SAN JOSE —
When Fremont Police Sgt. Jeremy Miskella thought his life his was in danger when he fired five rounds from his AR-15 rifle into a BMW driven by Rico Tiger, who was suspected of violent armed robberies.
“I thought Rico Tiger was trying to run me over and kill me,” Miskella said Thursday while on the stand in federal court.
None of his shots hit 19-year-old Tiger, the man Miskella and his other major crimes task force members were aiming to arrest during an undercover operation that went awry at an apartment complex parking lot in Hayward on March 14, 2017.
But one of his five bullets struck 16-year-old Elena Mondragon, a pregnant Antioch resident who was riding in the front passenger seat of the BMW. She later died during emergency surgery after being shot.
On the second day of a civil rights trial brought against Fremont and three of its officers by Mondragon’s family, much of the focus was on Miskella.
While attorneys for the officers and the family agree that Miskella fired five shots while in the parking lot of the City View apartment complex, a key point of contention in the case is whether his life was in danger when he fired the fatal shot.
Mondragon was one of four people in the stolen BMW driven by Tiger, that Miskella, Officers Ghailan Chahoauti and Joel Hernandez, and other task force members had tracked to the complex.
The police crew’s plan was to block in the BMW by pulling an undercover police minivan in front of it and making an arrest. The van was carrying Chahouati, Hernandez and one other officer. Just behind the van was Miskella in an unmarked Honda Pilot.
With two of the officers aiming rifles at the BMW, Tiger reversed the BMW after Chahouati pulled the van “nose to nose” with it, and Miskella said Tiger rammed the BMW through a space between parked cars in the lot and the van, striking the van hard enough to force the door shut.
Chahouati dove into the van, his attorneys said, while Miskella stayed standing in the path of the BMW. Miskella said he did n’t see Chahouati, or the other officers, but he was “singularly focused” on Tiger.
“I was in shock and disbelief,” Miskella said on the stand. “And in my mind, I was wondering where is he going to go, because he’s not going to be able to fit that BMW between the van and the other parked cars,” the sergeant said.
“At one point I moved to get out of the way, and Rico starts driving toward me,” Miskella said. “It seemed like he was accelerating.”
Miskella said he had nowhere else to go but to backpedal to his right, as he fired three rounds, and he bumped into the side panel of the Pilot.
“I hit the Pilot so hard it caused a dent in it,” he said. He said that’s where he fired his final two rounds, with the BMW coming at him before it sped out of the lot.
Scott Roder, an evidence specialist for the plaintiffs, said that based on shell casing locations from the AR-15 and bullet entrance points on the BMW, he thinks Miskella fired his final two shots — likely one of the fatal ones — from the rear of the Honda Pilot, near its passenger side.
“I can’t tell you what Miskella, what was going on in his head, but what I can tell you is what he did. And what he did was as the car passed by, he shot through the window as the car passed by, when he wasn’t in any danger,” Roder said.
Judge Nathanael Cousins struck that comment from the record and directed the jury to ignore that statement, because Roder is not a police practices expert, he said.
Roder said two of Miskella’s shots went into the hood, one from essentially straight on, one slightly from an angle, and the third from a slightly sharper angle, which went through the windshield and lodged in the BMW’s console.
The fourth shot went toward the side of the vehicle from a roughly 78-degree angle, and the fifth shot entered the car through the open driver-side window, and came in at 90 degrees, Roder said.
Hernandez, who was standing near the rear passenger side of the minivan, fired two shots into the rear of the BMW. Neither of Hernandez’s shots hit any of the car’s occupants, Roder said.
Fremont Police Department policies — along with most police departments — strongly discourage officers from firing their guns at moving vehicles, because it is “rarely effective,” and they should try to avoid the car unless there is an “imminent threat” to their safety.
“When feasible, officers should take reasonable steps to move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants,” the policy says.
Adante Pointer, an attorney for Mondragon’s family, said in his opening statements Wednesday that the actions of the officers, including the shooting into a moving car from a position of cover, and failing to set their body-worn cameras to record, amount to an “abuse of police power” that led to Mondragon’s death.
“When they fail to follow these rules of engagement, people get hurt, people get killed,” Pointer said. “That’s exactly what happened here.”