Court allows police shooting suit

A federal appeals court reinstated a lawsuit against the city of Hayward this week for the fatal shooting of 19yearold Shawn StoddardNunez, a passenger in a car that a police officer tried to stop on suspicion of drunken driving in 2013.

The suit by the victim’s brother was dismissed in 2018 after Officer Manuel Troche testified that the car was heading toward him when he opened fire, killing the teen.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said Wednesday there was evidence, including the coroner’s report, that could show the car had already passed Troche and posed no threat when he fired the fatal shot and that a jury should decide whether he used excessive force.

The ruling stands in contrast to earlier court actions related to the shooting. Prosecutors initially charged the driver of the car, Arthur Pakman, with murder in StoddardNunez’s death, saying he was legally responsible for the shooting by driving while drunk and allegedly steering the vehicle toward Troche. Pakman later pleaded guilty to involuntary manslaughter and drunken driving, convictions that were not affected by the new decision.

The case dates from March 2013, when Pakman and StoddardNunez were heading home from a party in earlymorning hours. Troche saw the car driving erratically and pursued it, though he did not turn on his flashing lights, the court said. Pakman pulled into a parking lot and stopped. The uniformed officer said he stepped out of his car, pulled out his gun and shouted at the driver to turn his engine off and step outside, but Pakman shifted into reverse and started backing out toward a narrow space between the police car and a fence.

Troche said he opened fire in selfdefense after Pakman swerved toward him and scraped against his patrol car, and he fired at the front of the car as it approached. Pakman was not hit, but one of the nine bullets struck StoddardNunez in the neck and killed him.

Pakman denied swerving toward the officer. The Alameda County coroner’s report found that Troche continued shooting as the car drove past him. Importantly, the appeals court said, the coroner also found that the fatal bullet entered the victim’s right shoulder and passed through the left side of his neck, and that there were bullet holes in the side and rear of the car.

A reasonable juror “could examine the photographs and conclude that Officer Troche fired his gun from the side and rear of Pakman’s car,” and not just at the front of the car, the threejudge panel said in reversing U.S. Magistrate Kandis Westmore’s dismissal of the suit.

On Wednesday, the court cited past rulings allowing a police officer to use deadly force to prevent the escape of a criminal suspect if the officer has reason to believe the suspect poses a threat to the officer or others. In this case, the court said, a jury could find that Troche fired the fatal shot while the car was heading past him, when it “posed no threat to officer safety and, at best, a minimal threat to the public.”

The city attorney’s office declined to comment.