The alleyway where Victor Ortega died, the one that cuts up the middle of Court 84 of the Mesa Village apartments in Mira Mesa, is a little more than 3 feet wide. Enclosed by a high stucco wall on one side and a fence on the other, it’s a cramped space. It’s where, on the morning of June 4, 2012, San Diego police officer Jonathan McCarthy shot and killed the 31-year-old unarmed father of two after Ortega allegedly grabbed for the officer’s gun.

Townhouses surround the alley, but there were no witnesses to Ortega’s death. Two residents told investigators they saw, from their window, McCarthy and Ortega engaged in a struggle, but turned away seconds before shots were fired. Several other people reported hearing Ortega say a stunned “Are you kidding me?” and “I’ll sue you” moments before gunfire.

McCarthy, who had spent just two years on the force before the incident, told police investigators that he feared for his life before he shot Ortega. Based on the officer’s version of events, prosecutors said Ortega’s killing was justified.

But police reports, depositions, interview transcripts and other evidence disclosed in a federal lawsuit filed two years ago by Ortega’s widow reveal inconsistencies in McCarthy’s account of what happened in the alleyway immediately before Ortega’s death. U.S. District Court Judge Larry Burns, who is presiding over the case, recently expressed doubt that it would be possible for McCarthy to have done everything he said he did during his altercation with Ortega.


If You Value This Service, Please Donate Today

 Learn more about member benefits

In denying the city’s request to throw out the lawsuit, the judge ruled that McCarthy’s story has enough holes that a jury needs to sort out what happened.

“Plaintiffs,” Burns wrote, “have submitted evidence that would give a reasonable jury pause.”

Ortega was killed almost three years ago, but his case shares some of the same characteristics as other disputed police shootings that have recently inflamed communities across the country. A police officer pursued an unarmed criminal suspect. A struggle ensued with conflicting evidence about what occurred. And the suspect ended up dead.

In Ortega’s case, everything began with a call to 911.

The apartment breezeway where Victor Ortega was killed.
Photo by Kelly Davis
The apartment breezeway where Victor Ortega was killed.

Victor and Shakina Ortega were together for 11 years, married for eight. A mutual friend introduced them. “We just clicked,” Shakina said. Their daughter Tamia was born in 2006 and son Jacob five years later.

Victor was the sensitive one in the relationship, a good dad and a family guy, Shakina said. He’d take Tamia on play dates and have dinner ready when Shakina returned from work. “He wore his heart on his sleeve,” she said. Shakina, on the other hand, is serious, no-nonsense. She held down a full-time job, working as a ride operator at SeaWorld, while he struggled to find consistent work as a mover. This was a source of frustration in their marriage that led to arguments, like the one on June 4, 2012.

On that day, just after 7:30 a.m., Shakina called 911. She told the dispatcher that her husband had hit her and her mouth was bleeding. She initially said she needed an ambulance, but quickly corrected herself to say she needed the police. She told the dispatcher Victor had become angry after she woke him to demand he take Tamia to school.

A little more than a year later, in a deposition, Shakina said she had overreacted. She was tired, she said, and she’d lost her temper. She had yelled, thrown things at him and then sat down on the edge of the bed. When Victor kicked off the bed covers, his foot hit her upper lip, she said, causing it to start bleeding.

Angry, she told him she was calling the police. She’d called 911 on him before when the two of them would argue. Sometimes she’d pretend to call 911. On the morning of June 4, she says now that she thinks Victor probably suspected it was another one of those pretend calls. Shakina’s sister had already taken Tamia to school so Victor got dressed and left the house to give Shakina time to calm down.

About 15 minutes after Shakina’s call to the police, McCarthy and Officer Godfrey Maynard arrived at the couple’s home in separate cars.

When they pulled up, Shakina was standing outside. She told the officers that Victor had left.

McCarthy later told homicide investigators that he and Maynard decided to split up and search for Victor. Shakina said neither officer interviewed her nor checked to see if she was OK. McCarthy later testified that she appeared uninjured.

McCarthy told investigators that he drove to the end of the block and made a right turn. A few driveways up, he saw a man who fit Ortega’s description: 31 years old, tall, thin and wearing black shorts. McCarthy said that when Ortega spotted him, he took off running. McCarthy got out of his car and gave chase, radioing in the pursuit to his colleagues.

