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Widow’s Claim Against SD Cops on Last Legs

SAN DIEGO (CN) - A grieving widow can amend claims that San Diego police shot her unarmed husband to death after a vengeful heroin dealer told them he was a cartel member holding a hostage, a federal judge ruled, in dismissing most of her claims.

Lydia Lopez sued four San Diego police officers, a parole officer and a drug informant in January for the death of her husband, Angel Lopez, and their 3-year-old twins.

Parole Officer Lou Torres, police Capt. Andrew Mills and three other officers allegedly killed her 27-year-old husband just after 1 p.m. on Jan. 17, 2013.

Lydia Lopez, of Chula Vista, says it all started when defendant Alec Pojas, an alleged heroin dealer turned police informant, called Torres and claimed her husband and his father had kidnapped him and held him prisoner in an apartment on Reservoir Drive for a month.

Pojas said that 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. He claimed Lopez and his father had an AK-47 and that Lopez was always armed with a .25 caliber pistol, the widow said in the complaint, as summarized by U.S. District Judge Gonzalo Curiel in his Oct. 21 ruling.

Torres contacted Mills, who dispatched a SWAT unit to the apartment and told them that armed cartel members were holding a hostage there - without verifying Pojas's story, the family claimed.

According to the judge's summation of the complaint, the machine-gun wielding SWAT team surprised 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 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 ruling.

Walb was not a party to the complaint. He claimed that he shot Lopez because he believed Lopez was armed with a pistol, though 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, the ruling states.

Lopez claimed Pojas concocted the story to get revenge on her husband for a drug debt. She sought damages for wrongful death, excessive force, and constitutional violations. Curiel ruled mostly for the defendants in his 23-page order granting in part and denying in part their motion for judgment on the pleadings.

He rejected the argument that the defendants are liable for excessive force even though they were not at the shooting because they failed to verify Pojas's anonymous tip before dispatching the SWAT team.

Officer Walb killed Lopez, not the defendants, and there is no evidence they knew Walb would use excessive force. An officer not present at an incident of excessive force cannot be "considered an 'integral part' in the constitutional deprivation," even if that officer is a supervisor, Curiel wrote.

Even if the defendants were supervisors who set the series of events in motion that led to Lopez's death, there was no way for them to know beforehand that the SWAT team would pursue Lopez with submachine guns and shoot him while he was allegedly kneeling. "Defendants could not have foreseen that highly trained SWAT officers would allegedly use excessive force in attempting to apprehend Lopez," Curiel wrote.

Claims for loss of the right of association and seizure without probable cause fail for similar reasons and were dismissed without prejudice.

Curiel dismissed the wrongful death claim on grounds that the widow and children cannot bring it on their own behalf because it rests on allegations of excessive force and improper seizure, and "Fourth Amendment rights are personal to the decedent."

Due process allegations fail to state a claim because Fifth Amendment due process claims apply only to federal employees, and all the defendants are state officials, Curiel found.

Curiel gave the family until Nov. 6 to file an amended complaint for excessive force, right of association, and seizure without probable cause.

The family is represented by Eugene Iredale with Iredale & Yoo, who did not immediately return a request for comment Thursday.

Department of Justice attorney Christopher Findley and City Attorney Donald Shanahan, representing the defendants, did not immediately respond to requests for comment.

Court records show that Lopez had been previously arrested for several gun and drug-related offenses and was convicted of armed robbery in 2002.

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