Paso Robles man died in ‘hail of bullets’ from deputies’ excessive force, lawsuit says
The wife of a North County man shot to death by sheriff’s deputies on the side of Highway 101 in January 2017 claims in a lawsuit that the officers used unnecessary deadly force.
But in a response filed last week, the county claims that Josue Gallardo pulled a gun during a traffic stop and that the deputies had a legitimate fear for their safety.
The District Attorney’s Office in June 2017 found the shooting was lawful, Assistant District Attorney Eric Dobroth said by email Tuesday.
“There is clear evidence in this case that Mr. Gallardo pulled out a gun and swung it toward the deputies,” County Counsel Rita Neal told The Tribune on Wednesday.
The San Luis Obispo County Sheriff’s Office has not released audio or video footage of the shooting. But the county says it will provide edited footage of the shooting to The Tribune within the next 30 days in response to a public records request filed since laws regarding public access to confidential law enforcement records loosened at the beginning of January.
Redacted copies of about 400 pages of records related to the incident will take about six months to be released to The Tribune, the County Counsel’s Office said last week.
Valued member of society
A GoFundMe page set up for his funeral expenses has since gone inactive, but the page called Gallardo, who was nicknamed Josh, “a loving father, husband, son and brother.”
“Anyone that genuinely knew Josh will always remember his great happy personality and hard-working ethic,” the page read. “He will be missed by many.”
According to Sheriff’s Office news releases at the time, Gallardo, 34, was pulled over by Senior Deputy Greg Roach and Deputy Jonathan Calvert on Highway 101 in Atascadero near the Santa Barbara Road exit early on the morning of Jan. 24, 2017.
Gallardo — who the county’s news release claimed was a transient and wanted on a warrant for a June 2016 domestic violence incident — pulled a gun on the deputies, who “fired shots then retreated,” the Sheriff’s Office said at the time.
After backup arrived, Gallardo was found dead inside the vehicle, a news release said.
The Sheriff’s Office hasn’t specified how many shots were fired, and until its court response Friday, hadn’t explained how the shooting allegedly transpired.
Frances Gallardo, Josue Gallardo’s widow, names the county, Sheriff’s Office, Sheriff Ian Parkinson and deputies Roach and Calvert in her lawsuit filed in federal court in November, alleging each violated Gallardo’s civil rights, used excessive force, unreasonable search and seizure, and denied him medical care and due process, as well as other allegations.
The end result, the complaint reads, was Gallardo “dying in a hail of bullets.”
According to the lawsuit, after pulling him over, the deputies “aggressively approached Mr. Gallardo with their service weapons drawn and aimed at Mr. Gallardo,” who was seated in the driver’s seat and “complying with every command.”
The complaint states that Calvert approached the driver’s side window and “immediately determined that Mr. Gallardo did not present an immediate threat,” evidenced by Calvert holstering his service weapon. It was at this time that Roach “unlawfully, improperly, and maliciously” discharged several rounds into Gallardo.
“The lack of warning or justification for these shots are evinced by the fact that Deputy Roach’s shots almost struck his partner, Deputy Calvert, in the process, who was positioned next to Gallardo at the time Deputy Roach fired his service weapon,” the complaint reads.
Roach’s shooting caused Calvert to draw his weapon and also fire multiple rounds into Gallardo, the lawsuit says.
The lawsuit does not specifically claim whether Gallardo pulled or was in possession of a gun. Attorneys Justin Sterling and Erin Darling, who filed the lawsuit on behalf of Frances Gallardo, were in trial when contacted Wednesday and not immediately available to comment.
Gallardo’s widow claims both deputies personally knew Gallardo and that he was “a non-violent individual who was battling depression and suicidal ideation for sometime.”
Moreover, Gallardo was “a valued and gainfully employed member of society” and not a violent transient, as the Sheriff’s Office’s news releases “heartlessly and dishonestly” stated, the lawsuit claims.
In her complaint, Frances Gallardo seeks an unspecified amount of general, special and punitive damages, as well as attorney’s fees. Josue Gallardo is survived by his wife and two children.
‘I don’t want to kill you’
In its response to the lawsuit filed in federal court Friday, the county’s outside legal counsel said most of the claims had no merit and that the defendants didn’t violate Gallardo’s rights.
Specifically, the county claims the traffic stop was lawfully conducted because Gallardo had an outstanding arrest warrant, and that contrary to the lawsuit, Gallardo “appeared to be knowingly and intentionally disobeying” the deputies’ commands.
“The decedent did not comply with Deputy Calvert’s commands, and instead aimed what was believed to be a loaded handgun at Deputy Calvert that the decedent was hiding, while the decedent sat in the driver’s seat of his vehicle,” the county’s response reads.
When deputies walked up to his vehicle, according to the county’s version of events, Gallardo said to them, “I want you to shoot me. I want you to kill me.”
The response states that Calvert told him, “I don’t want to kill you” and “I don’t know you.”
During the interaction, the county’s response said, Roach, who was on the passenger side of the vehicle, “saw decedent’s hand move down and toward his right pocket.”
“With the aid of his flashlight, Deputy Roach could clearly see decedent’s lower torso area, and saw him reach into his pocket and pull out a gun,” the response says. “He saw decedent swing the gun up and across his body toward the driver’s door, and it appeared the decedent was about to shoot Deputy Calvert.”
It continues: “Deputy Calvert heard Deputy Roach yell, ‘Gun!’ Deputy Roach began firing into the car to protect the life of another. Deputy Calvert saw the driver’s door opening, heard Roach firing, and he began firing into decedent’s car to protect his life.”
The county said it is without sufficient facts to dispute whether its news releases incorrectly described Gallardo as a transient.
In its defense, the county argues that Gallardo assumed risk by his own actions, that there was probable cause to stop Gallardo, and that the individual defendants enjoy qualified and absolute immunity because their actions were “objectively reasonable and performed in good faith.”
The civil case is slated for a scheduling hearing in U.S. District Court in Los Angeles on March 4, according to court records.
This story was originally published January 30, 2019 at 3:16 PM.