Less than a minute later, Ortega would be dead.

Several residents told police investigators they heard McCarthy yell at Ortega to stop running. One resident saw the two men run by “in a blur.” At some point, Ortega, who’d been heading eastbound, turned and ran through an open gate, into the alleyway, and closed the gate behind him.

McCarthy kicked open the gate. He saw Ortega in the alley.

Ortega was walking away but looking back at him, McCarthy told investigators. He said he ordered Ortega to get on the ground and when he wouldn’t comply, used physical force.

“We start pushing each other,” McCarthy told investigators, “we’re bumping against the walls.”

McCarthy said he used a leg swipe to knock Ortega to the ground.

As for what happened next, McCarthy’s provided multiple versions. In at least two accounts, he said he’d pulled out his Taser and warned Ortega he was about to use it. In another, he didn’t mention the Taser at all. No witnesses recall hearing McCarthy say anything about a Taser and the two eyewitnesses didn’t recall seeing one. Instead, they reported hearing a command to “get down” and another voice – Ortega’s – saying, “What are you doing? Get off me,” “Are you kidding me?” and “I’m going to sue you.”

A witness who heard the altercation told investigators that the tone of Ortega’s voice was “one of compliance and disbelief, not confrontational or violent.”

The two eyewitnesses to the fight don’t provide clarity. In initial interviews with police, one man said he didn’t see much, though in his later deposition said the struggle between McCarthy and Ortega was intense and unabated. The second eyewitness saw a scuffle, but said it appeared McCarthy had Ortega under control. Both of the eyewitnesses said they turned away just seconds before the shooting began.

Even more troubling are the inconsistencies surrounding McCarthy’s gun. McCarthy told investigators that when he kicked Ortega to the ground, he must have knocked loose the backup revolver that he carried in an ankle holster. At some point during the officer’s struggle to handcuff Ortega, he noticed the revolver on the ground, just a couple feet from Ortega’s head.

Right after the shooting, while McCarthy was still at the scene, he told his supervisor that Ortega managed to grab the revolver and raise it towards him, according to initial statements by the supervisor, Sgt. Alan Karsh. (Karsh later said in a deposition that he was “foggy” about what McCarthy had told him.)

But a few hours after the incident, in his own interview with investigators, McCarthy said something different. He said that Ortega’s hand barely touched the revolver.

Ortega’s DNA wasn’t found on the backup weapon, though some traces couldn’t be matched to anyone. Neither Ortega’s nor McCarthy’s fingerprints were on the backup weapon.

After he pushed the revolver away during his struggle with Ortega, McCarthy told investigators that he got off Ortega and drew his primary gun. He said he’d barely unholstered it — only his right hand was on the pistol grip and his arm close to his side — when Ortega lunged at him, his hands coming within a foot of the gun, McCarthy said.

“What was your intent when you pulled [the gun] out? What was your thought process?” a homicide investigator asked McCarthy.

“My intent was hopefully he was going to run away,” McCarthy said, “and I [would be] able to grab my revolver … and resume pursuit of the suspect ….”

“What was your thought process when you switched from physical force to a deadly weapon? What was going through your mind?” McCarthy was asked.

“The guy’s trying to grab the gun. He wants to kill me,” he said. “And then when I saw him reaching for the pistol … he wants to grab that gun from me and he’s going to kill me with it.”

McCarthy said he gave Ortega no warning before firing twice, striking Ortega first in the abdomen, then, as he slouched over, in the back of the neck. The second shot traveled through Ortega’s spinal cord and pierced his heart.

After the second shot, McCarthy handcuffed Ortega and began performing CPR until other officers and paramedics arrived. Ortega was pronounced dead at 8:11 a.m.

Photo by Dustin Michelson
Photo by Dustin Michelson
Community members gathered in City Heights on March 14, 2015 to protest the 2012 killing of Victor Ortega by a San Diego police officer.

The inconsistencies in McCarthy’s story were problematic for Burns, the judge in the lawsuit filed by Ortega’s widow. He noted them all in his November ruling that rejected the city’s attempt to toss the case.

