Wrongful Death by Police

Losing a family member is devastating, but when that loss comes at the hands of those sworn to protect us, the pain can be especially tough to deal with. When somebody dies due to the actions of a police officer, not only may criminal charges be brought against him or her, but a civil lawsuit may also be filed to obtain compensation for:

• Pain and suffering

• Loss of consortium

• Loss of support

• Medical or funeral expenses

• Wrongful death damages

However, winning cases against police officers can be difficult. For instance, some data suggests that only two officers have been criminally charged after shooting a civilian while on duty since 2000. In most cases, only an experienced civil rights attorney will possess the resources and expertise to challenge the barriers to victory, including qualified immunity laws.

Proving that a police officer violated established law can seem to be an insurmountable task without intricate knowledge of the laws and the necessary resources to sustain many months or years of costly litigation. If you are worried about whether you will be able to bring a case against a police officer who you believe wrongfully killed a loved one, our firm has a track record of obtaining record settlements and verdicts in cases like yours.

Talk to a Los Angeles civil rights attorney about your case or contact our firm to schedule a no-cost consultation.

Under AB 392, police may only use deadly force when they have no other option. This was a major change from previous law, raising the threshold for justified force from being “objectively reasonable” (as determined by what another reasonable officer would have done in that same situation) to only when “necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person.”

If it is discovered that an officer could have used less than lethal force, that officer may face civil liability, disciplinary action, and possibly even criminal charges.

Prior to 2019, the law arguably allowed officers to shoot somebody, even if the officer could have taken alternative measures and even if the killing was not necessary. Under Penal Code Section 196 (enacted in 1872), officers had significant protections to use lethal force while “arresting persons charged with a felony, and who are fleeing from justice or resisting such arrest.”

The new laws hold officers to a different standard, but it still may remain a difficult task to prove that an officer involved in a killing could have taken a non-fatal course of action. If you believe that someone you love was unlawfully killed by law enforcement, you should consult with an attorney with the experience in bringing wrongful death claims against police officers.

Police Shooting Case Focus:
Mendoza v. County of Los Angeles (2018)

On August 1, 2014, Frank Mendoza Sr. and his family were going about their evening when an armed criminal broke into their home while he was on the run from the police. Frank was shot and killed on his own porch by one of the sheriff’s deputies while attempting to flee to safety. The district attorney cleared the officer of any criminal wrongdoing, since he was “justified in using deadly force in the defense of others.”

That is when our office stepped in, brought a civil action against the department and officer, and obtained over $14 million for Frank Mendoza’s death.

Sadly, police officers in the United States kill more people than those in any other advanced democratic country. According to Amnesty, not a single American state is compliant with international law on the use of deadly force by police. Of all the states, California is the one with the most police killings – in 2021, 156 of the 1,144 police killings that happened in the USA happened in California.

Between 2016 and 2021, Los Angeles had the highest number of police killings. The Los Angeles Police Killings Database from the LA Times states that at least 986 people have died at the hands of police officers in Los Angeles County since 2001. This averages out to about 4 people per month. Since 2016, Los Angeles County has consistently seen the highest number of use-of-force incidents in all of California.

“If I’m an officer on the beat, and I know that there’s no real accountability coming around, I have no incentive to change my behavior.”

– Jason Williams, Associate Professor of Justice Studies

Our firm is committed to holding those responsible who unlawfully caused wrongful deaths. It is our belief that in advocating for the rights of others, we can make a positive change in the fight against those who may try to abuse their power.

The most common cause of a wrongful death by a police officer in California is from the use of a firearm. Around 250 people are shot by police each year. In 2021, there were 233 police shootings, and 238 in 2020. This state has seen 1,138 police shootings since 2015.

Not only does California experience more police shootings than any other state, it also has the highest number of deadly police shootings out of all of the twelve most densely-populated states (those where the population exceeds 8 million people).

The State of California is aware of the frequency of officer-involved shootings.  In July 2021 the state elevated investigations of its fatal police shootings from the local to the state level for greater oversight.

However, these investigations caused a “backlog,” with the Attorney General’s Office closing only 1 of the 25 investigations it opened in the first 16 months of the law’s enactment. Part of the reason for the backlog was the state’s legislature cutting the requested budget in half. Due to this lack of funding, the Attorney General has to wait for local agencies to submit their own officer-involved fatalities for review.

Federal oversight of such shootings is also sparse. The Washington Post found that “only half of [California] departments’ fatal police shootings appear in the FBI database…In the California town of Vallejo, population 120,000, police have fatally shot six people in the past seven years. FBI records do not include any of them.”

Prior to 2019, an officer-involved shooting in California was considered to be justified if it was deemed “reasonable.” The state has since updated the law to say that these shootings are only justified “when necessary in defense of human life.”

