Shot Halloween Partier Settles Suit Against Cops

     SAN JOSE, Calif. (CN) – Police who shot at a Halloween partygoer sleeping in a hotel hallway, dressed in a nurse’s costume with a toy gun, will settle civil rights claims.
     Javier Gonzales-Guerrero fell asleep in the hallway of an Extended Stay Hotel in San Jose, Calif., on the morning of Oct. 23, 2011, after returning from a boozy Halloween Party and being unable to find his room.
     A hotel guest who spotted Guerrero the next morning noted the toy gun in the waistband of Guerrero’s nurse costume, 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 said they identified themselves as San Jose police and shouted to Guerrero to wake up and to put his hands in the air.
     One officer might have given a conflicting command, “Don’t move.”
     While Guerrero said he tried to comply by raising his hands; San Jose police officers Mark and Tim Stephens and Jeffrey Bannister claimed that he actually reached 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.
     The Stephens officers 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, said Guerrero reached for his gun a second time and Johst said 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.
     Earlier this month, U.S. Magistrate Judge Paul Grewal refused to toss excessive force claims against the individual officers, finding that “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 ruling also preserved state-law claims for assault, battery and Bane Act violations because Grewal said the same standard of reasonableness applies to them as applies to the federal excessive force claims.
     Grewal also upheld claims for punitive damages, which he noted 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.'”
     The parties informed the court soon after that they reached a settlement. 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.
     Grewal in turn vacated a July 22 trial date and advised the parties to submit a stipulation for dismissal. The court did not release the terms of the tentative settlement.
     John Wall Jr. of San Jose, who represents Guerrero, did not respond to a request for comment.
     Christian Bayard Nielsen, lead attorney for the defendants, said that settlements are subject to approval by the San Jose City Council and, until that happened, his office would not have any comment.
     If they do not file a stipulation, the parties face a Sept. 17 status conference.

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