Q: My loved one was shot and killed by law enforcement. He had a gun, but had thrown it on the ground by the time he was shot in the back. He never turned around or pointed the gun at the law enforcement.
A: Thank you for your question. This is a fact pattern very similar to a case that occurred in San Francisco this summer. In that case, Mr. Barcenas was drinking alcohol at an intersection with a group of friends celebrating a Golden State Warriors’ victory. Officer Cabillo was patrolling the area and approached the men. In California, carrying an open container in public is a citable offense. Mr. Barcenas fled the scene and moments later retrieved a handgun from his waist band and threw it into the street. Officer Cabillo then shot Mr. Barcenas two times in the back. The body camera video can be seen here.
The main civil rights claim implicated in this case is excessive force. Excessive force is a seizure within the meaning of the Fourth Amendment and; therefore, claims of excessive force are analyzed under the Fourth Amendment’s reasonableness standard. To determine whether an officer’s force was reasonable, the court evaluates the degree of intrusion of the individual’s interest against the governmental interest for the intrusion. The court considers the totality of the circumstances including the severity of the crime at issue, whether the individual posed an immediate threat to the officer or others, and whether the individual was actively fleeing. An officer cannot use deadly force absent the threat of serious harm or resisting arrest for a serious crime.
In this case, the Officer observed a violation and by law he had a right to approach Mr. Barcenas to investigate the infraction. When Mr. Barcenas began to flee, Officer Cabillo also had the legal right to apprehend Mr. Barcenas. In Indiana, fleeing an officer on foot is a Class A Misdemeanor. The offense is a Level 6 Felony if the individual draws or uses a deadly weapon. IC 35-44.1-3-1. Therefore, depending on California law, at the time Officer Cabillo fired his weapon, he was attempting to apprehend Mr. Barcenas for a felony offense. However, I do not believe this would constitute a serious crime. The inquiry would then focus on whether Mr. Barcenas posed a threat of serious harm at the time he was shot.
Whether Mr. Barcenas posed a threat of serious harm would be a determination left up to a jury. The Officer would likely argue that he thought Mr. Barcenas did pose a threat because he was fleeing arrest and had a handgun. The Officer did not know whether or not Mr. Barcenas had any other weapon. Mr. Barcenas’ attorney would likely argue that the video is clear he did not pose a threat to anyone. Fleeing police is not a serious crime and at the time of the shooting, he was unarmed. He never turned towards the police or made any threatening gesture to the officer. Ultimately, he was shot in the back two times. As noted, this incident occurred this summer. According to the federal docket, it does not appear a complaint has been filed.
If you or a family member has been a victim of police brutality, call me to schedule a free initial consultation. It is important for you to obtain an experienced attorney to protect your rights and fight back against the government.
Russell Brown Jr. primarily focuses his practice on criminal defense and post-conviction relief. He has helped many clients take advantage of the new expungement laws, providing them a clean slate. Mr. Brown also has experience navigating through the complex laws and administrative regulations of the Bureau of Motor Vehicles, assisting clients with obtaining a valid driver’s license.
Mr. Brown’s experience also includes criminal appeals. He has successfully written briefs and participated in oral arguments, obtaining relief for clients. In addition to criminal defense, Mr. Brown also has experience in education and personal injury. When not at the office, Mr. Brown enjoys coaching his son in sports and officiating varsity basketball games in the area.