Questions of reasonableness
New details emerge in latest legal tussle over McDade officer-involved shooting death
In denying a motion to dismiss two lawsuits filed against the city following the officer-involved shooting death of unarmed 19-year-old Kendrec McDade, a federal judge revealed previously unknown details of the case while painting a disturbing image of what actually happened that Saturday night just more than two years ago.
For instance, US District Judge Dolly Gee pointed out that the two officers involved, Matthew Griffin and Jeffrey Newlen, may have believed McDade was armed, based on a 911 call from a robbery victim. However, neither officer, based on their own depositions, ever saw McDade with a weapon before each man opened fire and killed him. Nor did either officer issue verbal warnings to McDade just prior to shooting him.
Less than a week after Gee denied their request for summary judgment, or to dismiss the case, attorneys for the city filed other motions, one asking Gee to exclude evidence that McDade was unarmed when he was killed by Griffin and Newlen, the other to exclude deathbed statements made by McDade while on a gurney in an ambulance on his way to Huntington Hospital.
Both filed on April 7, the first motion explains that Oscar Carrillo-Gonzalez on the night of the shooting told a 911 dispatcher that he had been robbed at gunpoint by two tall African-American men in their 20s. It was later learned that McDade and another young man were caught on videotape attempting to rob Arturo’s taco stand and stealing a backpack from Carrillo-Gonzalez’s car before fleeing along Orange Grove Boulevard. It was also learned later that Carrillo-Gonzalez had lied eight times to authorities with regard to the two men having guns.
At the time of the incident, the two officers believed the suspects they were after were armed and dangerous, according to the city’s pretrial motion, which states that “a police officer may only use such force as is ‘objectively reasonable’ under all circumstances. In other words, you must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.”
Appeal in the works
According to established precedent, the city’s motion explains that “an officer may use deadly force to prevent a suspect from escaping if the officer has probable cause to believe a suspect presents a threat of serious physical harm, either to the officer or the public. Based upon this established standard, numerous cases hold that whether or not a suspect was actually armed is irrelevant to whether the officer’s use of force is reasonable,” states the city’s first motion.
City Attorney Michele Beal Bagneris said she could not discuss details of the case or the motions, but told the Weekly that the filings were part of routine pretrial procedure. “Motion in limine is a legal term for a proceeding that helps ensure a jury can remain fair and unbiased by remaining focused only on the evidence that is properly submitted to the court for the jury’s consideration in making its decision,” she explained.
Attorney Dale Galipo, who represents McDade’s mother Anya Slaughter, has filed briefs in opposition to the motions. Slaughter and McDade’s father, Kenneth McDade, are suing the city in separate lawsuits. McDade’s lawyer is Caree Harper.
“If someone has to decide if the shooting was legal or not, whether McDade was armed or not, is important,” Galipo told the Weekly. But, he said, “The standard here is whether or not this was an immediate defense of life situation.”
On April 15, the city filed a notice to appeal the judge’s decision against summary judgment, asking Gee to formally stay any further proceedings until the US Court of Appeals for the Ninth Circuit decides. Trial on the case has been set for May 14. A hearing on the city’s requests to exclude evidence pertaining to whether McDade was unarmed at the time of the incident and his dying utterances was set for Tuesday in US District Court in downtown Los Angeles.
McDade’s shooting death, which sparked outrage in Southern California’s minority communities, was investigated by the Pasadena Police Department, the Sheriff’s Department and the District Attorney’s Office, all of which cleared the two officers of wrongdoing. However, the US Justice Department is still investigating the shooting and the Office of Independent Review is also looking into the case. The OIR was formed by the county Board of Supervisors to examine deputy- and officer-involved shooting incidents in the Sheriff’s Department and other local law enforcement agencies. It was unknown when the OIR would issue its final report.
Pasadena Police Chief Phillip Sanchez has said he would prefer to have the Sheriff’s Department investigate all officer-involved shootings in Pasadena, not the OIR, possibly signaling an end to the city’s relationship with that civilian police watchdog agency, which is headed by former federal prosecutor Michael Gennaco.
Gee’s 28-page April 1 ruling against the city’s request for summary judgment provides graphic details of the McDade shooting, which began at around 11 p.m. March 24, 2012.
At some point in the pursuit, Griffin pulled his patrol car — window down — to within two feet of McDade, who both officers said ran ahead of the car, stopped, turned, and then ran back toward the vehicle’s rear driver’s side door. Griffin, driving with a gun in one hand and the other hand steering the car, did not say “freeze” or “stop, police,” or anything else to McDade during the encounter, and McDade apparently said nothing threatening or anything else to him, Gee noted.
