Attorneys for the family of a man shot to death by a Long Beach police officer say they deserve another chance at their lawsuit, in part, because jurors listened to a 911 call they’d been barred from hearing.
The 911 recording, which describes Cal State Long Beach Student Feras Morad as screaming and irate before the officer arrived, was never supposed to be in the hands of jurors. A judge ruled it was inadmissible in a July 2018 trial.
Nevertheless, jurors listened to the recording half a dozen times while they were deliberating, according to attorney Brian Olney, which he said was devastating to the excessive force lawsuit against Long Beach and LBPD Officer Matthew Hernandez. Jurors ultimately ruled Hernandez acted reasonably when he shot Morad to death.
Olney made the argument Friday morning in front of a three-judge panel in the Ninth Circuit federal appeals court. He asked the panel to reverse the lower court’s decision and grant a new trial in the case that roiled Long Beach five years ago.
Morad, a 20-year-old who’d recently joined the CSULB debate team, was shot to death by officer Hernandez on May 27, 2015. At the time, his death sparked protests from friends, family and students who decried the shooting as police brutality. The Long Beach Police Officers Association, however, has defended Hernandez’s actions as self defense from a man on drugs acting violently.
Although there were reports that Morad took mushrooms or another drug before the shooting, medical examiners were never able to confirm the presence of any narcotics before blood samples were accidentally discarded, according to the Los Angeles County District Attorney’s office, which cleared Hernandez of any criminal culpability.
According to testimony at the 2018 civil trial, Morad fell from the second-story window of an apartment where he’d been studying with his debate teammates, prompting calls to the police and fire departments.
But Morad’s behavior after that was a key point of dispute during the proceedings.
Witnesses, including three firefighters, testified that Morad wasn’t threatening or aggressive, just dazed.
Hernandez, however, said Morad was combative. Hernandez shot Morad after a three-minute struggle during which he hit Morad with a flashlight, shot a Taser at him and attempted to wrestle him to the ground, according to court documents.
Before trial, the judge ruled that jurors should evaluate the case based on what Hernandez knew at the time he shot Morad. To that end, he barred them from hearing certain pieces of evidence that preceded their interaction, including the 911 call in question, which Hernandez hadn’t heard.
Nevertheless, a copy of the 911 call ended up on a disc sent into the jury room. Attorneys representing Hernandez and the city of Long Beach said they accidentally mislabeled the recording and included it on a disc of evidence.
The mistake was only discovered when jurors asked to listen to a different recording that was supposed to be on the disc.
The judge ultimately ordered jurors to disregard what they’d heard and ruled it wasn’t damaging enough to grant a new trial.
On Friday, however, Olney argued the recording undercut the plaintiff’s case to a devastating effect.
The recording says Morad may have jumped out of the window and describes him as erratic, which contradicts testimony from the firefighters and others who said Morad never seemed threatening, according to Olney.
“[Jurors] ultimately made credibility determinations based on the recording,” Olney told the appeals panel.
The attorney representing Long Beach and officer Hernandez said this argument was overblown.
“The excluded recording to which the jury was exposed added nothing new to the jury’s factual mix,” attorney Scott Dixler said.
Jurors already knew Hernandez had been sent to deal with someone who appeared to be drunk and was “acting violent,” according to Dixler, and the new call never said definitively that Morad jumped out of the window, only that he “jumped or fell.”
“For that reason, it wasn’t prejudicial,” he said.
The Ninth Circuit panel took the case under submission and will rule at a later date.
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