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The mother of an Edinburg man who was killed during an altercation with McAllen police officers in 2021 is suing the department for wrongful death, excessive force and deprivation of his civil rights.

In the lawsuit filed in federal court on Nov. 2, Jesusita Herrera claims that four McAllen police officers used excessive force and caused the death of her son, Carlos Garza, during an incident at a south McAllen Whataburger in late 2021.

Police were called to the restaurant at about 10:17 a.m. on Nov. 3, 2021 in reference to a disturbance. There, they allegedly found Garza “in a loud argument with several Whataburger employees,” according to a copy of the 18-page lawsuit.

The suit alleges that four officers used excessive force to subdue an unarmed Garza as he attempted to flee the restaurant on foot after they arrived.

“Mr. Garza continued onto 10th street (sic), but then stumbled onto the ground. The Officer Defendants immediately attacked Mr. Garza as he lay on the ground,” the lawsuit states.

The officers allegedly beat Garza with their batons after he tripped and fell. Further, the lawsuit alleges the officers used improper techniques to physically restrain Garza, which lethally hindered his ability to breathe.

“Despite the handcuffs, all four Officer Defendants continued to pin Mr. Garza on the street with their full bodyweight, including pinning the left side of his face on the cement,” the complaint states.

The officers also allegedly put their weight on Garza’s back, pinning his chest to the street.

“The Officer Defendants continued to pin Mr. Garza against the street until the Officer Defendants noticed that Mr. Garza stopped breathing altogether. The Officer Defendants then finally removed their bodyweight from Mr. Garza and rolled him over Mr. Garza onto his back. However, Mr. Garza did not resume breathing,” the lawsuit states.

Garza was transported to a local hospital, where he was pronounced dead at 11 a.m. — less than an hour after his encounter with McAllen police had begun.

A forensic pathologist ruled Garza’s death a homicide, and noted that Garza’s body was “significantly bruised” — particularly his face and abdomen.

The autopsy also revealed that Garza’s body tested positive for cocaine and methamphetamine, but that “the levels were far below what could cause a fatal overdose,” the lawsuit states.

Though there were drugs in his system, it was the actions of the police officers that caused Garza’s death, the suit claims.

“Mr. Garza suffered a heart attack due to the excessive force used by the Officer Defendants which did not allow Mr. Garza to breathe. (Jesusita Herrera) brings with action to hold Defendants accountable for the death of her son and for her suffering caused by the Officer Defendants’ excessive use of force,” the lawsuit states.

Herrera is suing the four officers — James Martinez, Eric Gomez, Jose Flores and Alex Del Angel — in their capacity as law enforcement officials, but also in their individual capacities.

The city itself is also named as a defendant.

And though he is not named as a defendant, the lawsuit also alleges McAllen Police Chief Victor Rodriguez allowed a use-of-force policy that may have contributed to Garza’s death.

The lawsuit states that the department’s use-of-force policy allows officers to use “pressure point control methods” without restrictions on how long those methods may be employed.

The suit further criticizes the use-of-force policy for failing to outline a “continuum” of force that would guide officers through a step-by-step process of gradually increasing methods of seeking compliance from a suspect.

Nor does McAllen’s use-of-force policy include de-escalation recommendations, the suit states.

A proper use-of-force continuum, such as one drafted by the U.S. Department of Justice, would include steps that run the gamut from talking to the person, to “empty-hand controls,” such as grabs or punches, to less-than-lethal tools, such as batons, pepper spray or stun guns.

Lethal force with firearms is the last and final step of that continuum.

“Without an appropriate use-of-force continuum policy combined with de-escalation restrictions, the City Defendant authorizes its officers to unlawfully resort to abrupt, inappropriate, and exceptionally dangerous physical force against individuals who pose no immediate threat or flight risk,” the lawsuit states.

And that is the crux of Herrera’s suit — that once her son had stumbled onto the ground, he posed no threat to the four officers, especially since he was unarmed.

As a graduate of the FBI National Academy, the lawsuit claims that the police chief would have known about the concept of a use-of-force continuum, as well as DOJ guidelines on “positional asphyxia” — a condition where a person placed on their stomach may struggle to breathe.

Lastly, the lawsuit claims that the city and its police chief knew of the shortcomings in the use-of-force policy and deliberately failed to change it, which resulted in the deprivation of Garza’s Fourth Amendment rights.

“The Officer Defendants further acted with evil motive or intent and/or reckless and callous indifference to Mr. Garza’s Fourth Amendment rights, entitling Plaintiff to punitive damages,” the suit states.

Herrera is seeking not only monetary damages for the loss of her son and the costs associated with his death, but also for policy changes within the police department.

She wants McAllen police to update its use-of-force policy to one with “standards that limit the use of force as a last resort when there is no reasonable alternative, and only when necessary to prevent imminent and serious bodily injury or death.”

The city of McAllen has yet to file a response to the lawsuit. An initial conference is scheduled for January 2024.


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