Judge Dismisses Suzie Pena Lawsuit – UPDATED

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.

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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.
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`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.

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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.