CA - Benny Herrera, 31, fatally shot by Tustin LE, 17 Dec 2011

September 16, 2016
11:08 PM ET

Court: Officer Killed Man Less Than a Second After Command

A Southern California police officer gave a man less than a second to raise his hands before opening fire and killing him, a federal appeals court noted Friday in rejecting the officer's request to dismiss a wrongful death lawsuit against him.

The 9th U.S. Circuit Court of Appeals in San Francisco said Tustin Police Officer Osvaldo Villarreal couldn't reasonably have feared for his safety when he shot 31-year-old Benny Herrera after responding to a domestic dispute call in December 2011.

That determination ran counter to the Orange County District Attorney's Office, which said in 2013 that the shooting was reasonable and justified because Villarreal fired after Herrera ignored orders to show his hands.

A video captured by a police dashboard camera shows otherwise, according to the 9th Circuit judges who cited the footage.

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The video has not been made public and is under a court seal.

http://abcnews.go.com/US/wireStory/court-officer-killed-man-command-42151740

2013 Court Document

http://orangecountyda.org/civicax/filebank/blobdload.aspx?BlobID=22809


Benny Herrera

Attorneys for Herrera's parents and four children, all under 7 years old, filed a civil lawsuit against Villarreal and Tustin in 2012. Friday's ruling allows that lawsuit to move forward to trial and upholds a lower court's order declining to toss it out.


Tustin City Attorney David Kendig, speaking on behalf of Villarreal and the city, noted that the 9th Circuit was looking at the case in the light most favorable to Herrera's family.


He said the city provided the district attorney's office with video of the shooting but didn't know why it didn't make it into their review of the case.


http://www.bellinghamherald.com/news/nation-world/national/article102325357.html

From 2013:

Officer's shooting of unarmed man justified, report finds

Herrera was walking toward his marked police car with his hands in his sweatshirt near his waistband.

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Villarreal arrived in a second marked police vehicle, at which point Herrera started walking toward his car. Villarreal told the investigators that he ordered Herrera to show his hands, firing at him when he didn't comply.

Herrera was struck in the chest and pronounced dead at the scene. No weapons were found on or near him.

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"Officer Villarreal's claim that he was fearful that Herrera would shoot is corroborated by Officer Miali, who had the same belief and fear and who himself had drawn his weapon based on his own observations and interactions with Herrera just prior to Officer Villarreal's encounter," investigators said. "No evidence was found which disproves Officer Villarreal's claim that he acted solely out of the perceived need to defend himself."

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Always the same story.