Despite these gradual changes, the sentiments of Kern County Sheriff Donny Youngblood may shed light on the culture around officer-involved shootings in California. While addressing the county’s Detention Officers Association, Youngblood stated that it is financially preferable when deputies kill, rather than merely injure, someone:

“If we cripple them we get to take care of them for life, and that cost goes way up…You know what happens if a guy makes a bad shooting on somebody — kills them? …Three million bucks, and the family goes away.” 

In other words, as the ACLU explains, there is no financial incentive for officers to show restraint with lethal force; quite the opposite.

Police officers are allowed to use force when necessary to protect their own or others lives.. However, that use of force must be commensurate with the severity of the situation at hand. Opening fire on a suspect is considered use of lethal force, regardless of whether the officer aims to incapacitate rather than kill and regardless of whether the shot misses.

Therefore, as per AB 392 outlined above, an officer may only discharge his or her weapon towards another when:

• There is an imminent threat of death or serious injury to the officer or another person; or

• There is a fleeing felon whose escape poses significant danger to others.

Furthermore, as this passage from FindLaw states:

The U.S. Supreme Court has verified that officers may open fire, knowing that shooting is likely to cause death or serious injury, when a suspect is:

• Suspected of a “severe” crime,

• Posing an immediate threat to officers, and

• Actively resisting arrest.

In most situations, officers will aim for center mass, as this presents the largest target and reduces the chances of a shot intended for a suspect missing and hitting an innocent bystander.

LAPD policy stipulates that warning shots must only be used in “exceptional circumstances, where doing so may reasonably be expected to negate the need for use of deadly force”.

When a police shooting takes place, it is expected that an investigation by a neutral party will take place. Unfortunately, it rarely does. The Justice System Integrity Division Protocol for Officer/Deputy Involved Shootings stipulates that investigations of this nature address whether:

• Any criminal violations took place

• Anyone involved may have incurred civil liability

• Departmental policies were followed

• The appropriate tactics were employed

Administrative investigations may occur alongside criminal investigations.

Investigations can begin with district attorneys and investigators from the JSID of the Los Angeles County District Attorney’s Office. The law enforcement agents conducting the investigation are required to notify the District Attorney Command Center as soon as practically possible. This allows district attorney personnel to attain first-hand accounts of factors such as:

• Lighting conditions

• Witness demeanor

• Trajectories

• Vehicle and pedestrian traffic conditions

At the scene, some of the types of information that are typically gathered include:

• Names and present whereabouts of the officers who were involved in the shooting

• Names and present whereabouts of any civilians who witnessed the incident

• Statements from the involved officers, pursuant to Government Code sec. 3303 et al.

• Physical evidence

• Witness statement summary

• A walkthrough of the scene

• The medical condition of the injured parties

Medical professionals on the scene will typically also be questioned, and pertinent medical evidence will be gathered. This can include things such as the angle of bullet entry, the extent of injuries incurred by the injured party (such as lacerations or contusions), and the presence of any intoxicants.

Following on-scene investigation, numerous other sources of evidence will be examined. These can include:

• Dispatch recordings

• DNA analysis; for instance, blood or skin samples taken from the scene

• Autopsy & toxicology reports

• Fingerprint data

• Video and/or audio recordings, such as surveillance footage or witness footage

• Ballistics evidence, such as holes/defects caused by projectiles

In many cases, the firing officer’s weapon will be retained. It will then be sent for ballistics analysis.

An experienced forensic ballistician can uncover a large amount of information from firearms and bullet casing that can help to paint a detailed picture of the events surrounding an officer-involved shooting.

Pertinent questions that such evidence can help to answer include things such as the trajectory the bullet followed, who handled the weapon, where the person was when he or she shot the weapon, and how close the victim was to the discharged weapon.

Below are some of the techniques ballisticians may use in their investigation:

Firearm Examination – One of the primary pieces of evidence that can be recovered through direct firearm examination is fingerprint data. This can help to determine who handled the questioned weapon, including whether the suspect the officer shot at attempted to handle the weapon at any point (for instance, if there was some form of struggle before lethal action was taken). Expended cartridges can occasionally bear fingerprints too, which may be useful in determining the facts when an officer denies that casings were from his or her weapon.

Fingerprint examination may also extend to any other firearms involved in the officer-involved shooting, such as those that may have been in the victim’s possession. This can be crucial in determining whether an officer’s use of lethal force was necessary, in line with AB 392 (outlined above), or whether other, non-lethal methods of engagement may have been available at that time.

Firearm examination also allows for characteristics of the questioned weapon to be examined, such as tool marks (such as those left from firing pins) and bullet case travel. This information can then be compared against physical evidence from the shooting scene. For instance, in the Mendoza case, we found that the deputy who shot Frank Mendoza was overstating where he was standing when he fired his weapon since his bullet casings were found over 20 feet away from his claimed position:

So, we showed up at a firing range. There were around 20 of us out there, many Sheriff’s deputies, lots of lawyers, our expert, and we measured where those bullet casings go. 

