A Southern California police officer gave a man less than a second to raise his hands before opening fire and killing him, a federal appeals court noted Friday in rejecting the officer's request to dismiss a wrongful death lawsuit against him.
The U.S. 9th Circuit Court of Appeals in San Francisco said Tustin Police Officer Osvaldo Villarreal couldn't reasonably have feared for his safety when he shot 31-year-old Benny Herrera after responding to a domestic dispute call in December 2011.
That determination ran counter to the Orange County district attorney's office, which said in 2013 that the shooting was reasonable and justified because Villarreal fired after Herrera ignored orders to show his hands.
A video captured by a police dashboard camera shows otherwise, according to the 9th Circuit judges who cited the footage.
"Less than a second elapsed between Villarreal commanding Herrera to take his hand from his pocket and Villarreal shooting him," the court wrote. "Just as Herrera's hand came out of his pocket, Villarreal fired two shots in rapid succession ... The command and the shots were almost simultaneous."
The video has not been made public and is under a court seal.
The seven-page review of the case by Orange County prosecutors does not mention the existence of a video and appears to rely heavily on Villarreal's own statements.
Sonia Balleste, the senior deputy district attorney who wrote the review, said Friday that she didn't immediately recall the case or why the review didn't mention the video but that she was sure she "looked at all the evidence that was available."
"As a general practice it wasn't my custom and habit to write down everything I looked at," she said, adding that her office has since changed how such reviews are written to include more information.
Attorneys for Herrera's parents and four children, all under 7 years old, filed a civil lawsuit against Villarreal and Tustin in 2012. Friday's ruling allows that lawsuit to move forward to trial and upholds a lower court's order declining to toss it out.
Tustin City Atty. David Kendig, speaking on behalf of Villarreal and the city, noted that the 9th Circuit was looking at the case in the light most favorable to Herrera's family.
He said the city provided the district attorney's office with video of the shooting but didn't know why it didn't make it into their review of the case.
Dale Galipo, who represents Herrera's family, criticized the district attorney's review as a "farce."
"Are they not getting all the information from the agency? Did they not get the video, or are they just ignoring facts that support that the shooting was excessive?" Galipo said. "The whole process is flawed. It really is a joke."