Tuesday, April 16, 2019

WILKINSON v. TORRES

Judge Benjamin Settle's Opinion

Wilkinson v. Torres

Recounting the cover-up of the murder of Jason Wilkinson


Photo of Rick Torres May 8, 2005
Rick Torres

Resigned from VPD in 2006 shortly after shooting
Resigned from CCSO August 4, 2016 prior to this being exposed at a trial in Clark County


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. C08-5281BHS

ORDER DENYING OFFICER TORRES’ MOTION FOR SUMMARY JUDGMENT AND GRANTING OFFICER KEY’S MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendant Torres’ Motion for Summary Judgment (Dkt. 25) and Defendant Key’s Motion for Summary Judgment (Dkt. 28). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies Torres’ motion without prejudice and grants Key’s motion for the reasons stated herein.

I. PROCEDURAL BACKGROUND

On May 2, 2008, Plaintiffs Scott Wilkinson, Alisha White, and the Estate of Jason Scott Wilkinson filed a complaint against Defendants Rick Torres, John Key, Brian Martinek, the City of Vancouver, and John and Jane Does 1-20. Dkt. 1. At all times material to the complaint, Defendants Rick Torres and John Key were police officers for the City of Vancouver. Id. ¶ 2.3.

 Plaintiffs allege the following claims against Defendant Torres:
 Defendant Torres’ actions violated decedent’s right to be free from summary execution and punishment and deprivation of life and liberty without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, to be free from unreasonable search and seizure under the Fourth and Fourteenth Amendments and to feely [sic]
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associate with family and friends under the First and Fourteenth Amendments. Id., ¶ 6.7. 
Plaintiffs allege the following claim against Defendant Key:

 KEY was present when TORRES used the unreasonable, excessive, and deadly force, KEY knew or should have known TORRES was using unreasonable, excessive, and deadly force, and had the ability to intercede and prevent the continued use of said force; however, KEY stood by, neglected to make any effort to stop or intercede in the unconstitutional force, and explicitly and/or tacitly approved of TORRES’ use of deadly force. Id., ¶ 7.2. 

 On November 7, 2008, Defendant Torres filed a Motion for Partial Summary Judgment. Dkt. 25. On December 2, 2008, Plaintiffs responded and included a motion to strike Defendant’s references to Jason Wilkinson’s Death Investigation Toxicology Report and to his criminal history. Dkt. 43. On December 5, 2008, Defendant Torres replied and included a motion to strike material Plaintiffs submitted in support of their response. Dkt. 47. On November 7, 2008, Defendant Key filed a Motion for Summary Judgment. Dkt 28. On December 15, 2008, Plaintiffs responded and included a motion to strike the Declaration of Colleen Lines (Dkt. 34). Dkt. 49. On December 19, 2008, Defendant Key replied. Dkt. 51.

 II. FACTUAL BACKGROUND

Judge Settle's opinion combines the "facts" by taking all the statements made by the officers and disregards the affidavit of Anthony Davis in its entirety.  There are two distinctly different versions of the facts in this case.  Either Officer Key was underneath the tires and he is getting chewed up by the tires of the minivan backing up, or Officer Key was nowhere near the tires when Torres started shooting.  This "combination of facts" does not comport with the law in the 9th Circuit.  "But in the deadly force context, we cannot "simply accept what may be a self-serving account by the police officer."  Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994).  Because the person most likely to rebut the officers' version of events - the one killed - can't testify, "the judge must carefully examine all the evidence in the record...to determine whether the officer's story is internally consistent and consistent with other known facts." Id.:  See also Gonzales v. City of Anaheim, 747, F.3d 789, 794-95 (9th Cir.1994).  This includes "circumstantial evidence that, if believed, would tend to discredit the police officer's story."  Scott, 39 F.3d at 915.

There are two completely different version of "facts" as outlined by the affidavit of Anthony Davis compared to the conflicting versions of Officer Torres and Officer Key.  

It should be noted that the Plaitiff's counsel is Beau Harlan, a former Prosecuting Attorney for Clark County.  In his submission of documents, which would create a factual dispute, the ballistics expert hired by the defense authored a report that Torres successfully moved to vacate.  This "additional evidence" has never been investigated by the investigating agency, Clark County Sheriff's Office.  

On May 8, 2005, Vancouver Police Officer John Key identified a stolen minivan with an unidentified driver inside the vehicle. Dkt. 30, Declaration of John Key (“Key Decl.”), Exh. A, Interview of John Key (“Key Interview”) at 4-5. After Officer Key yelled at the driver, the driver started the van and drove away from the scene. Id. at 5-6. Officer Key informed his dispatcher that the minivan “took off” and initiated a pursuit of the vehicle. Id. at 6.

Officer Rick Torres heard Officer Key’s communications over the radio and became concerned about the situation. Dkt. 36, Declaration of Rick Torres (“Torres

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Decl.”), Exh. A, Interview of Rick Torres (“Torres Interview”) at 5-6. At the time Officer Key radioed that the stolen van had driven away, Officer Torres claims that he was approximately six blocks away from Officer Key’s location. Id. at 6-8. After Officer Key radioed the direction of the pursuit, Officer Torres waited at an intersection to intercept Officer Key and the van. Id. Officer Torres saw both vehicles approaching at a speed that wasn’t over the speed limit. Id. He had his lights on and saw that Officer Key also had his lights on behind the van. Id. Both the van and Officer Key passed Officer Torres and Officer Torres joined the pursuit. Id. at 8-9.

 It is undisputed that Officers Key and Torres followed the van for approximately three minutes over a distance of approximately two miles. Officer Torres claims that the pursuit proceeded at speeds of “maybe 10 miles over” the speed limit. Id. at 11. Officer Torres also claims that Officer Key encouraged him to perform a Pursuit Immobilization Technique (“PIT”) on the van when he had the opportunity. Id. Defendant Torres states that a PIT is a recently developed law enforcement procedure where an “police officer places his vehicle parallel and a bit behind the suspect vehicle, and bumps the rear quarter panel with the front quarter panel of his vehicle sending the suspect vehicle into a spin.” Dkt. 25 at 4.

As the van and Officer Torres approached the intersection of NE 49th St. and NE 40th Ave., Officer Torres decided that the intersection would be the “best spot to take him.” Torres Interview at 12. When Officer Torres hit the van, the van spun 90 degrees. Id. at 13-14. Officer Torres claims that the van attempted to “take off again” so he hit the van again. Id. at 14. After the second hit, the van spun off the road into a side yard. Id. at 15. As the van continued driving through the yard, Officer Torres stopped and exited his vehicle. Id. at 15-16. He claims that he saw the van attempt to maneuver through numerous trees in the yard and eventually hit a telephone pole. Id. at 16. Thomas Fries, a Traffic Accident Reconstructionist obtained by Plaintiffs, claims that the van “entered the yard, at an assumed speed of 10-12 mph, leaving tire marks for about 75 feet.” Dkt. 46,

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Declaration of Thomas Fries (“Fries Decl.”), ¶ 2(b). Mr. Fries also concludes that the van “impacted the telephone pole at 12-15 mph.” Id. ¶ 2(c).

Clark County Deputy Sheriff Scott Shanaker was on patrol that day in the area of the pursuit. Dkt. 27, Declaration of Scott Shanaker, Exh. A, Interview of Scott Shanaker (“Shanaker Interview”), at 1-2. Deputy Shanaker heard the pursuit over the radio and proceeded to drive toward the pursuit. Id. He eventually reached the vehicles and saw Officer Torres’ PIT maneuver from a distance. Id. at 3. He briefly lost sight of the van, but then he saw it drive around the house and through the yard. Id. He positioned his car to block the van’s exit from the yard and, when the van compensated to avoid him, it ran into the telephone pole. Id. Deputy Shanaker positioned his car almost head-on with the van on the opposite side of the pole. Id. Deputy Shanaker observed Officer Key running toward the driver’s door of the van and Officer Torres running in from behind the van. Id.

Anthony Davis was also at the intersection when Officer Torres performed the PIT on the van. Dkt. 44, Declaration of Anthony Davis (“Davis Decl.”), Exh. A, Interview of Anthony Davis (“Davis Interview”) at 2. Mr. Davis claims that he saw the police lights, pulled over to the curb, and observed the remainder of the pursuit. Id. After the van entered the yard, Mr. Davis claims that “the cops blocked” the van in the yard, there was “no route of escape,” and two officers ran toward the van, one with his gun drawn. Id. at 3.

It is unclear whether the driver of the van was knocked unconscious when the van collided with the telephone pole. Deputy Shanaker claims that, from “the length [of] the hood of [his] car away,” it looked like the driver of the van got “knocked out.” Shanaker Interview at 3. Officer Key thought that the pursuit was over and “the car was stopped,” so when he reached the van, he grabbed the driver’s side door handle and tried to open the door. Key Interview at 12-13. At about the same time as Officer Key grabbed the door, the driver put the van in reverse. Id. at 13; Shanaker Interview at 4.


This is a photo of Officer Key after he had "fallen down".  There is a dispute as to whether Officer Key fell down, or if he was struck by the minivan as it backed up.  The officers version is that Key was struck by the van and was scrambling on the wet grass to get out from underneath the vehicle as it was running him over.  Contrarily, Anthony Davis' statement depicts Officer Key being away from the minivan as it backed up.  

This is further bolstered by the statements Torres made in the IA interview.  he stated that he saw the outline of Officer Key's vest and reacquired the target (Jason) and shot him an additional 4 times.  

Torres testified that he shot 4 times followed by another 2 times, when in reality, he fired 7 times followed by another 4 shots.  This is not "circumstantial" evidence, this is direct evidence depicting that Torres version of events was not internally consistent with the facts of the case.  However, Detective O'Dell, the lead detective, believed Torres version of events and recommended that Torres not be prosecuted for murder, and he recommended a finding of justifiable homicide.  


