Westword - The tragic story of John Pacheaco, who died on Halloween 2020 after two Glendale Police Department officers, Neal McCormick and Chandler Phillips, repeatedly shot into his vehicle, is on track to make Colorado legal history as the first case to be tried under reform legislation that allows law enforcement officials to be held personally liable for wrongful death.
In late July, Denver District Court Judge Shelley Gilman ruled against a call to toss a 2021 lawsuit filed against McCormick and Philips on behalf of Pacheaco's estate. The decision removes the last impediment for a trial currently scheduled to get underway on August 29.
By the time attorney Matthew Haltzman of Fort Collins-based Haltzman Law Firm, who represents Pacheaco's estate, pressed the complaint, Governor Jared Polis had signed the Enhance Law Enforcement Integrity Act of 2020, which was passed by the Colorado General Assembly in the wake of protests over the police murder of Minneapolis's George Floyd. A key passage of the bill notes that unless a law enforcement agency determines that an individual "did not act upon a good faith and reasonable belief" that an action was legal, "then the peace officer is personally liable and shall not be indemnified by the peace officer's employer for 5 percent of the judgment or settlement or $25,000, whichever is less." The section adds, "If the peace officer's portion of the judgement is uncollectible from the peace officer, the peace officer's employer or insurance shall satisfy the full amount of the judgment or settlement."
According to Haltzman, SB-217 "has effectively put an end to qualified immunity for law enforcement. That shield is no longer there, so a jury is going to be able to hear about this conduct and decide if these officers are personally liable."
The sequence of events that led to Pacheaco's death started just prior to 10 p.m. on October 31, 2020, when a Dodge pickup truck driven by Pacheaco came to a stop on South Colorado Boulevard not far from the Alameda intersection. The vehicle had been reported as stolen.
A few minutes later, with the truck still stationary, Officer Bradley Reed, who is not named as a defendant in the complaint, pulled up behind it, according to the suit. Shortly thereafter, units driven by McCormick and Phillips "arrived at the scene and 'pinned' Mr. Pacheaco's vehicle in between two police vehicles that were parked in front and behind Mr. Pacheaco's vehicle, while Mr. Pacheaco remained unconscious," the document states. "Officers then began shining flashlights into the windows of Mr. Pacheaco’s vehicle and attempted to awake Mr. Pacheaco."
As a result of these actions, the account continues, "Mr. Pacheaco, who was disoriented, awoke and removed his foot from the vehicle’s brake. This caused the vehicle to move slowly forward approximately one foot and contact the front bumper of the unoccupied police vehicle in front of him. Mr. Pacheaco then moved the shifting mechanism in the Dodge."
At that point, McCormick and Chandler are said to have "opened fire on Mr. Pacheaco at close range, firing nineteen rounds from two semi-automatic firearms at and into the vehicle. Other more senior officers on scene, standing in close proximity to the Defendant Officers, did not fire their weapons. After bullets fired by the Defendant Officers caused catastrophic injuries to Mr. Pacheaco, including lacerating his spinal cord, Mr. Pacheaco’s foot came down on the gas pedal of his vehicle and the vehicle accelerated backwards, striking the unoccupied police vehicle behind him and pushing it."
No body-worn camera footage of the incident exists, since Glendale officers weren't required to use such devices at the time of the shooting — and neither were their vehicles equipped with cameras. However, attorney Haltzman obtained two videos that captured what went down. The first is a brief cell-phone recording showing officers advancing with guns drawn:
The second video consists of surveillance footage that shows the truck entering the frame at around the 4:40 mark, when police arrive. The truck begins moving at about 9:50 into the video, after which triggers are pulled:
Afterward, Phillips stirred controversy by essentially turning the incident into a joke by way of a social media post about being stuck on desk duty during the shooting inquiry. Superimposed over a photo of Phillips wearing a supposed-to-be-comic frown was an image of actor Mark Wahlberg from the 2010 movie The Other Guys declaring, "I'm a peacock! You gotta let me fly!" A Glendale Police Department spokesperson apologized for the post, which was deleted, but Phillips and McCormick kept their jobs after Denver District Attorney Beth McCann declined to file criminal charges against them — a choice explained in a May 2021 decision letter.
Haltzman filed suit the following September, and lawyers for Phillips and McCormick responded by putting forward a motion for summary judgment that called for its dismissal. But Judge Gilman's July 25 order rejected this request. "Defendants maintain that their use of deadly force was objectively reasonable," she wrote. "Even employing the analytical framework set forth by the Tenth Circuit Court of Appeals in its excessive force cases, the Court finds that there are genuine issues of material fact precluding entry of summary judgement on this claim."
At trial, Haltzman will have options not previously available to attorneys before the new law was adopted. "Prior to SB-217, a police officer could use deadly force if they reasonably suspected that a suspect was a threat to themselves, other officers or the public," he says. "Now, under SB-217, a jury will be able to hear that an officer can only use deadly force if that officer faces an imminent threat of danger or there's a substantial risk that the suspect will hurt others. And what we'll be putting in front of a jury is evidence that this wasn't the case."
Pacheaco "didn't have a knife and he didn't have a gun," Haltzman continues. "He was contacted on a welfare check while he was in a vehicle, and in a matter of seconds, he was shot to death simply by virtue of being in that vehicle. Is being in that car enough to be an imminent threat? We argue absolutely not, and obviously the court believes there's enough evidence to put that issue before a jury."
Many police experts decry policies allowing officers to shoot at a moving vehicle, and the Denver Police Department changed its policies to prohibit the practice following the January 2015 death of seventeen-year-old Jessica Hernandez, who was behind the wheel of a stolen car when officers opened fire. But even though the Pacheaco shooting took place just inside Denver city limits, the Glendale Police Department has not issued such a ban. "If we can effectuate that to change with a verdict in our favor, that's absolutely something we would be glad to see," Haltzman confirms.
Should a jury side with Paceaco's estate, Haltzman believes a damage award would easily exceed the cap of $25,000 or 5 percent of the judgment imposed on law enforcement officers under SB-217. But the law "allows employers to provide full indemnification if they choose to do so," he stresses. "We don't have any indication either way of what they intend to do, but there's a reason legislators wanted officers to be personally liable. They wanted accountability, and they wanted officers to think twice before they did something like unloading nineteen shots into a vehicle where an individual was unarmed. So we look forward to a Denver jury reviewing this case."
The Glendale Police Department has not responded to Westword's requests for comment on the judge's ruling. Click to read The Estate of John Pacheaco Jr. v. Neil McCormick and Chandler Phillips, the John Pacheaco Jr. decision letter, the order in the motion for summary judgment, and the signed version of Senate Bill 20-217.
See the original article here: https://www.westword.com/news/john-pacheaco-glendale-police-shooting-primed-to-make-legal-history-14618422
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