Veteran who suffered ‘psychotic break’ sues McAllen officer for being shot

Police investigators gather evidence after an officer-involved shooting at the South Texas Behavioral Health Center in Edinburg on Tuesday, Jan. 14, 2020. (Joel Martinez | jmartinez@themonitor.com)

A 39-year-old man shot by a McAllen police officer on Jan. 14 while he was being transported to South Texas Behavioral Health Center has sued the city and the officer who shot him.

Falcon Rivera Jr. filed the lawsuit on Oct. 27, alleging officer Daniel Cruz violated his civil rights by shooting him while he was fleeing from the officer. Rivera was handcuffed at the time after suffering what McAllen police described as a “psychotic break” in the 5200 block of North 25th Street in McAllen.

Rivera is also suing the city.

Both Cruz and the city of McAllen said in court documents that they deny all of the allegations brought by Rivera.

On Nov. 24, the case was removed out of Hidalgo County Court-At-Law No. 6 to federal court by the city of McAllen.

Rivera’s attorney says in the petition that the man, who is a disabled veteran, was experiencing a mental health crisis that day.

McAllen police said in a Jan. 14 news release that they responded to the home at about 8:09 a.m. after a person called to say Rivera suffers from schizophrenia and had stolen her gun.

Police said they found Rivera in the back of the residence where he was detained and the weapon was recovered.

“Petitioner was then taken into custody by the McAllen Police Department and was transported to South Texas Health System (STHS) Emergency located in McAllen, Texas, for assessment. After failing to gain clearance, Petitioner was then transported by McAllen Police Officer, Daniel Cruz, to South Texas Behavioral Health Center located in Edinburg, Texas, for further evaluation and treatment,” the petition states.

After arriving there, while still experiencing symptoms from his mental health crisis, Rivera swung his arms to break free and unintentionally struck Cruz, according to the petition.

In a news release that day, McAllen police said Rivera began swinging his arms and struck Cruz, a 19-year veteran of the force, in his face, causing him to fall to the ground.

“Petitioner then proceeded to flee on foot and while Petitioner was unarmed and handcuffed, Officer Cruz proceeded to draw his service firearm and recklessly shot at Petitioner 5 to 6 times eventually striking Petitioner on his right foot. Despite the petitioner not being a threat to Officer Cruz or to the public due to being unarmed and restrained while he was fleeing, Officer Cruz made the independent decision to use deadly force,” the petition states.

The petition alleges that Cruz’s decision did not meet the legal requirements for the use of deadly force.

“As a result of Officer Cruz’ unjustifiable use of deadly force against Petitioner, Petitioner had to have one of his phalanx (toe) amputated on his right foot due to the damage infliced by Officer Cruz’ gunfire. Petitioner is now permantly disabled,” the petition states.

After being treated at the hospital, Edinburg police charged Cruz on Jan. 16 with escape from custody and aggravated assault against a public servant. The next day, McAllen police also charged him with aggravated assault against a public servant as well as possession of marijuana, less than 2 ounces.

Rivera has not been indicted on the aggravated assault against a public servant charges, court records indicate.

However, misdemeanor complaints were filed against him in July for escape from custody and possession of marijuana.

Those cases were dismissed on Oct. 15, approximately two weeks before the petition was filed.

The Hidalgo County District Attorney’s Office dismissed the complaints in the interest of justice, citing Rivera’s mental health commitment.