Mendoza

MEMORANDUM *

Ramiro and Delphino Mendoza appeal the district court’s judgment in favor of Officer Timothy Olsen and other Los Angeles city and police officials following the jury’s verdict in favor of Olsen. The Mendozas brought this 42 U.S.C. § 1983 suit to recover damages for the death of their son, Jose Mendoza, during a pursuit by Los Angeles police. The facts and prior proceedings are known to the parties; they are not restated herein except as necessary.

I

The Mendozas raise a host of challenges to the district judge’s instructions to the jury. First, they argue that the district judge abused his discretion in his formulation of the rule regarding the permissible use of deadly force. The jury was instructed that

This instruction closely tracks the language used by the Supreme Court in its decision in Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985), and, therefore, does not manifest an abuse of discretion. Id. at 11 , 105 S.Ct. 1694 (“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly…

Jose Mendoza led police on a low-speed chase through the San Fernando Valley. The chase reached its end stages when Mendoza got caught in rush hour traffic. Mendoza’s large pickup truck crashed head-on into a small white Toyota, but the photographic evidence suggests that Mendoza was driving slowly enough that the smaller car sustained relatively minor damage. Mendoza then proceeded to drive under a freeway overpass at an estimated rate of between five and 15 miles per hour. He rammed several late-model cars, but their airbags did not deploy in any of the crashes. Mendoza was trying to push cars out of his way, but he was not crashing into them at any significant rate of speed. By the time a rookie police officer shot Mendoza in the head, three of his tires were flat. No one else was seriously injured.

Although the issue of whether deadly force was reasonable is a close one because Mendoza’s actions were obviously scary, I believe that he did not present an imminent threat of death or serious injury to himself or others. Shooting at Mendoza was unreasonable and may well have been a foolish option. A stray bullet could have injured one of the many people in the area, and the use…