As a result of extraordinary police incompetence and his own tragic decision, Donald Coca, 45, an employee of the San Jose Mercury News, had his nose, jaw and mouth brutally destroyed by a shotgun, following an arrest for a traffic violation.
Short of death, Don’s lifelong injuries represent the most brutal penalty imposed on a person that I have encountered in decades of representing men, women and children who have suffered catastrophic injuries.
On March 7, 1982 San Jose police officer Carlos Lopez was “riding along” with CHP officer Vincent Siguenza under an official state program to encourage law enforcement officers to join the CHP. Observing a traffic violation in the East San Jose foothills, Officer Siguenza turned on his lightbar which required the car driven by Don to pull over and stop. Don kept driving and pulled into the driveway of his home and parked at the rear. It is believed that Don may have done so to protect his stepbrother Rick Rodriquez who fled as soon as the car stopped. Don was ordered to exit his car and walk backwards with his hands clasped behind this head. He complied.
With two officers to manage an arrest, the approved practice is for an officer armed with a shotgun, in this case passenger Lopez, to remain at the car standing behind the open passenger door and provide cover for an officer armed with a handgun to approach the subject for handcuffing.
Officer Siguenza, when asked in deposition why that procedure was not followed, had no explanation why he remained in the CHP vehicle with his service revolver and Lopez advanced with the onboard CHP regulation Remington 12-gauge shotgun.
Lopez exited the car carrying the shotgun, and walked up behind Don’s back, with the safety off and his finger on the trigger inside the trigger guard.
A paramount rule in gun safety is that the safety remains on until ready to shoot, the trigger finger is always held outside the trigger guard and never inserted into the guard until the weapon is to be fired.
To handcuff Don, Lopez had to free his left hand. To do so, standing behind Don whose hands were at the back of his head, Lopez balanced the muzzle of the shotgun on Don’s right shoulder with his right hand holding the weapon, his finger on the trigger. As he attempted to place his handcuffs on Don’s wrist the shotgun was fired by Lopez.
The exploding shell blasted away Don’s jaw, nose and mouth, and left Don blind in one eye, legally blind in the other, unable to smell swallow or chew, forced to be fed by a stomach tube and only capable of pronouncing vowels, with most of his speech unintelligible.
The photos of Don lying face down in a pool of blood gave every indication that he was dead. Fortunately for Don that night Kaiser surgeon Robert Pearl, M.D. began the first of many surgeries that brought Don back from death and saved his life. Dr. Pearl’s skill in a 12-hour emergency surgery so impressed me that I carried his name and phone number in my wallet for many years. It was a great honor to meet this kind and gentle superbly skilled surgeon. He went on to become the Chief Executive Officer of Kaiser’s 35,000 employees that provide medical care to more than 4 million. At a luncheon conference many years later when he received a prestigious award, I approached the podium as the participants were dispersing and received a big smile when I called out “Hey Robbie.” I again shook his hand and complemented him on his award. His compliments for my skill in representing Don made me choke back my tears. In my book, all the honors belonged to Dr. Pearl.
This was no accident. It was totally foreseeable. The only explanation for this catastrophe was multiple violations of common gun safety. Nonetheless, both the City of San Jose and the California Highway Patrol could not accept responsibility until more than a year later.
The initial defense to Don’s lawsuit was that the CHP shotgun was defective and had an unusual soft of “hair-trigger.” The was whitewash for a “hare brained” violation of basic gun safety in my opinion.
The CHP and the City hired Failure Analysis Analysis, an extremely expensive consulting engineering firm founded by Stanford engineers to provide accident investigation services largely to manufacturers whose products had failed. FAA’s investigation of the receiver of the CHP shotgun consumed two days of meticulously slow disassembly of the shotgun with hundreds of photos and video. This is normally a procedure that takes less than 15 seconds. At the end of the two-day long evaluation, the testing of the Remington standard sear spring showed that it was within factory limits and required a trigger pull of 5 pounds. This was no “hair trigger.”
Determining the age and vintage of the receiver in the subject gun was impossible. The receiver houses the internal action of the gun, the trigger mechanism, sear spring, chamber for a shell and the firing pin and has threading for attaching the barrel and stock. The armorer for the local post of the CHP in charge of regular maintenance testified that he routinely selected multiple shotguns on a fixed schedule, removed the receivers and placed them into a container of solvent for cleaning, then oiled and returned the receivers to the shotguns without any order since all the weapons were identical.
With the claim that the shotgun was defective out of the way, the main defense of the City of San Jose was that it was not liable because Lopez was off duty and not in the course of his employment. In short, Lopez was on his own, notwithstanding the City’s position that its officers were “on duty” even when off the clock for the purpose of making an arrest for a crime committed in their presence.
As usual a defendant wants to select the rule most favorable for its defense. Practically, Lopez was incapable of paying the bill for Don’s injuries and resigned from the San Jose Police Department two months after the shooting. That left the State of California which took the position that all the misconduct was Lopez’s grossly irresponsible advancing to handcuff an arrestee with the safety off the shotgun and finger on the trigger. In short, the CHP had done nothing wrong and Don’s catastrophic injuries were the complete fault of Lopez.
My job as Don’t lawyer was to prove that Lopez was operating under the supervision and control of Siguenza.
That State’s defense was met by addressing what is known in the law as “agency”, i.e., a relationship in which one person has legal authority over another. The wrongful act of a subordinate acting under the authority of another imposes liability on the superior. It is commonly known as master-servant, employer-employee and principal-agent liability.
I noticed the deposition of Officer Siguenza who was well coached to place all the responsibility on Lopez. He presented for the deposition in uniform and was the image of a professional officer. After several evasive responses to my questioning, he admitted that Lopez was an invited officer, serving as a law enforcement officer in Siguenza’s patrol car under a state authorized “ride-along” program and was under Siguenza’s supervision. In other words, Lopez had to follow Siguenza’s orders.
Siguenza denied doing anything wrong, but eventually I pushed him to say that Lopez was acting as his “partner” that night, despite multiple objections by the Attorney General’s office that Siguenza was being asked to testify to a legal conclusion.
Following the first crack in the defense, I pushed Siguenza to admit that Lopez was his partner in all respects. He relented and agreed. That removed any doubt that the CHP was liable under the law of agency for Don’s injuries. I believe Officer Siguenza was relieved to have been pushed to make that admission because it was the truth and the right thing to do.
Don Coca’s life was permanently changed by gross police stupidity that brutally changed his life after he made a mistaken choice, but one that did not merit the outcome. Taking nourishment via a tube connected to his stomach and facing multiple surgeries was the result of uncalled for gross brutality. Don, born in 1938, paid a horrific price. The extent of his suffering and that of his family is unimaginable.
The settlement with the defendants following a conference with Santa Clara County Superior Court Judge Homer Thompson was ordered by Judge Thompson to remain confidential, after Don rejected a $3.5 million settlement offer by the State of California and the City of San Jose on the advice of counsel. In 2021 dollars that amounts to $10 million.
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