Mom Shot By Off-Duty Officer To File Claim

No Charges Filed In Connection With Case

POSTED: 3:49 pm PDT March 25, 2008

UPDATED: 7:39 am PDT March 26, 2008

OCEANSIDE, Calif. -- The lawyer of a mother and son who were shot by an off-duty San Diego officer said his clients plan to file a claim against the city of San Diego on Wednesday.

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Eugene Iredale, who represents Rachel Silva and her 8-year-old son, told NBCSandiego.com that he intends to file a claim on Wednesday with the city of San Diego, citing a statute that prohibits or forbids a violation of constitutional rights by a state official under the color of law. Filing a claim against the city is a prerequisite to filing a suit, a process that cannot be started until 90 days after the claim is filed, Iredale said.

Oceanside police said that San Diego police Officer Frank White fired on Silva, 27, and her son in a possible road rage incident on March 15 in a Lowe's parking lot in the 150 block of Old Grove Road in Oceanside.

According to Sgt. Kelan Poorman of the Oceanside Police Department, the incident began when the driver of one car cut off the driver of the other car at about 9:15 p.m. One driver followed the other to the store parking lot where an "altercation" took place. On Monday, they stated in a news release that White, an Oceanside resident, had fired his weapon five times during the incident.

"The officer said he felt as if he was threatened," Poorman said last week.

Silva has declined to be interviewed by investigators, but Iredale said his client told him she and White were screaming at each other by the time they reached the mall parking lot. Iredale said White pulled up on the right side of Silva's car and began firing, hitting her son in the passenger seat and shattering her right arm as she reversed to get away.

"She was unarmed, she did not threaten the man, she did not assault the man," Iredale said. "He just lost it -- it was a classic case of road rage."

Iredale, told NBCSandiego.com on Tuesday that he took the case after it was referred to him by John "Jack" Phillips, who represented ex-Charger Steve Foley after he was shot by off-duty Coronado police officer Aaron Mansker.

Iredale said the claim would seek unspecified damages. He said a decision would be made after the extent of permanent damage is known. Silva was shot in the arm, he said, and the bullet shattered the bone. She now has a metal plate in her arm.

Silva and her son, who was shot in the leg near his knee, were released last Wednesday from two different hospitals. Iredale told NBCSandiego.com that she slept most of the day on Tuesday and that she was still in pain but her discomfort was diminishing. He said that prior to the shooting, Silva had been living in Oceanside but was now living in Escondido with her mother.

Iredale said Silva had trouble recalling portions of what occurred March 15.

"She doesn't remember everything sequentially," Iredale said. "She does remember some events."

The attorney said his client lost a lot of blood and lost consciousness after the shooting and did not have a precise recollection of the beginning of the incident. He did say, though, that she remembers that words were exchanged between Silva and White and that her son said, "Mommy, he's got a gun."

Iredale also said his client was able to recall the bullets coming through the window, then putting the car in reverse and backing away from White. The car came to a stop when it hit a curb, according to Iredale.

White was driving his own car and was accompanied by his wife, a dispatcher for the Carlsbad Police Department, police said. Both Silva and White's wife, Jacqueline, called 911.

White gave a statement after the shooting, according to police, and Silva's son was interviewed the Monday after the shooting at Children's Hospital. Iredale said police questioned the boy without Silva's permission, without the permission of his father and over the objections of the boy's uncle, who was present at the time.

Iredale confirmed that Silva had two previous DUI convictions. He said he was not sure but "it made sense" that her license was suspended when the shooting took place. He also said investigators tested Silva's blood at the hospital after the shooting. The results of those tests have not yet been made public.

White was put on administrative leave until the investigation is complete. He joined the force in October 2005, police said last week.

Forensic experts are doing ballistics, toxicology and accident reconstruction using video from surrounding stores to try to determine the chain of events that led to the shooting, police said. No criminal charges have been filed in connection with the case.

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