Naples Daily News
NAPLES, Fla. — A federal judge threw out a lawsuit Friday against a Collier County Sheriff’s deputy who killed a motorist heading toward him in a stolen car after a high-speed chase in Immokalee.
U.S. District Court Judge Paul A. Magnuson granted defense attorney Bruce Jolly’s motion for a directed verdict in favor of Sheriff Kevin Rambosk and Cpl. Brian M. Cohen. Cohen shot and killed Charlie C. Torres of Immokalee on March 8, 2006.
On the fourth day of trial, the judge dismissed the lawsuit filed by Torres’ mother, Carmen Rivera of New Jersey, with prejudice, meaning she can’t sue again for compensation and damages for her and Torres’ other survivors, his 8-year-old son, Charlie Jr. of Immokalee, and another son and daughter.
“He put the deputy at risk and that’s why the shooting was justified,” Jolly said of Torres driving a stolen SUV toward Cohen. “The first three shots were dead-on. ... They were facing each other. That poor deputy was in the middle of a field with that SUV bearing down on him and yes, he did use deadly force.”
Jolly, a Fort Lauderdale lawyer who represented Cohen and Rambosk, filed a Rule 50 motion after Rivera’s attorney, Charles Mustell of Miami, rested his case. He’d just finished the testimony of his seventh witness, Philip Sweeting, a retired Boca Raton deputy chief who testifies as an expert in police use of force and policies and procedures.
Only one eyewitness testified, Jessica Annette Cuevas, 28, who told jurors Torres stopped the Ford Explorer and she opened the door to get out when the first shot was fired. She said she ducked and wasn’t hit.
But the evidence and the plaintiff’s own expert contradicted that.
“He really did hit what he was aiming for,” Jolly said of Cohen. “He was able to avoid shooting her. That’s tremendous skill.”
Mustell said he’s contemplating an appeal, noting the autopsy showed nine of Cohen’s 13 shots went through the windshield and driver’s side door, with four hitting Torres: one to his head, from left to right toward the back, and three more left to right, one to his left cheek and two to his left arm.
“The legal standard is almost impossible to prove and that’s what’s so frustrating,” Mustell said of a standard that bars looking an officer’s actions through 20-20 hindsight.
Rivera is devastated, Mustell said, adding, “The whole family is extremely upset and her comment is that justice certainly wasn’t done.”
The account by Cuevas, then known as Cartegena, contradicted the evidence, Cohen’s account, and that of another deputy who turned after the first shot was fired. Both the Sheriff’s Office and State Attorney’s Office cleared Cohen of wrongdoing because he maintained he fired as the SUV came at him, killing Torres, 34, a driver for the labor pool.
Sheriff’s reports say Cohen, then a three-year veteran, shot Torres, at 2:50 a.m. after he led deputies on a chase at speeds of up to 95 mph in a black Ford Explorer that was reported stolen by a friend, Wanda Santiago, whom Jolly portrayed as a girlfriend. Cuevas also testified she was on a date with Torres and he sped off after seeing Santiago and his common-law wife, Luz Martinez of Immokalee, following him. Cuevas and Martinez testified he sped off again after seeing them standing with a deputy as Santiago was reporting her SUV as stolen.
As Cohen pursued him, Torres burst through a fence near North 15th Street and Indian Camp Road, went airborne and drove into a farm field, where the shooting occurred. Cuevas testified she repeatedly urged him to stop, screaming, cursing and punching him, but he refused, leading Cohen on a bumpy chase that caused the airbags to deploy.
In 2006, Cohen told sheriff’s internal affairs investigators he was standing outside his vehicle, reporting the crash to emergency dispatchers, and fired as Torres headed toward him. The internal investigation says Cohen heard the engine roar, the SUV sped toward him and he yelled for the driver to stop as he aimed his gun. Cohen said he was in fear for his life and fired until the SUV stopped.
The report shows the evidence corroborated Cohen’s account. Several bullet holes in the SUV penetrated the windshield head-on, while others went through the driver’s side door, front-to-back. An autopsy said Torres was shot front to back, although Mustell says only one shot, the one that likely killed him, was slightly toward the back of his head and indicated his head was down. Sheriff’s reports say Torres had a crack pipe in his hand when he was found.
Jolly filed three Rule 50 motions, which are argued after an opposing side presents its case. The judge ruled Rambosk didn’t have a policy or custom of subjecting citizens to unwarranted excessive and deadly force, granted Cohen immunity on the lawsuit’s battery claim, and Rambosk and Cohen “qualified immunity” on civil rights claims.
Qualified immunity shields government employees from liability for violating constitutional rights while carrying out their duties when their actions, even if unlawful, don’t violate clearly established law.
Copyright 2010 Naples Daily News