Editor’s Note: The following article was published in the May 20, 2016, edition of The Bakersfield Californian related to an excessive force lawsuit that was filed against the City of Bakersfield and two officers of the Bakersfield Police Department by the Civil Rights lawyers at Chain | Cohn | Stiles.
* Note: Neil Gehlawat is no longer an attorney with Chain | Cohn | Stiles *
Homeless man sues after police shooting
By Steven Mayer
The Bakersfield Californian
Adding to a long string of lawsuits being filed against local law enforcement, a 19-year-old man paralyzed from the waist down after being shot last year by a Bakersfield police officer who found him sleeping in his car is suing the officers involved and the City of Bakersfield.
The lawsuit, filed in U.S. District Court in Fresno on Tuesday — exactly one year after the incident in question — claims the plaintiff, Gilberto Fajardo, “was asleep, unarmed, and did not pose a threat of death or serious bodily injury to anyone” on the evening of May 17, 2015, when he was approached in a church parking lot by Bakersfield Police Officers Lindy DeGeare and Juan Orozco.
Fajardo was essentially homeless at the time. While he was often able to stay with siblings, that night he was left with only one option, sleeping in his car.
“He was there because he believed the safest place he could sleep was in a church parking lot,” Gehlawat said.
Bakersfield City Attorney Ginny Gennaro said Friday she was aware the lawsuit had been filed, but the city had not been served with it.
As soon as the city is served, the case will go to outside counsel, Gennaro said. She noted there will certainly be two sides to the story.
According to the timeline outlined in the complaint, the front driver’s-side window was rolled down about three inches when officers arrived at the church lot in the 600 block of Planz Road for a “check the welfare” call.
The complaint says Orozco and DeGeare began yelling profanities at the plaintiff, who awoke “startled and perplexed.”
Orozco broke off both the driver’s-side and passenger-side door handles, then “proceeded to bash in the front windshield of plaintiff’s vehicle after plaintiff turned on his vehicle,” the complaint states.
The lawsuit continues: “DeGeare then shot plaintiff multiple times while he was in the vehicle. One of her shots pierced plaintiff’s spine, causing him to become paralyzed instantly from the waist down.”
No longer in control of his body, the plaintiff’s foot collapsed on the accelerator, causing his vehicle to slam into a nearby van, it said.
According to the timeline, the two officers then dragged Fajardo from the vehicle and onto the pavement, jumped on him, kneed him and handcuffed him, causing further injuries.
The following July, a BPD Critical Incident Review Board cleared DeGeare in the shooting. She was returned to full duty.
According to a BPD investigation, the incident unfolded when DeGeare and Orozco came upon a vehicle backed into a parking stall surrounded by large vans on each side and across the parking access lane.
Fajardo was in the driver’s seat slumped over the steering wheel.
The vehicle was not running and the driver’s-side front window was lowered several inches, the BPD said.
There were no license plates on the vehicle; a license plate found in the dash returned to a different make and model vehicle, the department said. It was unclear if the vehicle was stolen.
Plaintiff’s attorneys say it was not, and Fajardo was not charged with auto theft.
According to the BPD’s timeline, officers woke Fajardo, identified themselves and asked him to step out of the vehicle.
“During their several minute conversation with Fajardo, the officers ordered him to exit the vehicle numerous times and he refused,” police said in a news release.
Fajardo rolled up his window, started the vehicle, revved the engine and rapidly accelerated out of the parking stall, police said.
DeGeare, who was on the driver’s side, lost sight of Orozco, who was on the passenger side, the BPD said.
“Believing her partner had been or was being run over, she fired her duty firearm at Fajardo, striking him,” police said in the release.
Fajardo hit a van that was parked across the parking access lane from where he was initially parked. Fajardo was taken to Kern Medical Center for treatment.
DeGeare and Orozco were not hurt. Adding insult to injury, Gehlawat said, Fajardo was charged with assault with a deadly weapon, the weapon being the vehicle.
Should he be convicted in criminal court, it could bar the civil case from moving forward, Gehlawat said. Should Fajardo be acquitted, it could open the possibility of a malicious prosecution claim.
If you or someone you know has been a victim of police misconduct, excessive force or had your civil rights violated, call the Bakersfield police misconduct lawyers at Chain | Cohn | Stiles at (661) 323-4000, or visit the law firm’s website at chainlaw.com.
Recently, the civil rights lawyers at Chain | Cohn | Stiles resolved a wrongful death, civil rights case that garnered international media attention. The case of David Sal Silva, in which he was beaten to death by law enforcement officers, settled for $3.4 million. Click here to learn more about this case.
— Compiled by Marisol Earnest for Chain | Cohn | Stiles
- Homeless man sues after police shooting left him paralyzed (The Bakersfield Californian – May 20, 2016) (online version) (newspaper version)
- Shot While Sleeping in Car in Church Parking Lot (Courthouse News Service – May 20, 2016)