(CN) – A jury must decide if a Brownsville policeman is liable for excessive force for shooting to death an SUV driver who disobeyed the officer’s order to raise his hands, a divided Fifth Circuit ruled Wednesday.
Officer Rolando Trujillo Jr. pulled Jose Roman Rodriguez over around 2 a.m. on July 17, 2015, suspecting he was involved in the theft of two cases of Bud Light from a convenience store.
As Trujillo approached the SUV, Rodriguez’s friend who had stolen the beer jumped out of the passenger seat and fled, according to the case record.
Trujillo said in a statement to the Texas Rangers, who investigated the shooting, that he opened Rodriguez’s driver’s side door and asked him what had happened back there.
Rodriguez said he did not know anything and closed the door.
Differing stories about what happened next is the basis of the litigation.
Rodriguez’s mother and the mother of his two children said in a federal lawsuit that he reached his right hand down to the center console and tried to shift the vehicle into drive. But he put it in neutral and revved the engine for an instant. They sued Trujillo in Brownsville federal court in October 2016, alleging excessive force under the Fourth Amendment.
Dashcam footage from Trujillo’s patrol car shows him fire four shots the moment the vehicle starts moving forward. Two bullets hit Rodriguez in the side. He was pronounced dead an hour later. He was 24.
No weapons were found in the car, only a large gray-and-red screwdriver near the driver’s seat.
But Trujillo told the Texas Rangers he saw Rodriguez reach his right hand into the center console and raise a long gray object.
U.S. District Judge Andrew Hanen in December 2017 denied Trujillo’s motion for qualified immunity, which shields officers from civil liability for all but the most blatant misconduct.
Following Fifth Circuit precedent, Hanen held it is unreasonable for an officer to use deadly force against a fleeing suspect who does not pose a threat to the officer, including those fleeing in vehicles.
Trujillo said nothing about seeing Rodriguez holding a weapon until six days after the shooting, after he had met with an attorney, Hanen wrote.
Hanen said that because the dashcam footage did not show what happened in the SUV, a jury must decide.
Trujillo appealed to the Fifth Circuit, which heard arguments in September.
U.S. Circuit Judges Catharina Haynes and Carolyn King agreed with Hanen on Wednesday and dismissed the appeal. They found they lack jurisdiction and a jury should decide if Trujillo reasonably felt threatened for his life when he opened fire.
In the unsigned majority opinion, Haynes and King noted precedent requires them to believe the Rodriguez family’s version of the shooting.
“Viewing the facts in the light most favorable to plaintiffs, Rodriguez was a suspect in a minor theft, had not tried to harm Trujillo, and was reaching only for the gearshift; nothing indicated he was armed or reaching for a weapon. A jury could thus find that Trujillo could not reasonably perceive an immediate threat,” they wrote in a 6-page order.
But U.S. Circuit Judge Jennifer Walker Elrod disagreed with her colleagues and said the only thing that matters is Rodriguez reached for something before Trujillo shot him.
“Trujillo could have reasonably believed Rodriguez was reaching for a weapon and therefore reasonably perceived an immediate threat. Because I believe precedent compels that conclusion here, I must dissent,” she wrote.
Neither side’s attorneys returned calls seeking comment Wednesday.
A Cameron County grand jury declined to charge Trujillo, who is still with the Brownsville Police Department.
Rodriguez was one of 995 people shot to death by police in the United States in 2015, 100 of them in Texas, according to a Washington Post database.