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An expert witness who reviewed the evidence in a wrongful death lawsuit involving an Edinburg resident who was shot by a police officer multiple times has stated that the victim in the case posed no threat when he was killed, according to court documents.
San Antonio Police Department Assistant Chief of Police Jose L. Bañales, who has 35 years experience in law enforcement, stated in his expert report that Edinburg police officer Alex Cruz was negligent and failed to use sound judgment when he shot 29-year-old Jesse Daniel Davila to death on Jan. 11, 2021.
Bañales does disclose at the end of his report that he hasn’t authored a publication\ in the last 10 years, been retained as an expert in a trial or deposition within the last two years, and was retained at a rate of $2,500 and compensated at the rate of $150 an hour for his role in this case.
The lawsuit against the city of Edinburg was filed in early 2023 after Davila’s mother, Sandra Diaz, made unsuccessful attempts at uncovering more details regarding the death of her son.
Before the filing, Diaz petitioned to a court to obtain reports of the shooting but was denied.
Diaz is also suing Cruz and the mother of Davila’s two children, Nancy Reyes, who made the call for service that led to Davila’s death.
At 12:58 a.m. that early Monday morning, Edinburg police responded to 1709 Orlando St. Apt. B in reference to a call regarding a male causing problems, and who was possibly suicidal due to pouring lighter fluid in the backyard, according to the report.
Sgt. Sandra Tapia and officers Daniel Miranda and Art Cantu arrived at the location where they met with Reyes, who told the officers that the male, identified as Davila, had left the location before the police showed up.
As firefighters checked the backyard for traces of lighter fluid, Tapia sees Davila walk by the front door. Cantu spoke with Davila who denied pouring lighter fluid and that he and Reyes were arguing over money.
Reyes had told officers that Davila had taken some pills to overdose, but Davila stated to Cantu that he has a prescription for Xanax for bipolar disorder and anger issues. Davila said he was just trying to leave.
Cantu checked Davila for signs of self-harm but found none and determined that he wasn’t experiencing any suicidal ideations and didn’t require EMS.
The firefighters reported that they found some lighter fluid residue but it had dissipated.
“The officers also determined that an assault may not have occurred due to Ms. Reyes telling the officers to forget about her previous claim that Mr. Davila hit her, being uncooperative and telling officers that she just wanted Mr. Davila out,” the report said.
Davila was then given a courtesy ride to his parents’ home.
Then, at about 5:49 a.m. that same morning, another call was made to police for an assault in progress at the same apartment.
Edinburg officer Victor Duberney was dispatched to the call, but Cruz responded to the scene because the location was near his assigned area and arrived first.
According to Cruz’s statement, he hears a woman yelling from inside the apartment and sounds like she was “under extreme duress.”
“Officer Cruz described the yelling as if she was being seriously injured or killed,” the report said.
Because his thoughts were on the children inside the apartment, Cruz states that he couldn’t wait for Duberney, so Cruz informs dispatch of the screaming, unholsters his Glock 17 and makes entry into the apartment while holding his flashlight to navigate in the dark, according to the report.
Once inside, Cruz can hear the woman yelling “get off me” and walks toward the commotion which leads him to an open bedroom door, where he finds Davila crouched over a mattress that’s on the floor.
Cruz then sees Davila allegedly choking the woman, according to his statement, and commands him to get off her.
“Officer Cruz states that the suspect stopped assaulting the female and the suspect slowly turned his head towards him and gave him a ‘1,000-yard stare,’” the report said.
He then stated that Davila failed to comply with his commands, stood up, faced Cruz and began to actively resist.
Cruz begins to size up Davila, noticing long bleeding cuts on his left arm and realizes Davila is physically bigger and taller, the report said.
According to his statement, Davila puffed up his chest, spread his arms and began to advance toward Cruz while asking, “you going to shoot me?”
Cruz then attempts to create distance between him and Davila, striking him with an “open hand palm strike,” which knocks Davila to the floor on his back. Cruz then orders the woman to leave the room. She complies and enters an adjacent room.
As he exits the room, Cruz observes Davila standing back up before closing the door to the room and attempting to secure the door.
However, Davila opens the door and begins to charge Cruz stating, “you don’t scare me,” according to the report.
As he continues charging Cruz, Davila “escalates his attack” and begins to swing his right arm toward his left side to which Cruz responds by pushing Davila with his left hand while moving backwards.
“Officer Cruz states that the suspect lunged at him again and this time the suspect was reaching out with both his hands,” the report said. “Officer Cruz states in his statement that due to the suspect’s use of deadly force, he decides to shoot the suspect.”
Cruz maintains his weapon on Davila after he falls backwards.
Duberney then arrives and helps secure Davila and begins to administer first aid on him while Tapia arrives later and tells Cruz to isolate himself in his patrol unit until further notice.
Bañales stated in his report that Cruz “was negligent and failed to use sound judgment in the deployment of deadly force when there is no immediate threat of death or serious bodily harm…”
“Mr. Jesse Daniel Davila posed no immediate threat of death or serious bodily harm by merely disregarding Officer Cruz’ commands and started walking towards Officer Cruz, while clearly displaying his hands and not in possession of a deadly weapon,” the report said.
“Officer Cruz’ deployment of deadly force does not meet the ‘Objective Reasonableness.’”
Bañales posed the question in the report: Did officer Cruz absolutely have to use deadly force? He finds that Cruz didn’t, stating that no reasonable police officer would’ve shot Davila because he didn’t pose a threat as he was unarmed.
He adds that Cruz’s actions are indicative of the Edinburg Police Department being indifferent in not providing adequate training in the use of force, crisis intervention training and de-escalation training.
Bañales found that Cruz made no attempt to de-escalate the situation and stated that he mistook Davila’s “1,000-yard stare” as an indicator that he was going to attack when that unfocused gaze is a symptom of people experiencing “dissociation due to acute stress or a traumatic event(s) and or PTSD,” according to the report.
Bañales also stated that the police department was indifferent in not communicating to Cruz that Davila was experiencing a mental health crisis and may have been suicidal.
According to Bañales, the immediate escalation by Cruz indicates a lack of training and negligence and a departure from national best practices for law enforcement.
The city of Edinburg, Cruz and Reyes have all denied the allegations made against them in the lawsuit.
The expert report was filed Friday, May 3, and the case remains in mediation.
