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Innocent bystander shooting injury termed “tragic” but not the fault of law enforcement 

Tough luck

click to enlarge District Attorney Day May says the shooting was justified. - PAM ZUBECK
  • Pam Zubeck
  • District Attorney Day May says the shooting was justified.
On Aug. 21, Fourth Judicial District Attorney Dan May ruled that officers were justified in using deadly force in the Feb. 5 shootout that killed El Paso County Sheriff’s Deputy Micah Flick, meaning no criminal charges are warranted. But questions persist as to the tactics used that day by a 10-member multi-agency auto-theft task force.

The Independent could find no evidence the task force trained together, which law enforcement officials say is essential. Moreover, none wore visible police insignia, had their guns drawn or announced their presence before grabbing the suspect, 19-year-old Manuel Zetina, though all three are standard police procedure. And it’s not publicly known why the task force chose to set a trap for Zetina at a densely populated apartment complex.
But none of that mattered in May’s finding that the shooting was justified, even though one of the suspect’s bullets pierced the spine of an innocent bystander, leaving Thomas Villanueva, 28, paralyzed from the chest down.

Nor would it matter in a civil court, according to legal experts, where Villanueva hopes to recover damages caused by the shooting. “In this particular case,” says civil rights attorney David Lane of Denver, “police were engaged in a gunfight with the suspect. A cop got killed. Even if a police bullet hit this innocent bystander, it will be deemed as completely unintentional, not negligent. The cops had to return fire, so he will have no case, as unfortunate as that is.”

Villanueva declined to comment, and his attorney, Joseph Ramos of Denver, didn’t return an email seeking comment.

So it appears the city and county will escape financial liability for the carnage of the day, which also left three other officers with gunshot wounds and neighbors terrified. And the Indy could find no agency that has, or plans to, examine the shooting incident from a tactical standpoint.
The Sheriff’s Office declined to comment on the shooting, citing Villanueva’s pending litigation. Nor would Sheriff Bill Elder address his Feb. 6 assertion that all officers were clearly labeled as police and wore visible badges. The Colorado Springs Police Department didn’t respond to questions about Lt. Howard Black’s similar claim to reporters after the shooting that officers wore insignia “that clearly identified them as police officers or sheriff’s deputies.”

Neither agency would say whether any internal investigations have or would be conducted, and May says he’s unaware of any such effort.

May’s three-page report, released Aug. 21, found:

• Zetina was seen in a stolen vehicle earlier that day and made “evasive maneuvers in an apparent effort to identify (and throw off) any vehicle that might be following him.” It’s not certain, though, whether Zetina knew officers had laid a trap for him at the Murray Hill Apartments. Asked about that at the Aug. 21 news conference, prosecutor Margaret Vellar waffled, saying “it appears” Zetina knew.

• Flick, Deputy Scott Stone (who grabbed Zetina), CSPD Detective Marcus Yanez and Villanueva were all shot before any officer returned fire. Sheriff’s Sgt. Jacob Abendschan was struck by shrapnel.

• Neither Stone nor Flick, who were close to Zetina, had guns drawn. Stone, who the Sheriff’s Office told the Indy on June 27 had become a part-time member of the task force only six months before, grabbed Zetina in a bear hug and yelled, “Police.” Thereafter, other team members heard “police” announced several times, but the report is silent as to who said it and when.

• Zetina first shot Stone in the hip and then struggled with Flick, shooting him at close range, with the bullet entering his neck and exiting his back. (Blood spatter on Zetina’s gun matched that of Flick.) Zetina then shot Yanez in the groin, and Yanez fired four or five times, striking Zetina once in the back. Sheriff’s Detective Mike Boggs saw Zetina point his gun at him, so he fired back. Sheriff’s Detective Tremaine White shot Zetina in the torso. Bullets removed from Zetina were those used by the Sheriff’s Office and the CSPD.

• Villanueva, who was walking through the parking lot amid the task force members “was not initially visible to members of the task force at the time the team made the decision to take Zetina into custody.” Villanueva was shot once with a through-and-through shot, which the DA says meant the bullet came from Zetina’s 9MM gun. (May said officers used .40 caliber guns that day, though the Indy verified the CSPD standard issue weapon is a 9MM. The CSPD didn’t respond to a question about that.)

Villanueva filed a notice of claim on March 20 with Colorado Springs and El Paso County, saying damages could exceed $1 million and noting his injuries were caused by county deputies and city officers “while in pursuit of a suspect.”

CSPD previously denied the Indy’s request for training records for those at the Feb. 5 shooting, citing the pending investigation. The agency didn’t respond by the Indy’s press time to a renewed request, following the release of May’s report and his comment that, to his knowledge, no other investigations are underway. The State Patrol, under which the auto theft unit is organized, refused to release training records and didn’t respond to a question about any additional investigations. So questions surrounding tactical and training factors appear dead in the water, unless they’re explored in civil litigation or internal reviews.
Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, says it’s routine for law enforcement to review such incidents for policy compliance or policy weaknesses and adjust policies and take disciplinary action if warranted. He also argues civil courts should consider the totality of the circumstances, including whether police actions that precipitated a use of force were reasonable or not, in deciding whether a lawsuit can proceed.

But other attorneys say lawsuits in this case will fail.

“It’s like being in a car crash and nobody has any insurance,” Colorado Springs attorney Ed Farry, who’s litigated use-of-force cases, says. “It’s tragic. It’s terrible. But neither the city nor the county are going to give him [Villanueva] any money. Just because you’re a bystander doesn’t mean you have an excessive-use-of-force case against the police authorities. The [agency] isn’t responsible to pay somebody because the police made a mistake.” He adds it’s a “pretty big stretch” to contend that different tactics would have prevented Villanueva’s injury.

As for Zetina’s family, their chances in court would be “as close to zero as you can get,” Farry says. “The facts are, the dead guy shot first. I don’t know how it would be an excessive use of force to shoot back at him.”

Lane, the Denver attorney, says the doctrine of “state-created danger” might apply if an agency set up an operation “in a way that is so over the top it endangers innocent people’s lives.”

Otherwise, he says, “the courts are not going to second guess police tactics, unless it rises to the level of [being] so outrageous. It’s a horrible, horrible thing, but sometimes there’s collateral damage in these things.”

That doesn’t wash with some rank and file officers. “This guy [Zetina] never had a chance to surrender. He was grabbed. That just shows that we used tactics that led to this man’s death,” says one officer, who spoke to the Indy on condition of anonymity for fear of retaliation. “The question now is why did we use those tactics? How does this guy get off this many shots without [return fire from police], and the answer is no one had their guns out. Did those tactics create the result? I think the answer is ‘yes’ to that.”

Officers also tell the Indy that auto-theft arrests since Feb. 5 have involved marked units and the tactical team.

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