FRESNO - After an eleven-year legal battle that involved four different law firms, the city of Madera has settled the lawsuit that resulted from the 2002 shooting of 24 year-old boxer Everado Torres.
The settlement was reached Tuesday in U.S. District Court in Fresno as lawyers prepared for jury selection. The city has agreed to pay the Torres family $775,000 which is just $20,000 more than was offered to them when the city attempted to settle this case in 2004.
At the time the family was the client of the Los Angles based Johnnie Cochran Firm. Cochran was the attorney for OJ Simpson during his famous murder trial and used the line, "If the glove don't fit you must acquit". Cochran never appeared in court for the Torres family and died in 2005 of brain cancer.
For the first six months of the case the family was represented by San Francisco attorney Arturo González of the law firm Morrison & Foerster. In 2002 González received a settlement from the city of Modesto for $2.55 million for the family of Alberto Sepulveda, an 11-year-old boy who was accidentally shot and killed by SWAT team police officers during a September 2000 drug raid. Following this case, González learned of the shooting and approached the Torres family.
A settlement offer of $350,000 was made by the city of Madera to González for Maria and Melchor Torres (parents of the victim) in December of 2002, but the family refused the offer and sought new counsel. In walked Johnnie Cochran. Cochran came to Madera to meet with the family and review the scene of the shooting. However that is about all Mr. Cochran had to do with the case. When the TV cameras weren't around, it was Cochran Firm attorney Cameron Stewart handling the case.
In 2004 Stewart was able to get the city to up it's offer to $755,000 plus reasonable attorney fees to date (around $20K), but that offer was also rejected. The amount the two parties agreed to this week is the same amount offered in 2004, but this time there was no agreement for attorney fees or court costs.
On October 27, 2002, Madera Police Officer Marcy Noriega confronted Torres while he sat handcuffed in the back of a police squad car following a loud party at the Madera Villa Apartments on North Schnoor Avenue in Madera. This was the only time Noriega came in contact with Torres that night as she and two other female officers took control of the juvenile party-goers that were outside of the apartments after police arrived.
Police were called out for the party which was to celebrate the one year anniversary of the death of Torres' cousin, Jamie Garcia. Garcia died while in police custody of a drug overdose. Police alleged Garcia was a known drug dealer in the city of Madera. Attorney for the city of Madera, Bruce Praet was unsure if Noriega was a part of the Garcia arrest.
At the party, police allege Torres barricaded the door to the second floor apartment and spread soap on the floor to hamper officers efforts to gain access. Madera Police had to call for mutual aid assistance‎ from the Madera County Sheriff's Department when they were overwhelmed with the number of people extracted from the party.
Once deputies entered the apartment, an intoxicated Torres was arrested on suspicion of resisting police and battery on a peace officer. He was then searched and placed in the back of a Madera Police squad-car, where he fell asleep. An hour later when the suspect awoke, Torres complained his handcuffs were to tight and that he needed to use a restroom. When that request was ignored he became combative, cursing and kicking the doors and windows. Noriega informed other officers at the scene that she would "quiet him down." She opened the squad car down and reached for her Taser. Unfortunately she claims she made a mistake and grabbed her firearm instead. She then aimed into the back seat and fired her Glock handgun one time at the handcuffed Torres, killing him.
Noriega has always maintained she meant to draw her M26 Taser and fired the wrong weapon. Both weapons looked and felt similar, despite the Taser's weight being much less. It was a custom practice in 2002 to holster both weapons on the officers dominate side. It is now required by nearly all law enforcement departments that officers wear their Taser on the opposite side from their lethal handguns.
During depositions for the trial it was learned that this was not the first time Officer Noriega drew the wrong weapon. In January of 2002, during a take down of a suspect, Noriega attempted to use her Taser in "drive-stun mode" to gain the suspect's compliance. When she realized she had drawn her Glock handgun when she saw the laser-site beam of her weapon lighting up the head of fellow Madera Police officer James Ellenberger.
After the shooting of Torres, Taser International Corporation replaced all of the M26 weapons in the Madera Police arsenal with a different Taser that was made of yellow plastic. Since then the M26 line of Taser's have been discontinued and replaced with the X26 which resembles no other handgun and is also yellow.
The Madera County District Attorney's Office investigated the shooting and decided in 2003 not to file criminal charges against Noriega. At that time, Assistant District Attorney Eric Wyatt chose to cite a 1950's cosmetic case where a woman who manufactured homemade cosmetics was found to be not criminally responsible for the death of a consumer as his reason for not filing charges.
Despite no criminal charges being brought against the police officer, the Torres' family sued Noriega and the city of Madera, claiming Noriega violated Torres' civil rights. A federal judge in Fresno twice denied the family's allegation and dismissed the case. But both times the Ninth Circuit Court of Appeals sent the case back. In August 2011, the appellate court ruled that a jury should decide whether Noriega's mistake was reasonable.
The jury would have to decide if Noriega's use of her Taser was reasonable for a suspect that was confined within a squad-car. But according to Torres latest attorney, Thomas Brill of Bakersfield, who took over the case in 2008, the jury would also hear testimony that was damaging to the character of Everado Torres.
Praet told BVN that while Torres had only one conviction on his record for assault with a deadly weapon and served four months in county jail, he did also have several other arrests and was a confirmed Norteño Gang member according to jail records. Brill believed that a Central Valley federal jury might not have sympathy to a victim like Torres and might return a judgment for much less than the city offered in 2004. If this happened the Torres family would be responsible for the attorney fees and court costs since the $755,000 settlement offer was made.
There are two liens placed against any settlement in this case by former case attorney's González and Stewart as well as nearly $10,000 is expenses since Brill took over the case. Praet believes that by not taking the city's offer in 2004, the family may end up with less than half of the 2004 settlement offer amount after paying all the attorney fees and trial costs which have been accruing all long the way. "Maybe they just wanted their day in court? I don't know.", Praet surmised.
Following the shooting Officer Marcy Noriega was placed on paid administrative leave for four years. During that time she returned to her hometown of Chico, California where she gave birth to a girl. In 2006 she returned to the Madera Police Department where she continues to work.
