Their dad was run over by a police officer. Settling a lawsuit will cost Fresno $675,000

Jan. 06--The city of Fresno has agreed to pay $675,000 to settle a civil rights lawsuit over a case in which a Fresno police officer ran over and killed a bicyclist who was fleeing from a traffic stop in August 2013.

The settlement in U.S. District Court in Fresno means the city admits no wrongdoing or liability in the death of Angel Toscano, 39, of Fresno. In court papers, the city contends Toscano's death was an accident; that Toscano fell in front of a patrol car and Officer James Lyon was unable to avoid hitting him.

But a lawyer for Toscano's family said Friday that if the case had gone to trial, the evidence would have shown that Lyon intentionally bumped the rear wheel of Toscano's bicycle, causing him to fall. Lyon then ran over Toscano, killing him.

"The family wanted vindication for an egregious act," Fresno attorney Andrew B. Jones, who represents four of Toscano's six children, said Friday. Toscano's two other children are represented by Visalia attorney John Rozier.

The settlement will be divided by the six children and their attorneys upon approval from the court, which is scheduled to happen later this month, Jones said.

Police Chief Jerry Dyer said an investigation by the department's accident reconstruction unit, which had assistance from the California Highway Patrol, determined that Lyon "did not intentionally strike Mr. Toscano's bicycle and that this was an unfortunate vehicle accident resulting in the tragic loss of life."

Lyon was pursuing Toscano through an alleyway when Toscano suddenly fell off of his bicycle in front of the patrol car, the chief said. Lyon attempted to stop his vehicle "but due to the loose gravel he was not able to and unintentionally struck Toscano," he said.

If the settlement is approved in court, Dyer said, the funds would come from the Police Department's budget, or from a risk management fund that can be utilized to pay for settlements.

Lyon is still employed with the department, he said.

The payout is the latest in a long string of civil rights lawsuits facing the Fresno Police Department over allegations of excessive force and wrongful death.

In November, the city agreed to pay $2.2 million to settle a civil rights lawsuit filed by the parents of a Fresno man who was fatally shot by police in June 2012.

Jaime Reyes Jr., 28, was shot while climbing a fence at Aynesworth Elementary School in southeast Fresno.

If the lawsuit had gone to trial, the evidence would have shown that Officer Juan Avila shot Reyes near the top of the fence. Once Reyes toppled to the ground, Avila shot him three more times in the back as he lay wounded, face down on the ground, court documents say.

On the horizon, the city will have to deal with wrongful death, civil rights lawsuits against the Fresno Police Department filed by the families of Dylan Noble, Joseph Ma, Freddy Centeno, and Casimero "Shane" Casilla, to name several.

The Toscano lawsuit was filed in December 2013. Jones said the case proved to have merit when U.S. Magistrate Judge Stanley A. Boone ruled in July 2015 that a jury should decide whether Toscano's civil rights were violated.

In his ruling, Boone wrote the undisputed facts:

Around 7:30 p.m. Aug. 23, 2013, Lyon and Officer Kenneth Webb attempted a traffic stop of Toscano and another bicyclist near Princeton and Glenn avenues, a neighborhood south of Shields Avenue and west of Blackstone Avenue. The two bicyclists were suspected of riding on the wrong side of the road and running a stop sign.

While Webb got out of the patrol car to detain one bicyclist, Toscano took off, prompting Lyon to give chase in his patrol car.

Lyon chased Toscano on Glenn Avenue and then down an alley, reaching speeds of about 45 mph.

"The patrol car fishtailed into the alley, still going a little fast; there was a really loud revving sound as the patrol car went down the alley," Boone's ruling says.

During the chase, Lyon forgot to activate his lights and siren. In his deposition, Lyon testified "that he nearly always chases cyclists without use of lights or siren," the ruling says.

In the alley, Lyon saw Toscano getting tired because his right foot kept slipping off the pedal and he was holding one hand against his chest.

"As the pursuit ensued, officer Lyon realized his vehicle posed a danger to (Toscano)," the ruling says.

Lyon was going less than 20 mph when he struck Toscano's bicycle. Once Toscano fell, attorney Jones said, he suspects Lyon accidentally hit the gas pedal instead of the brake pedal, and ran over Toscano. Toscano died at the scene from multiple injuries including to his head.

The investigating officer, Detective Brian Hance of the Fresno Police Department, "found no evidence any braking before impact," the ruling says.

Lyon told investigators that striking a bicycle with a patrol car would violate department policy. He also admitted that striking someone with a patrol car would constitute deadly force.

In the final analysis, Hance concluded that Lyon "was the primary collision factor for this accident," Boone's ruling says. Hance turned over his investigation to the District Attorney's Office "for possible prosecution for vehicular manslaughter," the ruling says. Court records show Lyon was never charged in Toscano's death.

Dyer said policy requires that police officers use emergency lights and siren when necessary when they are in pursuit of a motor vehicle, but not when they are following someone and are able to comply with traffic laws.

"This was a unique situation involving an officer's attempt to detain a bicyclist who was failing to stop when requested by the officer," Dyer said, noting that he could not disclose corrective measures that were taken against Lyon because of employee confidentiality laws.

At the time of his death, Toscano was a felon on probation and doing odd jobs to support his family, Jones said. If the case had gone to trial, jurors likely would not have been told of Toscano's criminal past because it would have been prejudicial, Jones said. In addition, Toscano's past wasn't relevant, Jones said, because Lyon didn't know the identity of bicyclist until after he was run over.

In his ruling, Boone said lawyers for Toscano's children met their burden for the case to go to trial. The judge noted that an expert hired by the plaintiffs said Toscano's bicycle was upright at approximately 90 degrees when it was bumped by the patrol car. Boone also said the court "may not simply accept what may be a self-serving account by the officer," the lone witness to the collision.

"The disputed issue of whether the decedent was struck by the patrol vehicle when it accidentally fell over or if defendant Lyon intentionally bumped the bicycle is for the trier of fact to decide," the judge said. "A triable issue of fact exists as to whether this was an accident or whether defendant Lyon had an intent to harm the decedent by intentionally striking his bicycle with the patrol vehicle."

More than a year after the ruling, the case had been at a standstill because the city appealed Boone's decision to the U.S. Court of Appeals for the 9th Circuit in San Francisco. While the appeal was pending, Jones said, it took about six months to negotiate the settlement.

"It was a fair resolution because my client's primary goal was to get vindication," he said.

Pablo Lopez: 559-441-6434, @beecourts

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