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Both Officer Key and Deputy Shanaker remember hearing the van’s engine rev as it began to move backward away from the pole. The grass was wet and muddy that morning. Key Interview at 19. As a result, the van threw mud forward as the tires spun in reverse. Deputy Shanaker claims that the hood and windshield of his car were sprayed with mud and grass when the van started to spin its front wheels in the yard. Shanaker Interview at 4.

The next significant event was Officer Key falling to the ground. Mr. Davis claims that Officer Key “slipped on the wet grass.” Davis Interview at 5. Officer Key claims that he was knocked to the ground by the van when it began to back away from the telephone pole. Key Interview at 13. It is undisputed that the driver accelerated backwards in a counterclockwise arc. The steering wheel was turned to the right so that the front end of the vehicle swung in the direction of the driver’s side while the rear of the vehicle swung in the direction passenger side. See Fries Decl., Exh 10 (aerial sketch of  the path of the van). At this time, Officer Torres claims that he was at the passenger side, middle window of the van with his gun drawn and yelling “show me your hands.” Torres Interview at 17. Officer Torres had his left hand on the van and he could feel it moving away from him as the engine revved. Id. He could see through the windows of the van that Officer Key went down. Id.

Officer Torres claims that his immediate thought was that the front wheels of the van were going to run over Officer Key. He stated that “the front end [of the van] is moving away from me, towards right were [Officer Key] went down.” Torres Interview at 18. Officer Torres remembers “thinking [that] the wheels are on top of [Officer Key], spinning. And [he yelled] at [the driver] to stop, and [the driver] just kept going.” Id. As the van continued arcing backward, Officer Torres saw Officer Key roll out onto the street “curled up, like, in a fetal position.” Id. at 19. He remembers hearing Officer Key yell and “thought that he was dead.” Id.

This is another fiction created by Judge Settle that disregards the false statements made by Torres in the first portion of his interview.  Torres initial states he doesn't hear a thing.  After a break and an "off the record" conversation, Torres recalls Officer Key yelling as he went down.  These inconsistent statements are "disputable facts" that cannot be decided during summary judgement.  Torres own contradiction give rise to the factual dispute, particularly when you have eyewitness testimony of another witness that contradicts the "self-serving" account of Torres and Key.  (see transcribed interview of Rick Torres).

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Concerned for the safety of both himself and Officer Key, Officer Torres began to fire bullets at the driver. Id. at 23. He claims that, “at some point, [he] shot . . . [he] fired at [the driver] to stop him.” Id. at 18. Officer Torres fired two volleys of bullets. Id. at 24. He initially remembered firing four bullets in the first volley, id. at 21; it was later determined that he fired seven rounds, Dkt. 25 at 10. He initially remembered firing two bullets in the second volley, Torres Interview at 18; it was later determined that he fired four rounds, Dkt. 25 at 11. There is a dispute as to the effect of the initial volley of bullets.

Officer Torres seems to contradict himself as to why he shot a second volley of bullets. At one point, he describes the situation as follows:

I thought what happened was I fired four rounds, and he kept going, and he was – and then, I fired . . . made a quick assessment, and he had stopped and I fired . . . I fired two more. That’s what I think happened. Torres Interview at 18. 

Later in the same interview, Officer Torres describes the situation as follows:

I remember it was kind of like, you know, I’m shooting . . . I was shooting like this and I came down and he was still looking at me like nothing had happened. And so, then I went back up and I think I fired two more rounds. Id. at 21.

The former description can reasonably be read to state that the driver “had stopped and [Officer Torres] fired . . . [he] fired two more” bullets, whereas the latter description states that the initial volley of bullets had no affect on the driver of the van.



Torres reason for shooting Jason another 4 times was due to the fact that he believed that the van was going to make a complete circle and run over Officer Key "again" when it made a complete circle.  According to the interview with Anthony Davis, he was videotaped when he returned to the scene the following day.  During the videotape, he places Officer Key and Officer Torres when the shooting started taking place.  Detective O'Dell does not mention videotaping Anthony Davis.  Nor does O'Dell place in his report that he stopped by Davis's residence on numerous occasions and attempted to persuade him to change his testimony.  

Mr. Davis claims that Officer Torres began to fire before Officer Key fell to the ground. Davis Interview at 7. He states that one “officer walked right up to the passenger window and started firing.” Id. at 4. Mr. Davis also claims that Officer Key fell to the ground because he slipped on the grass, which contradicts the story that the van knocked Officer Key to the ground. Id. at 5. Mr. Davis asserts that, after falling, Officer Key “jumped back up” and “jumped out of the way of the car so he wouldn’t get ran [sic] over.” Id. at 3.

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Deputy Shanaker claims that the driver was knocked out and came to at the same time that Officer Key reached the driver’s side door. Shanaker Interview at 4. He remembers seeing the driver put the van in gear and hearing the engine rev. Id. As the van began to move backwards, Deputy Shanaker decided that he should move his car in attempt to block any exit the van may have had from the yard. Id. at 7. He “turned around for just a second to make sure [he] was clear in back, because [he] was going to have to back [up] and maneuver” his car to block the van. Id. at 4. When he looked back toward the van, he saw Officer Torres with his gun “drawn out” and “he just starts shooting.” Id. Deputy Shanaker did not see Officer Key. Id. Deputy Shanaker claims that Officer Torres was “dumping rounds” as the van was “turning in a big arc backwards.” Id. at 4-5. After “three to six rounds,” Deputy Shanaker could see that the driver was “still animated at that moment . . . [he was] cognizant of what he’s doing, and then, it’s just like he’s not.” Id. at 4. Then, he saw that the van had “died down in speed” and that the driver was no longer in control of it. Id. at 5.

 Deputy Shanaker exited his vehicle, approached the driver’s side of the van, reached through the driver’s side window, and put the vehicle in park. Id. at 6. He cuffed the driver and checked for vitals. Id. He did not feel a pulse or any breathing. Id. The driver was later identified to be Jason Scott Wilkinson. Dkt. 26, Declaration of Stewart Estes, Exh. Q (“Report of Medical Examiner”). Mr. Wilkinson died from “multiple gunshot wounds.” Id.

Mr. Fries, the accident reconstructionist, claims that tire marks were left in the grass when the van was accelerating in the backwards arc. Fries Decl. ¶ 3(d).

After about 25-30' of tire marks . . . there is an abrupt difference in the texture and depth of these marks. This indicates that power is no longer being supplied to the wheels. The minivan (an automatic) continues backward at idle leaving light tire marks. Id. ¶ 3(I). 

Mr. Fries opines as follows:

The four glass patterns found on the vehicle path are most likely caused by exit bullets going out the driver’s side of the vehicle. The glass likely fell to within 1-3 feet from where the bullet penetrated the glass. 

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The glass pattern indicates three shots were fired after there was no longer power to the minivan. 

 Id. ¶ 3(h); see also id, Exh. 13 (aerial view of glass pattern in relation to the van’s tire marks and location).

 III. DISCUSSION 

 A. Plaintiff’s Motions to Strike

Plaintiffs move to strike Defendant Torres’ references to Jason Wilkinson’s Death Investigation Toxicology Report and to his criminal history. Dkt. 43 at 28. Plaintiffs argue that the legal questions before the Court turn on Officer Torres’ knowledge of Mr. Wilkinson when Officer Torres employed force against Mr. Wilkinson. Dkt. 43 at 28-29. Plaintiff concludes that Defendant’s reference to the toxicology report and Mr. Wilkinson’s criminal history have “no bearing” on the issues before the Court and are used only to “tarnish the character” of Mr. Wilkinson. Id.

Defendant counters that “Plaintiff’s drug use is relevant to his impaired and erratic driving, as is his criminal history.” Dkt. 47 at 3. If Plaintiff’s intoxication has any bearing on the questions before the Court, then the Court may consider this evidence. On the other hand, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. ” Fed. R. Evid. 404(b). Moreover, Mr. Wilkinson had not been identified when Officer Torres decided to exercise deadly force. For the purposes of this motion, Defendant’s reference to Mr. Wilkinson’s criminal history is both inadmissible and irrelevant evidence. Therefore, the Court grants Plaintiff’s motion to strike Defendant’s references to Mr. Wilkinson’s criminal history and denies the motion to strike the reference to his toxicology report.

Plaintiff also moves to strike the Declaration of Colleen Lines. Dkt. 49 at 13-14. Ms. Lines asserts that her car was struck by the van during the pursuit. Dkt. 34, ¶¶ 2-3. Plaintiff argues that the question before the Court “centers upon the facts known to [Officer] Torres at the moment he began pulling the trigger” and that Officer Torres does not remember seeing this accident during the pursuit. Dkt. 49 at 13-14.

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The Court disagrees as only part of the Court’s analysis will depend on what Officer Torres saw during the pursuit. Therefore, the Court denies Plaintiffs’ motion to strike Ms. Lines’ declaration.

B. Defendant Torres’ Motion to Strike

Defendant Torres “moves to strike (1) unsworn and unauthenticated report of Matthew Noedel, Ex. 7 to Harlan Dec., Dkt. No. 45; and (2) Notice of Findings as to Officer Rick Torres, Ex. 6 to Harlan Dec., Dkt. No. 45.” Dkt. 47 at 1-2.

           1. Matthew Noedel Report “

A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) (citations omitted). Authentication is a condition precedent to admissibility. Id. To authenticate documents that are submitted to support or to oppose a summary judgment motion through personal knowledge, the party must attach the documents to the affidavit of a person through whom the exhibits could be admitted into evidence at trial. Id. The affiant must show affirmatively that he has personal knowledge and “is competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e).

Plaintiff has submitted a “[s]hooting scene examination and reconstruction” report by Matthew Noedel and his curriculum vitae. Dkt. 45-7. Plaintiffs, however, attached these documents to the Declaration of Beau Harlan, Plaintiffs’ attorney. See Dkt. 45, ¶ 2. Plaintiffs have neither submitted an affidavit of Mr. Noedel nor shown how these documents could be admitted into evidence through Mr. Harlan. Therefore, the Court grants Defendant’s motion to strike these documents.

