A Civil Action
When the only trial involving the police killing of Pedro Oregon ended in acquittal last March, the cries of vindication began.
Former officer James Willis openly sobbed after county court jurors cleared him of misdemeanor trespass the only criminal charge filed by the D.A.'s office against any of the six officers involved in the deadly drug raid on July 12, 1998. Willis said he was thankful that all the truth had emerged, and even District Attorney John Holmes said the outcome validated his position that the fired officers were not criminally liable for their actions.
Never mind that no drugs were found in the Gulfton-area apartment. Or that police relied on a drunken crackhead as their informant. Or that they did not have enough evidence to get a warrant to search the premises. Or that some of them fired 33 bullets in 11 seconds, hitting Oregon 12 times, nine of them in the back.
As anxious as Holmes and other law enforcement officials appeared to be to get the politically volatile case behind them, a new court decision has breathed fresh life into other legal proceedings. Federal Judge Sim Lake, in a civil suit filed by the Oregon family, recently ruled that despite the trespass acquittal there is adequate grounds to try all six of the ex-cops for unlawful entry into Oregon's apartment and for two of them to be tried for wrongful death and excessive use of force against Oregon.
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Lake's decision came in a $35 million civil suit filed by Oregon's relatives against the former officers and the City of Houston. The defendants argued that it should be thrown out because they should be protected by the doctrine of qualified immunity. That was created because, basically, public servants should be free to do what they gotta do, without fear of lawsuits.
But that doctrine also requires that they not commit unreasonable violations of the rights of citizens.
Plaintiffs' attorney Richard Mithoff praised Lake's decisions, but defense attorney Robert Thomas isn't entirely happy and plans to appeal to the Fifth Circuit Court of Appeals in New Orleans to dismiss the remaining wrongful death allegations, against D.R. Barrera and Pete Herrada.
Thomas rehashed the oft-stated justification for the killing: Two of the officers said they had to fire because Pedro Oregon came at them with a gun. "They didn't violate any rights of Pedro because he cannot resist arrest, even an illegal arrest." Thomas then went off about the other side's claims saying, "The family has no evidence for their wild and unfounded allegations."
Problem is, the circumstances of that Sunday-morning raid are still hazy enough to make a lot of allegations seem unfounded. Lake noted that much more evidence and deposition testimony remains to be taken.
What is known is that two Houston police officers picked up 28-year-old Ryan Baxter on Saturday afternoon as he cruised the southwest Gulfton area with friends, drinking beer and looking for crack.
Baxter was on probation for drug possession, and in order to escape jail for being publicly drunk, giving beer to his teenage friend and possessing drug paraphernalia, he offered to lead the cops to his alleged dealer, Rogelio Oregon. Baxter said he set up a cocaine purchase and went to the door of that apartment. Meanwhile, six officers members of the Southwest Gang Task Force waited at the bottom of the stairs.
Baxter, following earlier police instructions, dropped to the ground when Rogelio Oregon opened the door. The suspect saw the police and went back inside, and officers rushed into the apartment.
Officer D.R. Barrera said his gun accidentally discharged, slightly wounding Officer L.E. Tillery. Barrera, who said the suspect's brother, Pedro Oregon, had a weapon, said he fired 16 shots, reloaded and fired eight more times, some at almost point-blank range. Officer P.A. Herrada also began shooting. Then Officer D.R. Perkins, who said he believed they were involved in a gun battle with Pedro Oregon, opened fire into the bedroom. The other civil defendant, Officer D.R. Strouse, was one of the leaders of the raid.
A gun was found near Oregon's body, but no drugs were found in the apartment or in Oregon's system.
In his opinion that the plaintiffs' wrongful death claims against Barrera and Herrada should stand, Judge Lake basically said that issues of fact had not yet been resolved. Lake released Perkins from wrongful death allegations because he believed, based on Perkins's limited view of the events, that Perkins had shot at Oregon in defense. Lake wrote, "Police officers who reasonably but mistakenly conclude that deadly force is needed to protect themselves and their fellow officers are entitled to qualified immunity for using that force."
Three other people were also in the apartment the night of Pedro's death, and his family and friends claim in the suit that these people were falsely arrested. Judge Lake upheld false-arrest claims against five of the officers, and defense attorney Thomas will appeal those allegations. "They had to protect the crime scene," said Thomas. "We don't think that's unlawful arrest."
But Thomas is not appealing the judge's decision to uphold the plaintiffs' claims that all six officers made a warrantless entry and search of Rogelio's apartment. The officers indeed lacked any sort of warrant and did not get consent from anyone in the apartment to enter.
Jurors in the criminal trial against Willis told prosecutors they voted to acquit because they believed the officer had to enter the apartment to help protect the other cops who went in. He testified they feared that the suspect was going for a gun or was going to destroy drugs.
While significant differences exist between criminal and civil law, that general defense was tried in the civil case as well. Under some circumstances cops can enter without warrant or consent, such as in urgent situations, but Judge Lake said that this particular raid wasn't one of them, because Baxter had been told to fall down and block the doorway so they could get in.
"In July of 1998 it was clearly established that police officers could not rely on exigent [urgent] circumstances to justify a warrantless entry into a home when the alleged exigency was manufactured by the officers' voluntary decision to confront the residents instead of keeping watch while seeking a warrant," his ruling stated.
"I think it's pretty clear that this lays to rest any notion that the officers' excuses for entering the apartment [are] going to pass muster," says plaintiffs' attorney Mithoff.
Thomas expects his appeal, which he said could reach the U.S. Supreme Court, to stall the civil trial a year. It was originally to begin next summer.
A federal investigation is also continuing in the case. The action by Harris County was wrapped in secrecy for months as a state district court grand jury considered the allegations.
Federal Judge Lake's ruling, however, challenged the need for continued secrecy of the documents filed in the civil case. "The court questions why these materials should remain under seal," he wrote. He advised attorneys of a Friday hearing on releasing the documents to the public.
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