The city of San Diego disagrees with a federal judge’s ruling that there were enough questions about the officer-involved shooting of Victor Ortega to warrant a trial, according to court documents.
In recently filed documents with the U.S. Court of Appeals for the Ninth Circuit, the city said San Diego Police Officer Jonathan McCarthy’s life was in "imminent serious physical harm” when he shot Ortega in June 2012.
The recent filing is the latest in the case Ortega’s wife, Shakina Ortega, filed after her husband was killed three years ago.
A federal judge ruled late last year there were enough questions about the shooting to warrant a trial. The lawsuit is now in the hands of the appellate court where the city wants the case dismissed.
But the family of the 31-year-old man still believes it was a bad shooting.
“He (McCarthy) committed a murder,” Shakina told NBC 7 Investigates. “I believe from the facts that I had from being in the case and knowing all the facts from point ‘A’ to ‘B,’ he (McCarthy) is guilty and he needs to go to jail.”
In the lawsuit, the Ortega family is claiming, among other things, that her husband's civil rights were violated.
Ortega was shot and killed after a foot pursuit with Officer McCarthy that ended in an apartment breezeway south of Mira Mesa Boulevard. Ortega's wife called 911 and reported her husband had punched and kicked her.
After a brief chase, Ortega and Officer McCarthy fought in the breezeway and then shots were fired. Ortega was pronounced dead at the scene. There were no witnesses to the shooting of the unarmed father of two, but according to court documents, people did see Officer McCarthy and Ortega engage in a struggle right before shots were fired.
After reviewing police reports, depositions and other evidence, Federal Judge Larry Burns said Officer McCarthy’s statements were inconsistent and denied the city’s request to throw out the lawsuit.
In a November 2013, Judge Burns said in a court filing, “a jury may believe that Officer McCarthy acted with an impermissible intent to harm Victor rather than to protect himself.”
Click here to read more of the Judge’s comments.
According to April court documents filed as part of its appeal, the city of San Diego is arguing, “the evidence discrediting the police officer must convince a reasonable factfinder that the officer acted unreasonably, not the mere fact the officer made an inconsistent statement.”
Click here to read the city’s appeal.
The city also said, “the district court comingled a group of insignificant discrepancies in witness statements to conclude a dispute existed about what transpired during (Victor) Ortega’s final seconds.”
The family's attorney Christina Denning said there is too much proof that contradicts any claims of self-defense.
“When combined with the fact that the trajectory of the bullet was pointing downward, meaning Victor was in a submissive position, three or more feet away from the shooter, it shows that, was this really self-defense? That is questionable,” Denning said.
Attorneys for the city of San Diego have repeatedly argued “McCarthy believed he was in imminent serious physical danger.”
District Attorney Bonnie Dumanis cleared Officer McCarthy of wrongdoing in April 2013 and said the shooting was justified.
Ortega’s widow has an entirely differently perspective.
“I am not going to let it go,” she said. “I lost my husband. I am going to do whatever I have to do to see that he gets justice. He did not deserve to die.”
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