HOUSTON (CN) — A Brownsville, Texas policeman fired four shots into an SUV during a late-night traffic stop, killing the driver as he tried to flee. Was the shooting justified? A Fifth Circuit panel took up the question Tuesday.
Jaime Gomez, then 23, stole three cases of Bud Light from a convenience store around 2 a.m. on July 17, 2015 and ran to Jose Ramon Rodriguez’s waiting SUV. Brownsville police Officer Rolando Trujillo Jr. responded to the theft report. After talking to the store clerk, he pulled Rodriguez over minutes after the heist.
Trujillo told the Texas Rangers in a filmed statement that as he approached the vehicle, he could not see through its tinted windows, so he shined his flashlight into it. Gomez jumped out and ran.
Trujillo told the Rangers that he opened Rodriguez’s driver’s side door and asked him what had happened back there. “Rodriguez said, ‘No, yo no sé nada,” Trujillo said in the voluntary statement published by The Brownsville Herald, taken from the video.
According to the case record, Rodriguez then closed his door and 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.
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.
“It was at this moment that I believed that Rodriguez was about to use a deadly weapon against me,” said Trujillo, then 23, fighting back tears as he recounted the shooting for the Texas Rangers.
A Cameron County grand jury declined to charge Trujillo.
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. His family sued Trujillo in Brownsville Federal Court in October 2016, alleging excessive force under the Fourth Amendment.
“Officer Trujillo cannot explain how Mr. Rodriguez’s hand can be in two places at once: thrusting a weapon at Officer Trujillo while using the same hand to move the gearshift into the drive gear,” the family states in their second amended complaint.
U.S. District Judge Andrew Hanen allowed the excessive force claim to proceed in December 2017, denying Trujillo’s request for qualified immunity, which shields police from civil liability for all but the most egregious shootings.
“It has long been clearly established that, absent another justification for the use of force, it is unreasonable for a police officer to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officers or others. This extends to the specific context of shooting at a suspect fleeing in a motor vehicle,” Hanen wrote, citing the Fifth Circuit ruling in Lytle v. Bexar County (2009).
Hanen, a George W. Bush appointee, 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 Tuesday at the Houston federal courthouse.
Trujillo’s attorney Heather Scott, with the Brownsville firm Guerra, Leeds, Sabo & Hernandez, told the three-judge panel that the case law Hanen cited to advance the case also worked in Trujillo’s favor.
She said the Fifth Circuit held in Lytle v. Bexar County that if an officer fires immediately after a suspect starts fleeing, the shooting is constitutional.
Scott said Trujillo fired because he could not see Rodriguez’s hands and Rodriguez was noncompliant. The SUV’s brown paint also gave Trujillo reason to be on high alert, Scott said.
Trujillo told the Texas Rangers that in the weeks before the shooting, there had been several armed robberies in Brownsville. “In these calls the suspect vehicle was also a brown or gold-colored older model SUV,” Trujillo said in the statement recorded by the Rangers.
Senior U.S. Circuit Judge Carolyn King asked Scott if the case calls for warning the public about how to behave during traffic stops.
“OK, so that’s the message we need to get out, is that if you get stopped in the middle of the night, and the officer can’t see your hands, you may be shot? That’s the message?” asked King, a Jimmy Carter appointee.
“I don’t believe it’s a message, your honor. I think the case law …” Scott said before King cut her off.
“Well, no, there’s going to be a message in this case one way or the other. There’s going to be a message. So your message is, you get stopped in the middle of the night, that can happen. It happened to me. I didn’t actually get stopped, but I was approached by the police,” King said.
Fifth Circuit Judge Jennifer Elrod focused on the long reach of qualified immunity in questioning the Rodriguez family’s attorney.
Elrod said the Fifth Circuit heard a case involving a man who got out of his car and started running after a police officer pulled him over. She said there was a dispute about whether the man was running away from or toward the officer before the officer shot him.
“We didn’t find there was a fact issue. We said the reasonable officer could perceive he was running towards him. Even though his witness maintained he was running away and we had a video of it. Do you see what I am saying? I don’t know how that case is different than this case,” said Elrod, a George W. Bush appointee.
The family’s attorney Michael Murray suggested that defense parties have become too powerful.
“I’m certainly not the person to stand here and suggest that qualified immunity has lost its way and needs to be rethought by this panel,” said Murray, an associate for the Texas firm Watts Guerra. “But there’s a lot of scholarship and a lot of judicial worrying, I suppose, about where qualified immunity stands and how it’s wavering between, well, moving closer and closer to being an absolute immunity in every case under every circumstance.”
Elrod replied: “And the court is well aware of that scholarship and follows it closely, but we have to follow the existing law as it is right now.”
Fifth Circuit Judge Catharina Haynes filled out the panel, which did not indicate when they would rule.