Rare Federal Civil Suit Against A Police Officer Who Shot A Man Is Heading To Trial

New York City's first civil trial in a fatal police shooting in over a decade is scheduled to start on Monday.

A family’s civil rights lawsuit against an NYPD officer for shooting a Bronx man in the head while he was on the ground is scheduled to go to trial Monday, making it New York City's first such case to reach this point in more than a decade.

On April 12, 2009, 35-year-old Mauricio Jaquez was home at his apartment with his wife, Ana Martinez, and their three children when he snapped and started “acting crazy,” his family said in court records. He grabbed his wife with one hand and a six-inch fillet knife with the other, while screaming that the police were “going to kill" him.

Martinez broke free and called 911, reporting her husband was wielding a knife. When New York Police Department officers arrived, two of the children raced outside and explained the situation. The officers called the Emergency Services Unit for backup. (All narrative and statements of fact in this article are from depositions and records in federal court filings.)

Two officers went up to the apartment and knocked on the door. Jaquez yelled that police were trying to kill him. They got inside and took Martinez and the third child out.

When the Emergency Services Unit arrived, Sgt. William Flores, the only member of the team who spoke Spanish, spoke with Martinez. She told him that her husband was on drugs and had a knife, but no firearms.

Flores and other officers entered the apartment, and later described the scene as “pretty chaotic” and a “melee,” according to court records.

The officers shot Jaquez with a taser, but they said he continued swinging the knife at them. Jaquez and Detective David McNamee began to struggle with each other.

McNamee fired rubber bullets at Jaquez, who reacted by “growling” and “screaming,” McNamee said in court records. Jaquez kept swinging the knife and lunging forward.

McNamee continued to struggle with Jaquez. He said he felt “the metal of the knife” against the side of his head.

Around the same time, two officers — Morrissey and Flores — fired their 9 mm revolvers at Jaquez. Four bullets struck him, knocking him to the ground.

But as McNamee went to retrieve the knife, Jaquez began to try to get up. Flores later said it looked like he was doing a “one-handed push-up off the ground and started to stab at Det. McNamee again.”

Flores took the final shot. According to the autopsy report, the bullet entered through the back of Jaquez’s head and traveled downward through his spine. He was later pronounced dead at the hospital.

That the case is even going to trial is a rarity. Most civil cases involving deadly police shootings are either dismissed or settled.

“To put it in the larger context, it is rare for any case to go to trial," said Fordham University law professor Jim Cohen. "The settlement rates [for cases involving police shootings] are well above 93 or 94 percent. In these cases, the settlement rate is closer to 97 or 98 percent."

“Trials are unusual generally, because cases where the plaintiffs have a good case usually settle,” said Eugene O’Donnell, a John Jay College criminal justice professor and former NYPD officer.

It’s also risky for the city: If Jaquez’s family prevails, New York will likely have to pay a sizable sum to the family. “There could be a risk that you find one juror who believes there is no excuse for the officer’s conduct and wants to return a large number,” Cohen said.

If that did happen, Cohen added, the judge could potentially serve as a “safeguard. “It’s not uncommon at all for judges to take a jury’s verdict and undercut it,” he said.

Family attorney Zachary Margulis-Ohnuma did not say what amount the family is looking for.

A spokesperson for the city’s law department told BuzzFeed News, "This trial will start on Monday. We do not try cases in the press and will not comment on a matter so close to jury selection."

The last major civil rights trial in a deadly police shooting in New York City happened more than a decade ago. In 2003, a Brooklyn jury decided the police were justified in the 1999 shooting of Gidone Busch, who was fatally shot while wielding a hammer during a standoff with police.

A year after the trial, a judge overturned the jury’s verdict, but Busch’s mother declined to move forward with a new trial because of health reasons.

After the shooting, Jaquez’s family sued the City of New York and the police in federal court. In a May 2015 ruling, Judge Katherine Forrest said that the first five shots in the incident were justified and the officers would not be tried based on those actions. Only the final shot is on trial, which means Flores stands as the lone defendant.

The case, Forrest notes, is happening “against the backdrop of a country reckoning with a number of of fatal police shootings.”

The judge's decision puts the Jaquez family and their attorney in a difficult position at trial. It’s unclear how much they can discuss the other four bullet wounds and therefore how much of a threat Jaquez posed to Flores when he fired the final bullet.

In his deposition, Flores testified that Jaquez was not threatening anyone with the knife just before he fired the final shot. This contradicts Morrissey’s testimony that Jaquez continued to make stabbing motions with the knife after he was hit with the first round of bullets.

This week, the judge further limited the plaintiff’s case when she ruled that their wrongful death claim be dismissed because they had failed to present evidence for the jury to weigh whether or not the final bullet caused Jaquez’s death.

In her ruling, Forrest cited the autopsy examiner’s report, which called the damage from the final shot to head — as it contributed to Jaquez’s death — “negligible.”

Margulis-Ohnuma, the plaintiff’s attorney, told BuzzFeed News he intends to call Flores, McNamee, and Morrissey to the stand at trial. He said the jury will also hear testimony from an NYPD crime scene investigator, the autopsy examiner, Jaquez’s oldest daughter Nicole, and his widow, Martinez.

“[Flores] is on trial for shooting Mauricio Jaquez in the back of the head as he lay on the floor of his own apartment, bleeding and wounded from four other shots, rubber bullets, and high-voltage Taser fire,” Margulis-Ohnuma said. “Our Constitution and laws don't let police officers shoot people who are not posing an imminent threat.”

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