Cop Executes Man in Just a Second After Telling Him to Raise Hands

Elizabeth Warmerdam | Courthouse News Service

PASADENA, Calif. (CN) — The Ninth Circuit ruled Friday that an Orange County police officer who shot and killed an unarmed man suspected of stealing an ex-girlfriend’s cellphone is not entitled to immunity.

The ruling means that Tustin Police Officer Osvaldo Villarreal will have to face a jury on civil rights claims brought by the family of 31-year-old Benny Herrera, whom Villarreal killed during an investigatory stop on Dec. 17, 2011.

“It has long been clear that ‘[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead,'” Circuit Judge William Fletcher wrote for the three-judge panel.

Dale Galipo, attorney for Herrera’s family, said that court made the right decision.

“I think in general the judges on the court of appeals are seeing a lot of shootings of unarmed people and they are essentially deciding that these cases need to be decided by juries, not taken away from juries on claims of qualified immunity,” he told Courthouse News.

The incident leading to the lawsuit began when Herrera’s ex-girlfriend, Hilda Ramirez, called 911 to report that Herrera had stolen her cellphone and hit her in the head. She told the dispatcher that Herrera did not have a weapon and had never been violent with her before.

Villarreal and Officer Brian Miali responded to the 911 call and learned from the dispatcher that Herrera was on parole for drug possession and possibly had a traffic warrant out for his arrest.

On the way to the ex-girlfriend’s residence, Miali saw Herrera walking on the road with his right hand in his pocket. An attempt to stop him resulted in Herrera moving toward the middle of the street. Miali drew his gun and kept driving forward slowly, with Herrera walking ahead of him.

Villarreal arrived and drove his patrol car up beside Herrera, slightly in front of Miali’s car, in an attempt to box in Herrera and cut off any avenue of escape.

“Get your hand out of your pocket,” Villarreal shouted. As Herrera removed his right hand from his sweatshirt pocket, Villarreal fired two shots in rapid succession without warning.

Although Villarreal testified in his deposition that he shot Herrera because he believed the man had a weapon in his pocket, both officers admitted that they never saw anything in either of Herrera’s hands. It was later determined that Herrera had a cellphone in his sweatshirt pocket.

Less than a minute elapsed from the time when Miali first encountered Herrera to when Villarreal shot him.

In a victory for Herrera’s family, the Ninth Circuit panel upheld U.S. District Court Judge Josephine Staton’s ruling that Villarreal is not entitled to qualified immunity for his use of deadly force.

Herrera was wanted on a domestic dispute that had ended before police became involved and did not pose an immediate threat to the safety of the officers or others, Fletcher said.

Villarreal had no reason to believe that Herrera posed a threat, despite being told by dispatch about his previous criminal run-ins, the judge added.


“(T)he traffic warrant and drug possession conviction were relatively minor crimes, neither of which entailed violence or gun possession, and the dispatcher’s information included a statement that Herrera was not known to be armed,” Fletcher said.

Villarreal escalated to deadly force very quickly, Fletcher said.

“Villarreal commanded Herrera to take his hand out of his pocket immediately upon driving up beside him. Villarreal then shot Herrera just as he was taking his hand out of his pocket. Less than a second elapsed between Villarreal commanding Herrera to take his hand from his pocket and Villarreal shooting him,” the judge said.

The officer did not first warn Herrera that he was going to shoot or wait to see if there was anything in Herrera’s hand, Fletcher added.

“Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera,” Fletcher said.

Attorney Galipo said it was important that the Ninth Circuit issued a published opinion on the case, because it will likely help other civil rights victims succeed in their cases.

“A published opinion makes precedent where other lawyers and other cases can cite to it as law. I’m trying to help victims of civil rights violations and it not only makes me feel good to help them win cases, but it also makes me feel good to help make new law that will help other lawyers and victims win their cases,” he said.

Galipo is hopeful that Herrera’s family will get some justice in this case.

“You never know what a jury’s going to do for sure, but we feel we have a good chance of prevailing at trial,” he said.

Villarreal’s attorney did not immediately return an emailed request for comment.

Published by Courthouse News Service.