McALLEN — A man who was thrown to the ground while in handcuffs and kicked in the face by two McAllen police officers in 2016 filed a federal lawsuit against the city and the officers this week for excessive use of force.
The lawsuit alleges that “the exercise of excessive force” by former McAllen police officers Ulysses Bautista and Luis Zuñiga during the arrest on a charge of driving while intoxicated “was unwarranted under (the) circumstances and was objectively and subjectively unreasonable when comparing or balancing the amount of force used against the need for force.”
According to the lawsuit filed Monday, the incident occurred in McAllen’s downtown district at approximately 1 a.m. on May 13, 2016, when Zuñiga pulled over Aaron Soto, 25, after he turned the wrong way on a one-way street.
Soto was arrested on suspicion of driving while intoxicated following a field sobriety test administered by Zuñiga, who called Bautista to assist.
In dash cam video McAllen Police Chief Victor Rodriguez released after the incident, a handcuffed Soto can be seen spitting into Zuñiga’s face while being loaded into the back of the squad car. The video captures Zuñiga pulling Soto from the back seat by the arm and throwing him to the ground, while Bautista can be seen kicking Soto in the face — all while Soto remains handcuffed, groaning loudly.
The lawsuit argues Soto posed no “risk of harm” to the officers because he “made no aggressive action toward (them) and nothing he did could be interpreted as threatening.”
Furthermore, the lawsuit argues Zuñiga and Bautista “did not have a reasonable fear of imminent bodily harm when they exercised excessive force in the detention and arrest…”
It also alleges the McAllen Police Department did not have a written policy on the use of force and de-escalation tactics at the time of the incident and has taken no action since to change policy regarding training officers in the use of excessive force, amounting to “gross negligence, recklessness and deliberate indifference on behalf” of the city and department.
Rodriguez did not return a call requesting comment, but previously told The Monitor on July 27, 2016, “The officer who was spit on (in) this case, in my view, used unnecessary force. And throwing (Soto) to the ground is unnecessary. The officer already had the individual in custody.”
Bautista was fired from the department in July 2016 after an internal investigation and Zuñiga resigned in September of that year.
Bautista was convicted of an official oppression misdemeanor this January, and District Judge Mario Ramirez Jr. suspended his 30-day jail sentence, placing him on six-month probation.
Zuñiga has been employed as a deputy constable with Precinct 2 since January 2017, having worked at the Alton Police Department after his resignation.
No attorneys were listed in court documents for the two men.
Soto’s lead attorney, Gregorio Treviño, did not return a call requesting comment.
Soto, who was taken to UT Medical Center in San Antonio for treatment for a face fracture following the incident, is asking for $750,000 in damages to cover his hospitalization and continued medical and psychological treatment “to cope with the results of the beating,” according to the lawsuit.
A pretrial hearing and scheduling conference is scheduled for July 18.
