The daughter of Freddy Centeno, a mentally ill man fatally shot by two Fresno police officers two years ago, can move forward with her civil rights lawsuit because there is a dispute as to whether Centeno posed a threat to the officers, a judge has ruled.
Judge Dale A. Drozd ruled in U.S. District Court in Fresno that from the evidence “a reasonable jury could conclude that Mr. Centeno posed no threat to the safety of the officers or the public immediately before the defendants fired their weapons, and that the use of deadly force was unwarranted under the circumstances.”
The judge’s ruling on Aug. 30 is contrary to Police Chief Jerry Dyer’s assessment of the shooting. Dyer has insisted that the shooting was justified because officers Felipe Miguel Lucero and Zebulon Price believed Centeno was about to draw a black handgun from the pocket of his shorts.
The Fresno County District Attorney’s Office has cleared the officers of wrongdoing, even though the black object in Centeno’s pocket turned out to be a garden hose nozzle.
It is undisputed that Mr. Centeno was not carrying a gun, but rather a black plastic spray nozzle.
U.S. District Court Judge Dale A. Drozd
In his 23-page ruling, Drozd rejected the city’s request to dismiss the lawsuit and, in doing so, picked apart Dyer’s and the city’s lawyers’ assessment of the shooting of Centeno in southeast Fresno on Sept. 3, 2015. Centeno died 23 days later.
The judge said police could have used alternative methods to arrest Centeno, such as taking cover and using a stun gun on him. If they had done that, they could have learned that “Centeno was carrying only a harmless spray nozzle,” the ruling says.
Drozd said he carefully reviewed video from the two officers’ body cameras – the same video evidence Dyer told reporters in March 2016 that he watched at least 25 times. At a news conference, Dyer walked reporters through the video evidence, frame by frame, freezing it at specific times and pointing out exactly when Centeno reached into his pocket, grabbed a black object, pulled it out and slightly raised his hands.
Before he was shot, Lucero identified himself as “Fresno Police” and Price announced “Fresno P.D.” Both officers ordered Centeno to get on the ground.
“What the officers knew at the time – what their state of mind was – was what caused them to draw their weapons and to fire,” Dyer said at the March 24, 2016, news conference. “Both of these officers felt threatened. They feared for their safety ... and they felt that they were about ready to be shot based on the information they had and the actions of Freddy Centeno.”
Both of these officers felt threatened. They feared for their safety.
Police Chief Jerry Dyer at March 2016 news conference
The two officers fired 10 rounds at Centeno. He was hit eight times.
Drozd said in his ruling that “it is undisputed that Mr. Centeno was not carrying a gun, but rather a black plastic spray nozzle.”
“He did not make threatening gestures or verbally communicate any threats to the officers,” the ruling says. “In the seconds after the officers announced themselves, Mr. Centeno never moved into a shooting stance, and in reaching into his pocket, never raised his hands above his waist before the officers fired their weapons.”
Drozd said the evidence revealed that Centeno had a history of mental health issues, including diagnoses of bipolar disorder and schizophrenia, and the two officers should have known they were dealing with a mentally disabled suspect.
Centeno, 40, was shot on Orange Avenue near El Monte Way shortly after 11 a.m. after police received a 911 call from a woman who said a shirtless Hispanic man wearing shorts had banged on the door of her apartment, identified himself as a federal agent and threatened her with a gun. Children are heard crying in the background of the 911 call, and police said she told the dispatcher that she is worried for her daughters and nephew.
After the shooting, Capt. Mark Salazar said the department was aware of Centeno’s mental illness, but Price and Lucero were not.
But Drozd said that from the evidence “a reasonable jury could easily conclude” that the two officers were about to encounter an individual with mental health issues. That’s because right before the shooting, Sgt. Walter Boston had told Lucero and Price that the suspect was shirtless and wearing black gym shorts and had just banged on the door of an apartment, identified himself as a federal agent, and demanded to see someone named George.
Lucero was wearing blue jeans, a T-shirt, tennis shoes and a black nylon vest with the FPD star on the front left chest and a patch on the back that read “Police MAGEC,” which stands for Multi-Agency Gang Enforcement Consortium. Lucero carried an FPD-issued firearm, a backup firearm and Taser. Price also wore plain clothes and a tactical vest that identified him as a Fresno police officer. They were driving an unmarked, gold-colored Nissan Altima.
Freddy Centeno, 40, was shot in southeast Fresno shortly after 11 a.m. Sept. 3, 2015, after police received a 911 call.
