Crime

Appellate court puts case of fatal Madera custody shooting back in play

A fatal 2002 shooting of a handcuffed prisoner by a Madera police officer who grabbed her firearm instead of her Taser will return to a federal courtroom in Fresno.

On Monday, the 9th Circuit Court of Appeals concluded that it did not have enough details to determine whether the death of 24-year-old Everardo Torres is a federal civil rights case or just a tragic mistake.

Madera officer Marcy Noriega shot Torres in October 2002 as he sat in the back of a Madera police cruiser. He had been arrested on suspicion of resisting police as they tried to quell a loud party on North Schnoor Avenue in northwest Madera.

Torres' family sued Noriega and the city of Madera, claiming Noriega deliberately intended to shoot Torres and thus violated his civil rights.

In April 2005, U.S. District Judge Anthony Ishii in Fresno denied the family's allegation and granted summary judgment in favor of Madera and Noriega.

The appellate court Monday overturned Ishii's summary judgment ruling. The decision hinged on an unresolved legal technicality -- whether Noriega's mistake involved an unreasonable use of force.

"Since the parties did not brief the issue of whether officer Noriega's mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination ..." the appellate court decision by Judge Michael Daly Hawkins said.

The Torres family lawyer, Carl E. Douglas of Los Angeles, on Monday hailed the appellate court's action. He said the family disagrees with the Fresno court ruling that Noriega's mistake was not a civil rights violation.

"The family is very exasperated," Douglas said. "They want their day in court."

In Madera, Everardo Torres' sister Rosamaria said Monday that the long court process has been stressful for the family.

"We're just upset that this has taken so long," she said.

In 2005, a federal judge in Fresno dismissed a related wrongful death lawsuit brought by the Madera Police Department against Taser International. The city contended that Taser International's training caused Noriega to accidentally grab her Glock handgun instead of the electronic stun device.

That case also was appealed to the appellate court in San Francisco and a decision is expected soon, Madera City Attorney Richard Denhalter said Monday.

"We're kind of midstream in a long trail that just keeps going on, it seems like," Denhalter said.

Madera County District Attorney Ernest LiCalsi said in 2005 that his office had conducted an extensive investigation of the shooting and in May 2003 decided that no criminal charges would be filed against Noriega.

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