This additional evidence has never been examined by the Clark County Sheriff's Office.  Neither has the affidavit of Anthony Davis.  In addition, there was another eyewitness to the shooting who has never been interviewed.  Clark County Sheriff's Office is aware that there is an additional eyewitness, yet they refuse to reopen the investigation. 

            2. Notice of Findings

Authentication is not a condition precedent for domestic public documents under seal. Fed. R. Evid. 902(1). Moreover, public documents are not excluded by the hearsay rule. Fed. R. Evid. 803(8).

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Plaintiffs submitted a document titled “Notice of Findings” that was issued under the official seal of the City of Vancouver Police Department and appears to be signed by Assistant Chief Mitch Barker. The Court declines to accept Defendant’s argument that this document is unauthenticated hearsay.

Defendant Torres also argues that the contents of the document are irrelevant based on the legal issues before the Court. Dkt. 47 at 2. The document shows that, after an internal investigation, Officer Torres initiated a pursuit of Mr. Wilkinson in violation of department guidelines. See Dkt. 45-6 at 3. Defendant asserts that “[w]hether a provision of a policy manual was violated is irrelevant to the question of whether [Mr.] Wilkinson’s constitutional rights were violated.” Dkt. 47 at 2 (emphasis in original). The Court agrees. See Case v. Kitsap County Sheriffs Dept., 249 F.3d 921, 929-30 (9th Cir. 2001). Moreover, based on the record before the Court, the decision on whether to initiate the pursuit is most likely insignificant in light of the decisions regarding whether to end the pursuit. Therefore, the Court grants Defendant Torres’ motion to strike the “Notice of Findings” because the finding that Officer Torres violated a department guideline is irrelevant to the questions of constitutional violations and qualified immunity.



C. Summary Judgment

Defendants Torres and Key move for summary judgment based on the doctrine of qualified immunity. Dkt. 25; Dkt. 28. Defendant Torres also moves for summary judgment on the grounds that “Plaintiffs parents’ claims are not legally viable.” Dkt. 25 at 12-33.

           1. Standard




This media advisory is dated May 9th, 2005.  Officer Torres was not interviewed until May 10th, 2005.  Officer Key testified on May 9th, the date of this press release.  There are no formal statements in the record that support this media release.  Contrarily, there are officers that are talking with the news media requesting they delay their broadcasts until the press release.  The media had the eyewitness account of Anthony Davis but took the advice of the IA investigative team and waited to publish anything until this press release.  



This news article depicts Jason Wilkinson as a troubled teen.  It also portrays Chief Martinek's view that tough choices need to be made in the heat of the moment by uniformed officers that had been on the force.  In essence, this is the beginning of the propaganda campaign to exonerate Torres for murdering Jason Wilkinson.  A theme that is replayed in the opinion of Judge Settle.  Obviously, the background of Jason Wilkinson is important in determining where Officer Torres was in relation to where Officer Key was when the shots rang out.  This opinion wreaks of bias and runs contrary to the opinions offered previously by the 9th Circuit.  

This article published on the 10th of May has the police version of events entirely plotted out prior to Torres testifying.  The only account that depicts these facts are the account of Torres which gave the day this article was printed.  The entire story contradicts what Anthony Davis stated to the police officers on May 8th and May 9th.  The videotape of Anthony Davis depicting where Officer Torres and Officer Key were when the shooting started is not part of the Internal Affairs Investigation.  It is not listed and an exhibit in any investigative documents nor in the court record in this case. 

The police version of events was given to the media on May 9th, 2005 prior to Officer Torres testifying.  This article either stemmed from interviews with Chief Martinek along with the Press Release dated May 9, 2005.  None of the statements made by Anthony Davis were in this article.   

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

 The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

            2. Qualified Immunity

“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The immunity is “immunity

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from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established . . . in light of the specific context of the case.” Id. This sequence, however, is no longer the mandatory procedure that a district court must implement when considering the shield of qualified immunity. See Pearson v. Callahan, 555 U.S. (January 21, 2009). The district court may “determine the order of decisionmaking that will best facilitate the fair and efficient dispostion of each case.” Id., slip opinion at 11-17.

                 a. Fourth Amendment

Plaintiffs assert that Officer Torres violated Jason Wilkinson’s Fourth Amendment right to be free from unreasonable seizure.

                          i. Constitutional Violation

 Plaintiffs’ excessive force claim is governed by the Fourth Amendment because “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). “Under the Fourth Amendment, officers may only use such force as is objectively reasonable under the circumstances.” Boyd v. Benton County, 374 F.3d 773, 778 (9th Cir. 2004). “Determining whether a particular use of force is reasonable requires the fact-finder to balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing government interests at stake.” Id. at 778-779. Accordingly, “[t]his balance must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The need for such balancing means that summary judgment in excessive force cases should be

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granted sparingly.” Id. Consideration of “reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001).

“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). However, if “there is probable cause to believe that [a suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Id. at 11-12. “[W]hen there is objective reason to fear for one’s safety . . ., but not one’s life, then force short of deadly force might be justified; to justify deadly force, an objective belief that an imminent threat of death or serious physical harm is required.” Price v. Sery, 513 F.3d 962, 969 (9th Cir. 2008).

 In this case, taking the facts in the light most favorable to Plaintiffs, Officer Torres fired three bullets at Jason Wilkinson “after there was no longer power to the minivan.” Fries Decl. ¶ 3(h). There at least exists a question of fact whether Mr. Wilkinson posed an “imminent threat of death or seriously bodily harm” when the van stopped accelerating. Further, it is undisputed that when Officer Torres fired, the van was always moving in a backward direction away from Officer Key. Although Defendant Torres argues that “it was obvious to any reasonable person that [the van] would come right back towards Officer Key,” Dkt. 47 at 12, the van would have had to avoid both the telephone pole as well as Officer Shanaker’s vehicle before it could have threatened Officer Key. Moreover, the record contains evidence that, while Officer Torres was shooting at Mr. Wilkinson, Officer Key had reached his feet and was “out of the way of the car so he wouldn’t get ran [sic] over.” See supra.

Case 3:08-cv-05281-BHS Document 63 Filed 01/23/09 Page 14 of 18

Therefore, the Court denies Defendant Torres’ motion for summary judgment on the issue of whether his use of deadly force was reasonable. The Court finds that questions of fact exist as to whether Mr. Wilkinson posed an imminent threat throughout the shooting that would justify the use of deadly force.

                       ii. Clearly Established Constitutional Right

The next step under Saucier in determining if Officer Torres is protected by qualified immunity, is to ascertain if Mr. Wilkinson’s constitutional right was clearly established at the time of the injury. Saucier, 533 U.S. at 201. In excessive force cases, the inquiry is whether “under the circumstances, a reasonable officer would have had fair notice that the force employed was unlawful, and whether any mistake to the contrary would have been unreasonable.” Boyd, 374 F.3d at 781; Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003).

When viewing the facts in the light most favorable to Plaintiffs, a reasonable officer would have had fair notice that deadly force was not justified to seize Mr. Wilkinson after the van was no longer under the control of Mr. Wilkinson. The very issues of fact that preclude summary judgment on the constitutional right question also preclude summary judgment on the fair notice question: was it reasonable for Officer Torres to believe throughout the shooting that Mr. Wilkinson posed an imminent threat of death or serious bodily harm? If Officer Torres observed Officer Key jumping up and moving away from the van, then Officer Torres should not have shot at a van moving in the opposite direction. Most importantly, the trier of fact could conclude that Officer Torres shot at the driver of a van that was no longer under power and that a coasting van did not pose a risk of death or serious injury to either Officer Torres or Officer Key.

Therefore, the Court denies Defendant Torres’ motion for summary judgment on the issue of whether Officer Torres violated a clearly established constitutional right.

Case 3:08-cv-05281-BHS Document 63 Filed 01/23/09 Page 15 of 18

                b.  Failure to Intercede

Plaintiffs assert that liability attaches to Officer Key because he “had the ability to intercede and prevent [Officer Torres’] continued use of” force. Complaint, ¶ 7.2. The Supreme Court determined that officers do have a duty to intercede as follows:

when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety. [An] affirmative duty to protect arises . . . from the limitation which [the state] has imposed on his freedom to act on his own behalf.  

United States v. Reese, 2 F.3d 870, 887-88 (9th Cir. 1993) (citing DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, 199-200, (1989)). A “special relationship” which includes a duty to protect arises when the state has taken the person into custody. Id. at 888; Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991).

In the Rodney King case the Ninth Circuit acknowledged that “[p]ursuant to a long line of civil cases, police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n. 25 (9th Cir. 1994), vacated in part on other grounds by Koon v. United States, 518 U.S. 81 (1996). Citing to several out-of-circuit cases, the Ninth Circuit noted that:

 the constitutional right violated by the passive defendant is analytically the same as the right violated by the person who strikes the blows. Thus an officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights. 

 Id.; see also Reese, 2 F.3d at 890 (determining that a defendant officer was liable for not intervening when reasonable steps could have prevented the excessive force, and when the defendant “deliberately chose not to act”). However, “officers can be held liable for failing to intercede only if they had an opportunity to intercede.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (emphasis added).

Defendant Key argues that Officer Torres did not violate Mr. Wilkinson’s constitutional right and, therefore, he had no duty to intercede to prevent the use of

Case 3:08-cv-05281-BHS Document 63 Filed 01/23/09 Page 16 of 18

unreasonable force. Dkt. 28 at 11. The Court, however, has found that there exists material questions of fact regarding whether Officer Torres’ use of deadly force violated Mr. Wilkinson’s constitutional right to be free from unreasonable seizure. See supra. Thus, the Court will only address Defendant Key’s argument that he did not have a reasonable opportunity to intercede.

