San Diego Ducks Suit|Over SWAT Killing

     SAN DIEGO (CN) – A federal judge has dismissed a lawsuit filed by the family of a man who was shot and killed in a botched SWAT operation.
     U.S. District Judge Gonzalo Curiel dismissed the first amended complaint filed by Lydia Lopez and her children on behalf of their slain husband and father Angel Lopez on Feb. 4.
     Lopez was unarmed when he was shot to death on Jan. 17, 2013, after a vengeful heroin dealer told San Diego Police Lopez was a cartel member who had held the dealer hostage.
     Defendants in the case included Lou Torres, a parole agent with the California Department of Corrections and Rehabilitation; Andrew Mills, a captain with the San Diego Police Department; and Lt. Alberto Leos and Sgt. Scott Holslag, also with the SDPD. Alec Pojas, the alleged heroin dealer who gave police the bad tip, was also a defendant.
     Lydia Lopez said it all started when Pojas called Torres and claimed Angel and his father had kidnapped him and held him prisoner in an apartment on Reservoir Drive for a month. Pojas said that Angel Lopez and his father tortured him, “leaving his blood on the floor,” and that he managed to escape by jumping from a third-story balcony.
     Pojas also claimed Angel Lopez and his father had an AK-47 and that Angel was always armed with a .25 caliber pistol, according to Curiel’s summary of the complaint.
     Torres then provided the false information to Mills, which was then relayed to the other SDPD defendants. Lydia Lopez claimed police failed to vet the accuracy of the tip and called in the SWAT unit – which was told armed cartel members were holding a hostage at the apartment complex.
     According to Curiel’s summary of the complaint, the machine-gun wielding SWAT team surprised Angel Lopez in the parking lot, and he ran back into the apartment building. Officers followed him inside, where Officer Kristopher Walb ran into him in a third-floor hallway and ordered him to the ground.
     Though Angel Lopez allegedly complied, Walb shot him “twice in the back and once in the back of the head with a MP-5 submachine gun,” according to the order.
     Walb was not a party to the complaint. He claimed that he shot Angel Lopez because he believed the man was armed with a pistol, though an investigation showed that he was not. There were no people armed with AK-47s in the building, and Pojas’s blood was not found on the apartment floor, Curiel wrote.
     Lydia Lopez claimed Pojas knew her husband was on parole and wanted for a parole violation and sought to manipulate police into harming him. Police officers did not find Pojas until the next day.
     In his dismissal order, Curiel explained the plaintiffs essentially copied and pasted information from their previous complaint “other than deleting two paragraphs.” He called the former and new causes of action “identical.”
     “Changing the name of the first cause of action and leaving the salient allegations the same does not change the essence of the claim,” Curiel wrote.
     While the new complaint argued the first cause of action on the basis of failure to investigate an anonymous informant’s claims, Curiel understood the first cause of action to be an excessive force claim.
     Curiel also noted while Leos and Holslag were “mission leaders” and issued commands to SWAT officers, the first amended complaint did not argue those commands included injuring or killing Angel Lopez.
     The defendants were not present when Walb shot and killed Angel Lopez, but were at a command post near the apartment complex.
     For the supervisory conduct liability cause of action, Lydia Lopez argued that when the defendants provided false information to the SWAT team they “drastically increased the SWAT team’s perception that Lopez was armed and dangerous and therefore increased ‘exponentially’ the risk that deadly force would be used.”
     Curiel wrote that Pojas did provide some factual information regarding Angel Lopez’s status as a parolee at large and his address, which was corroborated before the SWAT team was deployed. As for the false information Pojas provided to authorities on the kidnapping and weapons he claimed Angel Lopez had, Curiel said the claims could not have been investigated prior to the attempted arrest.
     Pojas reportedly “suddenly terminated contact with authorities” during the course of the operation.
     Curiel also called the new facts of the first amended complaint “vague,” noting the plaintiffs did not identify the mission goals or parameters that Lydia Lopez claimed the defendants issued.
     “Defendants could not have foreseen that highly trained SWAT officers allegedly would use excessive force in attempting to apprehend Lopez, even SWAT officers armed with the very information defendants provided them,” Curiel wrote.
     Curiel noted multiple times throughout the 26-page order the plaintiffs did not establish defendants’ liability as “integral participants” in the constitutional deprivation that resulted in Lopez’s death. Accordingly, he said allowing Lopez’s family leave to amend the complaint again would be “futile.”
     “Plaintiffs have had ample opportunities to adequately plead their claims arising out of the shooting incident of Angel Lopez,” Curiel wrote. “The court cannot conceive of any new facts that could possibly cure the pleading.”
     City Attorney spokesman Gerry Braun said Curiel got the law right and noted the city was happy with the hard work by Deputy City Attorneys Rayna Stephan and Kathy Steinman on the case.
     Lopez’s attorney Julia Yoo did not return email or phone requests for comment.
     An earlier case regarding the shooting death of Angel Lopez is currently on appeal with the Ninth Circuit. There have been four separate complaints filed in court arising out of the same incident and same set of facts.

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