Friends, family outraged as O.C. district attorney clears officer who shot, killed Hector Hernandez
For more than a year since Hector Hernandez was shot and killed by a police officer in his frontyard, his family and friends waited for the results of an investigation into his death.
When Dist. Atty. Todd Spitzer’s office released that much-anticipated report to the public last week, it didn’t dispense the justice they had hoped for. Instead, Spitzer’s investigation concluded that no charges will be filed against Fullerton Police Officer Jonathan Ferrell, who it says was justified in shooting and killing Hernandez.
“The totality of the available evidence shows that the prosecution will not be able to prove beyond a reasonable doubt that Cpl. Ferrell was not justified in believing that Hernandez posed a significant threat of death or serious physical injury to Cpl. Ferrell at the time Cpl. Ferrell discharged his firearm,” the report says.
In response to the report, the Justice for Hector Hernandez coalition, which includes about 20 organizations, held a press conference on Monday a few houses down from where Hernandez was killed. The coalition has spent the last year advocating for Ferrell to be held accountable with protests and by attending City Council meetings to put pressure on city officials.
The press conference began with a presentation by attorney Garo Mardirossian, who is representing Hernandez’s family in a lawsuit against the city. Mardirossian is well known in Fullerton for representing Kelly Thomas’ family after the mentally ill man was beaten to death by Fullerton police officers.
Mardirossian took umbrage with the conclusions of the D.A. report, calling it “disgusting” and “misleading.”
“The OCDA is just trying to cover up what happened that day,” Mardirossian said.
Several others from the community and coalition expressed similar sentiments as they spoke at the event.
“Let it be known that our community is in pain — angered, disgusted with how the Orange County district attorney’s office has handled this tragedy,” said Erika Cervantes, a member of the coalition and a legal fellow at the Disability Rights Legal Center. “Let it be known that Hector Hernandez should be with us today, with this family and with his kids today ... We will keep demanding transparency and accountability. In other words, we will not stop demanding justice for Hector Hernandez.”
Bill Brown, a close friend of Hernandez, spoke at the press conference. Brown said he hasn’t slept well since his friend was shot to death in front of him.
“The clear message that I take away from this from Todd Spitzer is he’s telling us that there’s one set of laws for law enforcement and another set of laws for the community,” Brown said.
Hernandez was shot on May 27, 2020 on West Avenue.
According to the district attorney’s report and an accompanying video, one of Hernandez’s sons called the police to report his stepfather for being drunk, hitting his brother and brandishing a knife. The boy also reported that Hernandez had armed himself with a gun and fired the weapon.
After police arrived on scene, body-worn camera footage of the shooting shows Ferrell approaching Hernandez’s home with his K-9 unit while officers have their guns drawn.
In the footage, as Ferrell gets up to the home, he directs the dog toward Hernandez, who is standing in his frontyard with his hands up. The D.A. report says Hernandez turned as though he were going back inside his home. Ferrell believed there were children still in the home.
The police footage shows and the D.A. report references that the dog disobeyed at first and ran toward other officers. Mardirossian said this shows that the dog did not see Hernandez as a threat.
At the urging of Ferrell in the video, the K-9 turns and rushes toward Hernandez to take him down, Hernandez puts one of his arms down and takes a 3-inch knife from his pocket. After the dog takes him down, he stabs the dog near the shoulder blade.
Ferrell runs up to Hernandez, fires a shot, yells, “He’s got a knife!” and fires another round.
Ferrell pulls the dog from Hernandez while it tears away at his shirt. In searching the unconscious Hernandez, police did not find a gun.
“He’s just got his hands up the whole time, then they release the dog,” Mardirossian said. “Then he has to try to protect himself from being mauled by a dog.
”... A 2-inch or 3-inch pocket knife in your pocket is not illegal. And even then, he did not touch that pocket knife and pull it until after the dog was mauling him. And you have a right to grab whatever you can ... to stop excessive, illegal use of force against you.”
In his interview with D.A. investigators, Ferrell said that his main concern was preventing Hernandez from going back into his home, potentially creating a hostage situation. Ferrell said he first saw that Hernandez had a knife when he was grabbing ahold of his dog and standing over Hernandez. He said Hernandez made stabbing motions toward him.
