SAN JOSE, Calif. (Legal Newsline) – A police department sued for $5 million after shooting a man who ran over a pedestrian while trying to escape authorities is asking a federal judge to throw out the lawsuit.
The City of San Jose, its police department and chief and an officer filed their motion to dismiss July 20 in Yuridia Ochoa’s case against them. Ochoa said in an April 6 lawsuit he was doing donuts in the middle of an intersection when he caught the attention of San Jose police.
They attempted to pull him over, but Ochoa resisted. He struck a woman on a scooter, injuring her, and continued fleeing. Ochoa was eventually cornered in a parking lot and did not abide by police commands, the suit says.
Despite police ordering Ochoa turn the car off, Ochoa's vehicle began to move in reverse, the suit says.
Defendant police officer Eric Mosunic shot Ochoa a total of 14 times as he continued to move the vehicle in reverse despite officer commands, the suit says.
The motion takes aims at all claims made by Ochoa’s lawyer, Mark Merin of Sacramento, who alleged failure to train, a pattern of excessive force and even a violation of the Americans with Disabilities Act.
“Plaintiff’s ADA theory is evidently that police officers were required to accommodate him in some unspecified way for some unspecified ‘physical and mental impairment’ while arresting him for a violent crime. That is not a valid theory,” the motion says.
“Plaintiff does not allege a disability consistent with (the ADA’s definition), and simply stating that he ‘suffers from physical and mental impairment’ does not, without more, plausibly allege a disability within the scope of the ADA.
“To the extent that Plaintiff alleges that he was disabled from being shot, this is insufficient for purposes of alleging an ADA claim. An ADA claim can only be made based on a known or existing disability, not one that is allegedly caused by a police officer during an encounter or arrest.”
The motion says San Jose’s police chief Edgardo Garcia can’t be individually liable for what happened to Ochoa, and that media reports of “unsustained” allegations of excessive force aren’t enough to allege a pattern by San Jose cops.
Ochoa also can’t prove an intentional infliction of emotional distress, the motion says.
“Here, Plaintiff does not – and could not – allege that the police officers arresting him in the course of their ordinary duties ‘act(ed) as they did for the purpose of causing emotional injury to’ him,” the city says.
“The complaint does not even specify what outrageous conduct Plaintiff is referring to. But even if it were true that the officers used more force than appropriate within the meaning of the Fourth Amendment or common-law battery principles, that would not suggest officers had the particular intent to create severe emotional distress in Plaintiff.”