Two S.D. officers cleared in wrongful death suit

By Marisa Taylor

STAFF WRITER

October 21, 2003

A federal jury cleared two San Diego officers of wrongdoing yesterday in the fatal shooting of a 60-year-old man armed with a pair of scissors.

The verdict, which was reached after 90 minutes of deliberation, marked the third time in a year that jurors have concluded police officers were justified in using lethal force.

The latest wrongful death lawsuit was filed by the family of Gabindo Benjamin Flores against the city of San Diego and two police officers, Anthony Zeljeznjak and Terry Lee Bryan.

Richard Ostrow, the deputy city attorney who represented the two officers, said the succession of jury verdicts favorable to the city demonstrated "a confidence on the part of the community that the Police Department and officers are well trained and respond reasonably whenever possible."

The two officers said they were relieved by the verdict but declined to comment further.

During the trial, Zeljeznjak and Bryan testified they were forced to shoot Flores, a mentally ill man, after he refused to drop a pair of household scissors.

The April 28, 2001, shooting was ruled justifiable by then-District Attorney Paul Pfingst months after the fact.

Relatives of Flores maintained that the officers did not have to use lethal force.

Days before the incident, Flores had been released from the psychiatric ward of Paradise Valley Hospital.

The confrontation between police and Flores began when officers responded to a 911 call placed by a man who rented a room in the Flores family home in Otay Mesa. The tenant reported that Flores had threatened him with scissors and wouldn't let him out of the bedroom.

Zeljeznjak and Bryan said when they arrived at the house, they only reluctantly stepped up levels of force in demanding Flores comply with requests to drop the scissors.

When Flores refused, Zeljeznjak said he hit Flores on the hand with his baton.

The officers said their attempts to use a trained police dog and a stun gun to subdue Flores also failed.

When Flores began to stab Zeljeznjak, they said they had no choice but to use their weapons.

Flores' family lawyers tried to cast doubt on the officers' story, accusing them of lying and tampering with evidence.

The attorneys claimed the incident demonstrated the department did not follow its own policy that encourages officers to try to calm the mentally ill, not confront them.

Benjamin Pavone, one of the family's lawyers, said he believed the jury didn't find the officers liable because of "insurmountable" legal advantages given to them in court.

"The lesson of this experience is that no citizen of this county should expect to have constitutional rights when it comes to dealing with the police," he said.

Pavone, who has represented plaintiffs in the three recent wrongful death lawsuits against the city, said he will no longer pursue civil rights cases as a result of his experience suing the San Diego Police Department.

But two jurors, who refused to identify themselves after the verdict was announced, said Pavone simply did not prove his case.

One juror said he suspected the officers may have exaggerated the danger they faced when confronting Flores, but he didn't hear enough evidence to prove the officers overreacted.