By Kati Walker
The plaintiff, Emilia Espinoza, filed a motion for cross summary judgement, Wednesday, in response to the City of Levelland’s motion for summary judgement filed December 8.
The motion, which has not been signed by Judge Samuel Cummings, says the plaintiff’s motion to deny the motion for summary judgement be granted and the plaintiff’s motion for cross summary judgement be granted as to liability.
The $5 million lawsuit was filed in January 2016, nearly a year after Jose Espinoza’s death. Though he was found to have suffered stab wounds, his cause of death was determined by a Lubbock medical examiner to be from multiple gunshot wounds.
According to court documents, the plaintiff says the “argument provided in this motion will prove the evidence in this case does not add up to the defense’s version of the facts.”
The document gives the background information of the case as presented by the defense. It points out Sergeant Ty Land did not deploy his K-9 unit “due to the frenzied situation with officers yelling commands and the struggle between Jose Espinoza and Emilia Espinoza.”
The plaintiff alleges the “self-serving statement establishes by the officer’s own admission, that the lead officer on the scene failed to deploy lesser force and failed to issue proper commands concerning the use of lesser force.”
The document references the dash cam video released by the plaintiff, which allegedly “fails to establish ‘a frantic, hectic’ scene or that officers faced ‘an unknown situation’ with a hysterical woman and a man with a knife.”
The plaintiff also claims the “supporting documents by the defendants, establishes that none of the officers involved in the incident had been trained in the use of lesser force. In fact, the only indication of a training episode concerning any of these officers is in 2016 and subsequent to the shooting and murder of Jose Espinoza.”
Officers involved in the shooting stated in sworn statements they were not equipped with tasers, “a highly accepted and widely used form of lesser force.”
“There is no constitutional requirement that officers be equipped with tasers, or that he use his taser before firing his gun,” said Matt Matzner, attorney for the City of Levelland.
The plaintiff claims “given this analysis, it is clear that the failure of the police department to adopt and introduce a standard lesser-force policy prevented the officers from applying lesser-lethal force, because they received no training on lesser force, nor were they issued proper tools to apply lesser force.”
However, the motion is in reference to “municipal liability,” on the basis of required elements of proof, including: “the municipality must have an official policy, the official policy must be linked to a constitutional violation; and the official policy must reflect the municipality’s deliberate indifference to that violation.”
However, Matzner said all officers involved did receive the state minimum requirement of Texas Commission on Law Enforcement training.
He also reiterated that the officers named in the case were dismissed on the issue of qualified immunity in an order signed by Judge Samuel Cummings on August 19.
The plaintiff then quotes the case City of Canton v. Harris, which establishes “the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.”
In conclusion, court documents say “the statute in this case provides no protection to the officers, even if their own testimony give as fact and that the scene was chaotic. There is no obvious reason why within ninety-seconds the police in this case had the authority, under statute, to exercise deadly force.”
Furthermore, the plaintiff insists “further analysis of the facts in the light most favorable to the defendants, still create a genuine and material issue of fact, preventing a grant of defendant’s motion for summary judgement and entitling plaintiff to a grant of summary judgement. The officers were not armed with lesser-force equipment making deadly force the only option available. Each of the officers have indicated that they had no tasers on their persons, nor do they recall whether or not they were armed with batons.”
The document further goes on to deny that Sgt. Land couldn’t have utilized his K-9 unit.
“Clearly, there is no exercise of lesser-deadly force, including the failure to use the police dog which Sgt. Land indicated could not be utilized because of danger to other police officers. This fact alone defies common sense in that a police dog allegedly trained for such a situation, could not be utilized with three armed police officers to assist in controlling the situation.”
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