Members of a coalition which was formed to demand justice for a man killed by Fullerton police last year are decrying a decision by Orange County District Attorney not to prosecute the officer who shot him. The Justice For Hector Hernandez Coalition is also disputing specific claims made in a report released by District Attorney Todd Spitzer’s office that determined that the use of deadly force against Hernandez was justified.
Supporters of Hernandez reject several of the report’s conclusions calling them distortions of the events leading up to Hernandez being shot twice in his own front yard by Fullerton Police Cpl. Jonathan Ferrell, the first of several officers to arrive at Hernandez’s address on West St. on the evening of May 27, 2020. Police were responding to reports that Hernandez had fired a gun at least twice and had threatened family members in his home.
During an August 9 press conference held just four doors from the house where Hernandez was shot twice through the heart at close range, attorney Garo Mardirossian called the D.A.’s report “disgusting and misleading” and said that Ferrell had gotten “a pass” from Spitzer rather than face charges for what he and many of Hernandez’s family and friends insist was an unnecessary killing.
Mardirossian also represented the family of Kelly Thomas following his death at the hands of Fullerton police in 2011.
Surrounded by several poster-sized mounted pictures of Hernandez with his young sons, Mardirossian, who represents Hernandez’s family in a civil action against the city of Fullerton and the Fullerton Police Department, expressed frustration felt by many over the length of time taken by the D.A.’s office to complete its investigation of the shooting. He compared the case of Hernandez to that of George Floyd who was killed by police just two days earlier than Hernandez last year, and pointed out that a full trial and sentencing had already taken place in the Floyd case while Spitzer’s department spent 14 months on its report and only just released it on August 4 of this year.
During the press conference Mardirossian compared responding FPD officers to the Keystone Cops. “Nobody took verbal control,” he said. “Instead,” he said, officers shouted over one another at Hernandez who was, at the time, complying with police commands, “an innocent man with his hands up.’”
Mardirossian and other supporters have long maintained that there was no need for Ferrell to have released his K-9 police dog when Hernandez was already standing in his front yard with his hands raised. To demonstrate his point, Mardirossian replayed body cam video on a large monitor behind him, showing that the K-9, Rotar initially did not run toward Hernandez, but in another direction. “The K-9 was smart enough to see a man with his hands up—that’s no danger, that’s no threat,” Mardirossian said. Ferrell, who can be heard on the video repeatedly recalling and redirecting Rotar toward Hernandez “wasn’t that smart,” said Mardirossian.
The D.A.’s report calls the use of the dog an attempt by Fullerton police to use a non-lethal tactic, but Hernandez supporters contend that it had the opposite effect and needlessly and violently escalated the situation. Mardirossian argued that the K-9, who he called a weapon, could have served as a deterrent if kept on his leash rather than being released by Ferrell. Hernandez was shot by police when he lowered his right hand to extract a work knife from his pocket in order to defend himself from Rotar’s bite.
Mardirossian pointed to several instances in a video produced by he D.A.’s office to accompany their report where both he and the Coalition strongly disagreed with the D.A.’s findings. The report claimed that Cpl. Ferrell was within one foot of Hernandez prior to shooting him, while Hernandez supporters say the video clearly shows that the two were at least three and a half feet from one another as Farrell approached Hernandez, who was already on the ground and in the grip of the police dog. “At no time was Hector within one foot of Ferrell,” said Mardirossian, calling Ferrell’s own report that he was only one foot away from Hernandez “another lie.”
The argument over how far apart the two men were is a critical one because in the D.A.’s report Ferrell also claims that Hernandez was making stabbing motions with the knife he had just used to stab the police dog. Ferrell claimed that he was close enough to Hernandez and the knife that he feared for his own safety, but supporters of Hernandez insist that Ferrell fired twice not because he thought he himself might be stabbed, but because Hernandez had injured Rotar, whose wound was eventually found not to be a serious one.
Maridirossian questioned Spitzer’s interpretation of a single pronoun spoken by Ferrell in the seconds just after the shooting. The D.A. report contains a reference to officer-worn body cam video wherein Cpl. Ferrell can be heard to say, as he leads Rotar away from the fatally wounded Hernandez, “He was stabbed and he started going after me.” The D.A. report interprets Ferrell’s second “he” as referring to Hernandez, “going after” Ferrell, as evidence that Ferrell genuinely feared that he himself could be stabbed next. But Mardirossian said it was clear that by “he” Ferrell meant the dog, Rotar, who had momentarily turned on Ferrell as the officer pulled him away from Hernandez. “He was never swinging a knife,” said Mardirossian. “You can see it on the video. You can see his hand movement.” Instead, Mardirossian said that Ferrell fired because his dog had been stabbed. “He was concerned about his dog’s life and that’s not a good enough legal cause to shoot a human being.”
“Now they want to twist that around but we have it on video,” Mardirossian said, gesturing toward the television screen behind him. “We see that Hector didn’t go after him. His arm doesn’t reach that far and he’s on his back with the dog mauling him.”
Mardirossian also disputed the D.A.’s claim that police feared that Hernandez might retreat back into his house from where he stood with his hands up, near his front door, and that he might take his own son hostage inside. “Completely, unfounded. No evidence of that. He never made a move to go into that house…never turned around, never reached for the door,” Mardirossian said.
Making his case before the media like a lawyer in court, Mardirossian cited California Penal Code section 835a, which “requires that an officer must warn that deadly force may be used before deadly force is used. That was never done,” before Hernandez was shot, said Mardirossian. He agreed that police needed to respond to Hernandez that night but noted that the two shots fired by him before police arrived went into the air and into the lawn. “They had probable cause to arrest him but not to shoot him and kill him,” Mardirossian said. Neighbors who witnessed the event have long expressed shock that Hernandez was shot to death at the scene rather than being arrested by police.
Mardirossian called on California’s Attorney General or the F.B.I. to investigate the case, maintaining that the O.C.D.A.’s office could not be sufficiently objective about investigating police involved killings in the County, and said that “far too many young Latino men are being killed, and no one is being charged.”
Fullerton resident, Erika Cervantes, a criminal justice legal fellow at the Disability Rights Legal Center, followed Mardirossian at the microphone. She said that the community was angry and in pain over how the D.A.’s office had handled the case, and that the Coalition would not allow the office to push a “false narrative” about the killing.
Farther Dennis Kriz of nearby St. Benizi Catholic Church also spoke, apologizing for not becoming involved in the case earlier. He said that he believed the initial press after the shooting, but said that later that he realized “unfortunately we’re at a point where it’s very hard to trust initial police reports anymore.” He called it a “big problem” when the public’s first reaction to any police report is “My God, is this true?”
The Fullerton Police Department has declined to comment on the case citing its own ongoing investigations.
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