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Friday, July 19, 2024 | Back issues
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Cop and suspect shot by San Diego sheriffs can advance parts of their suit

The detective was shot in the leg by San Diego County sheriff's deputies in a friendly fire incident when the deputies fired at a car theft suspect, who also ended up severely injured.

SAN DIEGO (CN) — A police detective and the suspect he was pursuing can move forward with some of their claims against a San Diego Sheriff’s deputy who ended up shooting both while firing at the suspect, a federal judge ruled Thursday.

National City Police Detective Rowdy Pauu, a member of a multi-agency law enforcement task force investigating car thefts in San Diego County, was pursuing — in plain clothes and in an unmarked car — suspect Erik Talavera in a cul-de-sac in the city of El Cajon in 2022. 

After surrounding Talavera, Pauu called in San Diego County Sheriff’s deputies. According to Pauu in his complaint, two deputies, David Lovejoy and Jonathon Young, showed up, set up 50 feet from Talavera’s car and, without warning or any coordination, fired multiple rounds at Talavera when he exited the car with a knife. 

Talavera was hit 16 times, but survived, albeit with lifelong health care needs, he says in his own separate complaint against Lovejoy, Young and San Diego County. Pauu, who was behind Talavera, was shot in the leg. He also survived.   

Pauu and Talavera each separately sued the deputies and San Diego County but U.S. District Judge Todd W. Robinson, a Donald Trump appointee, addressed both cases in his Thursday order. He dismissed various supervisory and training liability claims against the defendants, but allowed Pauu to move forward his Fourteenth Amendment claims, along with Talavera's emotional distress claims.

Robinson said Pauu's excessive force and violation of his due process claims could survive but only under the Fourteenth Amendment, not the Fourth Amendment.

"Even though discovery may ultimately prove otherwise, the court concludes that the complaint’s allegations, taken as true and construed in Pauu’s favor, show that the deputy defendants had sufficient time to make an unhurried judgment about their conduct upon seeing Talavera with a knife such that Pauu need only allege facts to support the deliberate indifference standard," Robinson wrote.

According to Pauu, Lovejoy told members of the task force that he had seen Pauu in his line of sight before he fired his gun, but he took the shot anyway because he thought “he could make it.”

That attitude of deliberate indifference, extreme recklessness, and excessive force constitutes unconstitutional seizure under the Fourth Amendment and substantive due process violation under the Fourteenth Amendment, Pauu claims.

Robinson dismissed Pauu’s Fourth Amendment against unreasonable search and seizure claims, writing, “When force is directed at a suspect, but inadvertently injures a bystander, the bystander’s injury is not a seizure that implicates the Fourth Amendment because the means of the seizure were not deliberately targeted at the bystander." 

The judge also dismissed claims that the deputies weren’t properly trained, supervised or disciplined, along with a claim that the county's inadequate communication capabilities — which amount to unlawful policies and customs — led to him being shot.

On Talavera's side, Robinson dismissed a number of Talavera’s excessive force and negligent hiring claims.   

In his complaint, Talavera claims that he was already on the ground, trying to comply with conflicting orders, when the deputies began firing in what’s described as an instance of sympathetic gunfire — where one law enforcement officer's gunfire induces another officer to start shooting.  

"Talavera asserts that he sufficiently alleges 'serious emotional distress' because he experiences lasting mental trauma, post-traumatic stress disorder, depression, fear, anxiety, loss of sleep and basic mental anguish after the shooting," Robinson wrote, concluding that these effects of the shooting sufficiently indicate severe emotional distress.

“Obviously we disagree with both plaintiffs’ versions of the facts, and the challenge with any motion to dismiss is that for purposes of deciding the motion the court has to treat all of the plaintiffs’ allegations as if they were true,” wrote Steven P. Inman, II, senior deputy county counsel at the County of San Diego’s Office of the County Counsel, in an email. 

With all the complicated nuisances of the law, Eugene Iredale, Pauu’s attorney, said he thought the court presented a thorough analysis of the case law based on a factual basis of what happened to his client.  

“We look forward to present this case to a jury,” he said.

Categories / Courts, Personal Injury, Regional

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