Cook County Record

Thursday, April 9, 2020

Appeals panel says Chicago cops justified in shooting of driver of car involved in drive-by shooting in 2015

Federal Court

By D.M. Herra | Jan 10, 2020

Chicago police suv
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A federal appeals panel has found Chicago police officers were justified in the shooting death of a man they observed crashing his car as he sped away from a drive-by shooting.

Rachel Ybarra sued the Chicago Police Department, Commander Francis Valadez and Officer Monica Reyes, accusing them of excessive force and wrongful death in the 2015 shooting death of her son, Rafael Cruz.

Appellate judges Joel Flaum, Kenneth Ripple and David Hamilton upheld the decision of U.S. DIstrict Judge Virginia M. Kendall, who had entered summary judgment for the defendants. The courts agreed that given the events leading up to the shooting, the officers could have reasonably believed Cruz posed a threat to public safety.

According to the decision, the officers were patrolling in an unmarked car about 1:30 a.m. on Aug. 29, 2015, "patrolling a neighborhood where a gang-related shooting had recently occurred" when they witnessed a passenger in Cruz’s vehicle fire five gunshots at another car. Cruz then sped away from the scene, reaching speeds up to 70 miles per hour in a 30 mph zone.

The officers gave chase, watching as Cruz twice crashed his car into vehicles parked on the street. After the second collision, police said, the car came to a stop near the entrance to a parking lot. Valadez parked behind it and began getting out of his car; Cruz put his vehicle into reverse and crashed into the unmarked squad car, forcing Valadez back inside. Cruz then entered the parking lot.

Valadez and Reyes testified they followed the vehicle into the parking lot on foot, wearing marked police vests and shouting “Police.” Cruz turned the vehicle around and began driving back the way he came. As the vehicle moved forward, Valadez fired three shots and Reyes fired five.

The entire incident, from the drive-by shooting to the police shooting, took approximately 90 seconds.

“We conclude that the officers’ use of deadly force against Cruz was an objectively reasonable means to prevent the escape of armed and dangerous suspects who were driving with reckless disregard for the safety of others after firing gunshots at the occupants of another car moments earlier,” Flaum wrote in the appellate decision.

Deadly force is often viewed as being reasonable only when an officer fears for his or her life but can also be a reasonable means under the Constitution to prevent a suspect’s escape. The “reasonableness” of force must be judged from the perspective of the officer on the scene, not with hindsight, Flaum noted.

“Outrageously” reckless driving has been upheld as justification for deadly force in some circumstances, the court said, and in this case “there was more than Cruz’s extremely reckless driving to support the officers’ conclusion that Cruz presented a grave public safety risk.”

Cruz’s dangerous driving, including backing into the police car as Valadez was exiting it, came on top of officers’ knowledge that there was at least one gun in the car and someone willing to use it, the court wrote.

“Only 16 seconds elapsed from when Valadez entered the parking lot until … Cruz [was] shot,” Flaum wrote. “Within that 16-second window, the officers had mere seconds to determine how to respond, and that determination was informed by the violent acts the officers had witnessed less than 90 seconds previously.”

Audio recordings from Reyes’ radio confirm the officers identified themselves as police, the court wrote, and Cruz’s passengers testified they knew Valadez and Reyes were police officers because they could see the star emblems on their vests.

As the use of force was justified under federal law, the same rule applies to Ybarra’s wrongful death claim under Illinois law, the court wrote. And since the city cannot be held liable when the individual officers were found not to be liable, the court ruled the summary judgment was appropriate.

Ybarra has been represented in the action by attorney Mark F. Smolens and others from the firm of Mottweiler & Smolens LLP, of Chicago.

The city and its police officers have been represented by attorney Brian P. Gainer and others from the firm of Johnson & Bell Ltd., of Chicago.

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Organizations in this Story

Chicago Police DepartmentU.S. District Court for the Northern District of IllinoisU.S. Court of Appeals for the Seventh CircuitMottweiler Law OfficeCity of ChicagoJohnson & Bell