Bid for dismissal in fatal police shooting denied

A judge has rejected the city of Fremont’s bid to dismiss an excessive force and wrongful death lawsuit against three of its police officers over the fatal shooting of a pregnant 16-year-old girl in 2017.

Northern California District Court Judge Nathanael Cousins ruled there’s too many facts in dispute about the police shooting of Elena

Mondragon during a covert arrest operation that went awry in Hayward on March 14, 2017, to throw out the case.

“We consider it a victory,” Melissa Nold, a lawyer for Mondragon’s mother, said in an interview.

In his Aug. 31 decision, Cousins wrote that a jury will need to hear the disputed facts. He added that the disputed facts also pre

vented him from deciding whether to grant the officers qualified immunity, a legal doctrine that protects government officials from liability.

A lawyer for the police officers, Gregory Fox, said in an interview he plans to appeal the decision to the Ninth Circuit Court of Appeals.

“This is a very tragic situation, and I’m very sympathetic to Ms. Mondragon, but I also believe that my officers didn’t do anything wrong,” Fox said.

Mondragon, an Antioch resident, was shot during an undercover operation of the Southern Alameda County Major Crimes Task Force in March 2017 as officers tried to snare then 19-year-old Rico Tiger, who police said was responsible for multiple violent armed robberies in Fremont and around the Bay Area.

Fremont police Sgt. Jeremy Miskella and officers Joel Hernandez and Ghailan Chahouati were part of the team, tracking Tiger to the pool area of the City View Apartments in Hayward.

As Tiger and three other teens, including Mondragon, returned to Tiger’s BMW, officers planned to use an unmarked police minivan and SUV to try to block the car — which was stolen and being tracked by GPS — but they were delayed by another car pulling in front of them, Cousins wrote in his recap of the known facts.

Instead, Chahouati pulled the minivan close to the bumper of the BMW as it began to pull out of its parking spot and activated police lights. The officers then got out of the cars, aimed rifles at the BMW, and yelled commands

at Tiger.

Tiger backed up the BMW, revved its engine then attempted to flee by squeezing the BMW through a small space between the police vehicles and a carport, Cousins wrote.

Miskella and Hernandez both fired shots at the car, claiming in their court depositions it had slammed into the minivan and was heading toward Miskella, who they thought would be killed. Miskella rapidly backed up on foot while shooting five rounds into the BMW as it narrowly missed him.

None of the shots hit Tiger, the officers’ intended target, but Mondragon was hit multiple times by bullets and shrapnel, and died from her wounds, Cousins wrote.

Cousins highlighted a few areas of dispute raised by Nold, including where police officers fired on the car, how fast the BMW was traveling, whether it was actually a danger to officers, and where it struck the minivan, if at all.

Miskella claimed in his deposition he did not fire his weapon as the BMW was passing him, nor into the back of it. But police evidence photos of the BMW show bullet holes in the side and back of the vehicle, and Nold argued the bullets that hit Mondragon appeared to come from the side, based on an autopsy.

The evidence suggests “that shots may have been fired at the side and back of the BMW as it drove past and away from the officer(s),” Cousins wrote, and “puts at least Officer Miskella’s testimony into dispute.”

None of the officers had their body-cameras activated, court documents said.

While officers testified

the BMW struck the minivan driver’s side door at up to 45 mph, photos of the Caravan show the “door as wholly unscathed,” Cousins wrote, while there was more apparent damage to the back driver’s-side panel of the van.

Chahouati said he was in the doorway of the minivan as the BMW sped toward him, and he dove into the van, injuring his leg as the door slammed on it; Miskella testified he didn’t see Chahouati.

Depending in part on the disputed facts, a “reasonable jury” could find that the officers “behaved with deliberate indifference to the harm they could cause,” Cousins said.

“I think in this situation, the evidence was undisputed, the officers only had seconds to react to what they perceived as a deadly force threat,” Fox, the officers’ attorney said. “Judge Cousins disagreed with me.”

Michael Cardoza, an East Bay defense attorney and legal analyst, said Cousins’ decision to leave all the plaintiff’s claims against the city intact is “rare,” but appears to be correct given there are disputed facts.

“The defense in the case has to look at the emotional impact this type of case will have on the jury. The defense has to look at the climate in which they will be trying this case, when there will be a lot of jurors that will be anti-police department, and who will question very deeply why weren’t the (body-cameras) turned on,” Cardoza said.

The Alameda County District Attorney’s Office is charging Tiger with Mondragon’s murder. Last month, Tiger pleaded not guilty to the charge.