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Federal court lets lawsuit over 2020 shooting by off-duty Cleveland officer proceed

A white man with a surgical mask gesticulates as he speaks into microphones. A Black man wearing a surgical mask stands leaning against a wall and a young man wearing a mask sits nearby.
Matthew Richmond
Ideastream Public Media
The attorney for Desmond Franklin's family, Terry Gilbert, along with Franklin's father, Emanuel Franklin, and Quavon Franklin during a Dec. 6, 2021, press conference announcing the lawsuit against Cleveland Police officer Jose Garcia, who shot and killed Franklin in 2020.

A federal lawsuit against city of Cleveland police officer Jose Garcia is moving ahead after a judge denied the officer’s motion for summary judgment Wednesday.

On April 9, 2020, Garcia was driving on Pearl Road to work at the Second District on Cleveland’s 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 – 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’s no evidence any shots were fired from Franklin’s 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’s feet after he was shot.

In Wednesday’s decision, the judge in the case ruled that a jury will have to resolve that discrepancy.

“Because there are two different versions of the events that took place leading to Desmond Franklin’s death on April 9, 2020, the Court cannot grant summary judgment to Defendant on Plaintiff’s claims,” 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’s 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 – the four Black members of the board voted in favor of discipline; the three white members voted against.

“He inserted himself into the situation with zero coercion and then decided, after he already made contact, that he didn’t want to make further contact,” 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.

“Your actions did not constitute a police action when you initially approached the complainant,” wrote Howard in a brief explanation of his decision not to suspend Garcia. “You did leave the area but you were followed by the complainant; subsequently your reaction to a gun being pointed at you was reasonable.”

Garcia’s lawyers argued that he was acting as a police officer beginning at the moment Franklin allegedly pointed a gun at him in the car.

“Garcia as an officer had not only the right – but arguably the duty to intervene, even if that intervention was in self-defense,” wrote Garcia’s attorneys in a brief filed March 22, 2024. “Garcia 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.”

Garcia was represented by city of Cleveland lawyers up until March 21, 2024, and is now represented by private attorneys.

There’s no video capturing Franklin’s 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 “aggressively” as he approached Garcia’s car from behind.

Franklin’s attorneys dispute that characterization.

They argued Franklin couldn’t 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’s silver Honda when the shooting occurred.

The court will hold a status conference on the case April 10.

Matthew Richmond is a reporter/producer focused on criminal justice issues at Ideastream Public Media.