After the shooting, Deputy Chief Pat Farmer said the two officers were around 15 feet from Centeno when the shooting occurred. Farmer said the officers told Centeno to show his hands and get on the ground. Instead, he pulled a “pistol-looking object” from his waistband, Farmer said. After shooting him, the officers performed CPR on Centeno until an ambulance arrived.
Drozd said in his ruling that the video evidence from Price’s body camera showed that “only two seconds passed from the beginning of the officers’ order for Mr. Centeno to get on the ground until he was struck by the first bullet.” The judge said “the entire confrontation – from the officers exiting their unmarked car until the conclusion of the shooting – lasted approximately a mere five seconds.”
Drozd also noted in his ruling that Sgt. Marcus Gray arrived at the scene 15 seconds before the shooting, but Gray never fired his weapon.
“Any criminal conduct on Mr. Centeno’s part had ended before the officers became involved,” Drozd said in his ruling, noting that Centeno had left the woman’s apartment “and was merely walking down the street when the officers confronted him.”
At most, Centeno’s alleged conduct at the woman’s apartment, Drozd said, was a misdemeanor offense. “Therefore, the use of some force – but not deadly force – may have been warranted to effectuate Mr. Centeno’s arrest,” the ruling says.
Centeno did not pose a threat to the public, the judge said, because no residents or bystanders were in the area when he was shot. Though officers contend Centeno posed a threat to them, Drozd said, the evidence could suggest that Centeno did not understand the commands of the officers since they arrived “in an unmarked gold-colored Nissan Altima and were not wearing traditional police uniforms.”
The family’s lawyers contend that police shot a volley of bullets, paused, and then shot Centeno again. The second volley stuck Centeno in the back, Henderson said.
The ruling says “Lucero has stated that he perceived Mr. Centeno to be fleeing after being initially shot.”
Drozd said the evidence, including the video footage of the shooting, showed Centeno’s body turning as a result of being hit by the initial gunfire. “Thus, a reasonable jury could conclude that Mr. Centeno neither actively resisted nor tried to evade the officers in any way and that no significant force, let alone deadly force, was justified here,” Drozd wrote.
The two officers fired 10 rounds at Centeno. He was hit eight times, including in the back.
In court papers, the family’s lawyers say the city endorses a custom or practice that allows officers to recklessly use deadly and/or excessive force. In their arguments they recited the March 23, 2016, fatal Fresno police shooting of Raymond Gonzalez.
At a news conference after that shooting, Dyer said Gonzalez was standing with another man in front of Scotty’s Liquor Store on Blackstone Avenue near Yale Avenue about 3:45 p.m. A plainclothes officer thought he was acting “suspiciously” and tried to contact Gonzalez. But Gonzalez dropped a backpack and ran. Dyer said Gonzalez pulled what appeared to be a handgun out of his waistband and was within 40 to 50 feet of a business when an officer fired one round and missed. Gonzalez then fell on top of the object.
Dyer said body cam video shows that when Gonzalez raised himself up, he had a black object in his hand that the officer believed was a gun. The officer fired again, this time hitting Gonzalez. He died later at Community Regional Medical Center.
Dyer told reporters it was possible the object in Gonzalez's hand was a phone. Police said Gonzalez’s handgun was loaded but had not been fired.
Dyer declined to name the officer who fired his weapon, but court records say it was Price. The city has been sued in federal court over the shooting of Gonzalez.
It’s unclear if Price still works for the Fresno Police Department. Police spokesman Lt. Mark Hudson did not return an email and telephone call about Price.
In April this year, The Tribune in San Luis Obispo reported that Lucero works for the California Polytechnic State University, San Luis Obispo, Police Department and that he was involved in a controversial takedown of a man whose arrest was caught on cellphone video.
In his ruling, Drozd sided with the Fresno Police Department on a few issues. He dismissed the family’s constitutional claim that Price and Lucero intentionally wanted to harm Centeno and deprived him of due process. “Here, the undisputed evidence establishes that officers Lucero and Price faced a quickly-evolving situation in deciding to use their weapons,” the ruling says.
Drozd also dismissed the family’s claim for punitive damages against the two officers and threw out a claim that said the city endorses a custom or practice that allows officers to recklessly use deadly force.
But he said the excessive force claim should go to trial.
“A jury may reasonable conclude that Mr. Centeno posed no immediate threat of harm, did not resist arrest and did not attempt to evade arrest,” the ruling says. “It could also be concluded that the officers had ample opportunity to give Mr. Centeno warning and employ alternative tactics before resorting to the deadly use of their firearms.”