SOUTHAVEN, Miss. - Ismael Rodriguez Lopez was shot in the back of the head inside his home in July 2017 after police in a Mississippi suburb of Memphis went to the wrong home looking for an assault suspect.
Now an attorney for the city of Southaven is arguing that Lopez’s family’s $20 million federal lawsuit should be thrown out because the 41-year-old Lopez, who was in the country illegally and had a criminal record, had no constitutional protections.
“If he ever had Fourth Amendment or 14th Amendment civil rights, they were lost by his own conduct and misconduct,” attorney Katherine Kerby wrote in a Sept. 4 motion. “Ismael Lopez may have been a person on American soil, but he was not one of the ‘We, the People of the United States’ entitled to the civil rights invoked in this lawsuit.”
Lopez family attorney Murray Wells spoke out against the city’s motion during a news conference last month, according to CNN.
The city’s response to the lawsuit is “absolutely chilling,” Wells said.
“In an address to a federal judge in an open pleading in court, the city of Southaven has announced that it is their policy that if you are an undocumented resident of that city, you have no constitutional protections,” Wells said before pausing. “I’ll let that sink in.
“You have no right to constitutional protections, meaning that storm troopers can come into your house and kill you without regard to any constitutional results or repercussions whatsoever.”
Wells said the city’s position is in direct conflict with the U.S. Constitution, which guarantees through the Fourth Amendment a person’s protection against unreasonable search and seizure.
The 14th Amendment guarantees equal protection of the law to all citizens.
In the lawsuit, Wells argues that Lopez was denied his rights to freedom from unlawful seizure, freedom from the use of unjustified and excessive police force and freedom from the deprivation of his liberty without due process.
Read the lawsuit filed by Lopez’s family below, followed by the city’s Sept. 4 response.Ismael Lopez City Motion to... by National Content Desk on Scribd
Wells said he was shocked by the city’s response to the court filing. In a Fox News segment aired earlier this month, he argued that the 14th Amendment gives all people within the U.S., whether a citizen or not, the full protection of the Constitution.
“The Supreme Court has weighed on the issue over and over again and been very clear that it doesn’t matter if you’re here legally, illegally, documented, undocumented, when you’re on American soil, you get the full protection of constitutional rights,” Wells said.
Jenna Ellis Rives, a constitutional law attorney, said that while not all protections apply to undocumented immigrants, Lopez's immigration status appeared to not be an issue related to his death.
“I would agree that, certainly, his illegal status does not merit a direct dismissal of this case,” Ellis Rives said. “But we have to be very careful … to not say that illegal immigrants get all protections of the Constitution. We have to be very precise, because we know that anyone here who is not a citizen can be removed under immigration law.
“There are some protections of the Constitution that don’t apply, but in this specific instance, this person’s illegal status does not have any bearing on the case at hand. So this should be treated, constitutionally speaking, just as if this was someone who was visiting on a visa, just like this was a citizen, just like any other case in terms of a wrongful death sort of claim.”
Watch the Fox News segment below. The Lopez case is discussed about 24 minutes in.
According to a 305-page Mississippi Bureau of Investigation file into Lopez’s death, which was obtained in February by Fox13 in Memphis, Lopez had twice been deported to Mexico and had returned to the U.S. without permission.
CNN reported that multiple Supreme Court decisions, including a 1982 ruling on undocumented children’s right to a public school education, have found that undocumented immigrants have constitutional rights.
Kerby also pointed to Lopez’s criminal record, however. Lopez was charged with domestic violence and DUI in the 1990s in Washington state, records show.
“Federal civil rights are not civil rewards for violating the laws of the United States,” Kerby wrote in her motion.
John Champion, district attorney for the 17th Circuit Court District, said in July 2017 that Lopez had no outstanding warrants at the time of his death.
“He was not wanted for anything at all,” Champion said, according to Fox13.
Wells wrote a letter the following month to the Department of Justice, requesting an investigation into the actions of the officers involved in Lopez’s death, who were identified as Southaven police officers Zachary Durden and Samuel Maze. Sgt. Thomas Jones was also present at the scene. Read that letter below.
