The city of Visalia will pay an undisclosed amount to the survivors of two men killed by police in October of 2012 to settle a federal wrongful death suit.
Late on the night of October 26, 2012, 19-year-old Eduardo Maduena and 22-year-old Ruben Molina, both Earlimart residents, were shot to death in a dirt field in Goshen by Visalia Police Department officers after a chase that began in downtown Visalia. While attorneys for the officers involved were prepared to argue one of the pair fired first, the evidence as it appears in filings does not seem to support that conclusion.
Maduena, who was fleeing the scene on foot, was shot once in the back of the head, according to documents filed in the case. Molina was shot repeatedly as he crawled from the wreckage of the overturned car he was driving, court documents filed by the plaintiffs say.
Similar settlements in Fresno and Tulare counties in the recent past have yielded payouts ranging into the millions of dollars. Terms of the settlement include keeping the payout amount confidential, as well as restricting parties to the case from discussing it. However, many of the documents filed in the case remain available online from various sources.
Allegations listed in the plaintiffs’ case–filed in December of 2013, just two months after the killings–say officers Adam Collins and Dirk Alfano began following five “Latino-looking” people in a white Hyundai Sonata beginning around 11:30pm on October 26, 2012. The three survivors of the encounter later said they were returning to their homes after a visit to a Jack in the Box restaurant when the pursuit began. Officers Collins and Alfano reported that Molina, who was driving the Hyundai at the time, failed to stop completely for a stop sign at an intersection on Locust Street just off the Lincoln Oval.
The plaintiffs’ attorneys, however, intended to dispute the cause for the traffic stop in their arguments. Documents filed on behalf of the deceased’s survivors suggest officers stopped the vehicle because they believed those inside were gang members, information the city’s attorneys attempted to enter into evidence. The officers, fearing reprisals for recent gang-related attacks, decided to make the stop because Molina and his passengers had tattoos and because of their style of dress, plaintiffs’ filings indicate.
“I don’t believe that’s correct,” said Visalia Police Chief Jason Salazar of the allegation Molina and his passengers were targeted because of they were “Latino-looking.” Profiling based on race is prohibited by VPD regulations, he added. “It’s a standard to have a policy (against profiling) as such, recognizing in some instances (at other departments) that may have occurred.”
Molina, who had prior criminal convictions, though the officers did not know it at the time, fled, leading police through Visalia and eventually onto westbound Highway 198, then north on Highway 99, at speeds exceeding 100 mph. While leaving Highway 99 at Avenue 304, Molina lost control of the car and crashed into an open field on Drive 69, where it rolled to a stop on its roof.
Three of the five passengers–city attorneys were prepared to argue there may have been a sixth passenger, though the three surviving witnesses deny it–then crawled from the wreckage and were shot by Collins and Alfano, and a third officer, Daniel Roberts, who had joined the chase in progress. Police claim Maduena, who was shot in the back of head as he ran, turned toward police and reached for his belt. Police shot Molina repeatedly as he crawled out the driver-side front window, according to court filings, and Nicholas Chavez, then 18, was shot in the leg and abdomen after leaving the overturned vehicle.
Molina died at the scene, and Maduena died later at an area hospital. Chavez survived. He also received a settlement from the city for his injuries. The payout in the Chavez case is also confidential.
“He wants to put this as far away as possible,” said his attorney Jack Denove, who also represents Maduena’s survivors and surviving passenger Robert Ruiz, 25, of Tipton. Terms of the settlement with the city prohibit Denove from discussing its particulars.
Two handguns were discovered in the wreckage during the aftermath of the chase and subsequent shootings, and attorneys for the city would have argued those traveling in the Hyundai fired at officers had the case gone to trial. An investigation by the Tulare County Sheriff’s Office (TCSO), however, found neither of the weapons had been fired. Postmortem examinations of Molina and Maduena found no powder residue on their hands. The three survivors, including the fifth passenger, Shanele Alvarado, 21, of Visalia, were also tested for residue by the TCSO, however, the kits were never processed.
TCSO investigators only found shell casings from the officers’ Sig Sauer semiautomatic handguns at the scene.
Ownership of the weapons discovered by police, one of which was found several yards from the car near Maduena’s body and the other inside the wreckage, is also disputed by the plaintiffs. Attorneys for the city attempted to introduce the dead men’s criminal history and gang membership to bolster arguments justifying the shootings, but were rebuked by the court. As there was no way the officers could have known the criminal past of those they were chasing, the court said, that history had no bearing on whether the officers used excessive force to subdue them.
