A former “known Norteno gang member” living in Gilroy is seeking millions of dollars in damages for what he alleges was excessive force and violation of civil rights by Cpl. Eustaquio “Paco” Rodriguez with the Gilroy Police Department.
Rodriguez, a K9 handler and 11-year veteran with the department, along with the City of Gilroy, the GPD and Chief Denise Turner, are named in a lawsuit filed by Nelson Garcia who claims he was illegally stopped July 26 by Rodriguez; rammed with a police car; maimed by Rodriguez’ K9 dog without provocation; and arrested without a formal charge or a reading of his Miranda rights, according to the complaint.
The plaintiff’s attorney, San Jose based-lawyer Ronald Berki, calls the incident a “deliberate police dog attack instigated by Rodriguez, which left [Garcia] without the use of his right foot and ended his occupation as a $43 per hour solar panel installer.”
Garcia, 38, has had previous run-ins with the law. Since June 2012, he’s been arrested for vandalism, driving with suspended privileges, hit and run, obstructing a police officer and reckless driving, according to police records, and was formerly a known member of the Nortenos street gang, authorities say. Most recently Garcia was booked on charges of illegal gambling after he was arrested during an Oct. 24 GPD raid of the Gilroy Bizzness Center, which authorities called an illegal, unregulated gambling operation masquerading as an “Internet cafe.”
This is also the second time Rodriguez has faced accusations of excessive use of force while on duty in U.S. District Court.
Following a drawn out legal battle, the City of Gilroy in July 2012 awarded more than $2 million in damages and fees to the family of a man who was shot and killed by Rodriguez – then an officer – in February 2008. The family of Gurmit Singh, the 33-year-old man who was shot 10 miles outside Gilroy by Rodriguez on his way back from issuing a subpoena in Gustine, received $1.25 million in damages. Despite finding Singh 50 percent responsible for his own death, the jury had sympathy on Singh’s wife and two young children, agreeing that the City owed them a heap of money to help them survive on their own.
According to accounts laid out in the complaint, the lawsuit states Garcia was pedaling his bike north on Welburn Avenue to the grocery store July 26.
Around 6:30 a.m., Rodriguez spotted Garcia and recognized him “as a person who was wanted on an outstanding arrest warrant,” reads the City’s formal response to the original complaint prepared by a Walnut Creek-based law firm. “In addition, based upon his personal knowledge gained while working as a peace officer, Rodriguez knew that (Garcia) had a history of prior violent resistance towards the police, was involved with narcotic sales and use and was a known Norteno gang member.”
City officials say Rodriguez attempted a traffic stop after receiving confirmation from GPD dispatch that Garcia was, in fact, a wanted man. But instead of stopping and submitting to the arrest, Garcia fled on his bicycle and was pursued by Rodriguez. Rodriguez asserts in the City’s response that Garcia “made numerous furtive and dangerous gestures towards his waistband area, an area of the body that criminal suspects are known to conceal firearms or other dangerous weapons.”
Rodriguez claims he warned to Garcia to stop, or else the police dog would be released.
At some point during the chase, the City says Garcia lost control of his bicycle and fell, grabbed at his waistband while facing away from Rodriguez, then continued on foot. While in the carport area of an apartment complex on the 8200 block of Wren Avenue, the GPD states Garcia was again attempting to continue to flee and was preparing to attack Rodriguez.
The GPD alleges Rodriguez acted in good faith during the arrest and that the dog was deployed because Garcia was a wanted criminal who was fleeing from the police and gesturing as if he had a weapon.
The only details provided by the City as to the extent of Garcia’s injury are that the K9 bit Garcia on his right leg. Had Garcia complied with Rodriguez’s commands, the damages Garcia is claiming “could have been mitigated,” according to the City’s response.
Garcia paints a different turn of events, alleging that Rodriguez never explained reasons for the pursuit prior to deploying the K9. Rodriguez just drew his gun and commanded Garcia to get on the ground, according to the plaintiff’s side of the story.
Berki claims Garcia raised his hands and began to comply with Rodriguez’s demands by placing his hands on the car, but Rodriguez deployed the dog anyway.
Rodriguez’s K9 bit Garcia on the front of his right leg, just below the knee, according to the complaint. Later, the bite was measured to be just over one 1 inch wide, nearly 3 inches long and 2 inches deep, according to Berki. Garcia alleges at the time of the first bite, he was crouching down with his hands “almost on the floor.”
According to the complaint, the dog shifted its bite and latched on one more time, leaving Garcia with three bites – bites he claims have left his right leg “maimed to the point of permanent disability.” He was hospitalized for 17 days.
“[Garcia] will continue to suffer into the future and incur medical expenses, loss of the use of his leg and diminished or non-existent ability to work as a solar panel installer,” reads the complaint.
Berki asserts that during the entire encounter prior to the incident, there was no warrant issued for Garcia’s arrest, no Miranda rights read, no citation issued and no probable cause for Garcia to be detained.
The City denied those allegations in its formal response.
Garcia should have complied with Rodriguez’s verbal orders to stop fleeing, the GPD contends.
“The sole proximate cause of the injuries and damages, if any, allegedly suffered by (Garcia) was the negligence and fault of (Garcia),” reads the City’s response, detailing that Rodriguez had a “reasonable belief” that he had probable cause to detain and arrest Garcia to prevent his escape, or to overcome Garcia’s alleged resistance.
“From our part, we stand behind Rodriguez’s actions,” said Sgt. Pedro Espinoza with the GPD, speaking to the lawsuit. “Rodriguez is one of our finer police officers and he did everything within policy as far as the K9 deployment. We continue to support his efforts in removing violent criminals from the street.”
The City of Gilroy requested a jury trial in the matter and asked the court for reimbursement of court costs associated with litigation, including attorney’s fees.
“Rodriguez provided Garcia the opportunity to submit to his orders as required by law,” Espinoza added. “Every time that a K9 is deployed, the facts regarding the deployment have to be articulated. The K9 is not deployed on any simple pedestrian stop or a simple misdemeanor violation; there has to be more threat to the officer’s safety.”
