Did a San Diego police officer change his story about what led him to shoot a domestic violence suspect during a struggle five years ago?

A civil trial that began in San Diego federal court Tuesday largely hinges on that question, attorneys for both sides told the jury in opening statements.

The suspect’s widow, Shakina Ortega, and her two children are suing the Police Department and Officer Jonathan McCarthy on claims of wrongful death, assault and battery.

The family’s attorney said the death was unnecessary and unreasonable, while the city’s attorney said the officer had to defend himself.


The incident began on June 4, 2012, when the wife called 911 reporting her husband, Victor Ortega, had beaten her. McCarthy chased Ortega as he ran from the home, and the two struggled in a narrow breezeway in a condominium complex in Mira Mesa.

At some point, McCarthy’s small backup gun came loose from his ankle holster and ended up near Ortega’s head. Moments later, the officer fired two shots, one striking Ortega in the neck and killing him.

Shortly after, McCarthy told his sergeant what had happened, and the sergeant then repeated that to a group of investigators who had gathered at the scene. The sergeant told them that McCarthy had said Ortega had picked up the backup gun and aimed it at the officer, prompting the officer to fire from his primary weapon.

But at the police station later, McCarthy gave a full statement and said Ortega had reached for the backup gun, even touching it, but the officer was able to bat it away. They struggled more, and the officer, who had taken his Taser out, decided to put his Taser away and instead pull out his primary gun. Ortega lunged for that gun and the officer fired.


Which version, if any, is correct?

“You’ll have to determine some credibility issues,” the Ortega family’s lawyer, Paul Pfingst, told the jury.

Sgt. Alan Karsh testified that he and McCarthy spoke about the incident right after giving Ortega CPR, both of them covered in blood. He said he kept telling McCarthy not to explain the whole story, because it wasn’t the sergeant’s job to investigate the incident, only to handle any outstanding public safety issues, such as in what direction the shots were fired.

But he said McCarthy kept wanting to tell him what happened.


A day or so after the shooting, a homicide investigator asked Karsh to again write down what McCarthy had told him, and the supplementary report was the same as before — that Ortega had aimed the backup gun at McCarthy.

Karsh testified that, in reflection, he told the investigators “what I assumed I had heard.” He said McCarthy told him that the two were fighting over his gun and, in the sergeant’s mind, that meant Ortega had picked it up and aimed it at McCarthy.

“It turned out I was wrong,” Karsh testified.

But when questioned by Pfingst about his memory of the conversation with McCarthy, Karsh acknowledged that he does not remember now what McCarthy told him.


Deputy City Attorney Keith Phillips said in his opening statements that despite Karsh’s comments, the statements McCarthy has given in the case “never changed.”

“It’s not lying. It’s not covering up,” Phillips said.

The case is expected to reach the jury by Friday.


kristina.davis@sduniontribune.com

Twitter: @kristinadavis