Reporting at the time of the shootings by the Fresno Bee included a statement from a TCSO spokesperson revealing Maduena was a wanted felon at the time he was killed. Maduena, the Bee reported, served six months jail time for burglary and auto theft in 2011. He also served one month after pleading no contest to a charge of domestic violence. Molina served six months for assault with a deadly weapon in 2009 after pleading no contest.
The TCSO also told the Bee Chavez, Ruiz and Alvarado would face murder charges in the deaths of Molina and Maduena.
There was also disagreement among the officers about whether shots were fired from the Hyundai, the plaintiffs’ counselors said.
“I think one of the officers testified he did see a muzzle flash,” said attorney Peter Bersin, who represented Raynalda Molina, mother Ruben Molina. “One did, two didn’t.”
The city’s attorneys attempted to introduce a recording made on the night of the incident they said includes the sound of two gunshots not fired by officers’ weapons, along with testimony from a purported expert. Plaintiffs’ counsel had the recording suppressed due to the witness’s lack of expertise, records show.
“They (the city’s attorneys) claim they (VPD officers) heard shots coming from the car, but did not see anyone with a gun in hand at or about the time they fired their weapons,” Bersin said. “Of course, it was dark. Visibility was pretty lousy.”
The city’s assertion a weapon other than their officers’ was fired during the incident contradicts the TCSO investigation, which said the two weapons found at the scene had not been fired. However, the city’s attorneys were prepared to argue a sixth person, who fled the scene, fired a weapon at officers without being seen before making his escape. Molina’s three surviving passengers deny a sixth person was in the vehicle.
“I thought that was kind of far-fetched, that maybe somebody took off first,” said Denove. “It could have been. Everyone else in the car said there was no one else there.”
While Molina and Maduena occupied the front of the Hyundai Sonata–a mid-size four-door sedan with bucket seats in the front–Alvarado sat between Chavez on her left and Ruiz on her right, leaving little room for a hypothetical sixth passenger.
Leonard Herr, who represented Visalia in the case, did not respond to a request for an interview.
The plaintiffs’ attorneys were also building a case officers Collins, Alfano and Roberts’ pursuit endangered the lives of others on the road that night, and that the three had no plan for how to end the chase. Among the undisputed facts listed in case filings are lack of discussion and planning among the officers while in pursuit and when approaching the overturned car.
Amanda Hughes, a civilian who was performing a ride-along in Roberts’ vehicle during the pursuit, was also on scene when the shooting broke out. After the Hyundai crashed, the occupants could no longer see out the front window of the car before exiting, plaintiffs maintain. They also allege officers exposed themselves to further unnecessary danger by leaving cover to approach the overturned vehicle without waiting for backup to arrive.
The suit also alleges that Collins and Alfonso issued no commands to the occupants of the car before opening fire on the passengers. Roberts, documents say, yelled, “Hands or I’ll release my dog!” before opening fire.
Collins and Roberts fired 13 rounds each during the incident. Alfano fired his weapon seven times.
Decision to Settle Out of City’s Hands
Mayor Warren Gubler, who is also an attorney, said the decision to settle the suit came not from the city council or its attorneys, but from their insurance underwriter.
“That doesn’t mean the city or the Council were happy about it, but that was the insurance company decision,” he said. “The settlement in the case wasn’t totally under the city’s control.”
The confidential settlement amount will be paid out by the insurance provider, he said, meaning it will not directly impact the city’s coffers.
“The insurance carrier is the one who ultimately made the call to settle,” Gubler said. “They came up with the monies, so that’s kind of how it happened.”
Attorney Bersin agrees there are many causes for ending a civil action.
“Cases get settled for all kinds of reasons, so it doesn’t necessarily mean there was culpability,” he said. “There’s always the possibility you could lose a case and have to pay X. In these cases, if you lose, you’re responsible for the attorneys fees, so that’s a concern.”
The VPD has the Council’s backing, the Mayor said.
“Generally speaking, the mayor and the city council are fully supportive of our police department,” Gubler said. “They do a terrific job under terrible circumstances.”
The council does, however, maintain a watchful eye.
“Our primary concern is for the safety of the officers who are out there,” Gubler said. “If there is a time when they’ve overstepped their bounds, we’ll address that.”
VPD officers are required to receive 24 hours of ongoing training every two years to update “perishable” skills, including the use of deadly force. They also receive training quarterly on the use of force, Chief Salazar said.
He’d also like to see his officers wearing body cameras, the use of which has reduced both incidents of excessive force and the number of citizen complaints against police.
“I’m completely supportive of body cameras,” Salazar said. “We have an application (to fund body cameras) pending with the feds. We’re kind of waiting for that.”
“As you see more and more use of video, what you see is a discussion of use of force and what that means and why it’s a necessity at times,” he said. “And, it’s not always pretty. There needs to be a dialog about use of force and what our policies are.”