Plaintiffs argue that, taking the facts “in the light most favorable to Plaintiff, [Officer] Key had ‘a reasonable opportunity’ to stop [Officer] Torres from” using deadly force against Mr. Wilkinson. Dkt. 49 at 13. This conclusion is unsupported by the record. It is undisputed that Officer Key either fell down or was knocked down by the van. It is also undisputed that Officer Key was sprayed with mud from the tires of the van as it accelerated backwards, away from Officer Key. Although the record is unclear as to the period of time that may have elapsed between when Officer Key allegedly reached his feet and when Officer Torres began to shoot at Mr. Wilkinson, it is unreasonable to conclude that, in that period of time, Officer Key should have interceded to prevent Officer Torres from firing his weapon. Moreover, this is not a situation where Officer Key could be considered a tacit collaborator. See O’Neill v. Krzeminski, 839 F.2d 9, 12 (2nd Cir. 1988) (“three blows were struck in such rapid succession that [the other officer] had no realistic opportunity to attempt to prevent them.”). Officer Torres shot in rapid succession with a short pause between the two volleys of bullets. It is unreasonable to place a duty on Officer Key to assess the situation in that amount of time, conclude that shooting the driver would have been an unreasonable use of deadly force, and then somehow intercede to prevent Officer Torres either from continuing to fire the first volley of bullets or from not firing the second volley of bullets.

Therefore, the Court grants Defendant Key’s motion for summary judgment because he did not have a reasonable opportunity to intercede in Officer Torres’ use of deadly force against Mr. Wilkinson.

 Case 3:08-cv-05281-BHS Document 63 Filed 01/23/09 Page 17 of 18

                c. Due Process

Plaintiffs Scott Wilkinson and Alisha White assert that Officer Torres violated their Fourteenth Amendment due process right to associate with their son, Jason Wilkinson. “[A] parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child ” Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). The Supreme Court has made it clear that only official conduct that “shocks the conscience” is cognizable as a due process violation. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

In Lewis, the Court recognized the police officer’s dilemma:

 A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders. 

Id. at 853. In such cases, a plaintiff “must demonstrate that [the officer] acted with a purpose to harm [the suspect] that was unrelated to legitimate law enforcement objectives.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). A purpose to harm may be found in the “rare situations where the nature of an officer’s deliberate physical contact is such that a reasonable factfinder would conclude the officer intended to harm, terrorize or kill.” Id. at 1141 (quoting Davis v. Township of Hillside, 190 F.3d 167, 174 (3d Cir. 1999) (McKee, J., concurring)).

The parties do not dispute that this standard of culpability was clearly established at the time of the shooting in 2005. Thus, whether Officer Torres is entitled to qualified immunity on summary judgment turns on whether Plaintiffs can present facts that would justify a jury finding that Officer Torres acted with an unconstitutional purpose to harm Jason Wilkinson. See Porter, 546 F.3d at 1140.

Defendant argues that Plaintiffs must show that Officer Torres “intended to harm the parent-child relationship.” Dkt. 25 at 32. Defendant concludes that Officer Torres is not liable because Plaintiffs cannot show that he was “aware that Jason Wilkinson had a

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relationship with his parents.” Id. Defendant has provided no binding authority for this proposed element of liability. Neither the Supreme Court in Lewis nor the Ninth Circuit in Porter included actual knowledge of the parental relationship as an element of the constitutional violation. Defendant’s argument is therefore without merit.

Plaintiffs argue as follows:

 Taking the facts in the light most favorable to the plaintiffs, there is no question that Torres acted with the unconstitutional purpose to harm, terrorize and in fact, kill Wilkinson. After Key walked to the front of the minivan and the minivan began to back away from the telephone pole, Key and Torres looked at each other, seemingly acknowledged each other; then Torres walked to the passenger side of the minivan and effectively executed Wilkinson by shooting him eleven times at close range. Torres shot Wilkinson when the minivan was traveling at a slow speed in the exact opposite direction from where Key stood. Even after Wilkinson dropped his hands from the steering wheel and slumped in the driver’s seat mortally wounded, Torres continued to fire into Wilkinson as the minivan coasted in reverse.

Dkt. 43 at 27. Based on this version of the events, which is supported by admissible evidence, a reasonable factfinder could conceivably conclude that Officer Torres intended to harm, terrorize or kill Jason Wilkinson and therefore acted beyond the scope of a legitimate law enforcement objective. Therefore, the Court denies Defendant Torres’ motion for summary judgment on Plaintiffs’ claim against him for violation of constitutional due process.

 IV. ORDER 

 Therefore, it is hereby ORDERED that Defendant Torres’ Motion for Summary Judgment (Dkt. 25) is DENIED without prejudice and Defendant Key’s Motion for Summary Judgment (Dkt. 28) is GRANTED.

 DATED this 23rd day of January, 2009. BENJAMIN H. SETTLE United States District Judge

========================================================================
Below is the synopsis of the shooting authored by Clark County Sheriff's Detective Eric O'Dell.  The synopsis is not dated, and the only signifying mark is MC 784


SYNOPSIS

On 05-08-05 at approximately 1118 hours, while on routine patrol, Officer John Key came across a suspicious van parked in the 3400 block of "T" street and ran the license plate.  Officer Key learned the van was a confirmed stolen vehicle,.  When Officer Key gave verbal commands to the driver, the driver concealed himself inside the van.  While waiting for backup units to arrive, the van was started and took off at a high rate of speed.

Officer Key activated his emergency lights and siren and followed the van as it drove North on "t" street to 39th Street, where it failed to stop for the traffic control sign..  The van went West on 39th Street to "P" street, North on "P" and onto State Route 500, Eastbound.  Officer Torres joined the pursuit and took the lead as the van turned North onto St. Johns Road.  The van travels North to 49th Street where when it turns East, the van fails to negotiate the turn and goes onto the sidewalk and into the Westbound lane of travel, the van collided with a vehicle that was West on NE 49th Street and stopped for the traffic signal.  (Accident Report #S05-6570).

The van continued East on 49th Street at a high rate of speed to the T intersection at NE 40th Avenue.  When the van slows at the intersection, Officer Torres attempts two PIT (Pursuit Intervention Technique) maneuvers on the van.  The van spun 180 degrees and was now traveling through a resident's yard and headed back West.  Deputy Schanaker had arrived in the area and placed his patrol car to block the van from re-entering onto 49th street.  The van attempted to go around Deputy Schanaker's car and ran head on into a utility pole.

The van struck the utility pole with such force it lead Officer Key to believe the driver was unconscious.  Officer Key had stopped his car at the N/W corner of the intersection of 49th Street and NE 40th Avenue.  Officer Torres had stopped his car where the van had entered into the car.  Both officer approached the van on foot.  Believing this was now a medical situation Officer Key did not haves weapon drawn as he approached the driver's side of the van.  Officer Torres, with his weapon drawn, approached from behind and went to he passenger side of the van and had his weapon drawn.

The driver of the van put the transmission in reverse and was attempting to flee.  The vans tires were spinning in the grass and mud as the van lurched backwards and toward the side that Officer Key was on.  Officer Key was struck by the vehicle and knocked him to the ground.  Officer Torres heard Officer Key yell out, but Officer Key had disappeared from his sight.  Officer Torres, believing that Officer Key was being run over by the van, fired his weapon at the driver.  Officer Torres recalled firing two separate volley's of rounds.  The second volley came after eh first volley appeared to have no effect on the driver and as the van made a  tight turn in reverse and appeared to. be heading in the directions where Officer Key had scrawled to the edge of the grass next to the roadway.


Officer Torres fired 11 rounds at the driver of the van until he slumped at the wheel.  The van continued rolling backwards, striking deputy Schanaker's patrol car and then was pinned to a stop by Officer Rawlins patrol car.  Officer Rawlins had just arrived on scene.

The driver of the van was transported to Emanuel Hospital where he succumbed from his gunshot wounds.  Officer Key was transported to SWWMC where he was treated for injuries to his left knee and hip.

CONCLUSION:

Officer Torres fired a total of 11 rounds in two separate volleys.  He fired until he felt the threat towards Officer Key was no longer present.  Officer Torres acted within the guidelines of RCW 9A.16.020 Use of Force and it is recommended that this case be cleared as a Justifiable Homicide in accordance with RCW 9A.16.040.


The telephone pole the van crashed into is marked by the grey icon.  From the previous pictures of the tire tracks, the van would have had to make more than a 360 degree turn, and back over Officer Key, who was supposedly underneath the tires of the vehicle east of the grey icon.  Torres testimony as to why he felt the need to shoot a second volley of shots into Jason Wilkinson was due to the fact the van was going to make a complete circle and run over his partner, who was in the middle of the street at the time the second volley of shots were fired, according to Torres.  Torres recounts seeing the outline of the back of Officer Key's vest, signifying he was no longer (if ever) underneath the tires of the minivan as it backed up.  

Torres account is nonsensical and illogical, in addition to being contradictory, as Judge Settle points out in his opinion.  

Anthony Davis places Officer Key in the street on the other side of the curb in the picture.  Torres states he shot Jason an additional 4 times due to the fact he believed the minivan was going to make a complete circle and run over Officer Key again.  This picture depicts where the van ended up after the shooting.  The van would have had to miss the police car and telephone poll in order to hit Officer Key who was in the middle of the street next to the grey curb.  The videotape taken the following day by Detective O'Dell when he interviewed Anthony Davis is not in the IA record.  Apparently this videotape is missing and is not mentioned in the IA investigation.  Nor is the placement of Officer Key noted when the shooting started.  

The recent interview of Anthony Davis on 3.30.19 and the statements he made the day of the shooting do not place Officer Key under the tires to the minivan.  Torres version of events that the vehicle was going to run over Officer Key "again" was a convenient fiction for his reasoning of pumping another 4 rounds into Jason Wilkinson.  

Friday, April 5, 2019

RICK TORRES INTERVIEW TRANSCRIPT

This is the transcript of Rick Torres interview two days after he murdered Jason Wilkinson.  Unlike the interview with Anthony Davis, Rick is not interrupted 16 times.  Instead, he speaks freely.