Burns first had trouble with McCarthy’s account of what he did prior to pulling out his gun.

“McCarthy’s testimony has him completing the following actions with only two hands,” Burns wrote in his decision, “holding Ortega down, drawing a Taser with one hand, struggling to handcuff Ortega (presumably with his other hand), successfully cuffing Ortega’s one hand while Ortega’s other one got free, and moving to holster his Taser after seeing Ortega reach for the secondary weapon – somehow, McCarthy knocked the secondary weapon out of Ortega’s reach while one hand was restraining Ortega and the other was holstering a Taser.”

The city’s lawyers, who have appealed Burns’ ruling, said in a brief filed last week that the judge didn’t give enough credence to the totality of McCarthy’s statements about his attempts to handcuff and subdue Ortega before the killing. Indeed, the evidence shows that McCarthy described a more plausible sequence of events at one point during questioning by investigators.

Still, Burns found plenty more problems with McCarthy’s story. Take some of the forensic evidence.

McCarthy said Ortega’s hands were within a foot of the gun when it was fired. But there were no marks left by burning gunpowder on Ortega’s hands, clothing or wounds, which indicates that Ortega might not have been as close as McCarthy indicated he was.

Experts hired by Ortega’s widow questioned whether McCarthy and Ortega were level with each other when McCarthy fired, with Ortega moving to grab McCarthy’s service weapon. On the day of the shooting, McCarthy told investigators that both he and Ortega were rising to stand up. But the bullets’ steep trajectories suggest McCarthy was standing when he fired, while Ortega was on the ground and slightly bent forward, the experts said.

Then there are the issues with how the police department investigated the incident: No one did a walk-through re-enactment of the shooting with McCarthy, something even the city’s own expert said is recommended. And Frank Healy, the police department criminalist who wrote the crime-scene reconstruction report, said in a deposition that he never read the transcript of McCarthy’s interview with homicide investigators.

“Did you feel that [McCarthy’s] statement would be important to you for the purposes of preparing a reconstruction report?” asked Christina Denning, the attorney for Ortega’s widow.

“Yes,” Healy said.

Denning: “But you never reviewed the statement?”

Healy: “No.”

Denning asked Healy why such information would be important.

“Because part of my reconstruction report is to determine whether or not the statements made by the officer lined up with the evidence,” Healy said.

In their brief filed last week, the city’s lawyers argued that any inconsistencies in McCarthy’s story were immaterial and minor. Even if Ortega was further away from McCarthy than the officer indicated, he was still close enough to be a serious threat, the city said. That’s especially the case since the two had been in a struggle and McCarthy believed Ortega was going after his backup weapon. In short, the city’s lawyers argue, the totality of the evidence shows that McCarthy should receive the benefit of the doubt.

“The inconsistencies do not negate the fact that McCarthy had probable cause to believe he was in imminent serious physical harm and acted accordingly,” the brief said.

Both the San Diego Police Department and the City Attorney’s office declined comment for this story beyond the legal filing. A police spokesman did confirm that McCarthy remains an SDPD officer and is on active duty.

♦♦♦

Ten months after the shooting, District Attorney Bonnie Dumanis ruled that McCarthy’s killing of Ortega was justified. Relying mainly on McCarthy’s statement to investigators, Dumanis concluded that “Officer McCarthy fired at Mr. Ortega while attempting to arrest Ortega and in self-defense.”

In Dumanis’ report on the case, she didn’t note the many inconsistencies in McCarthy’s versions of what happened and the problems with the San Diego police department’s investigation. When asked whether the information that’s surfaced in the case would prompt a fresh look, a Dumanis spokesman said in a statement: “If new information regarding an officer-involved shooting comes to light after the District Attorney’s review is completed, it is possible that an incident could be re-reviewed.”

Shakina said Dumanis, whom she met with after the shooting, had promised her a thorough review, telling Shakina she would “treat this like Victor was her own son.”

“I want her to keep her promise,” Shakina said.

    This article relates to: Must Reads, News, Police Misconduct, Public Safety

    Written by Kelly Davis

    Kelly Davis is a freelance journalist focusing on criminal justice and social issues. Follow her on Twitter @kellylynndavis or send an email to kellydaviswrites@gmail.com

    21 comments
    imshala edwards
    imshala edwards

    STOLENLIVES will never be forgotten....JUSTICE FOR VICTOR ORTEGA!!!!!

