LAPD officer shoots 13-year-old boy playing with pellet gun after dark. $19.2 million net award. Los Angeles County.

Facts and Background

• Facts and Background:

  On the evening of December 16, 2010 at 7:30pm plaintiff Rohayent Gomez, a 13-year-old Hispanic boy standing 5'7" and weighing 209 pounds, was playing cops-and-robbers in front of his home with two friends of the same age. He lived in the Glassel Park section of Los Angeles, an area known for gang and criminal activity. The three boys were shooting Airsoft pellet guns at each other from opposite sides of the street. The Airsoft guns are realistic-looking pellet guns with brightly colored tips.

  When plaintiff stepped into street from behind a van, he was shot by defendant officer Abarca. (The circumstances leading to the shooting were related differently by plaintiff and defense. See contentions.)

  The officers were on routine patrol and were not responding to any criminal activity in the area of the shooting.

  The bullet hit plaintiff in the upper left shoulder and traveled toward his spinal column. The bullet struck his spine and shattered the vertebrae in his upper chest (T3/T4), pulverizing his spinal cord and leaving him paralyzed from the upper chest down. 

• Plaintiff's Contentions:

  That police used excessive and deadly force.

  That as plaintiff paused on the sidewalk to put more pellets in his Airsoft, he stood behind a van. That he heard someone call out to him and stepped out from behind the van and was shot immediately.

  That plaintiff did not know the police had arrived. He did not learn that he had been shot by the police until he regained consciousness as he was being handcuffed.

  At trial, counsel for plaintiff presented the testimony of a biomechanical engineer who contradicted the officer’s version of the shooting. The engineer showed that the bullet’s trajectory
  did not match the officer’s account, which was that he and plaintiff were standing in front of each other and that plaintiff’s right shoulder was slightly forward as the officer shot. The physical evidence indicated that plaintiff’s left shoulder was forward, that the trajectory of the bullet was left to right and downward, and that plaintiff had to be standing about three feet to the officer’s left. This put plaintiff directly at the corner of the van, where plaintiff testified he’d stepped out from before he was shot. Plaintiff’s version of the shooting was corroborated by the physical evidence.

  
  Eye witnesses also contradicted the officers’ account of the shooting. One eyewitness confirmed that the officers exited their patrol car and drew their firearms immediately. Both officers
  denied doing this. Defendant Abarca, the shooter, admitted that if they had done this, they would have been in violation of the LAPD’s policy against premature drawing and displaying of
  weapons. The same eyewitness also contradicted the shooter as to the use of a flashlight…confirming that no flashlight was used by the officer. Two eyewitnesses confirmed that the officer only gave one command “Don’t [expletive] move!” and then fired his gun.

   

• Defendant's Contentions:

  That the three individuals seen by the officers initially ran when they saw the police approaching. That the three were ordered to come out where they could be seen and to show their hands. That the plaintiff remained behind a van despite multiple commands from police to show his hands and walk out from behind the vehicle.

  That although the plaintiff's gun had a brightly-colored tip to indicate that it was a replica, darkness and the almost identical color of the plaintiff's clothing and the gun's tip made it impossible for the colored tip to be seen by the officers.

  That when the plaintiff finally did emerge from behind the van, he did so with the replica gun initially concealed in his sweatshirt pocket. He then revealed the gun. Fearing for his life, the police officer fired a single shot that struck the plaintiff in the chest, paralyzing him.  Defendant officer contended that he and plaintiff were standing, facing each other and that plaintiff's right shoulder was forward when the officer fired.

  Defendants said that approximately a year after plaintiff was shot, officers responding to a domestic dispute at plaintiff's home spoke with plaintiff. Plaintiff told them that, on the night of the incident, he was scared and had run from the police.

  As to contributory negligence, defendants called the Airsoft gun store owner who testified that his store does not sell to people under 18, and that his store advises its customers that Airsoft guns cannot be used in public places. He further testified that all patrons are given a list of facilities where Airsoft guns can be used.