Notice during the first portion of the interview, the part discussing the lead-up to the shooting, Torres states he doesn't hear a thing.  Later in the interview, they take a break and go off the record.  When they return, the discussion turns to probably cause as to why Torres felt the need to pump 11 rounds into Jason Wilkinson from less than 6 feet away.  

Officer Rick Torres Interview, he is interrupted 6 times during his interview.
EO:  Okay. Today’s date is May 10, 2005, and the time is 1510 hours.  I’m Detective Eric O’Dell with the Clark County Sheriff’s Office.  We are at the Vancouver Police Major Crimes Office. And also present is Detective Stuart Hemtcok.  Stuart, why don’t you go ahead and state your name and we’ll go around the room for voice identification.
SH:      Stuart Hemstock
EO:      With Vancouver Police.
RT:       Rick Torres
EO:      Vancouver City Police.  And?
MS:      Mike Staropoli.
EO:      Okay. And.  Rick-is it Rick or Richard?
RT:       I go by Rick.
EO:      Okay. You’re aware that this conversation is being tape recorded here today?
RT:       Yes.
EO:      And is that with your permission?
RT:       Yes.
EO:      Any threats or promises been made in order to obtain this statement?
RT:       No.
EO:      Okay. And so, you’re aware this interview is part of the criminal investigation by the Regional Major Crimes Unit in reference to Master Case 784.  Rick, you’re a Vancouver City Police Officer.  How long have you been with the City of Vancouver?
RT:       Almost six years.
EO:      Okay. Any prior law enforcement experience?
RT:       No.
EO:      Okay. And with the City of Vancouver, do you have any special training?  Are you part of the SWAT team or anything like that?
RT:       Well, I’ve trained with the AR 15.  Less Lethal Taser.  I was a member of the SWAT team for about 10 months, two years ago.
EO:      Okay. And, currently,  you’re not on the SWAT team?
RT:       Not anymore, no.
EO:      Okay. And the Taser training was part of?
RT:       It’s just….I’ve been in Taser training for probably close to a year and a half, two years now.  Went through….go through annual certification on that.  I’ve been trained with the AR 15 probably just under five years.  I just had re-certification with that. Trained with Sage Less Lethal for about five years, also.
EO:      Okay. And on Sunday, May 8, 2005, were you working?
RT:       Yes
EO:      Okay. What shift were you working?
RT:       Day shift at East Precinct.
EO:      Okay. And what are the hour of day shift?
RT:       6 a.m. to 4:30 p.m.
EO:      And what was your call sign?
RT:       2 David 8
EO:      Okay. And were you driving a marked patrol car?
RT:       Yes
EO:      Were you in full uniform?
RT:       Yes.
EO:      Okay.  As part of your uniform, you have a duty belt.  What items are on your duty belt?
RT:       My duty radio, flashlight, Taser, handcuffs- two sets of handcuffs- two magazines, and my duty weapon.
EO:      Okay. What is your duty weapon?
RT:       It’s a Glock 34.  9 millimeter.
EO:      Do you carry a backup weapon?
RT:       No.
EO:      Okay. And how do you load your magazines?
RT:       By hand. One by one.
EO:      Okay. Do you know how many the magazine holds?
RT:       I think they hold….each hold 15 to 17.  I’m not exactly sure.
EO:      Okay. Do you carry one in the chamber?
RT:       Yes.
EO:      And a full magazine?  Or do you-
RT:       No. No. All my magazines are typically one to three rounds short of their full..of the full capacity.
EO:      Okay. And are you left-handed or right-handed.
RT:       Right handed.
EO:      And what other weapons do you have in your vehicle or in your trunk?
RT:       I usually have a department-issued shotgun for the vehicle.  I don’t think there was one in there on this day.  And I carry my AR 15 also.
EO:      Okay. Do you carry that in the trunk or in the-
RT:       In the front seat.
EO:      In the front seat.  And how long had you been on duty when this-do you know when this call came out?
RT:       I think, just from the reports I read, it was around 11:30, 11:20.
EO:      Okay.
RT:       I’m not exactly sure of the time.
EO:      So, you’d been working how long?
RT:       About five and a half hours.
EO:      Do you recall any prior calls that you had been on?
RT:       The only other call I had that day was a stolen vehicle report.
EO:      Okay. I’m going to kind of back up here a little bit.  Do you recall how many hours of sleep you got the night before?
RT:       When I work, I typically try and get seven hours of sleep.  That’s pretty…pretty standard.  I usually don’t…maybe six and a half at the least.
EO:      Okay.
RT:       But I usually get seven.
EO:      And did you consume any alcohol or drugs in the previous 24 hours?
RT:       No.
EO:      Okay. And do you recall how you became involved in this call?  Were you dispatched?  Did you volunteer?
RT:       No. I just heard it over the radio and I was fairly close, so I responded, because I was kind of aware that there weren’t that many people working in that area at the time.
EO:      Okay. Do you recall what you heard on the radio?
RT:       I heard Officer Key ask for a quick check on a plate.   Which is kid of not typical.
EO:      Okay.
RT:       So I kind of-
EO:      And why is that not typical?
RT:       Well, I’ve known him pretty well, and I could tell by the tone of his voice that something was up.  And, too, typically when someone will ask for a quick check on a plate, it’s because they have a pretty good idea that the vehicle they’re checking is stolen.  So, I was kind of thinking that something was going on.
EO:      Okay. Did you start in his direction?
RT:       I was in the you know, the middle of the block, I was in, and I went up about another block, and I started thinking that I knew one of his cover officers was at the jail with someone, and then, another one who I thought would….could cover him I thought was out on another call.  And I knew that they were – I’m pretty certain that they didn’t have a person working beat, too, on that day.  So, I turned around and I was thinking I was probably the closest person to him.  So, I turned around.
EO:      Okay. Were you responding code 1, code 2, code 3?  Do you know?
RT:       Well, I turned around.  I just made a U-turn and started heading towards his direction, because, at that point, that’s all that had come over the air.
EO:      Okay.
RT:       I was actually on my way to go have breakfast with my wife and kids, and so, I was fairly close to that, and I just said, I’ll just go see what he’s got going on and help him out if I have to, and then, head back over.  But.
EO:      Okay. So, you’re heading towards Officer Key. What do you hear next?
RT:       I think the next thing I heard was they came over the air with….that the license plate he had given came back clear on a vehicle that they list out.  It was-
EO:      They, being dispatch?
RT:       Correct.
EO:      Okay.
RT:       And then, he said, Confirm.  You ran- I don’t know what the plate was, but 123ABC.  He said it very clearly so they could understand it.
EO:      Okay.
RT:       And I could tell then, at the …in his voice that, you know.  Because I know John pretty well.  I’ve worked with him quite a bit over the last five or six years. And you know, the hair on the back of my neck was standing up.  I know that something’s going on.  Is why he’s asking that.  So then, Dispatch, I’m assuming, ran it again, and it came back.  And I don’t know if they came back – at some point, they came back and said the vehicle was 1043, which I knew to be stolen.  So, then, I started stepping it up a little bit to get closer to where he was.
EO:      And did you active your lights and siren?
RT:       Not at that point.  Or, you know, there’ s a little bit of time while this was taking place, and I could tell the way the conversation was going on, I kind of stepped….started stepping it up to get there a little bit faster.   And I was headed down 39thStreet eastbound toward P street.  There, you know, it was Sunday morning, there wasn’t much traffic, so I just, you know, I wasn’t running code or anything.
EO:      What information are you hearing over the radio?
RT:       The things I heard, I don’t, you know.  I’m not specific as to…..don’t know specifically as to what order they came in.  him asking them to re-check it.  And again, I could tell by the tone of his voice that he knew something was up.  And I was thinking then he probably ran it himself and was thinking it was stolen, but he wasn’t sure, so he wanted them to confirm it.
I heard him say at some point, Somebody ran from the vehicle.  A passenger ran from the vehicle.  They come back and say it’s…it’s 1043.  And then, I hear him say Okay.  The driver’s ducking down.  He’s out of my field of view.  I think those were the statements he made.  I can’t tell what he’s doing.
So, when that’s going on, I start stepping up towards, I mean, I knew he was at 33rdand I.  I knew exactly where he was at.  I’m very familiar with that area.  So I started turning code right before I turned north on P Street and 39th.
EO:       Okay.  Well, why are you going north on P Street?
RT:       I’m sorry.  South on P Street.  It goes up the hill, and I was think it’s north.
EO:      Okay.
RT:       It…..Yeah.  So-
EO:      So, you’re headed to this location-
RT:       Correct.
EO:      -and you’re taking P Street south-
RT:       Southbound from 39th.
EO:      -from 39th.
RT:       Correct. I apologize.
EO:      Okay. I’m with you.  Okay.  And he says the driver’s out of his view ducking down?
RT:       Right.
EO:      Okay. Do you recall anything else that he said?
RT:       No. I know at this time.  I kind of become concerned that he was either, you know, maybe getting a weapon or hiding a weapon, or- and, you know.  I don’t know if John was in his car, or kind of what that situation….where his car was parked in relation to this guy or which way the…the vehicle, or the van was facing.
So, I’m coming up P Street and I’m getting ready to ask him, hey, what direction are you facing?   Because I’m going to be coming west on P.  Or west on 33rd.  Or east on 33rd.   And I was thinking, Well, you know if you know, he’s facing towards me.  I’m going to drive the block around and come up behind him or, if I was going to be coming up behind him the way I was going.
When I was getting ready to ask him that I heard him say he’s starting the van.  He’s taking off.  He’s southbound or northbound on T Street.
EO:      Okay.
RT:       When that happened I was just about to 33rd, southbound on P.  I don’t know, just by 33rd, so obviously, I know he’s you know, six blocks away or what not.  So, I flipped a U-turn, because they’re going north, and I was para…you know, I was thinking.  Okay. I’m going to be parallel to them because I know there’s not a lot of places for this guy to pop out.
So, I’m going and I remember stopping at a few streets, looking down to see if I see them running by.  There’s only  a few streets that actually go all the way through and maybe there’s only one, but. So, then I hear him say Okay, we’re going to be going west on 39thStreet.  So, I stopped down at the bottom of the hill at 39thand P and I looked east on 39thStreet and I’m sitting there waiting for them to come.
And I could see them coming and I remember thinking to myself, you know.  I’m expecting them—(Makes whipping sound)-to be coming, but they’re like they’re moving slow.  So, I sat there and waited for them.
EO:      O kay. And when you say slow, what would you guess their speeds to be?
RT:       You know, I would say they really weren’t going over the speed limit.  Maybe 25 to 30.  But I remember sitting there looking at them and thinking they were taking a long time, because I could see John’s lights on behind him.  It seemed like it took them a long time to get to me.
EO:      Okay. Are your lights and sirens on?
RT:       My lights.  I don’t – my siren, I don’t think, was on, but my lights were on.
EO:      Okay. Can you describe the vehicle that Officer Key is following?
RT:       I think it was a two-tone brown mini-van.  Because I was, at some point I remember I was going to put that over the air, that it was a two-tone brown minivan, but I don’t think I ever did.
EO:      Okay.
RT:       I think it had a lighter brown stripe through the middle.
EO:      So, you’re stopped at 39thand P and they’re westbound-
RT:       Westbound, right.
EO:      -on 39th.
RT:       Right
EO:      Okay. What happens next?
RT:       As they get to the…the intersection, I think there was a car that was kind of sitting there that was going westbound on 39ththat pulled over.  Kind of-
EO:      A civilian car?
RT:       Right. And then, they came and they just went around and then they turned north, and then they immediately turned east and got on the ramp to go eastbound on 500.
EO:`     They being Officer Key-
RT:       John.
EO:      -and-
RT:       Officer Key was following the van.
EO:      Okay.
RT:       And, you know, I don’t recall them moving too fast.  And…and I know there was a vehicle southbound off 15thAve. There, and a vehicle eastbound from….from 39thStreet at that intersection.  And I’m thinking they probably thought he was just pulling his car, or his van over, because they all merged into the intersection and this other car does, and get behind him.  And I’m like, they’re all- so, now they’re…they’re all between me and them. Me and Officer Key.
