Lawyers criticize police shooting of teen who reached for pistol


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Andre Byik
Bay Area News Group


NEWARK — Sevgi Fernandez’s gut turned as the police body camera footage unfolded.

Fernandez, founder of the Bay Area police accountability nonprofit Together We Stand, watched as officers confronted 19-year-old Newark resident Elmer Lopez-Castaneda during a traffic stop here on a stolen car this spring.

The footage shows officers opening fire on the teenager after police say he “ignored officers’ commands” and grabbed from his waistband what they thought was a firearm, but was actually a replica airsoft pistol.

To Fernandez, the footage, which was released in May by the Fremont Police Department, does not clearly show whether Lopez-Castaneda grabbed the airsoft gun.

“What is clear is it was not aimed at anybody at the time they riddled him with bullets,” Fernandez said, noting Lopez-Castaneda’s back was turned toward officers at the time he was shot. She added, “They murdered him unnecessarily.”

Fernandez–whose organization was formed after the 2014 police shooting of Michael Brown in Ferguson, Missouri, and advocates for victims of police brutality and racism–joins civil rights attorneys who are questioning the actions of officers in the April 13 shooting of Lopez-Castaneda, who police have described as a carjacking suspect in a case where a car had been stolen at knifepoint earlier in the year.

James Cook, an attorney for the high-profile law offices of John L. Burris in Oakland, and Mark Merin, a Sacramento-based lawyer who regularly handles cases of alleged police misconduct, reviewed the publicly released body-cam footage of the incident last month at Bay Area News Group’s request.

They say Lopez-Castaneda was met with possibly confusing commands by officers and did not pose an immediate threat before he was gunned down.

“One of the things that I would say if I was suing them is that, ‘Hey, they all started screaming commands at the same time. He’s getting mixed messages,’” Cook said, adding, “The guy just didn’t have a chance.”

Merin called the shooting “indefensible” because Lopez-Castaneda did not point a weapon — deadly or not — toward officers or anyone else.

“It’s a bad shoot,” he said, adding, “The law says unless he is threatening an officer with grievous bodily injury — or someone else — they don’t have a right to use lethal force.”

Neither Cook nor Merin was representing Lopez-Castaneda’s family members in any civil action. It’s also unclear whether litigation is being pursued at all. The city of Newark said last month it had not received a claim for wrongful death or otherwise. In response to a public records request, the city of Fremont said it could not locate a claim related to the shooting. The filing of such claims can signal a forthcoming lawsuit.

Lopez-Castaneda’s relatives could not be reached for comment.

The shooting is among the latest to be investigated by the California Department of Justice under AB 1506, a police reform bill that took effect in 2021 and requires the state Attorney General’s Office to review for potential criminal liability all police shootings that result in the death of an unarmed civilian in California.

So far, Attorney General Rob Bonta’s office has completed reviews in three cases, finding insufficient evidence to pursue criminal charges against officers in each one. Another 40 such cases are currently under investigation, including cases in Antioch and San Francisco.

The Attorney General’s Office declined to comment on the Newark case, saying it is unable to provide further information on an ongoing investigation.

The involved officers have previously been identified as Trevor Damewood of the Newark Police Department; and Anthony Piol, Jesse Hartman and Thomas Degenstein of the Fremont Police Department.

In an emailed statement, Newark Police Chief Gina Anderson said she is “confident DOJ will conduct a fair and impartial investigation and I’m looking forward to the resolution.”

Anderson said it would be inappropriate to comment on the ongoing probe. But she said, “All Newark police officers undergo extensive training, which includes tactical communication, de-escalation techniques, scenario-based training, and crisis intervention training, among other crucial skills trainings.”

The Fremont Police Department declined interview requests, referring questions to the Attorney General’s Office.

Footage released by the Fremont Police Department shows events leading up to the fatal shooting of Lopez-Castaneda, starting with a carjacking at knifepoint that was caught by a surveillance camera on Feb. 14 in Newark and ending with Newark and Fremont police officers conducting a “high-risk traffic stop” on the stolen car April 13 at the Chase Suite Hotel Newark-Fremont on Cedar Boulevard.

Multiple officers surrounded the car with their guns drawn and began shouting commands at Lopez-Castaneda, who was seated in the driver’s seat, and his passenger, who police have described as an associate but remains unnamed.

One officer can be heard in the video asking his fellow officers to “hold,” and directing a single officer to take control of commands, which Cook, the Bay Area civil rights attorney, noted as an important moment.

“We do have one officer saying, ‘Hey, everybody, please shut up,’” Cook said. “Because it’s dangerous when multiple people are shouting commands.”

Lopez-Castaneda appears to comply with commands to get out of the stolen car with his hands on his head. As he begins to turn his back toward officers as directed, an officer shouts “Gun! Gun!” after police say the officer spotted what he perceived to be a firearm in the teenager’s waistband, which was sagging low.

The officer commands Lopez-Castaneda to “drop down to the ground, now,” and additional officers can also be heard shouting as the teenager — with his back partially facing officers — moves his left arm down to his waistband, where police say he was carrying a “full-metal airsoft pistol” resembling a Beretta M9 handgun.

Multiple officers fired their service weapons as the teenager reached for his waist. Several officers also fired “less-lethal devices,” including 40mm rounds and pepper balls.

Lopez-Castaneda died at the scene. The airsoft gun flew onto the hood of the stolen car next to him before landing near his body.

About 3 seconds elapsed from the time an officer yelled “Gun!” to when police opened fire.

Cook said the footage raises questions about the officers’ use of de-escalation techniques, which he noted is part of coursework provided by the California Commission on Peace Officer Standards and Training, or POST.

Fernandez, the founder of the police accountability nonprofit, said her organization works with families in the Bay Area and across the country, helping them find attorneys for consultation, navigate police reports and requests for body camera videos, and connect with mental health resources.

Fernandez said she intends to contact Lopez-Castaneda’s family to offer support.

“Our taxpayers,” she said, “are paying for our children to be killed by vigilante police officers who either ignore their training or did not receive the proper training to handle these situations.”

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