The Ninth Court of Appeals in Pasadena has rejected the City of San Diego’s efforts to throw out two separate San Diego Police Department shooting cases.
Both cases involved San Diego Police officers shooting an unarmed man and both involved alleged discrepancies in what the police reported, including where the officers were standing and what the dead men were doing at the time of the confrontation.
One of the cases involves the shooting death of Victor Ortego in June 2012. The second involves the shooting death of Angel Lopez by Officer Kristopher Walb.
Christina Denning represents Ortega’s widow, Shakina. Both she and attorney Eugene Iredale spoke before the appellate court last week in back-to-back hearings over the two death cases.
She told NBC7 that “in both the Lopez case and the Ortega case, the physical evidence did not match up to the stories of the officers.”
The Ortega shooting began with a domestic violence call that led to a foot chase, with McCarthy running Ortega down in a breezeway near his home.
There were no witnesses, but the officer claimed Ortega tried to wrestle his gun away from him. He shot Ortega twice because he feared for his life, he claims.
Attorney Denning said there were “inconsistencies in the variations of Officer McCarthy’s story as it went from the investigation to the litigation stage."
She added that the autopsy shows “at the time he was shot, Victor Ortega was in a submissive position and bent forward, flexed forward and the trajectory of the bullets were such that McCarthy was in a superior position at the time of the shooting.”
The appellate court said that “in cases of officer-involved deadly shootings in which the officer and decedent are the only witnesses, courts must 'carefully examine all the evidence in the record' to determine if the officer’s story is 'consistent' with the known facts. In Ortega v. San Diego Police and Jonathan McCarthy, the appelate court is returning the case to San Diego Federal Court and Judge Larry Burns for trial."
They found “a jury could conclude that McCarthy shot Ortega while he posed no threat to the officer."
Eugene Iredale, the attorney for Angel Lopez’s family, told NBC 7 that “what they claim was a split second decision that required them to kill someone to save their own lives begins more and more to look like an execution.”
It’s Iredale’s contention that when SWAT officers ordered Lopez to “get down, get down,” he did as ordered.
Attorneys representing Walb from the City of San Diego said this is not what happened. Walb said in his deposition that Lopez was standing upright, at an angle to the officer.
The evidence says otherwise, says Iredale. Lopez was in a kneeling submissive position and was hit three times, he says.
“The ballistic evidence shows he was not shot in the front of his body or even on the side of his body as their story would require,” according to the Medical Examiner’s report. The report said the wound paths made by the bullets are all back to front and upward.
Officer Walb claimed had told the man to put his hands up, but Lopez didn’t put up his right hand completely, and his left hand “remained in the pocket” and hidden from Walb’s view.
“As I shot, he was turning towards me," said Walb. In fear for his life, Kristopher Walb “tapped” the trigger of his MP-5 submachine gun twice. Six bullets shot, three hitting the mark.
Iredale’s ballistic expert Lance Thomas Martini testified in a deposition that “the physical evidence is consistent with Angel Lopez complying with the officer’s commands.”
This link will take you to Martini’s testimony. On page 21, you can see illustrated various scenarios for the shooting; Martini says they “are valid possibilities based on the physical evidence." Only one scenario matches the autopsy findings of where the bullets struck Lopez. It’s titled “Aligns with: Mid Torso, Upper Torso, Head.”
The appeals court said “a jury could credit the testimony of the officers and find that the use of deadly force was permissible,” however, a jury could also “conclude from the physical evidence that Lopez was in the process of complying with the officers commands to get down when he was shot.”
This case, too, is returning to San Diego Federal Court and to Judge Gonzalo Curiel. Trial start dates in both cases are unknown at this time. Responding to the court’s ruling on the cases, Gerry Braun with the San Diego City Attorney’s office said:
“In both cases, an appellate court states it will be up to a jury to determine that the officers acted correctly in protecting the public’s safety. These cases will now go to trial, where jurors will hear evidence that strongly supports such a verdict.”