So, you know, and then, they like freeze and they kind of stop and start going real slow, because I guess they see me behind them with my lights on and Officer Key in front of them with his lights on.  So then, Officer Key and the van were obviously making good space on me.  So, I get around them, and then I….I think I remember I put out that, you know, we’re going to be going east on 500 and I’ll call.  I’ll call back.
EO:      Okay. Let me back you up a little bit. Can you see Officer Key and the van at the intersection of 39thand the on-ramp to 500?  Or are they out of your view?
RT:       When they go around and get on?
EO:      Right.
RT:       Okay. Yeah, I see them go just make basically a U-turn and get on the ramp there?
RT:       Just…it’s a four-way stop sign.
EO:      Okay. But does the van stop?
RT:       No, he just rolls kind of kind of at slow speed.
EO:      Rolls through the stop sign-
RT:       Right.
EO:      -and now he’s eastbound on 500?
RT:       Correct.
EO:      Okay
RT:       Correct.
EO:      And so, the van’s not pulling over?  It’s continuing eastbound?
RT:       Right.
EO:      Ad you get on the radio and say?
RT:       I’m pretty sure I said we’re going to be going eastbound.  I’ll call it.  I’ll take- you know, I’ll call the traffic out.
EO:      Okay.
RT:       (Indiscernible)
EO:      So, you’re the second police car?
RT:       Well, I mean, well, there’s a pretty good distance between the two of us now, because I’ve tried to work my way around these cars.  And then, we get up on to 500 and I see them move over into the number one lane.  So, I kind of move over and speed up pretty quickly to try and-I want to get up close to them.
And so, we’re continuing east, I think I put out again that we were continuing east, approaching St. John’s.  And then, we get to the intersection at St. John’s and 500. And you know, I can’t recall if John had put out for me to get in front because I had pit bars, or, you know what exactly was said.  But I remember we get to the intersection, John comes out in the intersection and kind of stops his car halfway as the van is turning northbound on St. John’s.
EO:      There’s a traffic control-
RT:       Right
EO:      -device there.
RT:       Yes.
EO:      Do you know, is it green?
RT:       I don’t…I didn’t see it.  I don’t...don’t remember what it was.  I know….know that traffic was moving, you know.  I’m pretty sure that traffic-because I remember the intersection being really clear.
EO:      Okay.
RT:       And I remember kind of going through it, it wasn’t like we were going through it at a really high rate or anything.  It was just kind of-stopped right through it.
EO:      Okay. Now, the van’s northbound on St. Johns?
RT:       Right. And I remember Officer Key had pulled over kind of to the side, and I thought is he blocking traffic?  And then, I remembered the whole pit bar.  I remember looking at his ,just kind of getting a glimpse of his pit bar and seeing that- I remember because we had talked about it the day before.  He’s got just the old type little horseshoe pit bar.  And I remember he kept telling me Pit him.  If you get a chance, pit him.  So, I went up and took the number one spot.
EO:      Okay. Have you been trained in the pit maneuver?
RT:       Yes.
EO:      Okay. So, now you’re in the lead and Officer key is behind you?
RT:       Correct.
EO:      Can you describe the driving of the van?  Is he-
RT:       You know, when I think about it, I don’t…in my mind, it’s kind of like we’re just going up St. John’s.  I don’t know if I  had said something on the air, but I remember john telling me I’ll call it.  Just pit him.  Pit him.  When you get a chance pit him.  And so, I’m just kind of like watching the back of the van.  I don’t recall you know, driving a ta really high rate.  We were maybe 10 miles over the speed….speed limit.
But when I think back of it, it’s kind of like, I mean, my recollection of the whole thing is kind of like real time, up until we get on St. John’s, then it’s pretty slow motion from there until right before I pit him. In my mind, it’s like kind of like we’re..we’re going up St. John’s, we turn.  I didn’t know what road we had turned east on when we ended up---and it turned out it was 49th.  I didn’t you know, I don’t…I didn’t know at the time what road it was and it was kind of like, okay, now I’m getting ready to pit him.  And it’s-everything between that is kind of like slow motion.
EO:      Okay. Were you thinking of pitting him when he turned east?
RT:       You know, he kind of did it abruptly and it was….it was just….I was too far.   It wouldn’t work…it didn’t work out.
EO:      Okay.
RT:       I know I was trying to find – we were in the….what I recall is we were in the...number one lane.  The left-hand lane.  So, it was not working out.  I didn’t have an opportunity to pit him.  But I was, you know, I was trying to find.  And once we started going east, I’m like okay, I’ll see if I can get him up there.
EO:      At the intersection of 49thand St. John’s, do you recall any other vehicle?
RT:       I think there were some vehicles, at least one, I think, at that intersection westbound on 49th.
EO:      Stopped at the stop sign?
RT:       Right.
EO:      Okay.
RT:       I’m not sure if it’s a light or a stop sign there.
EO:      Okay. Was there any erratic driving or collisions or anything that you saw at 49th?
RT:       I see no collisions.  You know, like I said, it’s kind of slow motion.  I just remember going around that corner and I don’t really remember anything that’s sticking out in my mind as far as-
EO:      Okay. So, now you’re eastbound on 49thStreet?
RT:       Right.
EO:      And you’re in the number-
RT:       Right.
EO:      -one spot?
RT:       Right. And at this point, I mean, I really don’t even know exactly how far John is.  I kind of can see his lights, like, just, in my mirror.  Peripheral vision.  And I can hear him say, pit him, Rick.  Pit him.  Pit him up at this intersection.  So, that’s when I ws thinking that because I could see we were coming up to a T.  And I was like, Okay, this will probably be my best shot to take him.
EO:      What are his speeds from St. John’s to the intersection?
RT:       You know, like, it’s probably 25 through there maybe 39, 30, 35, I don’t remember going, you know, mach speed through there.  And again, at that…in my mind, that’s kind of like, I remember focusing on his back end and then, just- I kept looking to see if there were cars on the side of the road and what that intersection was looking like.
EO:      Okay. Can you see the driver?
RT:       No. I mean, I can see the back of his head, but I don’t-
EO:      Okay.  Can you tell if there’s just the driver or other occupants?
RT:       I only saw one person.  Just the driver.
EO:      The driver.
RT:       I didn’t see anyone else.
EO:      Okay. So, you’re kind of looking ahead at the intersection coming up.
RT:       Right.
EO:      Going through your mind,  you thought you could pit him at the intersection.
RT:       Which way is he going to turn and…and…how I’m going to pit him.  How I’m going to get up next to him to pit him.
EO:      And how close are you?
RT:       As we were coming up on the intersection, he starts to break quite a bit and so, I get…I’m pretty close behind him.  You know. Less-I would say probably less than a vehicle distance.  I can see pretty clearly that you know, I can see his van braking and you know, he was….he was kind of going (gestures) – like he was deciding which way to go. You know.  Just kind of like this (gestures)  And then, he turned…he turned north.
EO:      Okay. So, he’s kind of like, hesitating-
RT:       Right.
EO:      -and the van is kind of going back and forth like, which way to go?
RT:       Exactly.
EO:      and when you say you can see him braking, are you seeing smoke from tire, or the nose dip down?
RT:       I think I just kind of saw you know, the nose dip down a little bit, and he was you know, the front end, like he started to go this way and then that way and, like, he didn’t know which way to go.
EO:      Okay. So what happens next?
RT:       So, he turns north and that’s when I you know, I’m like, Okay, I’m going to hit him right here, to myself.  And I hit him on his left rear side.
EO:      Which part of the vehicle?
RT;       Some-I would say my push bar, maybe center over to the right.  So, I’m not sure exactly where it was.  And so, he’s turning, and he kind of skips up a little bit, and then, spins 90 degrees.  And then, he, you know, I could, you know, he’s trying to take off again.  He hasn’t lost…really lost all that much control of the vehicle.  And so, I’m coming around and I’m like, well, I’m going to hit him again and try and spin him around.  So I hit him again, and then, I go off behind him.
EO:      Okay. Where do you hit him again?
RT:       Same spot.
EO:      Same spot?
RT:       Same spot on his vehicle.
EO:      Okay. Well, when you hit him the second time, which direction is the van facing?
RT:       Want me to show you up on the board?  Or?
EO:      Sure
(Torres goes to the board to demonstrate)
RT:       Do you want me to use a different color pen?
SH:      Yes please.
RT:       So, the first time I hit him, he ends up facing – I think he…I think he’s about right…I think he’s like that.
EO:      So, he's facing westbound?
RT:       Right
EO:      In the middle of the road?
RT:       Right.
EO:      He’s facing westbound?
RT:       Right
EO:      In the middle of the road?
RT:       Right.
EO:      Can you label that one A?
RT:       Okay.
SH:      And then b,c,d.
EO:      And he’s sideways to the traffic?
RT:       Correct.
EO:      Okay.
RT:       But he doesn’t seem to have really lost much control of the van, because he starts to move again.  And I’m right there.  So I thought, well, I’m going to hit him again and maybe if I can spin him around right in this area, where he’d gone was now right here.  So, I ended up…I hit him again.  And I think my car was probably like this when I hit him the second time.
SH:      Okay.
RT:       Okay? And when I hit him there, he I’m assuming, ended up in this front yard.
SH:      Right.
RT:       Because what happened is I went around and I ended up with my car right here.
SH:      So, if you can letter it B as in boy, next to your car where you pit him the second time, and C Charlie, is your car—
RT:       When I finally stop.
SH:      When you finally-
RT:       Where I finally stop.
SH:      -finally stop
EO:      Okay. So, you’re in somebody’s yard.
RT:       A side yard right there.
EO:      The northeast corner of their residence?
RT:       Right.
EO:      Okay. And you’re off of the intersection is 40thAvenue?
RT:       Right.
EO:      Okay. So, do you see where the van goes?
RT:       I remember hitting this grass and hitting my brakes and kind of sliding a little bit, because, you now, I don’t want to go in these guys backyard.  And my car slides to a stop.  And I look and see him now.  He’s driving through here.  He’s in here. In this area (points to area).
EO:      Okay. So, he’s headed in the southwest direction-
RT:       Right.
EO:      -through these peoples yard.
RT:       And I can see the right rear quarter panel of his van heading through there.  So, I get out of my car and I start running this way (gestures)
EO:      Okay.
RT:       And I see Officer Key running over here also.  And then, I see him, he starts accelerating through here.  He’s getting, you know, he’s moving at a pretty good clip. And there’s a lot of trees dotted throughout this yard.
EO:      He being the van?
RT:       Correct. I see the van driving through the yard. And, you know, I see that there’s a lot of trees, so he’s kind of like maneuvering through the trees and the van. And I thought, well, he’s going to- he’s going to get back on the road and take off.  And then, he hits the telephone pole.
EO:      Okay.
RT:       Which I didn’t even see there.  You know, I didn’t even know it was a telephone pole he hit.  I thought it was a tree.
EO:      Okay. And so, you’re out on foot—
RT:       Right.
EO:      -and Officer Key is out on foot?
RT:       And Officer Key is out on foot.  And I see him hit the telephone pole.  And I thought he was laying dead in the water.  Because, you know, it looked like he hit it pretty hard.  His back end came up.  So, I saw Officer Key approaching on the drivers side, so I started making my way up to the passenger side.
EO:      Okay. Is your weapon drawn?
RT:       Not until I get to the van.  I remember…remember seeing John out of my side, get to the van or, you know, running up on the van.  I’m running up on the passenger side, I can see John through the windows getting up to the driver’s door.  And I get up to the window behind the driver…behind the passenger front window. There’s I think there’s like, three sets of windows.  So, the bigger one which would be, like, on the sliding door.
EO:      The middle window?
RT:       The middle window.  When I got- I remember getting up there, and putting my hand up on the window, showing my gun and yelling at him, show me your hands, show me your hands.
EO:      Okay. Can you see what the driver is doing?
RT:       No. I…..I remember, almost like…when I think about it, almost like the window was really dirty.  Or-but I can see through it and I can see John on the other side.
EO:      Okay. And where is John at?
RT;       I’m thinking he’s like, right next to the driver’s door.  And then, I just, I’m yelling at him, show me your hands, show me your hands.
EO:      Was john yelling anything?  Can you hear?
RT:       I don’t know.
EO:      Okay.
RT:       I don’t recall hearing him.