After McDade made a move toward his side of the car, Griffin said he pointed his gun at McDade, who was moving out of the direction of the gun and toward the rear of the car. The officer’s gun, the judge states, “was sticking out of the car window and he moved the gun to follow what he thought McDade’s path would be toward the back door of the car. … At some point before Griffin finished shooting, he lost sight of McDade, but he continued firing.”
In attempting to determine whether McDade posed a serious threat to public safety, Gee turned again to Griffin’s testimony. “While Griffin claims he thought McDade was drawing close to attack him, there is a triable issue of fact as to whether Griffin reasonably believed that McDade was attempting to attack him by running toward the back of the car, and whether a reasonable officer would have believed instead that McDade was running behind the car in a continuing effort to evade the police — as he had done throughout his interaction with the officers,” Gee wrote. “There is also a triable issue as to whether it was reasonable for Griffin, after having fired one shot at McDade, to continue firing in a residential neighborhood when he could no longer see McDade and while McDade was presumably crouched on the ground.”
As the judge explains, the officers first came into contact with McDade on North Fair Oaks Avenue, one street east of Sunset Avenue, while responding to a report filed by Carrillo-Gonzalez, who claimed he had been robbed by two armed African-American men at a taco stand on North Raymond Avenue, a few blocks east of Fair Oaks.
From Fair Oaks McDade cut across a parking lot and made his way west to Sunset, with Griffin and Newlen in hot pursuit. From there, the Citrus College football standout ran south, then headed west on Orange Grove Boulevard. McDade then suddenly reversed course and headed north on Sunset — just a few blocks from the home of his father.
According to Gee’s account, Newell jumped out of the car when McDade changed direction. Griffin backed up the car, put it in drive, drove past Newlen and chased after McDade without emergency lights flashing or siren on at speeds of up to 50 mph on the dark and densely residential street.
After hearing Griffin’s first shot ring out, Newell stopped running, thinking his partner had been hit. Then, within four seconds, he heard two more rounds go off. By now, Newlen could see McDade’s face, but not his hands. McDade, Newlen said, was in a “crouched” position. Newlen also said he saw a muzzle flash near the driver’s side of the car and believed McDade was firing at him. Newlen, who early in the foot chase yelled out for McDade to stop in the only time either officer said anything to McDade, pointed his weapon, which was equipped with a tack light, at McDade’s “center mass,” as both officers referred to McDade’s torso area. Newlen said he fired four times, not stopping until he saw McDade go down to the ground. By this time, McDade had been struck seven times. McDade’s autopsy showed that three of those shots would be considered fatal.
“A jury might reasonably question Newlen’s version of events, and notably whether Newlen was unable to see that McDade was wounded, given that Newlen was shining his weapon’s tack light on McDade from a short distance before shooting,” Gee wrote.
A reasonable jury
The judge further believes that a jury could find that Sanchez “ratified” the actions of the officers by not disciplining them following the shooting.
“Here, a reasonable jury could conclude that Chief Sanchez ratified Griffin and Newlen’s acts,” Gee wrote. “Sanchez testified that he was responsible for reviewing and determining whether the shooting was within police policy and whether the officers would be disciplined. Sanchez also testified that he received the results of a departmental investigation of McDade’s shooting, and thus a jury could conclude that he had knowledge of the alleged constitutional violations.
“Finally,” wrote the judge. “Sanchez determined, based on his review, that the shooting was within policy and he declined to discipline Griffin and Sanchez. It is not clear from the record whether Sanchez made his findings in a formal written policy statement. Nor is it clear from the record what facts Sanchez considered in determining that the shooting of McDade was within policy. Nonetheless, it is apparent that Sanchez determined that Griffin and Newlen acted within Pasadena Police Department policy when they shot an unarmed man eight times without warning, despite the fact that the officers never saw the man with a weapon of any kind.”
In his final moments, “McDade was awake and alert when personnel transferred him to the emergency room,” Judge Gee wrote. “Kari Jenkins, an emergency worker at the scene, testified that McDade repeatedly asked ‘why did they shoot me?’” just before he died.
Along with a motion to have Gee exclude the fact that McDade was unarmed, attorneys for the city on April 7 also filed a motion to suppress Jenkins’ testimony, calling it “hearsay, irrelevant and unduly prejudicial.” Gee is expected to make both calls on Tuesday.
The local NAACP and other civil rights groups have been monitoring the McDade shooting case closely since it occurred. NAACP Pasadena Branch President Gary Moody said he was outraged by the city’s efforts to stop the case from going to trial and exclude evidence.
“That is ludicrous. It makes no sense and the city needs to check itself before it enrages the community,” said Moody.