San Jose Cops Still on the Hook for Shooting

SAN JOSE, Calif. (CN) - Police officers who shot a man armed with a toy gun 25 times must face charges they violated his civil rights, a federal judge ruled.

Javier Gonzales-Guerrero fell asleep in the hallway of an Extended Stay Hotel in San Jose on the morning of Oct. 23, 2011, after returning from a boozy Halloween Party and being unable to find his room, according to U.S. Magistrate Judge Paul Grewal's summary.

Guerrero was asleep, dressed in a nurse's costume with a toy gun in his waistband, when a hotel guest found him the next morning. The guest assumed Guerrero was passed out after partying the night before, and recognized that the gun was a toy, Grewal wrote.

But hotel clerk Athena Oborn apparently thought the gun might be real when she checked on Guerrero a short while later. She called police to report a man asleep on the stairwell with what appeared to be a gun.

The responding officers could not determine whether the gun was real or fake. They identified themselves as San Jose police and shouted to Guerrero to wake up and to put his hands in the air, according to Grewal's order that granted the city partial summary judgment.

One officer might have given a conflicting command, "Don't move," according to the ruling.

Guerrero claims that he tried to comply by raising his hands; San Jose police officers Mark and Tim Stephens and Jeffrey Bannister claim they saw Guerrero reach for his gun.

Officer Brian Johst said he saw Guerrero point the gun at the officers, though the other officers did not make such a claim.

Tim and Mark Stephens fired a volley of bullets at Guerrero, who reacted to the pain of being shot by reaching toward now wounded leg, while the officers continued to yell commands at him.

Several officers, including Gary Petrakovitz, claim Guerrero reached for his gun a second time and Johst says he again pointed the gun at the officers.

In response, four officers - Tim and Mark Stephens, Johst, and Petrakovitz - again fired at Guerrero, who suffered 25 bullet wounds in his arms, legs, abdomen, hands and feet. He was rushed to the hospital for treatment and survived.

The officers claim that Guerrero cannot prove they used excessive force by shooting him. But Grewal wrote: "Interpreting the record in the light most favorable to the non-moving party, as the court is required [in considering motions for summary judgment], a reasonable jury might find that the officers' actions did violate clearly established law not to shoot to kill a compliant, non-dangerous suspect."

The defendants claimed that summary judgment should be granted because officers may use deadly force when a person threatens their safety by refusing to comply with orders and by reaching for what appears to be an authentic gun, as they claim happened in this case.

"But defendants miss the point, and their argument that their conduct did not violate clearly established law actually works against them," Grewal wrote. "Both parties agree about the status of the law - deadly force may only be used when the officer has probable cause to believe that the suspect poses a threat of serious injury to others. As already discussed, however, Guerrero has presented competent evidence that he did not threaten the officers or refuse to comply. The decision to believe Guerrero or the officers is a credibility determination that this country has traditionally delegated to a jury."

Grewal refused to toss state law claims for assault, battery and Bane Act violations because the same standard of reasonableness applies to them as applies to the federal excessive force claims.

Grewal also upheld claims for punitive damages, which are appropriate "where an individual's conduct is shown to be 'motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others,'" according to the ruling.

Grewal found that "Guerrero has proffered evidence that defendants acted with reckless indifference to his rights when the officers shot him in a second round of volley shots, even as he lay on the floor moaning, after being seriously injured from the first volley. Guerrero suggests that any perceived threat had clearly subsided after the first volley, making the second volley unnecessary and reckless indifference."

Officer Tim Stephens stated that he stopped firing after the first volley because "he felt the danger had ceased, so a reasonable jury might ask why he resumed firing." He did not know why, but said he stopped firing when he "did not want to shoot anymore," according to the ruling.

Mark Stephens claimed he fired the second time because "[t]he suspect did not comply with commands to get his hands up."

Grewal found: "A reasonable jury considering these comments and the duration and number of shots fired might find punitive damages to be warranted."

Guerrero dropped liability claims against the city, as he was unable to present evidence showing a longstanding policy of violating citizen's civil rights in similar incidents.

Guerrero is represented by John Wall Jr. of San Jose.

The defendants are represented by Christian Bayard Nielsen from the San Jose City Attorney's Office.

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