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Standard of proof differs in criminal, civil inquiries of officer-involved shootings

  • Attorney Arnoldo Casillas speaks to the media, as Sujey Cruz and Rodrigo Lopez listen, during a press conference on the lawsuit concerning the shooting death of Andy Lopez, in San Francisco on Monday, November 4, 2013. (Christopher Chung/ The Press Democrat)

One man brandished a 6-foot martial arts fighting stick and poked it into the radiator of a police car.

Another fired shots at the ceiling of his own house and charged at officers on his driveway.

Still another person wrestled with deputies inside a minivan after his parents reported he'd suffered a violent mental break.

All were killed by law enforcement officers in shootings that were later deemed justified. Yet in each case, relatives of the subjects filed wrongful death lawsuits in civil court and walked away with hefty settlements.

The disparity underscores a key difference between criminal and civil law — the standard of proof. Criminal guilt is harder to establish because a jury must agree unanimously that it is proven beyond a reasonable doubt. In civil court, however, a split jury can award damages if a majority of evidence suggests someone is at fault.

"In my 39 years here I'm not aware of any cop being prosecuted for a shooting," said Santa Rosa civil attorney Pat Emery, who won $1.75 million for the parents of a 16-year-old Sebastopol boy killed by deputies in 2007. "It's a reflection of the very different burden faced by prosecutors."

That distinction could play a role in the outcome of a federal civil rights lawsuit filed this week by the family of 13-year-old Andy Lopez, who was shot and killed Oct. 22 by a sheriff's deputy while the teen was walking through a southwest Santa Rosa neighborhood carrying an airsoft BB gun.

They alleged Deputy Erick Gelhaus used excessive force when he shot Lopez seven times after mistaking the teen's airsoft gun for an AK-47 assault rifle. The killing was the result of a custom of violence within the Sheriff's Office, the lawsuit alleged.

A lawyer for the family said damages could exceed a recent Los Angeles jury award of $24 million in a similar case, but maintained a goal of the federal lawsuit is to ensure an unbiased examination of the shooting. The attorney, Arnoldo Casillas, accused the investigating agency, the Santa Rosa Police Department, of conducting a "whitewash."

"Certainly from my point of view, this is a case where the plaintiffs can and should win," said Oakland civil rights attorney John Burris, who represented the family of Oscar Grant, slain by a BART police officer in 2009. "It's a good seven-figure case, minimum."

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