Defense Verdict in Case Involving Police Shooting Caught on Body Camera

Partner Dale L. Allen, Jr. and Associate Philip J. Downs, Jr. successfully obtained a defense verdict after a seven day jury trial in the case of Xiong v. Chavez, et al., U.S. District Court – Eastern District of California, Case No. 1:13-cv-00083-SKO. The trial was presided over by Magistrate Judge Sheila Oberto. Plaintiff was represented by Steve Berki and Jeff Kallis.

The facts of the case are as follows: late on a December night in 2011, Merced Police officers responded to a call of a man brandishing a gun at a party. Upon arriving at the scene, the officers approached the subject address under concealment and took a position of observation while waiting for back-up units to arrive. During this time, the officers heard the “racking” sound of a semi-automatic weapon being loaded from the vicinity of the subject house, as well as verbal challenges by an unknown number of male subjects gathered in the backyard of the property. Seconds later, the officers observed plaintiff emerge from the side gate, heading down a pathway directly toward them. Plaintiff’s right hand was concealed in the fold of his jacket, leaving only his left hand visible. The officers confronted plaintiff by illuminating him with flashlights mounted to their service weapons and yelled to put his hands up. At trial, they testified they did not have time to say “police.”

Upon being illuminated, the officer’s testified plaintiff turned back toward them as he was pulling a gun and pointed the gun in their direction. The officers fired as he turned and continued to fire as plaintiff ran back toward the gate until he fell when plaintiff was struck in the back of the calf. A gun was found next to plaintiff when the officers approached to secure him.

A video recording of the incident was obtained from one of the officers who had recorded the incident via an eye-glasses camera which the officer had purchased on his own. Plaintiff was treated and recovered from his injury. He subsequently brought a number of Constitutional and state law causes of action against the Merced Police Department and individual City of Merced officers.

At trial, Plaintiff argued that he never pulled the gun from his waist. Therefore, the officers were never in immediate danger when they fired their weapons. Plaintiff contended he was simply running away. Plaintiff further argued that the video proved he was “unarmed” by the fact the video could not definitively show a gun in plaintiff’s hand as claimed by the officers. The recording itself was of poor quality, hampered further by the low light conditions. It appeared to show Plaintiff unarmed and fleeing. Through the testimony of Mike Schott, a video forensic expert, the jury was shown that the video evidence was at best inconclusive and not representative of what the officers perceived in the ambient light at the time of the incident. The case came down to the officers’ training and experience, and their testimony articulating the totality of the circumstances they faced. The jury agreed the video did not capture what the officers’ saw and had to consider before firing.

Prior to trial in this matter, Associates Kevin P. Allen and Philip J. Downs, Jr. obtained summary judgment, dismissing the Merced Police Department and the City of Merced. Kevin and Phil also obtained summary adjudication against a bystander plaintiff. The court ruled that the bystander did not have a cognizable Fourth Amendment claim because he was not the deliberate object of the Defendant Officers’ use of force. That bystander’s remaining 14th Amendment claim and negligence claim brought by the John Burris Law Firm, settled for $45,000 a week before trial after a demand of $450,000. The trial proceeded against remaining individual City of Merced officers. The jury returned the unanimous verdict in favor of the officers in less than an hour.


The use of body cameras will be a focal point of future litigation. While body cameras will be beneficial they may not provide the “whole story”. Video is limited to two dimensions. The trial showed how lighting constraints and where the camera is pointed at the time of the incident, can affect the “narrative” of the video. Use of a qualified expert may be critical in analyzing such videos.

In this case, the jury understood that the video was of limited benefit. The parties’ testimony remained the most critical element. Ultimately, it remained the credibility of the parties that decided the case.