Engage with me, if you will, a hypothetical. You have been summoned for jury duty in federal court for the Central District of California, an area that includes Los Angeles. All of the advice you have received from friends and coworkers on how to avoid actually serving on a jury has proved fruitless, and you are seated with seven of your fellow citizens to hear evidence in a trial involving a claim of an unjustified shooting by Los Angeles police officers.
The plaintiff in the case is one sure to arouse sympathy in any but the most cold-hearted person. He is young, and in fact was still a teenager when, in 2005, he was shot by LAPD officers. He sits in court a pathetic figure, confined to a wheelchair since the shooting, paralyzed in both legs and left with only very limited use of his arms. He ran because he was scared, you are told. He was so unlucky as to be in the wrong place at the wrong time when two police officers, without justification, shot him and left him in the enfeebled condition you see before you.
You and your fellow jurors deliberate and soon agree that the plaintiff has been wronged, that he has suffered grievously at the hands of the police and is entitled to compensation for his medical expenses, his lost future earnings, and for his pain and suffering.
You are excused from your service with thanks from the judge, who commends you for fulfilling your civic duty. You leave the courthouse confident that justice has been well served and that while your decision cannot restore what the plaintiff has lost, you have provided him, to the extent you are able, with the means to obtain the medical care he will need for the rest of his life.
Now imagine learning that you had been hoodwinked, that you did not hear all of the relevant facts of the case, chief among which are that the plaintiff for whom you felt so much sympathy was fleeing the scene of a drive-by shooting when the police began chasing him, a charge to which he pleaded no-contest and served time in prison. Also withheld from your consideration was the testimony of those who would have told you the plaintiff did indeed have a gun when he ran from the van and that he discarded it before being shot.
Do you still think justice has been well served?
Meet Robert Contreras, who today is 26 and a near-quadriplegic, but who one night in September 2005 was 19 and the very picture of health when he and two fellow members of his street gang loaded up in a van and set off to settle scores with a rival gang in South-Central Los Angeles. They chose some victims standing in the rival gang’s territory and opened fire from the van, bringing a police response that was perhaps more swift than they had anticipated. LAPD officers Mario Flores and Julio Benavides were directed by witnesses to the fleeing van and a brief car chase ensued. Contreras and his two comrades abandoned the van and fled on foot, with Contreras taking what would turn out to be the last run of his life.
The two officers chased Contreras down a dark driveway, at which point Contreras is alleged to have turned toward them with something in his hand. Believing Contreras was about to shoot at them, they fired, hitting Contreras with several bullets to the side and back. The object in Contreras’s hand turned out to be a cell phone, and though the officers said they had seen a gun in Contreras’s hand as he fled the van, no gun was found despite an extensive search of the area.
In 2009, Contreras pleaded no-contest to attempted murder and served two years of a seven-year sentence. Upon his release from prison he filed his lawsuit alleging that the officers had used excessive force and had violated his civil rights. In a trial held last February, the jury found that the officers had used excessive force.
The issue of compensation to be awarded to Contreras was not put before that jury, leaving it to the parties to negotiate the dollar figure. Lawyers for the city and the officers agreed on the amount of $4.5 million, but by an 8-4 vote the L.A. city council rejected the deal and chose to take the question of damages to a second trial. The second jury awarded Contreras $5.7 million, to be extracted from the taxpayers of Los Angeles.
Based on rulings by District Court Judge Steven V. Wilson, the original jury did not hear testimony regarding Contreras’s no-contest plea to attempted murder or his membership in a notoriously violent street gang. The judge also excluded testimony that would have informed jurors that Contreras did have a gun at the time he fled from the van.
Judge Wilson was appointed to the federal bench in 1985 by Ronald Reagan, a fact that does not lend itself to simplistic arguments about a liberal judge going soft on some thug he has found to have been oppressed. Still, while there may have been legal grounds for excluding evidence that was inconvenient, to say the least, for Mr. Contreras, the jury in the first trial should have been able to overcome their sympathies and find for the officers.
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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