    Joe Creeser
    Joe Creeser

    If anyone want to read more information about this case, look up an Examiner article from August 2012. Eye opening stuff in there.

    Joe Creeser
    Joe Creeser

    @shawn fox


    Shawn, Shawn, Shawn... (SMH)...


    I used to think more like you, but then I learned about this very case through friends here in San Diego and then the recent South Carolina (Walter Scott) case really solidified it for me because of the video evidence.


    You and I, we're white guys that likely never have been hassled or downright screwed by the police in the way some brown and black folks have. I know I haven't and I suspect you haven't either. Our perception is very different with respect to trusting the police to protect us and do the right thing. Take a look at that South Carolina (Walter Scott) video - if I grew up around cops that did that, I would run away from them too. Mr. Scott posed absolutely no threat to that cop, but he was gunned down like an animal anyway. Running away and many feet away - shot from behind. And if there was no video, the white folks would say, well he shouldn't have run... 


    Yes, Victor should not have run. True. But did he deserve to die just because he ran? I don't think he did. If he threatened to put the cop's life in danger, then the cop has to do what he has to do. But the physical evidence (according to a well-respected federal judge) doesn't support the officer's story and the officers conflicting versions of the events gives the judge pause. Given all of that information, I don't think Victor deserved to die that day


    The number of cases like this that make it past a Motion for Summary Judgement is very small. That's because the police are given the benefit of the doubt. The fact that these motions were denied is bad sign for the city attorney's office. Worse yet is, I think, punitive damages may still be in play. Not good for any of our tax dollars.


    This case reeks of the pre-Shelly Zimmerman SDPD cowboys and their reckless attitude. Combine that with Shady Dumanis, the consummate scummy politician, doing the investigation. And whatdya know? No charges. No $h!t.


    The city should pay this out quickly. If this gets to a jury, in today's climate for this type of incident, they're going to need to raise a bunch of tax rates to find the money to pay Ortega's family.

    Matty Azure
    Matty Azure subscriber

    I don't know what I'm doing. But I do know that LE officers in San Diego never get charged.

    Signed,

    Bonnie D.

    Chris Brewster
    Chris Brewster subscribermember

    People do not normally call 9-1-1 on their partners (or threaten to do so) unless they are in fear for their physical safety. Sounds like that was a pattern here and that Ms. Ortega is now downplaying the physical violence against her by her husband on the day in question. What happened between the police officer and Mr. Ortega on the day in question I have no idea. It does appear that Mr. Ortega had violent tendencies, at least with respect to his wife. It thus seems plausible that he reacted violently toward the officer.

    DavidM
    DavidM subscriber

    @Chris Brewster That's not entirely true Chris; I've seen dozens of cases of people who call 911 not because they are in fear, but because they want to put fear of authority figures in their partner; it's a way to stop an argument.  Back when City Attorney Casey Gwinn made an arrest likely as a result of a domestic violence call it became a way for spouses to separate for a bit by simply having one (usually the husband) arrested, only to find that the City Attorney was now prosecuting (and often without a complaining witness).  Pretend 911 calls have become quite common as a result.


    Certainly Ms. Ortega has an incentive now to downplay whatever danger she felt the morning she called, but in fact we know that it was Mr. Ortega that retreated.  


    The important distinction is that, whatever prompted the 911 call, Mr. Ortega ran rather than stood and fought; whatever violent tendencies he had at one time, he didn't have them when he decided flight was better than fight.  

    Chris Brewster
    Chris Brewster subscribermember

    So people having routine arguments with their spouses, with no fear of violence, call the police to provide counseling services? I'd consider that an abuse of the 9-1-1 system. In this particular case though, I think it's rather evident that there was spouse on spouse violence. Moreover, the police were summoned for a domestic violence case and it is my understanding that they have certain obligations to follow-up in these instances even if the original caller recants. Perhaps you have insight on that?

    shawn fox
    shawn fox subscriber

    @DavidM @Chris Brewster Yet you were not there and seem to be implying that you know for a fact that there never was any struggle.  The fact is, none of this would have happened if A) the wife didn't call 911 or occasionally cry wolf by pretending to do so, and B) Ortega simply would have cooperated instead of running and/or fighting.  On the one hand, the country is up in arms about domestic violence, but on the other hand the police can do practically nothing without being put in difficult situations with violent people.  You can't have it both ways.  The police are not mind readers and have to respond to 911 calls and take domestic violence seriously.  Wives change their minds all of the time because they too are frightened and often in a dither during these situations. 

