Federal court sides with Waterloo police in shooting that left man paralyzed

A Waterloo police officer was justified when he opened fire on a man carrying a BB gun in April 2021, a federal judge has ruled.

Marcelino Alvarez-Victoriano suffered three gunshot wounds in the back and was left paralyzed at the waist in the shooting, which took place after a 911 caller reported a man with a rifle walking toward downtown Waterloo. Alvarez-Victoriano sued officer C.J. Nichols, arguing that at the time the shots were fired, he had not posed a threat to any officer and that Nichols "had already decided he was going to be in a gunfight" before arriving at the scene.

The case has had a winding path, with a state court judge at first dismissing it before the Iowa Supreme Court revived the suit. Waterloo then had the case moved to federal court, where on Monday, Judge Leonard Strand ruled Nichols had not violated Alvarez-Victoriano's rights and granted summary judgment for the city.

Attorneys for Waterloo declined to comment, while Alvarez-Victoriano's attorney Molly Hamilton called for more accountability for police.

"We acknowledge this will end the civil litigation, but it does not end the need for sunlight and transparency in matters where those who are duty bound to protect and serve have the power to alter and end lives,” she said in an email.

Black Hawk County prosecutors previously declined to charge the officers, finding the shooting to be justified.

Why did police shoot Marcelino Alvarez-Victoriano?

As summarized by Strand, police responding to the 911 call encountered Alvarez-Victoriano with what appeared to be a rifle. The first officer to arrive saw Alvarez-Victoriano pick up the weapon and walk toward him, ignoring directions to put the gun down. The officer reported Alvarez-Victoriano said something in an "aggressive" tone, which Alvarez-Victoriano denies, and took cover behind his car.

Alvarez-Victoriano then began walking around the vehicle, which the officer perceived as pursuing him, although Alvarez-Victoriano in his lawsuit claimed he was simply trying to walk home. Another officer arrived at the scene and tried to strike Alvarez-Victoriano with his car, but missed, and Alvarez-Victoriano then pointed the gun at him.

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Nichols was the third officer to arrive on scene, and told investigators afterward he saw Alvarez-Victoriano "hunting (the first officer) around the vehicle" and pointing a gun at him. Nichols immediately opened fire on Alvarez-Victoriano through his own windshield, striking him, and then shot him again moments later as Alvarez-Victoriano lifted his arm holding the weapon.

Police later determined Alvarez-Victoriano was holding a BB gun, although it did not have an orange tip.

Judge finds officer justified based on what he knew

In his lawsuit, Alvarez-Victoriano argued Nichols' use of force was unjustified and that he did not pose an immediate threat to either of the other officers at the time Nichols shot him. Alvarez-Victoriano, who does not speak fluent English, did not understand the command to lower his weapon and was facing away from all three officers when he was shot, his attorneys argued.

In his ruling Monday, Strand disagreed, writing that by pointing his weapon at two different officers and following one around his vehicle, Alvarez-Victoriano presented a clear and obvious threat to their safety.

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"Even if Dodd (the first officer) was in a position of cover at the time Nichols fired his weapon, Alvarez, by following Dodd around the vehicle, demonstrated that a reasonable officer would believe Alvarez posed a deadly threat to Dodd," Strand wrote. "To hold otherwise would put officers in the perilous position of having to wait until suspects have lined up a clear shot at officers before applying deadly force."

Because Nichols did not violate Alvarez-Victoriano's rights, Strand wrote, he and the city are entitled to immunity.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.

This article originally appeared on Des Moines Register: Waterloo police get qualified immunity for shooting man holding BB gun