Torres changes his story later in the interview stating

he heard officer key yelling.

EO:      But you’re yelling at the driver, show me –
RT:       I’m just, show me your hands, show me your hands.  And then, I hear wheels starting spinning (demonstrates noise). And I can feel on my hand the van start to move.
EO:      You’ve got your left hand on the van?
RT:       My left hand, and I’m up on the gun like this (demonstrates)
EO:      Okay. You’ve drawn your weapon?
RT:       Yes. And I can feel the van starting to move, and then, It…I could feel it kind of moving away, like the front moving away from me, or…. And the back end moving, sliding towards me.  And then, I just see John (slaps hands together) go down. And, I mean, he went down (snaps fingers) like that.  It wasn’t just like he stumbled backward.  It was just-(slaps hands together).
And when I think about it, it’s like, if you look at those old, you know, those videos like on Dash Cam where they have the troopers getting hit on the side of the road, where they’re just boom (slaps hands) they’re down?  That’s how I would describe it.  I mean, he was just there and, all of a sudden, I just saw him go down.
EO:      Okay. And the van, is it moving at this time?
RT:       The van is starting to….I can hear and,  you know, I distinctly remember hearing (demonstrates noise) – the wheels spinning on the grass and it’s moving.  And the front end is moving…the front end is moving away from me, toward right where John went down.  And I’m yelling stop, stop.   And he’s – and I’m thinking the wheels are on top of John, spinning.  And I’m yelling at him to stop, and he just keeps going.
And I’m thinking, in my mind I was picturing John just getting chewed up by these wheels.  And then, it keeps going, and I remember kind of backing away from it a little bit.  And then, at some point, I shot….I  fired to stop him.
EO:      Okay. Do you know how many times you fired?
RT:       I thought what happened was I fired four rounds, and he kept going, and he was- and then, I fired…made a quick assessment, and he hadn’t stopped, and I fired …I fired two more.  That’s what I think I did.

Torres actually fires 7 rounds, stops shooting and fires

another 4 rounds into Jason.  He recalls shooting 6 

rounds.  "At some point" someone would recognize

Torres is not credible.