    DavidM
    DavidM subscriber

    @Chris Brewster The short version is yes, there are a large number of people who abuse 911 because they never learned how to argue with their spouses without alleging victimhood.


    I'm not sure that it's "evident," in this case, so much as there is an inconsistency between what Mrs. Ortega said (bleeding from her lip) but a responding officer said there was no visible injury.  A bleeding lip would be swollen 15 minutes later.  It is possible she called because she wanted police there, and exaggerated her claimed injury to get them there.  I'm not trying to side with her or SDPD, since the shooting was more directly related to Mr. Ortega's decision to run rather than what happened earlier.


    I don't know what SDPD policy is regarding follow up where the allegedly violent spouse is not on the scene, but I would suspect that casually "looking around" the area is common.

    DavidM
    DavidM subscriber

    @shawn fox @DavidM @Chris Brewster "On the one hand, the country is up in arms about domestic violence, but on the other hand the police can do practically nothing without being put in difficult situations with violent people."

    Absolutely true.  Police receive domestic violence response training in their POST-certified courses, and are taught that putting themselves into that situation can be extremely dangerous.  (An officer in AZ was killed earlier this year on a domestic violence call.)
    But even that is secondary to this particular case, where the officer who used deadly force described events in multiple ways, with impossible results.  The lack of a walk-thru, or even basic followup questions from the homicide detective, should be troubling to anyone.
    What there a struggle?  Almost certainly.  Did it justify deadly force? I don't know.  And the internal investigation should not leave us with an "I don't know."

    Chris Brewster
    Chris Brewster subscribermember

    Thanks. I think her story is completely implausible about the accidental kick to her lip, especially when combined with the 9-1-1 call. So that's what I mean by evident. It's definitely an opinion, not fact. I do think there was a time when police reflexively ignored domestic violence issues, seeing them as a personal issue between two lovers, but have been given forceful encouragement by victim advocates and policy to treat the cases very seriously and to consider that recanting is part of the behavior of abused spouses. Whether the officer acted appropriately in the confrontation with the suspect I cannot opine, but that the officers would have endeavored to follow up after being sent on a report of physical violence against a spouse seems prudent and in accordance with societal expectations these days.

    Maura Larkins
    Maura Larkins subscriber

    @DavidM @shawn fox @Chris Brewster 

    The issue of whether the police should have been called in the first place is an interesting one. 

    It's sad that an abused woman must balance the danger to herself from her husband with the danger to her husband from the police.  It's quite a dilemma.

    When calling the police, unfortunately, it is necessary for citizens to consider the fact that some police officers lack the training and disposition to correctly judge the appropriate amount of force to use in some encounters.

    In a recent South Dakota case, the family of an eight-year-old girl failed to consider this fact: http://countercurrentnews.com/2014/12/native-american-police-over-reacting/

    I suspect that the family in South Dakota called the police as a substitute for family counseling. I'd say that family should not have called the police at all.

    But sometimes a victim of domestic violence does need assistance from the police. 


    Given the fact that citizens call police sometimes when they only want to intimidate and frighten a family member, it's important that police be trained to behave differently during these domestic calls than they do when confronting a suspect who is truly a danger to the police.  


