Immunity Denied To Cop Whose Shooting Narrative Was Undercut By Other Officers On The Scene

The Ninth Circuit Appeals Court is one of the better circuits when it comes to holding the government accountable for the violence it inflicts on citizens. It's pretty much the polar opposite of the Fifth Circuit, which can't seem to forgive cops quickly enough.

This lawsuit, springing from the shooting and killing of Francis Calonge by San Jose police officer Edward Carboni, will be headed back down to be placed in front of a jury, if the city doesn't decide to settle first. It might, because this one doesn't look good.

That's not to say the first response by San Jose PD officers was out of line. Dispatch had received two calls reporting a man walking down the street with a gun in his waistband. One caller said the man was headed towards a nearby school.

Several officers - including ones supposedly trained to respond to school shootings - arrived on the scene. A couple of minutes later, Francis Calonge was dead, shot in the back by Officer Carboni.

True, Calonge was carrying a gun. That it was only a BB gun makes little difference because officers were never close enough to determine whether it was just a BB gun or something far more deadly. The bigger problem was the immediate response by the several officers who arrived to handle the call. With no one taking the lead, everyone just shouted whatever they could think of in the direction of Calonge. From the Ninth Circuit decision [PDF]:

Officer Carboni began shouting commands to Calonge, including let me see your hands" and drop it." A different officer shouted for Calonge to drop the gun." A third officer shouted, do not reach for it." That may have been Officer Yciano, who later testified that he instructed Calonge, don't reach for the gun." A police report states that Officer Yciano also told Calonge to get on the ground."

This is just escalation and stupidity. The yelling creates the danger" needed for a deadly response, especially when one officer (out of the several) actually took steps to record the interaction by activating his body camera (that would be Officer Carboni). There is no possible way to comply with all of these commands, which means the officer whose command is ignored" might feel justified in using deadly force.

Fortunately, we don't have to depend on the dispassionate and shaky footage captured by Carboni's body cam. The other officers testified as well, with Officer Yciano admitting he told Calonge to (1) don't reach for the gun" and (2) drop the gun." Calonge would have needed to be two people to comply. The gun was tucked into his waistband. To drop the gun was to reach for it. Perhaps (understandably) confounded by this volley of conflicting orders, Calonge chose to turn around and walk in the other direction, which (dangerously... for him) took him in the direction of the school he previously had been walking away from.

Carboni, the camera operator and late-arriving interloper, engaged in the final and ultimate act of escalation.

Officers Carboni, McKenzie, and Yciano followed him on foot at a distance of ten to thirty yards, walking along the road's median, while Officer Pedreira followed in a police car. According to the officers, Calonge looked over his shoulder a few times and smiled. He continued walking, but he did not speed up.

Officer Carboni started to say something to the other police officers. He began, I'm gonna-hey . . ." before trailing off. He then shouted for Calonge to drop it." A few seconds later, he said to the other officers, Hey, watch out, I'm gonna shoot him. Watch out, watch out. Get out of the way." That statement took three seconds. Officer Carboni spent three more seconds steadying his rifle against a tree. He then shot Calonge once in the back. The bullet struck Calonge's heart, killing him. At no point had Officer Carboni warned Calonge that he was going to shoot. Just over one minute had elapsed between when Officer Carboni exited his police car and when he fired his gun.

Officer Carboni claimed he saw Calonge's arm bow out," which he claimed indicated Calonge was reaching for the gun. At this point in his testimony, he appears to have forgotten the last order he shouted at Calonge was for him to drop it." To do so, he would need to reach for it first. He also claimed Calonge was headed towards a group of students located 10 yards away and feared Calonge would take them hostage."

That might add up to a good, clean kill. But it doesn't here. And the court notes this with a very dry statement that seems to indicate it knows officers generally try to agree on a narrative before testifying in court.

This case is unusual in that other officers on the scene contradict key facts asserted by the officer who used deadly force.

That is unusual. Cops generally help cops during litigation. Here, Carboni was either hung out to dry (possibly because the other officers who apparently never drew their guns, much less shot at Calonge felt he went too far too fast) or hung himself out to dry by producing a recording of the incident, which other officers might have felt uncomfortable trying to contradict while on the stand.

And Carboni's statements in his defense were almost universally contradicted by statements from other officers or his own body camera footage.

As to whether Calonge moved his arm, although Officer McKenzie later stated that he saw Calonge's arm move away from his body, Officer Pedreira stated that he did not see Calonge do anything that suggested he was pulling his gun out of his waistband during the minute before he was shot. And Officer Yciano stated that he saw Calonge only turn[] at an angle . . . as if he was trying to hide" the gun from the officers.

As to whether there were students nearby, Officer Pedreira stated that he did not see anyone on the corner of the intersection toward which Calonge was headed. The footage from the body-worn cameras, including Officer Carboni's camera, does not show any bystanders near
Calonge or further down the sidewalk toward the intersection.

It's an easy call for the Ninth, despite Calonge walking around with a BB gun other city residents had mistaken for an actual handgun. The conflicting testimony (which also conflicts with the recording) resolves in favor of the plaintiff at this point. As for claims Calonge had ignored orders to get down on the ground, the court says no officer testifies as to giving that order and none of the footage collected shows an officer giving this order.

Cops claim to be experts on the law (except when it's in their best interest to play stupid), but it doesn't work here. Officer Carboni wants the court to believe case law supports him, either by justifying his shooting or by awarding him qualified immunity. The Ninth Circuit says he's not as smart as he thinks. At this stage, disputed facts go in front of a jury. And even Carboni's fellow officers dispute his version of things, to say nothing about Carboni's own body cam footage.

Back down it goes to the lower court. If the city sees anything worth salvaging here, it has better eyes than I do. This looks like the failure of one officer to control himself. And because he couldn't, he stands a pretty good chance of losing this if it goes in front of a jury. The city knows what it can shell out to make this go away. But there's no telling what a jury might award if given the chance. And for at least one family that's been the victim of police violence, there might be some justice in the near future.