“Cpl. Ferrell feared for his life due to the close proximity he was to Hernandez and Hernandez’s unrestrained arms,” the report says. “Cpl. Ferrell maintained that he was in fear of being imminently stabbed by Hernandez.”
Mardirossian said Hernandez never made a move to go into the home. It isn’t clear in the body cam footage that he turned to walk inside. Instead, when Ferrell sends the dog towards Hernandez, he has his arms raised and is facing the officers in his frontyard.
“He never turned around, never reached for the door, his hands are up,” Mardirossian said.
Mardirossian said that officers claim fear for their lives as a pretense to justify excessive use of force, and that Hernandez was never making any swinging motion with the knife towards Ferrell.
Mardirossian also said the law requires officers to warn of impending deadly force, which was not done in this case.
“What we run into often is officers that claim that they feared for their lives, and that’s why you have to kill an innocent person,” he said.
Members of the coalition agree that the dog should never have been directed toward Hernandez.
“The K-9 officer got concerned about his dog,” Brown said in a prior interview. “The K-9 officer wasn’t being threatened at all. Nobody in the frontyard was threatened, other than the dog, because the dog was attacking him.”
Brown continued: “I mean he just got totally reckless because it was like he just got tunnel vision. He focused on, ‘Oh, my God, he’s hurting my dog, I’m gonna stop him now ...’ That’s exactly what it seems like happened — he lost all control of his training and reasonable thinking and just decided, I need to do this.”
According to the D.A. report, deadly use of force cannot be used in defense of property. Because dogs are considered property, it wouldn’t have been justifiable for Ferrell to have used lethal force to protect his dog, the report says.
When reached for comment on the coalition’s and Mardirossian’s claim that the report is misleading and fails to hold Ferrell accountable, D.A. spokeswoman Kimberly Edds said that “the legal analysis and the video speak for themselves.”
Mardirossian said he hopes that if Spitzer is unseated during this year’s election, the next Orange County district attorney will consider looking into the case. If not, he said he hopes the state attorney general will take up the case.
With regard to the Hernandez family’s lawsuit, Mardirossian said the case was on hiatus until the D.A. report was released. He can now access more records and start taking depositions. He said it will take one to two years before they get into a courtroom.
Peter Hardin, who is running against Spitzer for D.A., has been critical of the district attorney’s role in the drawn-out investigation.
“It’s clear that different tactics could have been employed in this incident to better ensure the safety of the child in the home, the responding officer, the K-9, and, of course, Mr. Hernandez himself,” Hardin said in an emailed statement this week. “Our current D.A.‘s failure to make a decision in this case for well over a year, when the entire incident was captured on video, is problematic for the Hernandez family, the officer involved and our community as a whole. It’s a failure of leadership — we deserve more timely answers.”
In response to a question about whether he would consider looking into the Hernandez shooting if he’s elected district attorney, Hardin responded: “Ignoring the community’s pleas and sweeping past failures under the rug has contributed to D.A. Spitzer’s endless parade of scandals and lawsuits, and I will not follow in his footsteps. We must be willing to reflect and question ourselves with respect to cases in which justice may not have been served — that’s the only way we grow as individuals and as a profession, and that’s how we restore faith in law enforcement and our justice system. That makes our community safer and stronger.”
Spitzer was critical of Hardin’s comments.
“Armchair quarterback and criminal attorney Pete Hardin is demonstrating yet again why he should never be allowed within 1,000 feet of the D.A.’s office,” Spitzer said in an emailed statement. “These are difficult and sensitive cases that require careful consideration of all available evidence and the law, yet Hardin’s main critique is this decision should have been made with haste and recklessness. For Hardin, no analysis of the facts is necessary because he will simply cater to the woke criminal justice movement he is seeking to usher into Orange County.
“The real kicker here is that Hardin does not even have the requisite experience to be qualified to review such a case, and if you look at Hardin’s record both as a judge advocate and in his probationary period at the O.C. D.A.’s office — including a case where his fellow marine was shot — he is incompetent as a prosecutor and would probably have difficulty catching Pinocchio in a lie.”
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