    Naomi Peterson
    Naomi Peterson

    @Chris Brewster Unfortunately, these type of 911 calls happen everyday in this country. Most of these domestic disturbance calls never lead to anything other than officers calming down one spouse or the other.  I want to also share something else with you.  I happen to know both Shakina and Victor very very well.  Victor was the furthest thing from violent.  Victor was the sweetest guy I have ever met. He would not hurt a fly. He was the passive one in the relationship. Although 911 had been called before, NEVER once was Victor ever cited, arrested or charged with anything. All previous 911 calls where made out of frustration by Shakina and not because she had ever been touched or hit. On a few previous occasions the cops would arrive and just tell them to work things out. Which is what they do in most of the domestic calls that come in on a daily basis.  Unfortunately,in this incident she could not have imagined that the "peace officers" would end up murdering her husband and father of her children. If you read the article, you will learn that even the witnesses were shocked at the shots fired.  They indicate that the tone and energy in Victor's voice/words were of shock and compliance.  I can understand because Victor was very sweet and soft spoken. He did not have an aggressive bone in his body.  I had to write this because it saddens me that people are judging him and smearing his good character.  He was a great guy and showed unconditional love.  If you had had the opportunity to meet him you would realize what a wonderful soul has been taken from this earth. He did nothing to deserve this at all....and that is the biggest tragedy of all. 

    Chris Brewster
    Chris Brewster subscribermember

    Ms. Peterson: "She told the dispatcher that her husband had hit her and her mouth was bleeding. She initially said she needed an ambulance, but quickly corrected herself to say she needed the police. She told the dispatcher Victor had become angry after she woke him to demand he take Tamia to school."  "A little more than a year later, in a deposition, Shakina said she had overreacted. She was tired, she said, and she’d lost her temper. She had yelled, thrown things at him and then sat down on the edge of the bed. When Victor kicked off the bed covers, his foot hit her upper lip, she said, causing it to start bleeding." No one knows what really happened in this regard except the surviving spouse. To my way of thinking, it defies logic that someone would call the police if there were no perceived fear of violence, unless they were making up a story to get the police to respond, which is what your message implies. In any case, under the circumstances, how would the police know she made up the story?

    richard brick
    richard brick subscribermember

    A brown man running from police winds up dead. The officer in fear for his life, he tried to grab my gun, stop resisting. Cops are trained to say those things to cover themselves. 


    Look at the Jetter arrest on you-tube and listen to what the cops are yelling during the entire arrest and how one important fact was left out of their report.


    If not for dash cam footage Jetter would have been serving 20 years in prison. Everything the cops said in this incident was a lie..

    shawn fox
    shawn fox subscriber

    @richard brick Your statement doesn't prove anything.  A white man resisting arrest or running from police is also likely to be killed.  In general, running from police and/or resisting arrest is usually a bad idea if you want to live.  Throw in a black person or a brown person and suddenly it is national news.  White person; just another day at the office.  No need to broadcast that.  Nothing to see here.

    Martha Sullivan
    Martha Sullivan subscribermember

    Good to see reporting on this case, so long ignored, along with hundreds of other people who have lost their lives at the hands of law enforcement in San Diego County . Join Us for a Community Forum

    Black and Brown Lives Matter:

    Abuse of Power and Law Enforcement in San Diego

    Monday, May 11, 2015 7pm

    Church of the Brethren 3850 Westgate Place, SD 92105

    Keynote Speakers:

    Shakina Ortega,

    Aaron Harvey & Brandon Duncan

    DavidM
    DavidM subscriber

    "Shakina said Dumanis, whom she met with after the shooting, had promised her a thorough review, telling Shakina she would 'treat this like Victor was her own son.'


    'I want her to keep her promise,' Shakina said."


    We all do, but that's not Dumanis' way.


    "Karsh later said in a deposition that he was 'foggy' about what McCarthy had told him."


    Because we want our police supervisors to stop paying attention when the discussion is important?  Does he not take notes and submit his own reports?  How many shootings does someone deal with in their entire career that this one is allowed to become "foggy?"  Or can't we all just assume that he didn't know what to say and was simply covering for his officer by doing what SDPD management does best - fail to lead?

    shawn fox
    shawn fox subscriber

    @Oscar Ramos It is an apples to oranges comparison.  Iceland is no comparison to America.  the population density is far different.  The types of crimes that occur there are far different.  Other places mentioned don't have the same gun laws or lack thereof.  I wonder how they deal with terrorist attacks in Iceland.  In Norway they can obviously do nothing and when it does happen massive numbers of people are killed.  No thank you.  

    Martha Sullivan
    Martha Sullivan subscribermember

    Sorry, we have "massive numbers of people" killed here in the US with law enforcement armed to the nines. There's no logic to that snipe about Norway.