Shot in the Back

A federal jury on May 16 awarded $2.1 million to the family of an 18-year-old Huntington Beach resident shot and killed by Huntington Beach Police officer Mark Wersching, who previously had been cleared of wrongdoing in three separate investigations by his own department, the Orange County Sheriff's Department and the Orange County District Attorney's office.

At the U.S. District courthouse in Los Angeles, jurors rejected the often-changing official version of the shooting of Antonio Saldivar, who over the past two years had been portrayed as a thief and gang member who died because he pointed a rifle—later determined to be a toy gun—at Wersching.

Saldivar died at about 1:45 a.m. on May 5, 2001, in the city's predominantly Latino Oak View neighborhood. He'd been struck by four of eight rounds fired by Wersching. According to official police statements made immediately after the shooting, Wersching shot Saldivar, a burglary suspect, in self-defense after a brief chase that ended when Saldivar pointed a rifle at him.

But days later, police acknowledged that the “rifle” recovered at the scene was actually a toy cork gun with a plastic orange tip that belonged to Saldivar's neighbor and had been left outside the previous day. Then, a few weeks later, police acknowledged that Saldivar wasn't the burglary suspect Wersching was chasing. That person turned out to be Brigido Mendez, a local gang member who admitted his involvement in the incident after Wersching arrested him on an unrelated charge.

After the shooting, the Orange County Sheriff's Department and the District Attorney's office exonerated Wersching, who has since been promoted and now works as an undercover narcotics detective. But during the recent trial, key evidence emerged that conflicts with Wersching's statements regarding how Saldivar died.

In his statements to investigators and a sworn deposition presented at trial, Wersching claimed that Saldivar had been crouching in a driveway between a pickup truck and white picket fence–the same location where Wersching had spotted Mendez–when Saldivar pointed what appeared to be a rifle at him. He stated that when he spotted the barrel of the “rifle” across Saldivar's chest, he had no choice but to shoot.

But a photograph of Saldivar's white tank top taken after the shooting contradicts that story. Because the blood stains were on the back of Saldivar's shirt, that would indicate he was not facing the officer when he was shot, according to forensic expert Mark Firestone, who testified for Saldivar's family. Jurors agreed. In exit interviews, many cited the photograph of Saldivar's shirt as being crucial to their decision.

“There were no frontal wounds, which is contrary to Wersching's testimony,” Firestone later told the Weekly. “All the [bullet] trajectories indicated that Saldivar's left arm was off to his side and up by the side of his head and that's not a position where you could be holding or pointing a rifle.”

Firestone added that the bullet trajectories established at the shooting scene didn't fit with Wersching's claim that Saldivar was crouched between the pickup truck and the fence when Wersching pulled the trigger. “There was no indication of bullet impacts with the picket fence,” Firestone said.

Wersching's lawyers asserted that their client had been at the end of the driveway when he fired straight ahead at a crouching Saldivar–thus explaining why none of the bullets hit the fence. But Firestone told the Weekly that the location of the bullets found at the scene—and the fact that they were fired in a diagonal trajectory—are inconsistent with Saldivar having been between the fence and the truck.

“My conclusion was [Saldivar] was not between the fence and the truck, he was behind the truck,” Firestone said.

During the recent federal lawsuit, defense lawyers asserted that Mendez and Saldivar were both gang members and were trying to break into the pickup truck where Wersching first saw Mendez and later shot Saldivar. Jurors didn't buy that argument. Instead, they believed Mendez, who told two Orange County sheriff's investigators that he knew Saldivar but hadn't seen him the night of the shooting.

While Mendez freely admitted being a gang member, he insisted that Saldivar was not. Mendez also said he wasn't trying to break into the pickup truck when Wersching began chasing him, but was walking down the street, looking for a quiet place to get stoned. Mendez added that he ran from Wersching because he was on probation and had a joint in his pocket.

Mendez claimed he knew Wersching at least as well as Saldivar did, because Wersching had arrested him on numerous occasions. Mendez asserted that Wersching was well known by local gang members, who gave him the nickname “Charlie.”

“Me and him have pretty, a pretty, um—how can I say?—we know each other,” Mendez told investigators, adding that he was surprised Wersching didn't recognize him during the chase because they were separated by only 10 or 15 feet. “I already knew him,” he said. “And he knew me, too, but he didn't recognize me, I guess.”

Asked why he thought Saldivar died, Mendez said he figured Saldivar was in the wrong place at the wrong time. “It doesn't take a genius to realize, um, that he was mad that he didn't catch nobody,” Mendez said of Wersching. “The only one who knows is the cop that shot him. All I know is that guy was chasing me that night and if he would have caught me it would be me that he was gonna shoot.”