Court revives lawsuit in fatal police shooting in Anaheim

OC Register – by Eric Hartley

The family of a man shot and killed by Anaheim police in a Walmart parking lot can sue the city and four of the officers who fired their weapons, a federal appeals court ruled Thursday.

The decision came more than two years after a judge dismissed the family’s lawsuit, ruling in favor of the city and the officers without a trial.

Five officers shot Caesar Ray Cruz, 35, on Dec. 11, 2009, firing about 20 times in a few seconds, according to the ruling by the U.S. Court of Appeals for the Ninth Circuit.  

Four of the officers said they fired because they saw Cruz reach for his waistband and believed he was going for a gun. A tipster had told police Cruz was carrying a gun, but he didn’t have one on him when officers fired.

Cruz’s mother, Theresa Smith, said she started crying when she heard the case could proceed.

“It’s been a long time, you know?” she said. “This has been so long – I mean, four years and eight months.”

Smith said she hopes her family’s lawsuit will set a precedent that helps other people fighting what she called “police brutality.”

In a strongly worded opinion, Chief Judge Alex Kozinski said there are serious questions about the believability of the officers’ story, which should be answered by a jury.

“In this case, there’s circumstantial evidence that could give a reasonable jury pause,” Kozinski wrote. “Most obvious is the fact that Cruz didn’t have a gun on him, so why would he have reached for his waistband?”

The judge also said one of the officers, Bruce Linn, gave the same explanation after shooting David Raya in 2011. As in the Cruz case, police said Raya reached for his waistband. But Raya didn’t have a gun.

“‘They both reached for the gun’ might be a plausible defense from officers in the line of duty,” Kozinski wrote. “‘They both reached for no gun’ sounds more like a song-and-dance.”

Cruz was not holding a weapon, but police said they found a 9 mm handgun with the safety on in his vehicle’s passenger seat.

Gregg Audet, a deputy city attorney for Anaheim, said the city will present more evidence on the questions Kozinski raised.

“Anaheim is confident that a jury trial will establish that all of the police officers acted reasonably and lawfully,” Audet said Thursday.

Orange County prosecutors ruled the shooting of Raya was justified, but the city agreed this year to pay his mother $245,000 to settle a federal lawsuit. Raya’s and Cruz’s families are represented by the same attorney, and the men’s supporters have called both killings “executions.”

http://www.ocregister.com/articles/cruz-633143-officers-police.html