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Ninth Circuit:
No Immunity for Officer in Controversial Fatal Shootings
Panel Finds Triable Issues in Wrongful Death Action Brought by Family of Unarmed Man Hit by Rifle Bullet
By a MetNews Staff Writer
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WILLIAM JONES JR. police officer |
A Los Angeles police officer who was involved in a controversial shooting that left two persons dead failed to persuade the Ninth U.S. Circuit Court of Appeals that a judge erred in denying him summary judgment in a wrongful death action, with a three-judge panel declaring yesterday that triable issues of fact exist as to the reasonableness of the defendant’s actions.
Officer William Jones Jr. on Dec. 23, 2021, fired three shots at a suspect, Daniel Elena Lopez, who reportedly had been terrorizing women at a Burlington clothing store at 12121 Victory Blvd. in North Hollywood. Jones killed Elena Lopez and a stray bullet went through a dressing room wall, causing the death of 14-year-old Valentina Orellana-Peralta.
The Los Angeles Police Department’s Use of Force Review Board determined that Jones “inaccurately assessed the imminence of the threat of death or serious bodily injury Elena Lopez posed”; then-Police Chief Michel Moore concurred, declaring that all three shots were improperly fired; the Police Commission disagreed with Moore, finding that the first shot was within policy, but not the subsequent ones.
The California Department of Justice investigated, as it is required to do under recent legislation, and concluded that there is insufficient evidence to warrant a prosecution of Jones.
Kato Affirmed
Before the Ninth Circuit was an appeal by Jones from the denial by District Court Judge Kenly Kiya Kato of the Central District of California of his motion for summary judgment based on qualified immunity. Jones is being sued under 42 U.S.C. §1983 by the parents of Elena Lopez and by his daughter, a minor.
Ninth Circuit Judges Lucy H. Koh and John B. Owens and Senior Judge Carlos T. Bea comprised the panel that, in a memorandum opinion, affirmed Kato’s ruling. They said:
“Here, it is undisputed that the decedent, Daniel Elena-Lopez, was holding only a bike lock when Defendant shot him, and that Defendant’s bullet entered through Elena-Lopez’s back and exited through his chest. Even if Defendant reasonably mistook the bike lock for a gun, taking the facts in the light most favorable to Plaintiffs, Elena-Lopez was turning away from Defendant with the bike lock pointed toward the ground and made no ‘furtive movement, harrowing gesture, or serious verbal threat’ that ‘might create an immediate threat.’…Under these circumstances, a genuine issue of material fact exists as to whether Defendant used excessive force in violation of the Fourth Amendment.”
The judges said in a footnote:
“Defendant incorrectly asserts that the presence of video footage eliminates any factual dispute. To the contrary, a reasonable juror could find that Defendant’s body camera footage comports with Plaintiffs’ account.”
Plaintiffs’ Version
The plaintiffs said in their complaint:
“Officer Jones improperly assessed the situation from the outset. After arming himself with a rifle. Officer Jones unilaterally assigned himself as point person, deliberately broke formation and pushed through the line of officers. Despite the repeated commands to ‘hold up’ and ‘slow down,’ Officer Jones disregarded his fellow officers and continued his deadly pursuit, resulting in utter tragedy. Mr. Elena-Lopez was first encountered by Officer Jones near the dressing rooms at the far end of the aisle with his back turned. Without warning or provocation. Officer Jones inexcusably fired his rifle three (3) times….
“The actions taken by Officer Jones were a gross departure from his training. Officer Jones’ conduct, including his use of lethal force, was reckless, unjustified, and entirely unreasonable under the circumstances.”
Expert Witness’s View
On the other hand, an expert witness, Robert Handy—former police chief for San Bernardino, then Huntington Beach, and now head of a consulting firm—said in a declaration:
“…Officer Jones had fractions of a second to identify what ElenaLopez was holding. Once Jones reasonably identified the dark object as a firearm…, Jones raised his rifle and looked through his optic as he began to fire. Once he came up on target with his rifle optic to fire, his vision was narrowed via the optic, and he could not see ElenaLopez’s hand turn as he moved, and other parts of the lock became more visible. This action happened in fractions of a second. Officer Jones’s rapid identification of the dark object as a firearm under these difficult circumstances was a reasonable belief.”
He added:
“Considering the totality of the response to the incident and based on more than three decades of training and experience, I believe the Los Angeles Police Officers involved in responding to the Burlington Coat Factory acted in good faith and according to national policing practices and standards.”
Yesterday’s opinion comes in Elana v. Jones, 24-552.
A wrongful death action has also been filed by the parents of the slain girl against Jones and against the parents of Valentina Orellana Peralta against the City of Los Angeles, the Los Angeles Police Department, and Burlington Stores Inc. That lawsuit was filed in the Los Angeles Superior Court.
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