The Modesto Bee
A Modesto Police officer in 2014 shot a man who threw a junior high school yearbook at him, according to the law firm representing the man and body camera video of the incident released by the firm on Monday.
Jesse Montelongo was shot in the stomach by officer Dave Wallace when police responded to a disturbance at his home near Coffee Road and Morris Avenue on Oct. 17, 2014. He survived the shooting and was never charged with a crime related to the incident.
Wallace — who retired in 2018 — shot Montelongo 3.3 seconds after he opened the front door and stood with the right side of his body angled toward the door, obscuring his arm.
Wallace ordered him twice to “Show me your hands” before Montelongo threw the yearbook at him from about 11 to 14 feet away. Wallace fired once as Montelongo retreated into the home.
Montelongo, his mother, sister and five children who were at the home during the incident are plaintiffs in the lawsuit against Wallace and the city of Modesto. The allegations in the lawsuit include excessive force, unreasonable search and seizure and intentional infliction of emotional distress.
Oakland-based Attorney DeWitt Lacy said Montelongo underwent multiple surgeries as a result of the shooting and will likely have life-long gastrointestinal issues because of it. He said everyone at the home was traumatized by the experience and one of the children dove on top of her younger sister when the shot was fired in an effort to protect her.
“It doesn’t seem reasonable in light of all the facts that this officer who has been on the force many years had a difficult time ascertaining that a middle school yearbook was not a threat to his life,” Lacy said.
Police Chief Galen Carroll said Wallace didn’t have time to perceive what was in Montelongo’s hand; all he saw was a man refusing to comply with orders then “putting his hand up in a very aggressive manner.”
“If he knew it was a book he wouldn’t have shot at him,” Carroll said. “When you are reacting to stuff, you are behind what the person has already decided to do.”
Wallace fired at Montelongo 1.5 seconds after the book was thrown, according to Internal Affairs reports obtained by The Bee through a public records request.
Wallace was cleared of any criminal wrongdoing by the Stanislaus County District Attorney’s Office and Shooting Review Board made up of Carroll, Modesto Police administrators and internal affairs investigators concluded the shooting was justified and within policy.
Reports by the board members said the amount of force used by Wallace was reasonable given his perceived threat when considering the totality of the situation.
Wallace and officer Michael Callahan went to Montelongo’s home with information from a dispatcher that a woman had called 911 multiple times saying, “Help me” before the line disconnected, according to the reports. On at least one of the occasions the dispatcher heard the woman say “My son has a ….” before the line disconnected.
Former Modesto Police Officer Dave Wallace’s body camera video that captured him shooting a man in 2014 was released to the media Monday by the law firm representing the man. The description of the shooting and the events leading up to it are derived from the video and Modesto Police reports obtained by The Bee through a Public Records Act request. The Bee also requested the body camera video of Officer Mike Callahan, who was with Wallace during the incident. Modesto Police released all of the body camera video to The Bee and posted it on its Facebook page, along with a statement about the shooting.
Wallace and Callahan spoke to Montelongo’s sister in the driveway prior to approaching the house.
She says she hadn’t actually been in the house but had talked to her mother. She told them her brother was drunk.
“He’s threatening her, not like that kind of threatening, just in her face, wouldn’t let her go to sleep, tearing things off the wall, that kind of stuff,” she is heard saying in the video.
After knocking on the door Wallace and Callahan could hear Montelongo’s mother calling for help. Montelongo opened the door a few seconds later.
“This was Montelongo’s decision … it was up to him how this was going to turn out,” Carroll said. “We are there because he is abusing his mom, his mom is crying for help, the officer is telling him to show his hands, and he decides to bring up his hands in the manner that he did.”
Montelongo and his family filed the lawsuit in 2015. Lacy said the body camera video was withheld by Modesto Police until last winter when it was released to him with a stipulated protective order that barred him from even sharing it with his clients.
He said the protective order was removed Jan. 21 and his office released it to the media on Monday.
Carroll believes the press release from Lacy’s office and release of the video is an attempt to “try the case in the court of public opinion.”
Lacy said, “I think it is important that the general public knows how often deadly force is being used especially in circumstances where it is unwarranted. Jesse was shot even though he was unarmed and clearly did not pose an immediate threat to the officer.”
The attorney for Modesto and Wallace filed a motion for summary judgment to have Montelongo’s claims dismissed.
Lacy said he has filed a response and expects the judge to deny the defendant’s motion, after which a trial date will be set.
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