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A father of four children under the age of 7 was shot less than a second after a police officer ordered him to raise his hands, the 9th U.S. Circuit Court of Appeals in San Francisco has found.

In December 2011, Osvaldo Villarreal, a Tustin police officer, was called to a domestic dispute involving 31-year-old Benny Herrarea. Villarreal commanded Herrera to take his hand out of his pocket and then fatally shot the young father.

Herrera’s parents and his children filed a lawsuit against the police officer and the City of Tustin in 2012. But it was determined in 2013 that the shooting was “reasonable and justified” because Herrera “ignored orders” to reveal his hands.

A Dashcam Video Proves Otherwise

The decision has since been overruled after the police officer’s own dashboard camera revealed that there was less than a second between Villarreal commanding Herrera to reveal his hands and firing two shots. As the 9th U.S. Circuit Court of Appeals noted, the command and the rapid shots were “almost simultaneous”.

This new ruling allows the wrongful death lawsuit to proceed.

Understanding Who Can File a Wrongful Death Claim

Not everyone can file a wrongful death claim here in California. Those who can file a wrongful death claim include:

  • The surviving spouse or domestic partner of the deceased
  • The surviving children of the deceased
  • Anyone who may be entitled to the property of the deceased if there is no surviving person in the deceased victim’s line of descent (for example, the deceased victim’s parents or siblings)
  • Parties who can prove that they were financially dependent on the deceased may also be able to proceed with a wrongful death claim. These parties include stepchildren, parents, a common law/putative spouse and the common law/putative spouse’s children.

Damages which a victim’s loved ones are entitled to are not limited to only funeral and burial expenses. Other compensatory damages include:

  • Any hospital and medical bills related to the deceased victim’s injury or illness
  • Any lost income (this includes future potential income)
  • The loss of household services
  • The loss of companionship, love, moral support, community and guidance

Filing a Wrongful Death Claim

The state of California requires loved ones to file a wrongful death claim within 2 years of the date of death. Redkey Gordon Law Corp provides clients with on-going compassionate guidance and legal support during the wrongful death claim process.

If the life of a loved one has been lost because of the negligence of another, we can help. Call us today for a complimentary consultation at (209) 267-1685.

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