SAN JOSE — When 16-year-old Elena Mondragon was fatally shot by Fremont police during an undercover operation that went awry, the fabric of her family was ripped apart, an attorney for the girl’s mother said today in court.
More than five years after the tragic and controversial police shooting in 2017 that ended with Mondragon’s death, the trial in her family’s civil rights case against the city of Fremont and three of the officers involved began in federal court Wednesday.
Adante Pointer, an attorney for the family, said in opening statements that if the Fremont officers had followed their training and police practices, Mondragon would not have been killed.
“We are only here because these defendants violated their duty to the public, to their employer, and to Ms. Mondragon,” Pointer said of the officers.
“They failed to properly plan, they failed to properly prepare, and they failed to properly perform,” Pointer said.
Mondragon, an Antioch resident, was shot during what Pointer called a “botched surveillance and arrest operation,” of the Southern Alameda County Major Crimes Task Force, composed of members of multiple law enforcement agencies, on March 14, 2017.
She was one of four people inside a car driven by 19-year-old Rico Tiger, who authorities said was responsible for multiple violent armed robberies in Fremont and around the Bay Area, and who the task force was planning to arrest that day at a Hayward apartment complex.
During the operation, officers tried to block Tiger in with an undercover police minivan and SUV in the apartment complex parking lot. Fremont officer Ghailan Chahouati pulled the van “nose to nose” with the bumper of the BMW as it began to pull out of its parking spot, briefly “chirped” the siren, and Officer Joel Hernandez activated police lights in the visor, the officers’ attorney Patrick Moriarty said Wednesday.
Sgt. Jeremy Miskella was slightly behind the van driving a Honda Pilot. The officers then got out of the cars, Miskella and Hernandez aimed rifles at the BMW, and the officers gave commands to Tiger, Moriarty said.
Tiger backed up the BMW, revved its engine then tried to flee by squeezing the BMW through a small space between the police vehicles and a carport with vehicles parked in it.
Hernandez, believing Chahouati had been killed, fired two shots from a rifle at the car as it drove by, and Miskella fired five shots from a rifle, Moriarty said.
One of Miskella’s shots hit Mondragon, who was in the front passenger seat of the BMW, cutting through her chest and lodging in her spine, later killing her. It was later confirmed by medical officials that Mondragon was pregnant at the time of her death.
Attorneys for Mondragon’s family told a jury Wednesday that the officers could have gotten out of the way of the car, and not shot at a moving vehicle, something most police department policies strongly discourage, including Fremont’s.
“They are trained that they should get out of the way of a vehicle that’s coming toward them, in order to avoid prematurely using deadly force,” Pointer said.
But Moriarty said Tiger tried to kill officers by driving directly at them with a car, leaving them with no other options but to shoot.
“This isn’t an officer shooting indiscriminately into a car. They’re shooting because they’re going to die,” Moriarty said. He said Miskella will testify in the case that he thought Tiger was going to kill him.
“He shot knowing that they’re trained not to shoot into a moving vehicle, unless their life is in danger,” Moriarty said to the jury in Judge Nathanael Cousins’ courtroom.
“He decided to save his own life in the face of a man who was trying to take it,” he said.
While Moriarty acknowledged that it was “not fair” that Mondragon’s mother lost her daughter in the shooting, he emphasized that Miskella is a married man with kids.
Pointer told the jury while nothing can bring Mondragon back to her family, the case is aimed at holding the police accountable for their actions.
“They’re going to tell you they are absolutely not responsible in any way whatsoever,” Pointer said of the officers. “That they get to do what they did, and walk away scot-free, without any accountability, and that this mother just has to deal with it.”
The case could center on disputes over where Miskella was standing when he was shooting, whether the BMW posed a danger to the lives of the officers, and whether the operation should have gone forth at all. The officers who had body-worn cameras did not activate them to record, so there is no available video of the shooting.
Moriarty said Miskella had rapidly backed up on foot, initially firing two shots at the BMW, and he ran into the rear side panel of his undercover SUV, as Moriarty said the BMW came right at him. He fired three more rounds.
Pointer told a slightly different story, maintaining that Miskella was not in danger when he fired the fatal round.
“He was standing underneath the carport, out of the path of traffic, out of the path of the driveway, when he took that AR-15 and fired it into the BMW,” Pointer said.
Alameda County District Attorney Nancy O’Malley’s office cleared Miskella and Hernandez of any criminal wrongdoing in the shooting in a 2018 report.
Attorneys for the officers may also focus on attacking Mondragon’s character, claiming she was dating Tiger, who is being charged for her murder by Alameda County authorities. Moriarty told the jury he would ask Elena Mondragon’s family, including her mother Michelle Mondragon, “difficult questions” about the girl during the trial to get a sense of what kind of person she was.
“She’s the one who wants to get paid,” Moriarty said of Michelle Mondragon.
“So we have to do our job correctly to question her, so don’t be thrown off by that,” he told the jury.
Moriarty also defended the officers’ reputations to the jury.
“These three are good cops,” he said, gesturing at the officers sitting in court. “These three men are who you want to keep your community safe.”
The family is seeking $21 million in damages in their lawsuit, which alleges Fremont police officers used excessive force, were negligent in their operation, caused the wrongful death of Mondragon and violated the civil rights of both her and her family.