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$600,000 Settlement in California Prisoner Shooting Death

$600,000 Settlement In California Prisoner Shooting Death

by Marvin Mentor

California Department of Corrections (CDC) officials settled a wrongful death complaint for $600,000 brought by the survivors of Octavio Orozco, a prisoner at Pleasant Valley State Prison (PVSP) in Coalinga, who was killed by a single shot to the head by guard Bruce Brumana in the PVSP dining hall on May 7, 1998.

Twenty-three year-old Octavio Orozco was serving a nine year prison term for drug sales. One of seven children, Octavio had been involved in juvenile offenses beginning at age 13, eventually worsening to drug dealing and membership in the West Los Angeles 18th Street Gang. In 1995, his past history of diversions and probation came to an end when he was sent to state prison. After coming to prison, he married the mother of his infant daughter and began a program to turn his life around. But the gang and racially charged atmosphere of PVSP proved to be a barrier from which he was never able to free himself.

At the 6 p.m. meal, Bushawn Todd, an African-American prisoner with a known temper, got into a brief argument with Southern Mexican Jose Diaz. Seating at the PVSP dining hall is with whomever you are next to in line. As it turned out, Diaz and Todd were seated close together. When Todd got up to leave with the rest of his row, he observed Diaz "mad-dogging" him with menacing looks. Todd, surrounded by Southern Mexicans, slammed his tray on the table to announce his plight. Diaz ran towards him, and the fight was on.

Three guards Kuhn, Breshears and Love, were working the dining hall floor. Guard Brumana was the dining hall gunner. That much is clear, but the stories of "what happened," however, are murky and steeped in self-serving variations and uncertainties intended to protect the guards from liability.

Brumana's first account (he later took the Fifth Amendment), given to Sheriff's Department and CDC investigators, was that he saw Todd being attacked by prisoners Diaz and Acuna. As Brumana reached for his gun, Todd went to the ground and Orozco entered the fray. All three Mexican prisoners were kicking Todd on the head and upper body threatening his life. Orozco kicked Todd twice in the upper body or head, and Brumana stopped Orozco's third kick in mid swing by shooting him in the head.

Guard Kuhn saw Orozco from the rear, on the perimeter of the fight, "trying to get to the center." Observing Brumana's gun and stepping out of the line of fire, he witnessed Orozco get shot, blood and brains spattering on the wall and floor. "Orozco stepped back, fell to his knees and rolled onto his side." Todd and Diaz were on the ground, still fighting. Kuhn saw nothing to justify use of lethal force.

Breshear's recollection was vague. He couldn't tell who was in the fight. Love wrote that after hearing the tray slam, he went to the fight. Orozco's body lay 10 feet from where Todd and Diaz were on the floor, fighting. Later, he, too, said Orozco was in the fight but this was inconsistent with his placement of Orozco's body.

Guard Lawton came in and observed Orozco's body 10-15 feet from where Diaz and Todd fought. Sergeant Twyman came in before the shot, and placed Orozco away from the fight. Prisoners Todd and Diaz testified that Orozco was not in the fight. But the strongest evidence was the blood spatter evidence showing Orozco was shot 10 feet away from the fight.

An undercurrent through months of ensuing investigations, Shooting Review Boards and top-level CDC meetings was the effect guards' union (CCPOA) attorney Christopher Howard allegedly had on influencing the outcome of the investigations. During the hours and days following the shooting, Howard obtained copies of Brumana's report and showed it to other guards so that they could corroborate each other. At one point, Captain Ward caught Howard with the guards' reports, then reported missing from Lt. Smith's desk, and got into a fight over possession of them, literally throwing each other to the ground. Howard complained later to CDC Internal Affairs as to how he was manhandled. In sum, by the time all was said and done, no one except Brumana saw Orozco being shot.

In their Settlement statement, Orozco's family contended that Brumana lied when he said Todd was on the ground, being kicked by Diaz, Acuna and Orozco. No other guard ever saw this. Breshears said the fighters were all standing. Kuhn saw them standing, and saw Orozco get shot while standing. The Shooting Review Boards found that Brumana was lying.

The Settlement statement further alleged that the shooting was in plain violation of established shooting policy. Brumana was supposed to first use a non lethal .37 mm. wooden block gun but he did not. Nor was he trained on how to use this weapon in the dining hall, filled with tables. Finally, expert testimony was offered to show that police, when shooting at moving targets, hit their aim only 16-17% of the time. Therefore, it was gross negligence to fire a live round at a moving target in an occupied dining hall. [Editor's Note: That Brumana was able to hit a moving target, in the head, from a distance, in a dining hall filled with people with one shot would seem to counter this claim.]

Orozco's family's prayer was for $900,000 plus $205,000 fees and costs for plaintiffs' attorneys Catherine Campbell of Fresno and Robert Navarro of Cloverdale. The settlement of $600,000, inclusive of attorney fees, was reached on January 23, 2003. See: Orozco v. Terhune, U.S.D.C. (E.D. Cal.) Case No. F-99-5489 AWI LJO, Plaintiff's Settlement Conference Statement, Aug. 3, 2000.

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Related legal case

Orozco v. Terhune