From [HERE] and [MORE] The family of James Rivera, a Black 16-year-old fatally shot by white law enforcement officers in 2010, will receive a $300,000 settlement from San Joaquin County if the Board of Supervisors approves the agreement at Tuesday’s meeting.
News of the settlement appears on the agenda for Tuesday’s meeting. The county settlement does not bring to an end the federal lawsuit filed by Rivera’s mother, Dionne Smith-Downs, shortly after her son’s death.
The city of Stockton also is listed as a defendant in the lawsuit brought by Oakland civil rights attorney John Burris’ office. City spokeswoman Connie Cochran said late Wednesday afternoon that Stockton’s attorneys plan to go to trial.
A pretrial conference is scheduled for Feb. 6 at the Eastern District of California federal courthouse in Sacramento. The trial is scheduled to begin March 4.
Stockton and San Joaquin County are both named in the lawsuit because officers from the police and the Sheriff’s Office were involved in Rivera’s death.
Rivera, who was unarmed, died July 22, 2010, a day before his 17th birthday.
According to a 27-page report on the case released by the San Joaquin County District Attorney’s Office in 2012 their actions were justified and no charges were filed. They concluded cops opened fire after the van, which crashed inside a home’s garage, was put in reverse and Rivera began revving the engine, the report said. The van was immobilized and had to be removed by a tow truck.
Additionally, according to the report, even though Rivera did not possess a firearm, lethal force was justified because the van itself could have served as a deadly weapon.
Deputy County Counsel Kristen Hegge provides in Tuesday’s agenda a one-paragraph explanation for the county’s decision to settle the case.
“It has been determined that timely economic resolution together with release of any and all potential claims is in the best interests of the County,” Hegge says. “Pursuant to the authority previously rendered by the Board (of Supervisors), the Office of the County Counsel has negotiated a settlement in this case in the amount of $300,000.”
The lawsuit, which survived summary judgment tells an entirely different story.
Rivera had been a suspect in an armed carjacking of a blue Chevrolet Astro van. Officer Nesbitt spotted the van on a residential street, identified Rivera as the driver, and notified dispatch. As a result, Officer Azarvand and officer Michael Hughes arrived on the scene in separate marked police cars and attempted to pull over the van. Rivera did not pull over, and instead a high-speed chase ensued wherein Hughes, Azarvand, and Nesbitt all pursued the van in separate vehicles. Dunn eventually joined the pursuit, and ended up being the vehicle directly behind the van. The pursuit ended when police vehicles rammed the van and the van hit a parked car, drove over the sidewalk, and ran into a house’s garage.
After striking the garage, the van penetrated the wall and became lodged almost wholly within the garage. Officer Dunn stopped his vehicle directly behind the van, while Azarvand parked his car to the left of the van. Cops drew their weapons as Azarvand positioned himself to the left of Dunn, and Nesbitt positioned himself behind metal mailboxes to the right of Dunn. Dunn positioned himself behind the open driver-side door of his vehicle. Dunn was within a triangle formed by the open door, the side of Dunn’s vehicle, and the side of the vehicle Rivera hit before striking the garage.
It is undisputed that the van’s tires began spinning, spraying mud and debris. Without providing exactly how much time passed, The cops state that less than 30 seconds after they drew their weapons, the three officers fired a total of 29 rounds at Rivera, killing him. The officers all claim that they fired because they feared that Dunn was in danger of being hit by the van and fired to stop Rivera from reversing into him. However, they do not agree on the specific facts that led them to form that concern. [When officer defendants are “the only surviving eyewitness[es], . . . [t]he judge must carefully examine all the evidence in the record, such as . . . contemporaneous statements by the officer[s] and the available physical evidence . . . to determine whether the officer[s’] story is internally consistent and consistent with other known facts.” Scott v. Henrich, 39 F.3d 812, 915 (9th Cir. 1994).]
Although cops claimed that they reasonably believed that it was likely Rivera was going to dislodge the van from the garage and reverse into Dunn, they provided inconsistent accounts of the incident. Azarvand testified that he saw the van’s backup lights come on and saw the van move backwards and forwards, hitting Dunn’s vehicle repeatedly, and moving “probably between around five” feet before making contact.
Dunn testified that he saw the van only rock backwards and forwards—that is, not move up to five feet as described by Azarvand—which hit his vehicle several times, before yelling out, “He’s ramming me.” Nesbitt also testified that he heard the van’s engine rev and saw the van move backwards and forwards before lurching suddenly toward Dunn. These statements are all inconsistent.
According to the Court’s Memorandum and Order the officers watched the van spin its tires as it became clear that it was unable to move, and then fired 29 rounds at Rivera.
importantly, the officers did not agree on how much the van moved before the officers opened fire. For example, Azarvand testified that the van moved up to five feet before hitting Dunn’s vehicle, while Dunn testified that he positioned his vehicle such that its bumper was “very close, if not touching” the van. And only Nesbitt averred that he saw the van lurch backwards, prompting him to fire, while the other officers testified that the van hit Dunn’s vehicle several times—disagreeing on how far the van moved—and fired after several of those hits. Each officer relies on how the van moved to argue that it was reasonable to believe the van could become loose and hit Dunn, but each officer gives differing accounts of those movements.
Physical evidence was also in conflict with the officers’ accounts and supports Rivera’s theory of the case. A deep tire track was found under the van’s rear wheel, making it likely that the van did not move at all, let alone the several feet described by Azarvand or the lurch described by Nesbitt. This physical evidence lends credence to Plaintiffs’ view of the encounter: the officers watched for up to 30 seconds as it became apparent the van could not dislodge itself and then opened fire. Thus, the cops did not act reasonable under the circumstances and executed the Black tee.
Witnesses said cops smiled and gave each other high fives immediately after the incident. Cops opened fire with 48 rounds from 2 (9mm) handguns and a AR-15 Army Assault rifle. 19 of the 48 bullets hit the 16 year old Black youth on both sides of his body and in the back of his head. His mother followed the ambulance to the hospital and was threatened by police dogs and forced out of the hospital when she demanded to see her sons body.