By: Allison Ash (cbs 10 news)
SAN DIEGO – The family of a man shot and killed by a San Diego Police officer is “ecstatic” after a federal judge ruled most of their claims have some merit. The judge also ordered a settlement hearing next month in the case of Ortega vs. the San Diego Police Department.
Victor Ortega, 31, was shot twice and killed by SDPD officer Jonathan McCarthy, who claimed it was self-defense. The San Diego County District Attorney declared the shooting “justified”, but Ortega’s family claims the officer used excessive force and did not need to shoot.
The Ortega family filed a federal lawsuit claiming Ortega’s civil rights were violated, and that the officer had no reason to pull the trigger.
The city of San Diego asked for a summary judgment order in the case, but most of their claims were denied.
In his order, U.S. District Judge Larry Burns notes inconsistencies in some of the statements made by McCarthy, who claimed Ortega tried to take away his service revolver and his secondary weapon.
Burns writes: “Importantly, Plaintiffs (the Ortegas) have submitted evidence that would give a reasonable jury pause. Their forensic expert examined Victor’s autopsy report and noted that there was no evidence of gunpowder residue or stippling on Victor’s body (including Victor’s entry wounds) or clothing. The expert concluded that Victor could not have been grabbing at the gun if he was as close as Officer McCarthy said he was, contradicting Officer McCarthy’s stated bias for using deadly force. Given the proximity of the parties, the narrowness of the corridor, and the officer’s own testimony, a reasonable jury may doubt that Victor could have been reaching for Officer McCarthy’s gun when it fired, without receiving any gunshot residue on his hands, clothing or wounds”
“There is a further potential inconsistency around Officer McCarthy’s use of a non-lethal Taser,” writes Burns, who goes on to indicate the officer first claimed he had his Taser drawn, but in later testimony fails to mention the Taser at all.
The judge also seemed to question the facts leading up to the struggle between McCarthy and Ortega.
“If, as some evidence suggests, Victor did not reach for Officer McCarthy’s weapons, did not resist arrest, and spoke in a way that suggested non-violent compliance and disbelief (e.g. “Are you kidding me?” and “I’m gonna sue you!”), a jury may believe that Officer McCarthy acted with an impermissible intent to harm Victor rather than to protect himself.”
The attorney representing Ortega’s wife, Shakina, called the judge’s ruling a victory, saying most of the issues raised by the Ortegas are still on the table, and could result in a financial settlement for the widow and her two children.
Team 10 contacted the San Diego City Attorney for this story, but were told they have no comment.
McCarthy is still a member of the San Diego Police Department.