr. Montelongo tossed an object at Officer Wallace from six to 10 feet away, Wallace dodged the object and then fired his weapon despite seeing Mr. Montelongo immediately retreat,” Nunley wrote Tuesday. “A reasonable jury could find the threat to Officer Wallace had subsided by the time he fired his weapon.”
Spurred by 911 calls made by Montelongo’s mother, Wallace and another officer responded to the residence in October 2014 to diffuse the apparent alcohol-charged family dispute.
According to court records, dispatchers told the officers the mother was acting frantic during a series of 911 calls that kept getting disconnected and thus weren’t sure whether Montelongo was armed or dangerous.
“Before disconnecting, she said ‘My son has a…’,” the dispatcher’s report states.
When officers arrived, they talked with Montelongo’s sister in the driveway. Here, the parties’ memories begin to differ.
The uniformed officers claim the sister told them Montelongo was “drunk and threatening their mother” so they continued with a safety check. As they split up to survey the home, the officers say their “safety senses” were further heightened because they recognized a Norteno street gang member on the property.
Seconds later, Wallace says he heard a scuffle underway inside and a “woman desperately crying for help” so he unholstered his gun and approached the front door where he met a “hostile and threatening heavyset male in a baggy white tee shirt and a baseball cap.”
Body camera footage shows Montelongo ignoring commands to show his hands and then tossing an object underhanded from the doorway toward the officer. Wallace dodges what was later determined to be a black hardcover book, straightens and quickly shoots Montelongo who was backing back into the house.
“He threw something at me,” Wallace told his partner. “He wouldn’t show me his hands and threw an object at me.”
Following what he considered an assault of an officer, Wallace entered the home and found Montelongo on the ground along with small children nearby.
As it turns out, the shooting happened with five children and Montelongo’s mother in the crowded home. Montelongo claims the children not only witnessed their father and uncle get shot, but were taken out of the house at gunpoint.
According to the family, one of the officers grabbed two kids by their collars and shouted “You people just don’t know how to listen to what I say!”
Initially filed in 2015, the case has progressed slowly in the Eastern District of California, which continues to slog through a massive backlog caused by a thin bench. In the 17-page ruling, Nunley allowed one excessive force claim to continue along with one state civil rights claim.
But for now, after suffering a broken rib and damage to his pancreas, Montelongo has secured a bit of relief. It appears a federal jury will determine who should be taught the next lesson, the book-thrower or the trigger-happy officer.
“There are genuine issues of material fact as to whether Officer Wallace used excessive force against Mr. Montelongo in violation of his Fourth Amendment rights,” Nunley concluded.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.
