A petition to investigate claims filed by a 39-year-old man shot by McAllen police nearly a year ago has been transferred from federal court back to a county court of law.
Falcon Rivera Jr. filed the petition on Oct. 27, alleging officer Daniel Cruz violated his civil rights by shooting him while he was fleeing from the officer. Rivera was handcuffed at the time after suffering what McAllen police described as a “psychotic break” in the 5200 block of North 25th Street in McAllen.
The man’s attorney says in the petition that his client is a disabled veteran who was suffering a mental health crisis that day.
Police transferred Rivera to the South Texas Behavioral Health Center where he was shot after swinging to break free and unintentionally hitting Cruz, according to the petition.
The city of McAllen removed the petition on Nov. 24 out of Hidalgo County Court-At-Law No. 6 to federal court.
A federal judge ruled on Monday to send the case back to the original court.
In the ruling, U.S. District Judge Micaela Alvarez notes that the case started not with a traditional complaint, but with a petition to investigate claims.
The city of McAllen had argued that federal court is the proper jurisdiction because the petition presents a federal question.
“But Plaintiff’s mere indication that he will investigate federal constitutional claims does not mean he is asserting or alleging a federal claim,” Alvarez wrote.
The judge also notes that this type of petition may not even lead to a civil suit is a deposition indicates that Rivera has no legal claim.
Before the shooting on Jan. 14, 2020, McAllen police said they were called to a home after a person reported that Rivera, who suffers from schizophrenia, had stolen a gun.
Police said they found Rivera in the back of the residence where he was detained and the weapon was recovered.
After the shooting, Rivera was treated for non-life threatening injuries and then Edinburg police charged him with escape from custody and aggravated assault on a public servant. McAllen police also charged with aggravated assault against a public servant and possession of marijuana.
A search of court records doesn’t return an indictment against Rivera for aggravated assault against a public servant.
Misdemeanor complaints for escape from custody and possession of marijuana were dismissed in the interest of justice, citing a mental health commitment.
