Metropolitan News-Enterprise


Tuesday, June 14, 2011


Page 1


Court of Appeal Upholds Nonsuit in Action Over LAPD SWAT Raid

Panel Agrees With Judge Treu That Deadly Force Was Reasonable Under Circumstances




Los Angeles Police Department SWAT officers acted reasonably as a matter of law when they stormed Jose Raul Pena’s auto shop as he held his infant daughter hostage, and cannot be held liable for the child’s death, this district’s Court of Appeal ruled yesterday.

Div. Eight affirmed judgment in favor of the city, rejecting Lorena Lopez’s claim that police acted negligently and used excessive force when they ended a 2 1/2-hour standoff by firing between 50 and 55 shots within a period of no more than six seconds during the July 2005 incident.

According to the testimony, which was largely undisputed, the first officer to fire did so because Pena appeared to be reaching for a gun in his waistband, and the officer feared he was about to make good on his repeated threats to kill the child. When additional officers entered the shop’s small office after the first shot was fired, Pena opened fire.

The commanding officer testified that he did not order a retreat because the officers were responsible for the child, and because two of Pena’s employees were believed to be at risk as well.

Justice Madeleine Flier said the undisputed evidence established that the police acted reasonably in their efforts, first, to protect Suzie Pena from her armed, inebriated, and apparently delusional father; and second, to protect themselves after Jose Pena opened fire on them.

Nonsuit Granted

The panel said Los Angeles Superior Court Judge Rolf M. Treu was correct in granting the city’s motion for nonsuit at the close of the evidence. Treu reasoned that police had exhausted any possibility of negotiating an end to the standoff, but that Pena had “addled his brain [with drugs] to the point where no communication was possible” and that he was prepared to kill himself, the child, and others had the police not acted, so that no reasonable juror could conclude that the use of force was unreasonable.

Treu’s ruling had a controversial follow-up, as a newspaper photographer present during an interview of City Attorney Carmen Trutanich took a photo of him “high-fiving” a deputy who informed him of the result, saying the city had saved millions of dollars. The plaintiff’s attorney and others accused the city attorney of insensitivity towards the child’s family.

Flier, writing for the Court of Appeal, said the evidence required the nonsuit.

“The standard for evaluating the unreasonable use of force reflects deference to the split-second decisions of an officer and recognizes that, unlike private citizens, officers may use deadly force,” the justice said.

Plea for Help

The plaintiff, she noted, asked the police for help because she feared that Pena would kill the child. And even if the first officer lacked probable cause to believe that Pena would do so, his shooting at Pena was not the cause of the plaintiff’s damages, the justice explained, because it was undisputed that another officer fired the fatal shot.

Flier went on to say that even if it was unreasonable for the officers to believe that Pena would kill the child, they still had the right to enter the office, and to protect themselves. “The officers were not required to desist in the face of Pena’s resistance,” the jurist wrote.

There was no evidence, Flier went on to say, to support an inference that the manner of using deadly force constituted negligence.

“In view of the exigency of the circumstances confronting the officers—Pena who claimed to have multiple weapons was shooting directly at the officers and threatening to kill Suzie—their concurrent shooting multiple times at Pena cannot constitute excessive force under an objective standard,” she wrote.

Flier distinguished Munoz v. Olin (1979) 24 Cal.3d 629, which allowed an action for negligence based on a police shooting of a fleeing arson suspect.

The jurist explained:

“This case is nothing like Munoz v. Olin. Pena was not attempting to flee. Instead, he was shooting directly at officers and holding his child hostage. When all of the material circumstances are considered, as required by Munoz v. Olin, the only reasonable conclusion is that the officers’ use of force was reasonable.”

Attorneys on appeal were James S. Blackburn, Tricia A. Cross and Ryan O. McMonagle of Arnold & Porter for the plaintiff and Assistant City Attorney Michael L. Claessens and Deputy City Attorneys Amy Jo Field and Lisa S. Berger for the defendant.


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