With a single word, “affirmed,” the 5th Circuit Court of Appeals upheld a nearly year-old order dismissing a federal lawsuit filed by a Winter Texan whose son was shot and killed by police in Mission.
The lawsuit followed the fatal Feb. 22, 2016, shooting of David Green II, 38, in a mobile home park in Mission called Wagon City South. The man’s father, David Green, called police that day because his son, who suffered from bipolar disorder and schizophrenia, was having a mental health crisis and had threatened his father with an ax.
When police responded, David got into his father’s truck and led police on a chase through the mobile home park that ended with police fatally shooting the 38-year-old man moments after he crashed the vehicle into a tree.
Approximately two years later, David Green sued the city of Mission and three of its police officers, alleging they used excessive force when they shot and killed his son.
The July 7 ruling of the 5th Circuit Court of Appeals only affects two of those officers, Javier Lara and Sean De La Rosa. The allegations against the city of Mission and officer Jorge Cabrera had previously been dismissed.
The last remaining claim against Lara and De La Rosa, who claimed qualified immunity, was an excessive force claim. In a July 17, 2019, ruling, U.S. District Judge Micaela Alvarez ruled the officers were entitled to qualified immunity while determining their use of force was justified.
On the fateful day in 2016, David Green told 9-1-1 that his son threatened to kill him with an axe and was outside his house hitting his truck and motorcycle with the axe. The father told the operator about his son’s mental illness and that he was off of his medication.
Cabrera, who had been informed about the mental illness, arrived on scene first and learned from dispatch that David Green II had picked up a machete, according to Alvarez’s ruling.
“Cabrera exited his vehicle, unholstered his weapon and started walking towards Decedent. Cabrera testified he saw Decedent with a machete in his right hand and gave Decedent verbal commands to stop, put his hands up, and drop his weapon, and told Decedent, ‘Please put it [the machete] down. I don’t want to shoot you,'” the ruling stated. “Cabrera testified Decedent ‘just threw it [the machete] to the floor and ran towards his truck.'”
David Green II got in the truck and drove directly at Cabrera, according to the ruling.
“Cabrera testified he ‘thought [Decedent] was going to run over me.’ Cabrera fired a single shot at Decedent. Cabrera fell to the ground, narrowly missed — or perhaps side-swiped — by the truck,” the ruling stated. “Cabrera quickly got to his feet and fired three more shots at the truck before the truck drove off. Cabrera returned to his vehicle, informed Dispatch, ‘shots fired’ and began pursuit of Decedent.”
As this happened, more officers, including Lara, arrived at the scene.
“Lara testified that when he heard ‘shots fired’ and ‘officer down’ he believed Cabrera had been killed,” the ruling stated. “Lara entered Wagon City South and followed a police unit in pursuit of Decedent. This unit was driven by Cabrera, although Lara testified he did not know this at the time.”
David Green II then drove directly toward Lara and hit the officer’s vehicle, according to the ruling. Lara later testified he believed David Green II hit him intentionally.
“Lara also testified he believed his unit was disabled by the impact,” the ruling stated. “Lara exited his vehicle and drew his handgun, but did not fire as Decedent drove past.”
The officer grabbed a rifle from his vehicle and positioned himself at the entrance of the mobile home community, which only had one way in and out, according to the ruling.
Meanwhile, the pursuit continued.
“De La Rosa was in the vehicle behind Cabrera and was calling out locations and directions during the pursuit,” the ruling stated. “Cabrera testified he believed Decedent was going ‘above sixty’ miles per hour. During the pursuit, Decedent nearly struck an individual in the roadway. Lara testified he heard over the radio that Decedent had nearly hit a pedestrian.”
As the chase continued, David Green II made his way back toward where Lara had positioned himself at Wagon City South’s entrance, according to the ruling.
“Lara testified, ‘the truck stopped, revved his engine, moved forward, stopped again, revved its engine a second time, then moved forward again,'” the ruling stated.
Two things happened next but the sequence of those events is not clear, according to Alvarez’s ruling.
“(1) Lara fired a single shot from his rifle that went through the windshield of the truck; and (2) the truck crashed into a tree in a yard between two neighboring trailer homes and came to a stop,” the ruling stated.
Lara initially testified he fired before the crash but later conceded he fired after the crash upon reviewing video evidence, according to the ruling.
“In dash cam videos a shot can be heard, either simultaneous to the truck striking the tree or in the moment before or after,” the ruling states.
However, regardless of time crash’s timing and shot, David Green’s expert said the rifle round did not strick David Green II, according to the ruling.
“Lara, De La Rosa, Cabrera, and other officers approached the truck with their weapons out and about ten seconds after the crash there was a series of gun shots, which lasted approximately thirteen seconds,” the ruling stated.
The truck then rolled backward toward a resident’s trailer.
“Almost instantaneous with the truck rolling backwards, there was a final shot,” the ruling stated. “According to dash cam footage, the entire incident — from the crash to the final shot — took approximately fifty seconds. Decedent was removed from the truck, unresponsive, and was pronounced dead.”
After the shooting, the Texas Rangers investigated the officers and turned that investigation over to the Hidalgo County District Attorney’s Office. All three officers were no-billed on a charge of manslaughter, according to the ruling.
