SAN JOSE -- The City Council is poised to pay $900,000 to settle an excessive force lawsuit stemming from an officer-involved fatal shooting of an alleged gang member who police say pointed a handgun directly at them.
But the alleged gangster's fingerprints and DNA were notably absent from the gun police say 47-year-old Valente Galindo gripped. That, along with several other legal problems, have prompted city lawyers to urge the council to approve the proposed payout to Galindo's three children. The council is set to vote next month.
Galindo, 47, died Dec. 15, 2011, shortly after officer Lee Tassio fired a single bullet into his chest. Tassio was cleared by the Santa Clara County District Attorney's Office, which concluded the shooting was justified because he acted in defense of himself and others.
The City Attorney's Office declined to comment because the settlement is not final. However, a settlement is not an admission of fault; in risky cases, the office will advise it to reduce the city's financial exposure.
Among the legal challenges facing the city in this case was whether Galindo's alleged gang affiliation with the Norteños was admissible. The family's attorneys argued that a Norteño tattoo on his arm was old, that he wasn't an active or validated gang member, and that it had nothing to do with the case anyway because Galindo was at home, inside his bedroom watching TV with his girlfriend, on the night he was shot. It is likely the city would have tried to bring into trial Galindo's criminal record, including domestic violence and documented antipathy toward police.
Ever since Galindo died, there have been two conflicting versions of the critical moments that took place that night.
The incident started about 11:30 p.m. when two officers conducting a gang suppression patrol near Waverly Avenue and South King Road spotted a 24-year-old man walking down the street and drinking a beer, San Jose police reported.
The officers believed the man matched the description of a juvenile gang member wanted on an arrest warrant. When officers approached the man, identified as Manuel Fuentes, he ran into Galindo's home, police said.
As the suspect ran, one officer saw the man reaching into his waistband. The suspect again reached for the waistband as he entered the house. At that point officers believed a validated gang member armed with a handgun was entering a house with unknown motives, according to the report.
Tassio and another officer followed Fuentes into the house and pushed him to the ground, according to the report. Fuentes then pulled a handgun from his waistband and slid it along the floor into a nearby bedroom. After getting help subduing Fuentes, Tassio went to find the gun in the bedroom.
The officer came upon Galindo and told him not to pick up the gun. Galindo did, and Tassio ordered him to drop the weapon, according to police. When the man pointed the gun at the officer, Tassio fired one round.
After the shooting, Galindo's girlfriend claimed her boyfriend didn't have a gun when he was shot. But according to the District Attorney's report, he admitted to officers before he died that he had picked up the gun to push it under the bed, where it was ultimately found.
According to court documents, the family's attorneys planned to use the absence of DNA and fingerprints to challenge the police account. In contrast, the District Attorney's report concluded that the reason there was no such evidence was he handled the weapon only briefly -- a contention that defense experts would have disputed.
Galindo's lawyers also planned to challenge whether the officers had reasonable suspicion to chase Fuentes into the house in the first place and probable cause to arrest him. To prevail in a civil trial, the family had a lower standard of proof -- preponderance of the evidence -- than in a criminal case, where the standard is beyond a reasonable doubt.
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.