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MCALLEN, Texas (Tribune News Service) — A 40-year-old Marine veteran filed a lawsuit against the city of McAllen and a police officer who shot him in the foot nearly two years ago while he suffered a mental health crisis.

Attorneys for Falcon Rivera Jr. filed the federal complaint Wednesday, alleging that the city negligently trained and supervised officer Daniel Cruz, who they say used excessive force when he fired five shots at Rivera, who was handcuffed.

Rivera had elbowed Cruz in the face before running away.

The shooting happened Jan. 14, 2020, outside of the South Texas Behavioral Health Center where Cruz was transporting Rivera for mental health treatment.

Rivera is a Marine veteran who saw combat and suffers from post-traumatic stress disorder, according to the petition.

"As a result of his condition Rivera was and is under the care of a psychiatrist and is treated with medication for his condition," the lawsuit said.

Prior to the shooting, McAllen police responded to Rivera's residence in the 5200 block of North 25th St. in McAllen after receiving a call from an unknown person indicating there was a suicidal person at Rivera's residence.

In a news release at the time, police said Rivera was suffering from a "psychotic break."

When Cruz arrived at the home, Rivera was already in custody and police had found a firearm that he had in his possession when officers arrived, according to the lawsuit.

"Cruz testified in his pre-suit deposition that there was no indication the gun had been fired and that when he arrived Rivera was still not in custody," the lawsuit said.

Rivera had previously filed a petition to investigate claims, which resulted in Cruz's deposition.

The lawsuit notes that Cruz was not involved with taking Rivera into custody but that the officer in charge at the scene ordered Cruz to transport Rivera to the emergency room at South Texas Health Systems.

"Rivera was already secured in Cruz's vehicle and was restrained, meaning his hands were cuffed but not his feet," the lawsuit said.

While at the hospital, Cruz adjusted Rivera's handcuffs so they were in front of him to assist the doctors in their medical evaluation, but when they left the facility, Cruz did not return the handcuffs to the back of Rivera's body, according to the petition.

"The doctors at the ER made the decision that Rivera needed to be transported to the South Texas Behavioral Center and Cruz was again designated to transport Rivera," the lawsuit said. "Rivera was placed in the police car wearing a medical gown, his pants and socks, no shoes."

Rivera's attorneys say their client was cooperative and non-aggressive during the ride and never tried to hurt himself or Cruz.

Upon arrival at South Texas Behavioral Health Center, Cruz let Rivera out and allowed him to walk in front of him as they approached the entrance.

At some point, Rivera stopped walking either because of a limp he has or because he stepped on something while only wearing socks, according to the petition.

"When Cruz bumped into him Rivera actually turned to face Cruz and then elbowed Cruz in the face," the lawsuit states. "Cruz fell to the ground and Rivera began running across an open field toward a convenience store. He was still handcuffed, wearing only socks, pants and a medical gown."

Cruz, who was bleeding from his nose and a cut on his face, began to chase Rivera, who was running northwest toward a convenience store more than a half-mile away.

"Cruz did not attempt to call in for back up. Once Cruz cleared the vehicles in the parking lot, he saw Rivera running in the open field and determined he could not catch him," the lawsuit said. "Cruz described himself as incapacitated, and his eyes had the sensation of being tear gassed."

Instead of calling for backup, Rivera's attorneys say Cruz determined his only option was to shoot at Rivera.

The petition indicated that Cruz said he fired before Rivera could reach the convenience store, grab a vehicle and escape.

"This is a salient point. Here is a man who is handcuffed, has no shoes, wearing pants and a medical gown who Cruz admitted posed no threat to anyone, no longer posed a threat to Cruz, and based on Cruz's testimony was out of range," the lawsuit said.

This was the first time in Cruz's two decades of service that he fired his weapon in the line of duty, according to the petition.

"Cruz fired five times, he struck Rivera in the foot causing severe damage to the foot," the lawsuit said. "Cruz testified when he fired that no one was in danger, there was no threat to Cruz, a third party or Rivera. In his own words he fired to apprehend Rivera."

The lawsuit said that Cruz agreed under oath that he used deadly force on a man who was simply running away and had his back to him.

"Mr. Rivera's foot took approximately 5 months to heal but never completely healed," the lawsuit said.

Rivera had to be transported to the emergency room twice because of a severe infection and he had to undergo three months of physical therapy, according to the petition.

"Mr. Rivera continues to suffer chronic pain and soreness from having to walk unevenly to compensate for his injured foot. He is currently walking without the assistance of a walker or cane, but he cannot put full pressure on his foot," the lawsuit said.

Neither the city nor Cruz have responded to the federal lawsuit, but both parties denied all the allegations in filings in Rivera's previous petition to investigate the claims.

Edinburg police had charged Cruz with escape from custody and aggravated assault against a public servant, while McAllen police also charged him with aggravated assault against a public servant and possession of marijuana.

The Hidalgo County District Attorney's Office dismissed the misdemeanor complaints of escape from custody and possession of marijuana against Rivera, citing a mental health commitment.

Rivera hasn't been indicted on the aggravated assault against a public servant charges, court records indicate.

(c)2021 The Monitor (McAllen, Texas)

Visit The Monitor (McAllen, Texas) at www.themonitor.com

Distributed by Tribune Content Agency, LLC.

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