Well, according to the Ninth Circuit Court of Appeals, it’s not cool to shoot someone a second or so after you have asked them to comply with an order. That’s what an officer in Tustin in Southern California is finding out now.
Officer Osvaldo Villarreal claims an unarmed suspect named Benny Herrera had a weapon before Villarreal shot and killed Herrera. Villarreal also claims that Herrera “charged” him — or, at least, that Herrera “closed the distance . . . very quickly” — after the officer ordered the suspect to remove his hand from his pocket.
Video of the incident disagrees. That video, according to a federal appeals court, “shows that the command and the shots were almost simultaneous, separated by less than a second.”
Villareal was cleared of any wrongdoing in the shooting last year by the Orange County District Attorney’s office:
“ … which said in 2013 that the shooting was reasonable and justified because Villarreal fired after Herrera ignored orders to show his hands.
A video captured by a police dashboard camera shows otherwise, according to the 9th Circuit judges who cited the footage.
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The video has not been made public and is under a court seal.
The seven-page review of the case by the Orange County District Attorney's Office does not mention the existence of a video and appears to rely heavily on Villarreal's own statements.
Which is not that surprising when you consider the fact that it’s the Orange County District Attorney’s Office, but, let’s not digress …
Villareal was cleared of criminal wrongdoing but now faces a civil suit in Herrera’s death. He was seeking to have that suit dismissed when the court said “hold up, wait a minute.”
“ … As the Supreme Court explained in Tennessee v. Garner, lethal force is only permitted “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” And neither of these factors were in play here.”
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Under longstanding Supreme Court precedents, the simple fact that a cop violated a suspect’s constitutional rights — in this case, Herrera’s Fourth Amendment right against “unreasonable searches and seizures” — is not enough to hold the cop accountable in a civil lawsuit. Rather, a court may side with the plaintiff in such a case only when “the right which was violated was clearly established at the time of the violation.” In this case, the Ninth Circuit held that Villareal’s alleged actions did not grant him immunity from suit, in large part because the allegations against Villareal are even more egregious than the police conduct the Supreme Court said was forbidden in Garner.
So, yes, there are times when it is absolutely not cool to shoot someone if you are a cop. We’ll have to wait and see if this information makes its rounds through the ranks of the nation’s shooters, uh, law enforcement officers.