A San Diego federal judge on Thursday dismissed two lawsuits over an El Cajon police officer’s controversial shooting of a black man in 2016 that sparked numerous street protests.

The judge granted a request by the city of El Cajon and Officer Richard Gonsalves for summary judgment, or dismissal, of the cases filed by Alfred Olango’s wife and father.

However, the judge was not without criticism of the officer’s use of deadly force.

“The Court has grave concerns about how the officers handled this situation in its totality,” U.S. District Court Judge Cynthia Bashant wrote. “Olango had not put anyone in danger but himself.”


Olango, 38, was fatally shot by Gonsalves on Sept. 27, 2016, after Olango’s sister, Lucy Olango, called police for help with her mentally distraught brother.

Alfred Olango (Courtesy of family)

The last moments of the encounter between Alfred Olango, Gonsalves and Officer Josh McDaniel in a taco shop parking lot at Broadway and Mollison Avenue were caught on surveillance cameras.

Footage showed the officers closing in on Olango, who then raised his two hands together, shoulder high, clutching a silver vaping device. His legs were spread in what authorities called a “shooting stance.”


The officers have said they believed he held a gun. McDaniel fired his Taser while Gonsalves fired four rounds from his gun, hitting Olango in the chest, upper back, neck and arm. Olango died in the hospital from massive bleeding.

The shooting sent hundreds of protesters into the streets for weeks, with calls for justice and firing of the officers. The District Attorney’s Office found the shooting justified.

Olango’s death came in the wake of a string of police shootings of black men, including Michael Brown in Ferguson, Mo., and Alton Sterling in Baton Rouge, La. The Black Lives Matter movement voiced concerns, as did the Rev. Al Sharpton’s National Action Network.

In her ruling on the local case, the judge found that Gonsalves may have used excessive force, but is entitled to qualified immunity against civil damages since he was not on notice that his conduct would clearly violate any law under the Constitution.


She also found that the officer did not fire the fatal rounds in deliberate indifference to Fourteenth Amendment rights of due process.

“The evidence only shows the shooting was done due to a belief of necessary self-defense, a legitimate law enforcement objective,” Bashant wrote.

The cases filed by Olango’s wife, Taina Rozier, and his father, Richard Olango Abuka, were consolidated in federal court.

Protesters faced off with El Cajon police and sheriff’s deputies after the 2016 fatal police shooting of Alfred Olango. (John Gibbins/San Diego Union-Tribune)


Both plaintiffs originally sued both Gonsalves and the city of El Cajon, but the judge dismissed Abuka’s case against the city in 2017.

Her ruling has no effect on separate lawsuits filed by Rozier and Abuka in San Diego Superior Court. Rozier’s attorney, Brian T. Dunn, said she has a state court trial date in June.

“We’re not surprised by the ruling (today),” Dunn said. “It’s a unique situation. We’re confident we will have justice in the state action.”

Olango’s sister also has filed suit in Superior Court against Gonsalves and the city. Her attorney, Dan Gilleon, said “the case is strong” and has a June 14 trial date.


David Richards, a senior management analyst in the El Cajon city manager’s office, said the district court ruling is significant.

“Today’s order ended both federal cases against both Gonsalves and the City,” Richards said in an email. “The court found that Gonsalves was immune from suit in this case.”

Shane Harris, a local activist who organized many of the shooting protests and called for prosecution of the officers, said Thursday that he was upset over dismissal of the federal lawsuits.

“What happened to Alfred Olango was egregious,” said Harris, founder and president of the People’s Alliance for Justice. “I think the officer who killed him made a misstep. The family was denied criminal justice. That does not mean the family should be denied civil justice.”


Harris said he was in Sacramento, speaking with Democratic Party leaders about the need to press for passage of Assembly Bill 392, which would re-define and raise the legal standards for police use of lethal force.

On the afternoon of the shooting, Lucy Olango called El Cajon police three times seeking help for her brother. He was acting erratically, she said, and appeared to be suffering a mental breakdown.

Family members later said Olango, a Ugandan refugee who had lived in the United States since 1991, was distraught over the recent suicide of a best friend.

On the second anniversary of his son’s death, Abuka said he believed the killing was racially motivated and that police training should be changed to prevent similar shootings.


“Why is it one police officer used a Taser and the other police officer used a gun?” he asked.

Taina Rozier, left, wife of Alfred Olango, and daughter Charé Rozier at a 2016 news conference (K.C. Alfred)

In her ruling on Thursday, the judge expressed her concerns over the shooting, noting that Olango had not injured or threatened anyone, or committed any crimes. Some motorists called police about a man running in traffic, but Olango was behind a taco shop when Gonsalves showed up, followed by McDaniel.

The judge recounted a number of things the officers failed to do: form a plan to help Olango, de-escalate the situation, or call for a Psychiatric Emergency Response Team clinician to help assess Olango’s needs.


“Instead, the officers separated and went to look for Olango,” Bashant said in her ruling.

She said the officers knew from the dispatched radio call that they were looking for a “5150,” police code for the mentally ill. When they saw Olango, he paced back and forth and ignored their commands to take his hands out of his pockets.

“Olango’s perceptible mental instability should have given the officers pause in determining how to handle the situation,” the judge said.

“Gonsalves could have waited until McDaniel, who had a Taser, arrived, considering Gonsalves knew he did not have nonlethal weapons on his person. Gonsalves did not do this, but instead approached Olango alone.”


The officer yelled for Olango to show his hands, but never verbally warned Olango that he might shoot, the judge noted.

Bashant said those facts alone weigh in favor of finding that the officer used excessive force.

But, she added, “the most important factor is whether Olango posed an immediate threat to the safety of the officer.”

She found that Gonsalves could have reasonably believed Olango was armed at that time and so he lawfully used deadly force against a perceived threat.


Bashant disagreed with the family’s claim that the officer should have known the difference between a gun and a vaping device, which had a cylinder mouthpiece on one end.

“Plaintiffs are incorrectly imposing a perfect 20/20 hindsight onto Gonsalves’s decision by asking him to have noticed small details in the moment,” she wrote.


pauline.repard@sduniontribune.com

Twitter: @pdrepard