A federal lawsuit against city of Cleveland police officer Jose Garcia is moving ahead after a judge denied the officer鈥檚 motion for summary judgment Wednesday.
On April 9, 2020, Garcia was driving on Pearl Road to work at the Second District on Cleveland鈥檚 West Side. Garcia was dressed in plainclothes and in his own car.
He had a brief interaction with 22-year-old Desmond Franklin outside a convenience store then, shortly after, shot and killed Franklin as the two cars were next to each other at an intersection.
The two sides in the lawsuit disagree on several facts, including the most important one to the lawsuit 鈥� Garcia said Franklin pointed a gun at him right before the shooting.
In fact, in his 911 call after the shooting, Garcia tells dispatch shots were fired at him, but there鈥檚 no evidence any shots were fired from Franklin鈥檚 car.
There was a passenger in the car with Franklin at the time, Devin Badley. Badley was sitting in the passenger seat, closest to Garcia when the shooting occurred. Badley survived the shooting and said Franklin never pointed the gun, and it stayed tucked underneath his thigh until it fell on the floor at Franklin鈥檚 feet after he was shot.
In Wednesday鈥檚 decision, the judge in the case ruled that a jury will have to resolve that discrepancy.
鈥淏ecause there are two different versions of the events that took place leading to Desmond Franklin鈥檚 death on April 9, 2020, the Court cannot grant summary judgment to Defendant on Plaintiff鈥檚 claims,鈥� wrote U.S. District Court Judge Dan Aaron Polster.
In 2021, a grand jury in Cuyahoga County declined to charge Garcia for the shooting. The case was handled by Ohio Attorney General Dave Yost鈥檚 office. He said Garcia was treated as a private citizen acting in self-defense, not as a police officer acting in his official capacity.
The same year, an internal review by the Cleveland Division of Police cleared Garcia of any misconduct.
The question of whether Garcia was acting as a police officer and, if so, at what point during the incident that started has remained a point of contention.
The city of Cleveland's Office of Professional Standards investigated the case in 2020 and found Garcia violated policy by failing to identify himself as an officer during the initial encounter at the convenience store. The Civilian Police Review Board agreed and recommended discipline in late 2022. The vote broke down along racial lines 鈥� the four Black members of the board voted in favor of discipline; the three white members voted against.
鈥淗e inserted himself into the situation with zero coercion and then decided, after he already made contact, that he didn鈥檛 want to make further contact,鈥� said CPRB member Brandon Brown before voting in favor of discipline.
In a Sept. 9, 2023, decision on the CPRB recommendation, then-Public Safety Director Karrie Howard dismissed the charge.
鈥淵our actions did not constitute a police action when you initially approached the complainant,鈥� wrote Howard in a brief explanation of his decision not to suspend Garcia. 鈥淵ou did leave the area but you were followed by the complainant; subsequently your reaction to a gun being pointed at you was reasonable.鈥�
Garcia鈥檚 lawyers argued that he was acting as a police officer beginning at the moment Franklin allegedly pointed a gun at him in the car.
鈥淕arcia as an officer had not only the right 鈥� but arguably the duty to intervene, even if that intervention was in self-defense,鈥� wrote Garcia鈥檚 attorneys in a brief filed March 22, 2024. 鈥淕arcia continued to act as a police officer upon emerging from his vehicle he identified himself as a police officer and directed Badley to stay away from the car and to get on the ground.鈥�
Garcia was represented by city of Cleveland lawyers up until March 21, 2024, and is now represented by private attorneys.
There鈥檚 no video capturing Franklin鈥檚 actions immediately before the shooting. Surveillance camera footage shows the two vehicles as they make their way down Pearl Road.
An eyewitness, who was in his car behind Garcia at the time of the shooting, described Franklin in a Sept. 25, 2023, affidavit as driving 鈥渁ggressively鈥� as he approached Garcia鈥檚 car from behind.
Franklin鈥檚 attorneys dispute that characterization.
They argued Franklin couldn鈥檛 have been pointing a gun at Garcia because of the angle of the shot that killed him. He was shot in the right temple and the trajectory of the bullet indicated he was looking straight ahead when he was shot.
Badley said, in a deposition filed under seal but referenced in other court filings, that neither he nor Franklin realized they were pulling up next to Garcia鈥檚 silver Honda when the shooting occurred.
The court will hold a status conference on the case April 10.
