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Jury Awards $5.7 Million to Gangbanger Paralyzed in Police Shooting

Jury doesn't hear key details that might have exonerated officers.

by
Jack Dunphy

Bio

September 29, 2012 - 12:24 pm
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A major U.S. Supreme Court case governing police officers’ use of force is the 1989 case of Graham v. Connor, in which the court held that “[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

While pursuing Contreras, Officers Flores and Benavides knew that a shooting had occurred, and they were directed by witnesses to a van fleeing the area. No one would argue that the officers were anything less than reasonable in pursuing the van, and they were no less reasonable in pursuing the occupants who ran from it.  And while they may not have had specific knowledge that Contreras was a gang member, they surely knew, as indeed every police officer working that area at that time knew, that two local gangs had for some time been engaged in a war that had seen several shootings carried out by each side.

So here were the two police officers pursuing Contreras on foot in the quite reasonable belief that he was an armed gang member who had moments before engaged in a shooting. Furthermore, the officers said they had seen Contreras holding a gun as he ran from the van.

News reports of the jury award made mention of the fact that no gun was found in the area despite an extensive search. This does not mean that Contreras did not have a gun at some time before he was shot. Contreras reportedly told people he had had a gun but that he threw it as he ran, a tactic quite common among those who find sport in shooting their rivals on street corners. Contreras ran some distance down streets and alleys before he was shot, and in the dark of night he may well have discarded the gun without it being seen by the officers. As for the failure to find the gun during the search, again, this is not uncommon. Handguns are small, and it’s possible that the searching officers overlooked it, or that it landed somewhere inaccessible to those trying to find it. It is also possible that the gun landed in a place where someone sympathetic to Contreras could, in the confusion of the moment, pick it up and carry it away. These things happen.

But even if the officers had not seen Contreras with a gun, even if he had merely been the driver of the van and never had a gun that night, it would have been perfectly reasonable for the officers, under those circumstances, to believe he was armed, and when he made a gesture threatening to the officers it was equally reasonable for them to shoot him.

There is an old saying in police work: It’s better to be tried by twelve (or eight, as the case may be) than carried by six.  The officer who waits too long before defending himself, the one who is slow to react when the threat is presented, he is the one who one day does not come home.

Consider the tragic case of Kyle Dinkheller, a deputy with the Laurens County, Ga., Sheriff’s Office, who in 1998 was shot and killed by a man he had stopped for speeding.  Deputy Dinkheller was working alone and made the stop in an isolated area.  The man he had stopped, Andrew Brannan, got out of his car and was acting bizarrely before arming himself with a rifle and opening fire.  The incident was captured on video by the dashboard camera in Deputy Dinkheller’s patrol car, and it’s just as disturbing to watch it today, for perhaps the hundredth time, as it was when I first saw it years ago.

To watch the video and know how it ends is excruciating, but Deputy Dinkheller told Brannan to drop his gun five times over the course of about thirty seconds before Brannan opened fire.  Legally, he needn’t have told him even once.  Many rounds were then exchanged, with Deputy Dinkheller hit several times, the final, fatal round striking him in the head.  He and his wife had a 22-month-old daughter, and she was pregnant with the son who was born months later.

(Andrew Brannan was struck in the abdomen by one of Deputy Dinkheller’s rounds.  He fled but was arrested the next day. When asked why he had killed the deputy, he said, “Because he let me.” He was convicted of the murder and sentenced to death, yet he lives on.)

It’s difficult to convey to a jury in the controlled environment of the courtroom the fear one feels when confronting someone you believe will kill you if you do not quickly do something to stop him. Perhaps there was some weakness in the defense to Robert Contreras’s lawsuit, a witness who was unpersuasive or a piece of evidence that wasn’t emphasized enough. Or perhaps the jurors, seven women and one man, felt sorry enough for Contreras, sitting there forlornly in his wheelchair, to tip the scales in his favor. We’ll never know.

But we do know that Robert Contreras made some bad decisions that night back in 2005.  He got in a van with some fellow gangsters and set off to shoot some people. He carried out the shooting and then tried to get away when the police chased him. And finally he made a movement that put the officers in fear for their lives, prompting them to shoot him. He could have changed the course of his life by making a different choice at any point along that timeline. That he is paralyzed now is unfortunate, but only for him.  That he has been enriched for his troubles is unfortunate for everyone else.

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Jack Dunphy is the pseudonym of a police officer in Southern California.
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