Family of Slain Officer Can Sue City, Court Rules

The family of an Oxnard police officer who was fatally shot by a fellow SWAT team member in a botched drug raid two years ago can sue the city and its police commanders for civil rights violations, a federal appeals court ruled Thursday.

If the family of Officer James Rex Jensen Jr. can show its version of the circumstances leading to his death is true, it may be able to prove Jensen’s civil rights were violated, said the U.S. 9th Circuit Court of Appeals.

The family’s attorney may be able to show that Jensen’s fellow officer and mentor, Sgt. Dan Christian, used excessive and deadly force, and that department superiors failed to adequately train the SWAT team, the ruling said.

“This is a very, very significant opinion today,” said lawyer Edward Steinbrecher, who represents Jensen’s widow and the couple’s two daughters. “This is the first opinion in the U.S. that holds that a police officer injured in the line of duty by a fellow officer--in this case shot in the back three times by a fellow officer--has a right to pursue a civil rights case for unreasonable seizure.”

Jennifer Jensen, reached at home Thursday, said she did not know what to feel.

“I don’t know whether to laugh or cry,” she said. “I’m just so happy that someone is saying his life matters.”

Alan Wisotsky, the lawyer for the city and the Oxnard Police Department, said the appellate court opinion was not a surprise.

“The 9th Circuit has traditionally been fairly anti-police,” he said. “They are the most frequently reversed circuit by the Supreme Court.”

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Steinbrecher said the justices on the 9th Circuit urged both parties to settle at the most recent hearing in February. But both Wisotsky and Oxnard City Atty. Gary Gillig emphasized that Thursday’s decision was only a preliminary step.

Wisotsky said Steinbrecher still has a long way to go before winning the $15-million federal civil rights lawsuit filed on behalf of the Jensen family in February 1997.

Oxnard could request that the full panel of 11 judges from the 9th Circuit hear the case, rather than just three judges. Or the city could petition for the case to be reviewed by the U.S. Supreme Court.

But, Wisotsky and Gillig said Oxnard has no intention of settling the case at this point.

“We frankly haven’t begun to fight,” Wisotsky said.

Gillig said he will take the matter to the City Council on Tuesday to discuss the city’s options.

Jensen was mistakenly shot and killed in a drug raid of an unoccupied residence March 13, 1996.

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Jensen threw a “flash-bang” grenade up the stairs onto a second-floor landing. In a child’s bedroom on the second floor, Christian, who was the SWAT team commander, shot Jensen three times at close range with a 12-gauge shotgun.

Christian was a friend and mentor of Jensen. After the shooting, Jennifer Jensen said she believed no one was to blame.

But later, she said she began to suspect that department officials and Christian were lying to her.

She said her concern was confirmed last year when the Ventura County district attorney’s office released a 48-page report on the predawn drug raid.

“When the report came out, it was obvious they were lying to me,” Jensen said when she filed her civil suit in U.S. District Court in Los Angeles.

The district attorney’s report faulted the SWAT team for shoddy surveillance and poor planning, but ultimately laid responsibility for the shooting squarely on Christian.

It also said that Christian had trace levels of phenobarbital in his blood, although it concluded the drug was probably taken a week earlier and did not affect his judgment during the raid.

District attorney officials, however, concluded there was not enough evidence to prosecute Christian for criminal negligence.

The civil rights lawsuit faults the department for such things as poor training, and levels harsh criticism for how the SWAT team conducted the raid. It also alleges there was a conspiracy to cover up details of the shooting.

Disagreement remains, on every detail of the case.

Wisotsky says it was dark and the room was full of smoke. Steinbrecher says it was light and easy to see.

Steinbrecher says Jensen was shot in the back from 3 feet way. Wisotsky says the coroner counts anything behind the armpit as back, and suggests maybe Jensen was turning around.

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Wisotsky says Christian shot Jensen three times from less than 5 feet to protect himself.

“How do you know that threat is eliminated until it stops moving?” he asks.

Steinbrecher said he questions how Christian could make such a fatal mistake.

“I am highly suspicious of how an experienced veteran can shoot his own man in the back at 3 feet,” he said.

Upholding U.S. District Judge Stephen Wilson’s earlier refusal to dismiss the family’s suit, the 9th Circuit’s decision Thursday cited well-established legal precedent that a police officer may use deadly force only if the person presents “an immediate threat to the officer.”

The court said that if the family’s version of the facts are true, unreasonable force was used.

The court also rejected the city’s argument that public employees in hazardous jobs have no right to sue their employees for injuries caused by violations of their constitutional rights--in this case the right to be free from an “unreasonable seizure” caused by intentional or reckless acts of a fellow employee.

“Officer Jensen did not forfeit all constitutional rights when he became a member of the police force,” Circuit Judge Michael Hawkins wrote in his opinion.