EO:      Okay.
RT:       I remember…I remember looking at him, after firing at him, he was looking at me and he was just staring right at me.  And I remember him being tucked up close on the steering wheel and he’s just looking at me, like, you know, like, if I was you—I had the, you know, point end of the gun.  I know I had fired at him, and he’s looking at me, and he’s like-(demonstrates noise)- and I can hear the wheels spinning.  He’s like-(demonstrates noise)- looking at me, and he’s just…he’s going.  He just keeps going.
EO:      He’s looking at you on the passenger side?
RT:       He’s looking right at me.  And I could…I just remember the look on his face.  Like (demonstrates noise) – like nothing was...had affected him.
EO:      Which window are you looking in?
RT:       I’m looking at him through the passenger window.
EO:      Okay. Not the middle window-
RT;       No.
EO:      -But the front?
RT:       By now, he’s yeah- he’s swung around and I’ve kind of got an angle now.  My angle on him is through the passenger window.
EO:      He’s in reverse?
RT:       He’s in reverse.
EO:      Okay.
RT:       and it’s spinning around, you know, like…like almost making just like a quick horseshoe.  And at that….at some point in there, I saw John almost, you know, he rolled out onto the street and his back was to me.  And he was curled up, like, in a fetal position.  And I heard him yell (makes loud yelling noise).  And I just thought that he.  He was dead.  Or severely injured.  And I remember seeing the outline of his vest through the back of his shirt.  I don’t know why I just…..I remember seeing the outline of his vest.
And this guy’s looking at me and he’s not stopping.  And I though, did I miss him?  You now.  Or did I shoot like across his stomach?  So the, I shot……I thought I shot two more times into him.  And…and then, that’s when the van kind of straightened out.  Because I was thinking he’s just going to keep going  in that circle.  He’s going to run right back over John.  Because John was just laying in the road.  And I thought, He’s just going to make a complete U-turn back right over the top of him.
But since I’m out in front, you know, there I am in the middle trying to spin around to where he is, and this van is spinning, and I remember him, you know, he went limp in the van and….and it just kind….it straightened out and it kind of went backwards.
EO:      Okay. As  it’s rolling backwards, how close to Officer Key does he come?
RT:       Well, at that time, you know, once it started rolling backwards, I kind of ran around to the front of it with…with my gun on…on the driver.   And then, I saw a county car parked there that I had not seen before.  That’s the first time I saw it.  And then, Deputy Shankaer got out, and said, Go.  Go over by John.  And so, and that’s when I ran over to John.  And I expected to find him just ruined.
EO:      Do you remember what you said to John?
RT;        I think I said, Are you okay?  Are you okay?  (emotional).  And he said, I think so.  And I was…he was trying to get up and I said stay down, stay down.  So, I just….I just thought he was…I thought he was crunched. I really expected him to be, you know. And then, he said, I think I’m okay. I think I’m okay.
EO:      Did you make a comment to him, that you recall?
RT:       I don’t remember.
EO:  Okay. Now, it’s you, Officer Key, and then, do you recall seeing Deputy Shanaker—
RT:       MMhm, yep.
EO:      -any time prior to that, or that’s the first time you see Deputy Shanaker.
RT:       Well, it’s like- I remember seeing him kind of like when the van was rolling back, coming up the other…the back side of it, I think.  Let me show you.
EO:      Okay. Can we go to the board again?
(Torres goes to the board to demonstrate)
RT:       So, the van had come around full circle like this.  And was rolling back to this position.  I think I remember Shanaker running up around this side of it, was the first time I saw him.
EO:      So, he’s on foot?  He’s out of his car?
RT:       Well, that’s the first time I saw him, yes.
EO:      Okay.
RT:       And then, I was like, I remember telling him, I’m sorry, I didn’t see you. Because I thought maybe when I had fired that he was back there.  And he said.  No, it’s okay.  It’s okay.  Just go over by John.
EO:      Okay. So, you went to John and Deputy Shanaker, do you know what he did?
RT:       I don’t…I don’t know.
(Torres returns to his seat)
EO:      Okay.
RT:       I just remember him telling me, you go over by John.  Go over by John.  So, I you know, I don’t know- and when he said that, I’m like—then I thought something was really (gestures)- with John.  But.
EO:      Okay.  So, this horseshoe shape that the van is going, while you’re firing, you’re standing in the middle of the horseshoe at all times?
RT:       Basically yes.
EO:      Okay. Are you moving or are you stationary?
RT:       Yeah, I think I’m spinning with it.  With, you know---
EO:      You’re turning with-
RT:       -to keep…to see him.
EO:      Okay.
RT:       I mean, the…. This entire incident I probably looked at the driver for just the seconds it took to do the shooting, and then, as soon as it started rolling back, so, that was the only time I saw him, and- but I was turning with him.  I remember it was kind of like, you know, I’m shooting….I was shooting like this and I came down and he was still looking at me like nothing happened. And so, then I went back up and I think I fired two more rounds.
EO:      Okay. So, you think you fired a total of six?
RT:       I would say….I would think six, yes.  I mean, that’s what’s in my head.
EO:      Okay. Can you tell us why you fired the two more?
RT:       Because he was...when he was, you know, after I fired and I looked at him and he’s still driving and he’s like, it had no affect on him.  So, I thought he was just going to keep going.  I thought he was going to continue back and run over John, and I hadn’t done anything to, you know, I hadn’t stopped…what I was trying to do wasn’t stopping him.
EO:      Okay. So, the threat was still there?
RT:       The threat was…it was there just as much as it was before I fired.  I mean, the course of the…the initial rounds I fired seemed to…they didn’t do anything to stop the threat at all.
EO:      Okay.
RT:       He….I mean, he was just looking at me, like (demonstrates noise)- just going and he didn’t stop.
EO:      Okay. And why did you stop firing?
RT:       Because I saw him go limp in the…in the seat and the van, you know, off the gas and it just…it straightened out.  Like his tension on the wheel—
EO:      Right.
RT:       - was released and it straightened out and it started just rolling backwards.
EO:      Okay. Did you get on the radio at all and request or give any-
RT:       I  think I said, shots fired.  But I have an earpiece and I don’t you know, usually when I get out on the radio.  I can hear a click to my earpiece, but I remember not hearing anything, and I remember thinking, I don’t think I got out on my radio.   I don’t think my traffic got out on the radio.
And you know, at this time, Shankaer, I could see him over there, and I’m thinking, I’m just going to go see how John is.  I didn’t – I go, is my radio not working? And then, I could hear other people talking.   So, I kind of- I don’t think I put anything else out.  I don’t remember, anyway.
EO:      Okay. Now as you’re standing inside the horseshoe, did you have concern for your safety?
RT:       You know, I was thinking he’s going to swing around, you know.  At that point, my major concern was that he was going to run back over John, Officer Key.  And then, that his van was going to swing.  If I had slipped, you know, if he would have turned the other way, he would have gone—(demonstrates noise)- right into me.
EO:      Were his tires still spinning?
RT:       Yes.
EO:      Okay.
RT:       I mean, I could hear them just – (demonstrates noise)- like when you’re done on grass.  Just-
EO:      Okay.  And that is essentially what you were in, was grass?
RT:       Yes.
EO:      Okay.  Do you recall, was the grass hard and solid?  Soft and mushy?
RT:       You know, I….I don’t….I mean, from you know, hearing him spin on it, you know, I knew it was wet from the morning and from the previous rain and stuff.  But it wasn’t like, sloshy.
EO::     Do you recall the weather conditions that day?
RT:       Gray.  I mean, that’s what you know, I look in my head.  It was gray out.  You know.
EO:      Okay.  And it had rained previously?
RT:       I believe so, yes.
EO:      Okay.  So, your reason for firing was for fellow officer?  Not so much yourself?
RT:       I mean, if I had to grade them, I would be, yes, my…my primary concern was that he was going to run over John again.  And then secondarily, it was myself being right there so close to his vehicle that he could have turned and come right into me. And, you know, he was so close to that house, too.
EO:      Okay.  And you used the word again, so did you believe he had been run over?
RT:       John?
EO:      Yes.
RT:       Yes.
EO:      We’re getting close to the end of the tape. We’re going to have to flip it over here.  Why don’t we go ahead and take a little break and change sides.  And the time is 1552 hours.
(short break-Rick went to the bathroom-no conversation about the case)

They take a break and have a discuss-

ion off tape and immediately return to probable cause.

Notice how Torres changes his story and now recalls

hearing Officer Key yelling.

EO:      (The conversation was not on tape).  At what moment or point in time did you realize you were going to have to use deadly force?
RT:       You know, I don’t know if I can recall a specific moment, it was kind of like just everything…John going down, the tires spinning, him yell.  And the you know, hearing John yell.  Me giving the driver a command to stop, he’s not stopping.  I guess it was just like…it wasn’t like a certain moment that I can recall.  It’s just like it was everything.  He’s not going to stop, he’s not stopping.
EO:      Okay.  After you saw John on the side of the road, I think you said-
RT:       Mm-hm?
EO:      -how many shots did you fire after you saw him on the side of the road?
RT:       I mean, I know the last two for sure.  You know. It was kind of like I see him go down, he’s yelling, I hear the tires spinning, and the van is going out right where he is, you know, the front end is pointing out right…and I hear – (demonstrates noise).  It was like the same thing.
EO:      (indiscernible)
RT:       And I don’t know if it was just, you know, i don’t know what it was.  And, like, and then I’m like, He’s killing John.  And then, the van’s moving and you know, was I shooting then, or you know, at what point exactly it was.  And I could…kind of like…then it kind of opens up and I see the van and the driver and I see John right here, you know, come out to the front of it, and that’s where he’s on his back kind of curled up in a fetal position, and he yells it again (demonstrates noise).  So, you know, I don’t… I can’t tell you exactly when it was I fired.  But, I was like stop, stop, stop the van.  And he just keeps going.


EO:      Okay.  And, as you recall you had the kind of two volleys?
RT:       Yes.
EO:      How much time do you think it was between the first volley and the second volley?
RT:       I mean it was pretty immediate.  It was just enough time for me to see…nothing had happened. There was no difference in the actions. He just…he’s still going and the van was starting to whip back toward me.  You know, right back to where…where Officer Key was.  It was just like…(demonstrates noise).  You know, it was…it was-
EO:      You’re describing whipping.  Was it…I remember you initially said it was moving slightly. I mean, was this starting to pick up momentum now-
RT:       Yes.
EO:      -this whipping?
RT:       Yeah, it’s like it’s coming.  It’s starting…the front end is starting to kind of spin around pretty fast.  And I’m thinking he’s just going to spin back like this and right back onto the road where John is.
EO:      Okay.  Did you reload your weapon-
RT:       No.
EO:      -at any point in time?
RT:       No.
EO:      Okay.  Kind of go back a little bit to the pursuit part of it.
RT:       Mm-hm?
EO:      Do you recall what point in time you turned your siren on?
RT:       I think I turned it on when I was trying to get through all those people.  Because I….while I’m sitting there on 39thand P waiting for them to come westbound. I’m pretty sure I did not have it on at that point.  And then once they took off, and then, those other cars kind of…there was a little major conglomeration right back there.  I was, like- I think that’s when I kicked it on.
EO:      Okay.  
RT:       But I think what happened is I may have had it on running up to him, and then, when I made the U-turn at 39thand you know, when I went north to go before the van took off, I think I had it…I think I had it on running up P Street, and then, made my U-turn, and I turned it off, sitting right there waiting for him.
EO:      Okay.  Detective Hemstock, do you have any questions?
SH:      The firearm that was used, that you used on that day, was - same firearm that was collected as evidence-
RT:       Yes.
SH:      -In this case?
RT:       Yeah.
EO:      And so, sometime after the incident you went to the hospital and gave a voluntary blood and urine sample-
RT:       Yes.
EO:      -there?
RT:       Yes.
EO:      And that was voluntary?
RT:       Yes.
SH:      And the photographs taken of you immediately following by, I believe it was Detective Walker?
RT:       Yes.
SH:      And was that the same uniform that you were wearing when you took photos?   You didn’t shed any layers or everything else prior to the photographs?
RT:       No, it was the same thing that I was wearing.
EO:      Now, when you were with Officer Key, and other people are dealing with the driver, do you recall who the next person was that you saw and any conversation between them?
RT:       No.  I have no idea who showed up.  It’s like, Officer Key, talking to him and seeing if he’s okay, and that’s when I turned. I mean, there’s like, people everywhere. So, I don’t know what sequence they arrived or really even who it was.
EO:      Do you recall any of your comments to anybody?
RT:       I remember telling John, I thought you were dead. I thought you were dead.  And like, I think I may have said that just as I was milling around.  Like, I kind of I thought you were dead.  You know.
EO:      Okay.  Counselor, anything?
MS:      I don’t have anything at this time.  Thank you.
EO:      Rick, is there anything that you want to add that we haven’t asked you about.
RT:       No, not at this time.  Nothing…nothing that I can think of.
EO:      Okay.  Detective Hemstock?
SH:      Nothing more.
EO:      Okay.  And, again, Rick, you’re aware that this conversation is being tape recorded here today?
RT:       Yes.
EO:      And is that with your permission?
RT:       Yes.
EO:      Any threats or promises been made to you in order to obtain this statement?
RT:       No.
EO:      Okay.  We will go ahead and conclude, and the time is 1602 hours.