The Estate of Clemente Najera-Aguirre et al. v. County of Riverside et al.

CASE NAME: The Estate of Clemente Najera-Aguirre et al. v. County of Riverside et al.

TYPE OF CASE: Excessive Force

COURT: U.S. Central District

JUDGE(S): Judge Dolly M. Gee

PLAINTIFF LAWYERS: Law Offices of Dale K. Galipo, Dale K. Galipo, Hang D. Le, Benjamin S. Levine; Briana Kim PC, Ian K. Cuthbertson, Christian F. Pereira

DEFENSE LAWYERS: Lewis Brisbois Bisgaard & Smith LLP, Tony M. Sain, Alexander S. Rynerson, Abigail J.R. McLaughlin

The lawsuit over the death of a man shot in the back by a sergeant in the Riverside sheriff's department had "some very difficult facts," said Dale Galipo, the plaintiff's lead attorney.

The man, Clemente Najera-Aguirre, had been acting in a "totally bizarre" manner. He had been drinking and was on methamphetamine. He allegedly threatened to kill and eat a woman and her baby. He wielded a pair of two-by-fours to break windows in several cars and a house. Next, he grabbed one or two baseball bats that he used to threaten the sergeant, according to some witnesses.

Last spring, just about seven years after the tragedy, a federal jury awarded Najera-Aguirre's estate $10 million in survival damages. The Estate of Clemente Najera-Aguirre v. County of Riverside, 5:18-cv-00762 (C.D. Central, filed April 13, 2018).

"At the time, that was one of the highest survival damage awards in a police shooting case," Galipo said.

He acknowledged that the sheriff's department had a right to respond to the dangerous situation. "But clearly, this person was exhibiting a mental health crisis." A neighbor and Najera-Aguirre each tried to calm him, and witnesses said he appeared to be afraid of his mother. Instead of firing his gun, the sergeant should have waited for backup, according to the attorney.

Surprisingly, one of the best pieces of evidence for the plaintiff was an animation of the incident created by the defense, Galipo said.

His cross-examination of the expert who created the animation "was the turning point in the case," said plaintiff's attorney Hang Le.

The problem for the defense was that the animation didn't match all the eyewitness testimony or the physical, forensic and medical evidence, Galipo said. During the trial, the sergeant testified that Najera-Aguirre raised the baseball bats threateningly toward him. He said Najera-Aguirre was facing him as he fired his gun six times in rapid succession.

Witnesses disagreed about whether the man had picked up one or two bats. They said the sergeant fired three shots, paused briefly, then fired three more. During that pause, they said, Najera-Aguirre briefly turned away. He died from being shot in the back.

Another problem was the animation showed Najera-Aguirre being shot, then getting up and walking several feet before collapsing and dying. But the medical evidence showed that one bullet struck his T-9 vertebrae, which likely would have paralyzed him instantly.

"The idea that this guy was shot four times and then after he was shot, retreated 12 feet away from the officer and then fell down was preposterous," Galipo said.

When he cross-examined the defense expert, Galipo pointed out that the sergeant and county lawyers had an hourslong meeting with the expert prior to the sergeant's deposition. During that meeting, Galipo contended, the department and attorneys planned their strategy about what the officers would say in their depositions.

"Dale absolutely destroyed their animation expert," Le said. "That was the turning point because the jury saw this guy was not credible at all, and it was clear that they made up the story after the incident."

The case is now on appeal. Defense attorney Tony Sain said the county cannot comment on pending litigation.

-- Don DeBenedictis