How Defense Lawyers Challenge Justified Police Shootings

Gentle readers, as I do from time to time, I ask you to join with me in a mental exercise, one that puts you in the shoes of a police officer.  You are patrolling alone, in uniform and in a marked police car, when the radio informs you of a robbery nearby.  You are provided with a description of the suspect, who is said to be armed with a gun.  You drive to the place the suspect was last seen and there, right in front of you, is a man matching the description you’ve been given.

You exit your car, draw your sidearm, and order the man, loudly and in no uncertain terms, to show you his hands.  Rather than comply, the man begins to edge away and then runs.  As he runs, he pulls a gun from his pocket.  And now, in less than the time it takes to imagine it, comes your decision: Do you fire at him, or do you wait until he makes his intentions more clear?  And if you choose to wait, what might happen to you if you wait too long?

This was the situation facing Officer Brian Pitzer of the Albuquerque Police Department last October 29.  Joaquin Ortega, 34, had reportedly robbed a woman and her 7-year-old grandson at gunpoint and then tried to carjack a truck.  Video shot from Officer Pitzer’s lapel camera shows him stopping his car in the street outside a muffler store, where Ortega is standing in the parking lot.  “Let me see your hands now!” Pitzer shouts to Ortega, who, for reasons soon to become clear, refuses to comply.  Pitzer repeats the command several more times before Ortega breaks and runs.

In watching the video, it’s difficult to discern exactly when Ortega pulls his handgun.  We can see him run between two cars parked in front of the muffler store, at which time Pitzer broadcasts that he is in a foot chase.  Pitzer then fires two rounds as Ortega runs behind one of the cars.  When Ortega emerges running from the other side of the car, Pitzer fires five more rounds at him.

Only by analyzing the video closely can one see that Ortega, as he runs from behind the car, throws the gun away behind him.  With a bullet now in his shoulder, Ortega runs a bit further before dropping to the ground, there to be taken to a hospital, then to court, and finally, we can hope, to the prison he will call home for some years to come.

But not if his lawyer can help it.  The story reached the attention of the Los Angeles Times, one of whose reporters sought comment from attorney Kari Morrisey, who represents Ortega.  “Unfortunately, this is par for the course for the Albuquerque Police Department,” she told the Times, neglecting to add that it’s par for the course for Ortega as well.  “You have an officer,” she went on, “who’s demonstrated an inability to handle the job, but I’m guessing they are worried about showing any weakness by firing him and admitting they mistakenly hired him.”

This is an apparent reference to Officer Pitzer’s two previous shootings, one of which, according to the Times, resulted in Morrisey filing a complaint against him.  She also said that because the video shows no aggressive action by Ortega toward Pitzer, a conviction on the charge of assaulting the officer is unlikely.  Which may in fact be true when all is said and done, but Morrisey took things into the realm of the absurd when she suggested that Ortega would try to cash in on getting shot by suing Pitzer for excessive force.  The video, she said, would be “quite helpful” in such a lawsuit because it shows that Pitzer shot Ortega unnecessarily.

We’ll give Morrisey the benefit of the doubt here in speculating that by raising the possibility of a civil suit she is hoping to strengthen her hand in negotiating a better deal for Ortega in the criminal case.  As is done in nearly all criminal cases, Ortega’s will in all likelihood be disposed of through a plea agreement, and dropping the charge of assaulting the officer is but one possible inducement for Ortega to plead guilty to other charges under an offer that will free him from prison at an age when he will still be able to eat solid food.  But if Morrisey is serious about pressing a civil case against Pitzer, she will first have to represent her client, a man whose criminal record is nothing short of opulent, through a trial at which two of the many witnesses will be a grandmother and her 7-year-old grandson, who will describe to a rapt jury of being robbed at gunpoint by Ortega.  Ortega and Morrisey will both be lucky if the jurors don’t boo and hiss at them before that testimony is finished.