Wrongful death federal suit filed on behalf of Mario Gonzalez's 5-year-old son

Civil rights attorneys on Friday filed a wrongful death federal lawsuit on Friday against three Alameda police officers, the former police chief and the city, a week after the autopsy was released showing that Mario Gonzalez's death this spring was the result of a homicide. 

The suit, filed in the Northern District of California by attorneys Julia Sherwin and Michael Haddad in Oakland, was filed on behalf of Gonzalez's 5-year-old son, Mario Jr.

"Mario was a peaceful, calm person. He was a very mellow guy," Mario Jr.'s mother, Andrea Cortez, said in a statement. "He adored our son and was a good father. The police should have known to use better tactics with Mario. He wasn’t hurting anyone and he was clearly confused. If they had rolled him on his side when the first officer said to, my son’s father might still be here." 

The suit names then-Interim Police Chief Randy Fenn and officers Eric McKinley, James Fisher, and Cameron Leahy as the defendants. The city said the officers have been on leave since Gonzalez's April 19 death. 

The suit claims that Gonzalez was the victim of excessive force and that his arrest, and therefore, death, was unconstitutional. The attorneys argued that there was no reason to arrest the 26-year-old in the first place, let alone pile on top of him to put him in handcuffs, which led to his death. 

In an email, attorney Patrick Moriarty, who is representing Alameda, said: "The loss of Mario Gonzalez’s life was indeed tragic, and the City will defend itself, its former police chief, and the named officers against the allegations."

Alison Berry Wilkinson, the attorney representing the three officers, said that her clients "look forward to the opportunity to prove in federal court that their actions during this encounter were reasonable, necessary, and lawful."

She added that "this was an unintended, unexpected and tragic death.  In taking the resistant Mr. Gonzalez into custody…, the officers used only trained and accepted law enforcement techniques.  As the coroner noted, the cause of death was drug toxicity, and many of the injuries listed in the complaint were the result of the officers’ aggressive efforts to save Mr. Gonzalez’s life rather than their efforts to handcuff him."

She previously told KTVU that the officers felt they had to arrest Gonzalez "for his own safety" as he appeared drunk and could have fallen on a tree stump. 

Wilkinson said that physical struggle was because Gonzalez resisted the officers, who she said never intended for the struggle to progress the way it did. 

WARNING GRAPHIC VIDEO:  Alameda officers kneel on man before his death 

On the day in question, Gonzalez had been acting disoriented, possibly intoxicated, in Scout Park. Two neighbors called the non-emergency police line to report his odd behavior, though he wasn't threatening anyone. Someone thought he possibly stole a bottle of alcohol, but the suit states that when police contacted Walgreens, no one had reported anyone with Gonzalez's description stealing anything.

Gonzalez didn't comply with police orders to provide ID and appeared confused, but had not committed any crime, his attorneys emphasized. Then, "without reasonable suspicion, probable cause, or any legal basis," the officers "escalated the otherwise calm interaction with force, each grabbing one of Mario Gonzalez's arms and then trying to force them behind his back by using pain compliance holds" though he had "still had done nothing threatening to anyone," the suit states. 

After failing to put him in handcuffs, two officers took Gonzalez to the ground, pinning him face-down on his stomach in a prone position. One officer got on his back. Gonzalez was held in this position for about five minutes. He ended up dying at the scene after he couldn't breathe any longer. 

Last Friday, the Alameda County Coroner released Gonzalez's autopsy report, showing that "the officers were applying pressure to [Mario’s] torso and legs with at least some of the weight of their bodies" and the "stress of the altercation and restraint" contributed to his death, along with his obesity, alcoholism, and recent use of methamphetamine. 

Ultimately, the coroner's officer ruled the death a homicide. 

Alameda police officers try to revive Mario Gonzalez of Oakland after police restrained him, prone on the ground. April 19, 2021

Haddad said that the amount of methamphetamine found in Mario’s blood was relatively low, well within what the United States government has determined to be a "normal recreational level." The risk of death from methamphetamine is just 1 in 353,000. 

Hadded described the death as a result of what's known as "restraint asphyxia,'' the second such type of death at the hands of Alameda police in two years. 

"Mario Gonzalez’s death was unnecessary and tragic. How many more people will have to be killed by police officers who ignore the kindergarten wisdom that people can’t breathe if you kneel on their back?" Haddad said. 

Several experts have said that officers have long been trained not to handcuff people facedown on the ground as it can lead to "restraint asphyxia."

He and Sherwin called on the District Attorney to criminally charge the officers. 

Gonzalez's mother, Edith Arenales, is now being represented separately by civil rights attorney Adante Pointer. She has not yet filed any suit, but this week, she and her other son, Jerry, called for the police officers to be fired. 

Many have compared Gonzalez's death to the May 2020 death of George Floyd -- not only for how both men died, but also regarding the timing. 

Gonzalez was arrested just hours before the case against former Minneapolis police Officer Derek Chauvin went to the jury. The next day, Chauvin was convicted of murder and manslaughter for pinning Floyd to the pavement with his knee on the Black man’s neck in a case that touched off a national reckoning over racism and police brutality.

IF YOU'RE INTERESTED: A Go Fund Me account has been created to help Mario Jr. 


Lisa Fernandez is a reporter for KTVU. Email Lisa at lisa.fernandez@fox.com or call her at 510-874-0139.