Fatal Fremont police shooting trial awaiting jury verdict

SAN JOSE — Elena “Ebbie” Mondragon will never again open the door to her mother’s home, be part of another Christmas celebration, or hug her sister or other family members.

The 16-year-old from Antioch, who was fatally shot by Fremont police during a covert operation that went awry more than five years ago, will never get to see her unborn child, an attorney for her family said Wednesday during closing arguments in a civil rights trial over the shooting.

Adante Pointer, the family’s attorney, highlighted to the seven-member federal court jury the suffering Mondragon experienced the day she was shot and in the hours before her death, as well as the loss that her family continues to carry.

“She told the surgeons, she told the hospital, she was having a hard time breathing. She was conscious and aware,” Pointer said.

“Ebbie, for over two, close to three hours, refused to give up her life,” Pointer said.

Mondragon was one of four people in a stolen BMW driven by 19-year-old Rico Tiger, which special task force police officers had tracked to a Hayward apartment complex on March 14, 2017.

Fremont Sgt. Jeremy Miskella, and officers Ghailan Chahouati and Joel Hernandez were part of the task force who planned to use undercover police vehicles to box in Tiger, who was wanted on suspicion of multiple violent armed robberies around the Bay Area, in the complex parking lot.

But their plan was delayed by another car driving into the lot before they could pin in Tiger’s BMW.

They tried to block Tiger in anyway, and with rifles pointed at him, Tiger reversed the car, then accelerated toward officers into a tight space between an unmarked police minivan and other parked cars under a carport. Two of the officers, Miskella and Hernandez, fired on the car.

Mondragon suffered multiple wounds, including from bullets and shrapnel, medical reports said, and Tiger, who was not struck, soon crashed the BMW and fled on foot. He was later arrested in San Francisco, according to an Alameda County District Attorney’s report on the shooting. Mondragon was taken to a hospital.

“She did not accept her fate, from the crash scene to the hospital, until she was on the surgery table. She continued to fight for her life,” Pointer said.

As Pointer spoke, Mondragon’s mother, Michelle Mondragon, began sobbing and was embraced by one of her attorneys, Melissa Nold, nearing the end of an emotional case that spanned about five days.

Patrick Moriarty, an attorney for the officers, emphasized to the jury that despite the emotional nature of the case, they must focus on only the evidence when deciding whether the officers used excessive force and were negligent when they killed Mondragon, as her family has claimed.

“Ms. Mondragon lost her daughter; she died. She is no longer with us. That is going to make you feel sad,” Moriarty said.

“Unfortunately, that sadness, that emotion, that sympathy, that cannot be a part of your decision,” he said.

The jury began deliberations late Wednesday afternoon after hearing closing arguments from attorneys both parties though it’s unclear when a verdict will be ready.

He said the evidence doesn’t support the family’s case.

A key point of contention in the case is where Miskella was standing when he fired the last two of his five total rounds.

As Tiger drove toward officers, Chahouati said he dove into the front seat of the minivan to avoid the car.

Miskella fired three AR-15 rifle shots into the BMW’s hood and windshield, and then began to run backwards and into his undercover Honda Pilot, denting it, where he fired two more shots, including the one that likely caused Mondragon’s death, his attorneys said.

Miskella testified he thought he would be killed and that Tiger was driving the car right at him.

Pointer disagreed.

“Officer Miskella was standing out of the path of the car, behind cover and out of danger, when he popped off at least those two shots. The car was at least passing him by or was past his position,” Pointer said Wednesday.

An evidence expert for the plaintiffs, Scott Roder, testified earlier in the case that based on the bullet entrance paths and the location of the spent shell casings, Miskella was behind the rear of his Pilot, and shot his last two shots as the BMW passed him.

Fremont police policy heavily discourages shooting into moving vehicles because it’s “rarely effective” and says officers shouldn’t shoot if there is no “imminent threat” to their lives or the lives of others.

Hernandez, who had moved to near the rear passenger side of the minivan, fired two shots into the back of the BMW, saying he thought Chahouati had been killed by the BMW, and that the car was headed toward Miskella. Neither of Hernandez’s shots hit any of the car’s occupants, Roder said previously.

Alvin Lowi, a vehicular accident re-creation specialist for the defense, countered Roder, saying earlier in the case that based on the speed of the BMW, Miskella couldn’t be moving fast enough to get to a position of cover and then fire into the open window of the car.

Both attorneys told the jury to use “common sense” when evaluating the disputed facts of the case.

“We know, listening to the evidence at trial, that young Ebbie, 16-year-old Ebbie, was shot in her side and that the bullet went left to right. How does that take place unless you’re at least even with, or slightly off-kilter to the car?” Pointer said.

“There isn’t enough time. It just can’t happen as they claim,” Moriarty said in response.

There is no video evidence of the shooting, attorneys said. Pointer compared the various reasons some officers gave for not activating body cameras to record or not having them on their person that tragic day to “my dog ate my homework.”

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Moriarty told the jury focusing on the body cameras was an “emotional plea to get you upset.”

“This was not a botched plan,” Moriarty said, referring to how Pointer described the police operation. “It was changed circumstances. Changed circumstances are the norm in these operations, that they are fluid operations,” he said.

“These are good cops. The type of officers that will put themselves in harm’s way,” Moriarty said.

“The plaintiff tried to make them look bad,” he said.

Pointer told the jury that good people can make mistakes, and the case is simple.

“Two officers fired their guns when they should not have,” Pointer said.

“Essentially, they told you ‘We did everything right,’ ” he said of the officers. “There is no criticism of their plan, there is no criticism of their performance. That this is just something that they can wipe their hands clean of.”

“That the blood they spilled, that the blood on their hands is nothing that they can be held accountable for.”