August 24, 2011
A federal appeals court reinstated a wrongful-death suit Monday by the family of a man who was mortally wounded in a patrol car by a policewoman who reached for what she thought was a Taser, but pulled out her handgun instead.
A federal judge ruled in 2009 that Madera police Officer Marcy Noriega – who had undergone daily Taser training since a similar, nonlethal blunder nine months earlier – made a reasonable mistake in a fast-moving situation and could not be held legally responsible.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said a jury might conclude from the evidence that Noriega’s “poor judgment and lack of preparedness caused her to act with undue haste” and with excessive force against the handcuffed man, Everardo Torres.
The case dates from 2002, when electronic stun guns were a relatively new police weapon with few safeguards against confusion – Tasers looked much like firearms and were often worn on the same side of the body as an officer’s pistol.
Investigators concluded that the fatal shooting was an accident, and Noriega was not charged with a crime. By contrast, BART Officer Johannes Mehserle was charged with murder for shooting unarmed passenger Oscar Grant in January 2009 with a gun that was much different in size and color from his Taser, and was worn on the opposite hip. A jury found that the killing was accidental and convicted Mehserle of involuntary manslaughter.
Torres, 24, was arrested with a friend in October 2002 by police responding to a complaint of loud noise at a party. Torres fell asleep in the patrol car, then awoke and started shouting and kicking at a door. He was complaining that his handcuffs were too tight, one of his lawyers said.
Noriega, who was standing nearby, said Torres kicked the door into her as she opened it. She pulled out her black Glock semiautomatic pistol from a holster on her right hip – just above her holstered black Taser – and aimed and fired the gun without looking at it, the court said. The bullet hit Torres in the chest.
Article: San Francisco Chronicle
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