Wednesday, February 25, 2009
C.A.: Officer Not Liable for Injury From Stray Bullet
By SHERRI M. OKAMOTO, Staff Writer
A woman standing in the lobby of her dentist’s office when she was injured by fragments of a stray bullet fired by a police officer attempting to apprehend a suspect cannot sue the officer, the Fourth District Court of Appeal ruled yesterday.
Rejecting the woman’s claims for negligence, assault or battery as a matter of law, Div. One concluded El Cajon Police Officer Robert Ransweiler’s use of deadly force was objectively reasonable, and affirmed San Diego Superior Court Judge Patricia A. Y. Cowett’s grant of summary judgment in the officer’s favor.
The shooting occurred at a Spring Valley strip mall, where Paula Brown and her son had gone to visit their dentist. The mall housed a Subway restaurant, a plumbing store, and a charter school, which were all open for business when the shooting began.
Ransweiler and four other officers were in the parking lot of the mall, conducting surveillance on a suspected drug dealer in hopes of locating Jorge Ojeda, a suspect in a murder investigation.
After Ojeda arrived at the parking lot, exited his Jeep and spoke to the suspected drug dealer for a few minutes, and then re-entered his vehicle, marked police cars blocked Ojeda from behind while officers, dressed in raid gear, ran toward Ojeda and ordered him to get out of his car.
Ignoring the officers’ instructions, Ojeda drove his Jeep onto the covered sidewalk abutting the strip mall, heading toward Ransweiler and his partner at a high rate of speed.
As the vehicle came towards them, Ransweiler’s partner fired several shows which struck the Jeep’s windshield. The vehicle then veered to the right and struck Paula Brown’s parked car.
While attempting to evade the Jeep, Ransweiler’s partner tripped and fell to the ground. Several other officers saw him fall and began firing rounds at Ojeda.
Ransweiler, by then approximately three feet away from Ojeda, also fired several shots striking Ojeda, who was pronounced dead at the scene.
The police officers fired approximately 34 shots in all, five of which were fired by Ransweiler. During the shooting, Paula Brown was struck in the breast by at least one bullet fragment, and she later filed suit against Ransweiler and the other officers.
After answering the complaint, Ransweiler and his partner sought summary adjudication, arguing that they had not been negligent in discharging their weapons in the course of their performance of their police duties as a matter of law, and that the shooting of Ojeda was a justifiable homicide rendering them immune from any civil liability.
The trial court granted Ransweiler’s motion for summary judgment in full, and Justice Cynthia Aaron explained on appeal that police officers are entitled to use deadly force when confronted with an armed suspect in close proximity whose actions indicate an intent to attack.
Once Ojeda took “extreme action” in response to police orders to surrender by driving onto the sidewalk toward Ransweiler and his partner, Aaron reasoned, Ransweiler acted reasonably in shooting at the suspect to stop Ojeda from harming a third party or escaping.
“Ransweiler’s use of force was not excessive or unreasonably dangerous relative to the danger Ojeda’s actions posed,” she wrote.
Even assuming Ransweiler could be held liable for tactical negligence, under the facts presented in the summary judgment proceedings, Aaron concluded that Ransweiler’s conduct was still objectively reasonable under the circumstances.
She also rejected Brown’s attempt to prove triable issues of fact via an expert declaration, explaining that the expert’s conclusory statements based on conjecture as opposed to the officer’s declarations or other evidence was insufficient to establish a material dispute.
Justices Richard D. Huffman and Joan Irion joined Aaron in her opinion.
The case is Brown v. Ransweiler, 09 S.O.S. 1092.
Copyright 2009, Metropolitan News Company