The MBI case file indicates that, while Durden ordered Lopez to drop the rifle the officers said he was holding, none of them identified themselves as police officers.
A Mississippi grand jury in July 2018 declined to file charges against Durden in Lopez’s death. Southaven’s police chief at the time, Steven Pirtle, issued a statement saying the grand jury’s decision closed the criminal investigation into the fatal encounter.
Pirtle said multiple agencies, including the MBI, the DeSoto County District Attorney’s Office, the FBI and the Department of Justice had cleared the officers.
“There have been inaccurate statements, inflammatory statements made about this incident that I would like to address, however, due to pending litigation, I am still not at liberty to discuss further at this juncture,” Pirtle said in his statement, according to Fox13. “This was a very tragic event. My condolences are still with his family, and my prayers are with all involved.”
The wrong address
Federal court records and MBI files show that Durden, Maze and Jones went to Surrey Lane the night of July 23, 2017, looking for Samuel Pearman, a man wanted in connection with an aggravated assault that took place outside a Citgo gas station in another county.
Instead of going to the single-family home at 5878 Surrey Lane, where Pearman was reportedly staying, they ended up banging on the door of Lopez’s mobile home across the street at 5881 Surrey Lane.
Jones, who was armed with a shotgun that night, told MBI agents that the officers did not see any visible address numbers on the home. Maze also said in his statement that he did not see any numbers on the mailboxes he looked at.
Photos taken by investigators after the shooting, however, show Lopez’s street number on the black mailbox in front of the mobile home where he was killed. The mailbox for the home the officers were looking for was right next to Lopez’s mailbox, the case file indicates.
Attorneys for Lopez’s family argue in the civil rights lawsuit that the officers should have been able to figure out which home was which.
“Officer Maze and Officer Durden were trained on which side of the street odd number and even number addresses are on in the City of Southaven,” the family’s lawsuit states.
The lawsuit also claims that Southaven police officers had been to both the Lopez and Pearman residences prior to the night of the shooting. Lopez and his adult son, Rudolpho Linares, had each reported property stolen from the home and yard, with one report dating back to 2008, according to the case file.
Southaven police officers also made prior contact with Lopez just four months before he was killed, when he reported finding a neighbor dead in her home. Lopez told investigators he was worried because no one had seen or heard from her for several days, so he forced the door open with a screwdriver and found her body.
Durden, who fired the shot that killed Lopez, said in his statement after the shooting that he was “doubtful about the address and decided to knock at the door with the thought that someone would answer the door and point them to the correct address,” the case file shows.
Lopez’s common-law wife, Claudia Linares, wrote in a witness statement, which was translated from Spanish to English, that she and her husband went to bed around 10 p.m., just after Lopez had talked to his mother on the phone. An unknown amount of time later, they awoke to the sound of their pit bull, Coco, barking.
Lopez went into the living room to find out why, while Linares looked out a bedroom window and saw police cars.
“Linares said that she yelled to her husband, letting him know that it was OK, it’s just the police,” a police report states.
A moment later, Linares said, she heard several gunshots. She ran into the living room to find her husband lying facedown on the floor and their dog barking in the doorway.
“Linares said that she ran to her husband’s body and yelled for the officers to help her,” the report says. “Linares said all she could see was the officers’ flashlights and them yelling at her to get her dog.
Linares put the dog in the master bedroom, where Maze later used pepper spray to subdue the animal as the officers cleared the home of additional threats, the case file shows. No one else was in the home when Lopez was killed.
The MBI case file states that Durden and Maze, who were armed with handguns, told investigators Lopez had brandished a rifle when he cracked open the door to see who was outside. Lopez’s dog ran out of the door at that time.
Maze fired his weapon at Coco, who he said lunged at him, while Durden fired four shots at Lopez.
A bullet struck him in the base of his skull, killing him.
State crime scene technicians found Lopez, hands cuffed behind his back, facedown in a puddle of blood. He was wearing red athletic shorts and a single Nike tennis shoe, the case file states.
