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Judge Dismisses Suzie Pena Lawsuit – UPDATED

August 3rd, 2009 by Celeste Fremon

suzie-pena

UPDATE: I’ll be on Warren Olney’s Which Way LA?
show for a news segment tonight to talk about the Suzie Pena case and the judge’s decision. That’s KCRW, 89.9 FM.

WWLA? Broadcasts at 7:30. The segment should be at or near the top of show.

*********************************************************************************************************************

This morning L.A. Superior Court Judge Rolf M. Treu tossed out the lawsuit
that the mother of 19-month-old Suzie Pena, Lorena Lopez, filed against the city in relation to the death of the toddler who was killed by a bullet from SWAT officers during a violent standoff with Suzie’s father, Raul Pena, in 2005.

(The back story may be found here.)

The mother’s attorneys have maintained the little girl’s death could have been prevented if police had not unwisely stormed the office where Raul Pena was barricaded with the baby held in one hand, a gun in the other—and then fired 50 rounds of ammunition. Two of those rounds hit Suzie Pena.

The case was due to go to the Superior Court jury this week, once officers and police experts completed their testimony. But the judge decided there was not enough evidence to show that officers had acted in a manner that could be deemed unreasonable from a legal standpoint.

(The LA Times has some additional details about this morning’s dismissal. .)

I’ve been tracking this story for the past couple of weeks, but have not written about it because there was so much else in the news.

But counter to what I’d originally predicted, the city put on a very convincing case. For me the most significant new set of facts that came out in the course of the trial, were the revelations about the worrisome things that Suzie Pena’s father had said on the phone during the stand off. He was clearly high, desperate and delusional and his words suggested that he was a direct danger to his daughter.

This threat boxed the SWAT guys into something of a corner.

Here, for example, is what the City News Service reported last week about the testimony of SWAT team member Sergeant Scott McMillian.

The sergeant also said that Pena claimed to have been a member of the military and a police officer in his native El Salvador. He repeatedly referred to himself during the standoff as Tony Montana, the mobster portrayed by AlPacino in “Scarface,” according to McMillian.

At one point, a “Scarface” movie poster on a window at the auto lot blocked the officers’ views of Pena’s activities, McMillian said.

He said Pena promised that he and his daughter would not be taken alive.
`
`Raul Pena stated he was going to kill Suzie and take her to hell with him,” McMillian said.

And so the SWAT team members found themselves in a damned-if-you-do-damned-if-you-don’t situation. They made a choice. It turned out, by definition, to be the wrong one. They killed Suzie Pena.

But unless the plaintiff’s could convincingly demonstrate that there was a truly right choice open to the SWAT officers, they didn’t have a case—which was precisely what the judge concluded.

UPDATE 2: Although I haven’t seen the announcement, it is almost certain that Lorena Lopez’s lawyers will appeal. This is a wobbler of a case, and the fact that the judge did not let it go to trial ( would, I suspect, leave plenty of room for an appellate court to wade into it.

UPDATE 3: I spoke tonight to Lorena Lopez’s lawyer, Luis Carrillo.
He said that, although Lopez wants to appeal (and he believes there is an appeal) his firm can no longer proceed with the case. One presumes that this is due to the fact that they have spent years on the thing, pro bono, as it is.

*************************************************************************************************************

PS: A random, slightly obsessive note: I wish reporters and police would stop saying that crazy, deadly, loathsome Raul Pena used his daughter as a human shield. I’ve looked at the videos of he stand-off and while Pena may as well have used her as a shield, since holding his daughter while he blasted at police presented the same mortal risk to the little girl as actually using her small body to shield his own. But the videos clearly show that’s not what he was doing. Pena was simply and insanely clutching the toddler as he shot—my guess is, to keep her from running and screaming due to the sound of the gunfire. I know it’s a small point. The man was high, dangerous—and an awful person to boot. I say this knowing a lot of unpublished facts about his behavior with his wife and family. But let’s blame him accurately. What he did is plenty bad enough. His acts got his 19-month old daughter killed. We don’t need to spin the facts to make it any worse.

Posted in criminal justice, LAPD | 15 Comments »

15 Responses

  1. Woody Says:

    They made a choice. It turned out, by definition, to be the wrong one.

    The police only had two choices – do something or do nothing. The chances of the child’s survival, slim with both options, was better with the second one, which they took.

    Due to the major coverage of this tragic death, many are harboring hate and mistrust for the police. How many of those same people will learn the ultimate facts and verdict which backed law enforcement?

  2. Woody Says:

    Obviously, I messed up with the police option above, in that they took the first one, not the second one. No big deal, but I thought that I would head off the critics.

  3. Celeste Fremon Says:

    Woody, if you saw the physical environment you’d have seen that going in when and how they did was never going to play out well. They would have needed phenomenal luck for them not to kill the little girl. On the other hand, had they played the odds the other way and waited and the dad had killed his daughter, they would have been blamed.

    Yet, the mom, who was privy to all the stuff Raul Pena was threatening, didn’t believe he’d hurt his daughter and BEGGED the police not to storm the place. And she’d been on the recieving end of his violence before and she believed she knew what he was capable of—and not capable of.

    I talked to her the day after it happened, plus numerous friends and family members.

