The family of a man shot and killed by a police officer can proceed with wrongful death, negligence and civil rights claims against the officer, city police chief Jerry Dyer and the Fresno Police Department, a federal judge ruled. . . .
In support of their claims against the Fresno Police Department, Vargas's provided evidence that "a total of 19 of the 51 officer-involved shootings that occurred during the period between 2005 and 2010 reflected unreasonable use of force and that in none of those instances were corrective measures taken."
Defendants responded that only one of the officer-involved shootings was found to be a case of the use of excessive force and that officer was fired. But U.S. District Judge Anthony Ishii of California's Eastern District pointed to one little-discussed fact in regards to plaintiffs' Fourth Amendment claim: Palomino never saw anything in Vargas' hands.
Ishii went on to note that there is no law or precedent to justify the use of lethal force when there is no "observable" evidence that the decedent possessed a weapon. . . .
Judge Ishii determined that issues of fact remain as to whether the Fresno Police Department may be held liable on theories of failure to investigate and discipline, failure to monitor or supervise, and failure to properly train its officers.
Ishii found the family provided credible evidence that Fresno's raw number of officer-involved shootings between 2005 and 2010 was "significantly higher" than comparable municipalities such as San Jose or Sacramento, and that many of these shootings were "unjustified." . . .
Ishii also ruled that Fresno Police Chief Jerry Dyer is also not immune from suit.
Dyer was the "administrative driving force behind policies and practices that determined both the timeliness of investigation of officer involved shootings and the application or lack of application of corrective measures should any have been required," the judge found; therefore, summary judgment is not warranted on claims against him.
Because defendants failed to show that Palomino's decision to shoot Vargas was in any way reasonable, plaintiffs can also proceed with state law claims for wrongful death and negligence, Ishii said.
Courthouse News, 10/26/11; complaint here: