Police

Truth file photo

GOSHEN — An undisclosed settlement has been reached between the City of Goshen and a man who was shot and paralyzed by police in April 2017.

Fernando Cuevas, 69, was shot by Goshen Police Sgt. Gregory Smith on April 5, 2017, while officers were responding to a report of a man with a shotgun at Double D’s Hometown Bar and Grill. Cuevas sued the city later that year, saying he suffered a potentially permanent injury to the spine and was paralyzed from the waist down, with no movement in his legs.

Both sides entered mediation this past July and an agreement was reached during an Aug. 20 session. The Goshen Board of Works on Monday approved a $10,000 contribution toward the settlement amount, which constitutes the city’s deductible under its insurance policy.

City Attorney Larry Barkes told the board that attorneys for the insurance company handled the negotiations, though he was involved in mediation by phone. The agreement was reached ahead of a Jan. 27, 2020 scheduled trial date.

The total amount of the settlement was not discussed at the meeting. Goshen Mayor Jeremy Stutsman said later that he is not allowed to release the amount because it was paid by the insurance company.

In a memo to the board, Barkes said the agreement “settles the claim well within the City of Goshen’s insurance policy limits and includes a non-disclosure agreement.”

Claims in court

During the April 2017 incident, Goshen police fired 25 shots at the man who had the gun, 19-year-old Michael Alcaraz of Bristol, killing him, according to the suit Cuevas filed in federal district court on Nov. 22, 2017. Cuevas said he was on a different side of the building from Alcaraz, collecting bottles, when Smith rounded the corner and shot at him twice.

The Elkhart County Prosecutor’s Office announced two months after the shooting that no charges would be filed against any of the officers involved and no grand jury investigation would be held. Cuevas was still in the hospital at that time, in grave condition.

Given Smith’s knowledge of the type of weapon Alcaraz had, what police knew about the situation and standard police practices in such a case, “the act of shooting an innocent bystander shocks the conscience,” stated the November 2017 filing by Indianapolis attorneys Scott Barnhart and Brooke Smith. The lawsuit sought financial damages against Smith and the city of Goshen for violating Cuevas’s constitutional rights.

The filing made eight claims against the officer and the city, including excessive force, due process violation, battery, criminal confinement, negligence and emotional distress. It argued that the incident shows a lack of training and failure to properly supervise officers in the use of firearms, resulting in deliberate indifference to Cuevas’s rights.

“The defendants engaged in extreme and outrageous conduct that caused Mr. Cuevas to suffer severe emotional distress,” the filing stated. “The defendants breached their respective ... duties by allowing their conduct or inaction to fall below the standard of care that they owed to Mr. Cuevas.”

The city denied violating Cuevas’s rights in its response to the lawsuit.

The response acknowledged that Smith “rounded the building (and) fired two shots, and that (Cuevas) was shot,” but otherwise denied the allegations made against him. The city asserted that Smith acted in self-defense and in defense of others.

“Any and all force used by Sergeant Gregory Stuart Smith was not excessive and was reasonable and necessary under the circumstances,” the filing stated. “Sergeant Gregory Stuart Smith did not act with malice, willfully, wantonly, or with deliberate indifference to (Cuevas’s) rights.”

Messages seeking comment were left with attorneys for Cuevas and the city. 

(1) comment

45086094

Understandable, but if you are out there, you are at your own risk. Money does not give you your legs or enjoyment of life back. This happened before, and will continue to happen.


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