    Anyway, it was a terrible, terrible situation and a no win.

    By the way, even Bill Bratton, LAPD’s chief made a point of telling me that my coverage in the LA Weekly was the most fair-minded of the bunch.

  4. Woody Says:

    At least I didn’t say that the police “acted stupidly.”

    When my child was in high school, I thought about the “go or no-go” options of police as they pertain to some nut shooting inside a school. With sketchy information only, I would have erred on the side of going in and taking out a shooter versus treating it as a stand-off, hostage situation. If my kid was in such a school and the police wouldn’t act, then I sure would have gone in with my guns rather than let someone casually roam the school picking off more victims.

    Each case is different, but it sure is easier to make a judgment call after having the luxury of months of time to obtain more information, thinking through that information and deciding if the source was rational or hysterial, and then calculate the right course. It’s amazing how smart people can become on police actions (or something like Iraq) when they aren’t the ones who have to be decisive.

  5. See All Knows All Says:

    I seem to remember Celeste writing about other bloggers who form an opinion about a police case without knowing all the facts. I’m glad Celeste has blessed this case by those damn LAPD who seem to don’t consult with Celeste before making a tactical decision and make the “bad calls”.

    **************
    A Celeste blast from the past.

    “And yet, as one who has talked in depth with LAPD brass about the incident, and stared at the bullet riddled walls of that death-filled office on the day after the shooting for more time than is likely healthy, I would say that the odds are very strongly on the side of the plaintiffs.

    Based on what I have seen and heard, some bad calls were made by brave and honest men who risked their lives to try to save Suzie Pena—and who ended up killing her instead.”

  6. Celeste Fremon Says:

    Oh, blah, blah, blah.

    I formed an opinion, which was stated as an opinion (as opposed to unassailable truth), based all the facts I could at the time access, and much, much research.

    Then today, I revised my opinion and said as much, and linked to the old opinion so that people could compare and form their own conclusions.

    Those I criticized didn’t bother to check their facts for accuracy, which—call me crazy—I see as something of a problem.

    Get a freaking grip.

  7. Woody Says:

    In the future, just consider everything that I say as an “opinion.”

    Apparently, that’s how to avoid criticism over information that one shares.

    In my opinion, I’m always right.

  8. just decision Says:

    “And so the SWAT team members found themselves in a damned-if-you-do-damned-if-you-don’t situation. They made a choice. It turned out, by definition, to be the wrong one. They killed Suzie Pena.

    Nope.

    Technically their bullets killed her. But they were-as all admit-doing their damndest NOT to hit her.

    HER FATHER killed her by his insane, drug-induced, threatening and violent actions, not the SWAT team. HE is the responsible party bu his actions. It’s an incredible parsing of hairs to say she wasn’t a human shield. He took her there why? To either kill her himself or yes, use her as a shield. What were the police to do?

    The desperate beliefs of a grieving (abused) mother about what her monster husband was and wasn’t capable of is meaningless in that situation (you imply she was right, all emotions included, and that the police should have heeded her by not storming the office). Her husband’s actions were as close to shooting Suzie himself as one can get without his actually doing it. It’s secondhand “suicide by cop” turned into “infanticide via cop”. Glad the judge agreed.

  9. Celeste Fremon Says:

    “Her husband’s actions were as close to shooting Suzie himself as one can get without his actually doing it.”

    Agreed.

  10. Diane C Says:

    The fact that the judge dismissed this case which would have held LAPD accountable for the death of Suzie Pena is indicative of how the Los Angeles Police Department and those involved in the political process views minorities. Had Mr. Pena been Caucasian I know that the stand-off would ended differently. Cooler heads would have prevailed! I’ve witnessed stand-offs in non-minority involved cases last much longer than three hours. Shame on the LAPD and the system that allows them to kill those that they should protect!

  11. Sure Fire Says:

    Let me get this straight Celeste…

    Raul Pena stated he was going to kill Suzie and take her to hell with him,” McMillian said.

    Yet you stated Celeste…

    But the videos clearly show that’s not what he was doing (using her as a shield). Pena was simply and insanely clutching the toddler as he shot—my guess is, to keep her from running and screaming due to the sound of the gunfire.

    Are you kidding? The guy had already made clear that he was going to kill Suzie, and yet you think he cared about her running around and screaming? If he did it was because the cops might kill him, much quicker, without the position he had her in and his intentions for her were already known to the officers. Nothing he said or action he took showed that intel to not be accurate, he wanted to make sure she died as well and by keeping her close he felt that would happen.

    Wow, talk about grasping at straws and being “inaccurate”.

  12. Woody Says:

    Sure Fire, it was her “opinion” — not “inaccurate.”

  13. Poetry Readings Says:

    Let’s all remember Raul Pena was another innocent victim of our society. If Raul had the opportunity to receive free drug counseling, parenting classes, poetry readings and lots of hugs from government funded empolyees, Raul would still be alive today. Shame on all of you for calling Raul Pena crazy, deadly, and loathsome, he was just huging his daughter.

  14. Woody Says:

    How’s that “poetry books for guns” program coming along?

  15. Un Galan Says:

    Sarcasm, my old friend, they told me you were dead. Nice post Poetry Reading…

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