His other shoe was found on the floor between his legs.
A Remington .22-caliber rifle was found in the mobile home, but according to a diagram in the investigative report, it was on the couch, several feet from where Lopez fell after being shot.
Lopez’s body was also about 14 feet from the front door, which crime scene investigators determined had been open no more than 3 inches when Lopez was shot.
They also determined that he had been shot through the door of his home.
“It is unknown if the door was open or closed when the projectile passed through it and struck the victim in the base of his skull,” the MBI report states.
A second diagram in the report shows four “projectile defects” caused by the bullets fired from Durden’s gun. Three of them were in the door and the fourth was in a wooden railing on the mobile home’s small wooden porch.
The angles of the shots indicate Durden was standing to the right of the doorway when he fired his gun.
The pathologist’s report indicated the shot that killed Lopez traveled back to front and at an upward angle.
Blood tests showed he tested positive for caffeine but no other substances. Neither his fingerprints nor his DNA were found on the rifle, according to the case file.
MBI Special Agent Jeris Davis wrote in his report that Lopez was shot as he fled into the interior of his home. Crime scene photos show the couch, with the rifle on it, to the left of Lopez’s body.
‘Errors that shouldn’t have been made’
A former law enforcement officer told Fox13 in February that the details of the case raise questions about any threat Lopez posed to the officers that night.
“It doesn’t take a lot in crime scene expertise or investigation to see that there is something not quite right with what I am looking at,” retired Deputy Mike Collins, formerly of the Shelby County Sheriff's Office, told the news station after reviewing the case file. “Why isn’t the weapon still in his hand if he posed a threat? Instead, it’s lying on the sofa that is at least 7 feet away from where he rested.”
In June, after the family’s lawsuit was filed, Collins told Fox13 the MBI findings should make the case an easy one for any judge.
“These are errors that shouldn’t have been made,” Collins said. “Training and protocol could have remedied this whole situation.”
All three Southaven police officers at the scene that night said they saw Lopez point the rifle at Durden before Durden, who had been with the department since 2015, opened fire.
Jones told MBI agents in his statement that a porch light was on as Durden knocked on the door. The light was turned off just before Lopez’s dog bolted out the mobile home’s door.
“Officer Durden activated his flashlight, which illuminated the door,” a summary of Jones’ statement reads. “Sgt. Jones could see a gun barrel extend out the door towards Officer Durden.”
Jones said that Durden ordered Lopez to drop the rifle several times as Maze fired a single shot at the pit bull. Durden then fired four rounds at Lopez.
After the shooting, Maze said, the officers retreated briefly for cover from any additional threats. They then went into the home and, after ensuring there were no other threats inside, began rendering first aid to Lopez, who he described as “breathing laboriously” as Maze handcuffed his hands behind his back.
Lopez died where he fell after being shot.
See the entire Mississippi Bureau of Investigation file on the Ismael Lopez shooting below. Warning: The document contains photocopied images of crime scene photos.
Pirtle, who retired as chief shortly after the shooting, said in July 2018 that Maze remained on the force. Durden left the force “to enter the private workforce,” Pirtle said.
Jones’ status was not immediately known.
Lopez’s family’s lawsuit states that the husband and father “feared for his life and his wife’s life upon seeing two unidentified large men dressed in all black (Maze and Durden) with guns drawn.”
He was trying to run to the bedroom to protect his wife when he was gunned down from behind, the suit states.
“As a direct and proximate result of the actions and/or omissions of defendants, Ismael Lopez was wrongfully killed, and his constitutional rights under the United States Constitution and the Mississippi Constitution were violated,” the lawsuit states.
The suit argues that Lopez’s death fit a pattern within the Southaven Police Department in which officials “permitted, encouraged, tolerated and ratified an official pattern, custom and practice by its officers of shooting first and asking questions later.”
The lawsuit seeks $8 million in compensatory damages and $12 million in punitive damages, as well as $25,000 in funeral and burial expenses.