And we were able to show that those casings don’t fly any more than about six to eight feet from the pistol. 

They don’t fly 30 feet.

– Garo Mardirossian

Bullet Examination & Comparison Microscopy – When a bullet is fired, the gun leaves marks on it that can be observed under a microscope, known as a striation pattern. These marks are created as surface imperfections from the barrel of an individual gun are transferred to the bullet as it is fired. Some of these impressions are from the rifling grooves that add spin to a bullet on discharge, others are from random imperfections incurred during the manufacturing process.

These marks are unique to the weapon that created them, and can be thought of like ballistic fingerprints. Bullets recovered from a crime scene can be compared to test-fire bullets from the shooting officer’s weapon, and the two can be compared for similarities in their ballistic profile.

Bullets and casings are routinely examined using a comparison microscope, which allows two bullets to be observed side-by-side. Through observation of the unique – and more crucially, reproducible – marks on the bullet or casing, a forensic ballistician can determine how likely the two bullets are to have been fired from the same gun.

In situations where the firearm itself is absent, striation patterns on bullets taken from the shooting scene may be checked against entries in the National Integrated Ballistic Information Network, which may help to identify the firing weapon.

Shooting Scene Reconstruction – Shooting scene reconstruction is the process of painting a detailed picture of the events of a shooting incident based on the evidence available, such as the locations of impact sites from projectiles and bloodstain pattern analysis.

The goal of this process is to gain an accurate understanding of factors crucial to determining the facts of the case, such as bullet paths, the location of the shooter relative to the victim, number of shots fired, and the sequence of shots (where there were multiple discharges). This process can also help to uncover additional evidence, such as lost cartridge cases.

Once a shooting scene has been reconstructed, it is often helpful to depict the event through some variant of demonstrative evidence. This can take the form of illustrations, 3D animations, or live reenactments.

We routinely recreate police shooting scenes using 3D models, such as in the Mendoza case and the Zerby case. These scenes can help illustrate the key facts of a shooting and highlight discrepancies in officer’s testimony.

Gunshot Residue Collection – Gunshot residue (GSR) is a valuable form of trace evidence that can be used to help reconstruct the scene of a crime. It can be collected from many locations around a crime scene, such as the seats and headlines of vehicles, clothes and bodily regions, or the intermediate part (between the target and the gun).

One of the most important characteristics of gunshot residue is that it does not travel very far (typically no farther than 3-5 feet from the firearm muzzle), which when taken in conjunction with other evidence, can help to pinpoint specific details of a shooting incident, such as firing distance and location of the shooting officer.

GSR is collected through either the dry method (using molten wax, cellulose acetate, nylon fiber, adhesive tapes and foils) or the wet method (using diluted acetic acid and hydrochloric acid). The type of method used depends on the residue present at the scene. GSR evidence has to be collected quickly as samples begin to degrade rapidly, usually between 2 – 12 hours after firing.

In situations where officers use unreasonable force, the officer and his or her department may be held responsible for damages incurred as a result of a catastrophic injury or death. Examples of department liability include failing to adequately train officers to use proper tactics, endorsing unlawful tactics, or ignoring or altering evidence such as police reports.

Holding police officers and their departments liable can be difficult and in many cases will require the guidance and resources of a firm with an established reputation of handling police shooting cases. You can read about how we handled the Mendoza case below, an innocent man who was fatally shot by deputies as he tried to flee from his own home after a wanted felon broke in.

There are numerous ways in which the actions of a police officer may cause the wrongful death of another person and where a given case will be tried can be determined by the claims made.

For example, a state negligence claim may be brought against an officer who crashes into someone or catastrophically injures somebody while responding to a call, if it turns out that he or she was driving negligently. In other cases, a federal claim may be brought when the wrongful death is a result of a civil rights violation, including the Fourth Amendment.

A wrongful death claim can be brought in federal court when one claims that an officer “violated the plaintiff’s civil rights.” In other words, the claim must concern an infringement of the Constitution and Bill of Rights, such as when an officer’s excessive force is alleged to be a “seizure” and thus violates the plaintiff’s right under the Fourth Amendment.  The Fourteenth Amendment is also a common feature in such federal claims, as it grants “equal protection” under the law to all US citizens and thus forbids discrimination via demographics such as one’s race, gender, etc.  However, it should be noted that a wrongful death claim against police may be made in both federal and state courts.

Wrongful death claims can be in a state court when one is claiming the officer(s) acted negligently or maliciously. This includes when an officer was not acting in accordance with his or her training, or when another “reasonable officer in a similar situation” would have done things differently.