Officer to Face Jury in Gun for Taser Error

9th Circuit CourthouseA Madera city police officer says she mistook her gun for a Taser when she shot and killed a man who was handcuffed in the back of a patrol car. The 9th U.S. Circuit Court of Appeals says she is not entitled to immunity from a wrongful death lawsuit by the family.

Everardo and Erica Mejia were arrested in 2002 after police received complaints of loud music. Both were locked in the back of a patrol car, handcuffed and left for 45 minutes. While Everardo slept Erica was removed and another arrestee was put in the car with Everardo. When he awoke he began yelling and kicking the rear car door from inside. There is a dispute about whether he was yelling to get out of the car or that the handcuffs were too tight.

But officer Marcy Noriega returned to the car, opened the door and shot Everardo with her Glock semiautomatic pistol, allegedly believing it was her Taser M26 stun gun. Noriega carried the stun gun on a thigh holster on her right side, just below the Glock.

She had twice before reported mistaking her pistol for the Taser, once in putting it the wrong holster and again pointing it at a defendant who refused to get in a patrol car. Both weapons are black and similar size and weight. She was told to keep practicing, according to Judge Michael Daly Hawkins.

Even recognizing that officers must make split-second judgments in tense circumstances, not all errors of perception or judgment are reasonable, Hawkins concluded. Hawkins found that if she knew or should have known the weapon was a Glock rather than a Taser, and she was about to shoot an unarmed and handcuffed man, the use of force was unreasonable.

The fact that she intended to apply less force “is of no consequence to our inquiry,” Hawkins wrote. The case must be sent back to the trial court for a jury to determine whether Officer Noriega received proper training, whether she acted in accordance with the training, whether Mejia’s conduct heightened her sense of danger and whether she acted too hastily.

 If, for example, Noriega had drawn her weapon before opening the car door, a jury could infer that action might be in line with her training and she might have discovered her error, Hawkins wrote.

Just one year before the Mejia shooting a Sacramento officer mistook his handgun for a Taser in a separate lawsuit, Yount v. City of Sacramento.  And in Oakland, Calif. in 2009 a transit police officer, Johannes Mehserle was accused of shooting a 22-year-old man in the back while he was lying face down on the ground.  Mehserle said he mistook his handgun for a Taser.

Mehserle was convicted of involuntary manslaughter after jurors rejected a murder charge.  He spent 11 months in jail before his release earlier thias year.

Case: Torres v. City of Madera, No. 09-16573 (9th Circuit)

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