sweetcowboycloser More than two years have passed since Ernest Raymond Rodriguez’s first-ever night of drinking in Belmont Shore ended with him being shot five times by homegrown Long Beach Police Department officer Jonathan Steinhauser. Sometimes that’s hard to believe.

There’s no quibble with the time line. Beginning with a pre-dawn post on LBReport.com that broke the story, every news account, police report and court document associated with the incident have agreed on the date: May 28, 2009. It’s an undisputed fact.

That’s significant, because there still aren’t many of them—undisputed facts, that is—and that’s the aspect of this incident that is hard to believe. When it happened 26 months ago, citizens were advised to  hold their questions and reserve their judgement during the separate investigations by the LBPD  and Los Angeles District Attorney that are standard with officer-involved shootings—the implication being that when the truth were found it would be shared.

After all that, however, we still haven’t been told what happened the night a police officer answered a drunk-and-disorderly call in the city’s swankiest restaurant/bar-and-retail district and gunned down the unhappy customer. Our questions, whether pertaining to the nuts-and-bolts of this case or the broader issues they raise for the City of Long Beach, have gone unanswered.

Did Ernest Raymond Rodriguez—a man with no police record, who was visiting the Jersey Shore of Long Beach for the first time—really need to be shot five times?

Did the escalating tensions in Belmont Shore, where long-complaining residents were so angry and frustrated by the behavior of Second Street bar patrons that they had begun posting videos on line of the closing-time fights and public urination—influence what happened between Rodriguez and Steinhauser?

Is there a pattern or culture of excessive force by Long Beach Police Department? This question has been raised more frequently since the Rodriguez shooting, which was followed a few months later with the fatal December 2010 shooting death of 35-year-old Douglas Zerby—also in Belmont Shore, also at the hands of Long Beach police—while he sat on a friend’s front porch, fiddling with a water nozzle that LBPD spokespersons said resembled a handgun. In May of this year, LBPD officers who said they were responding to an anonymous report of domestic violence, sprayed bullets into the central-city apartment shared by Jonathan Cabrera and Elizabeth Bustamante. Cabrera was wounded in the torso and arm but is recovering.

Meanwhile, in early August 2011, the most up-to-date information we have about the Rodriguez-Steinhauser altercation is the same skeletal chronology that authorities sketched for us in late May 2009: A man patronizing Belmont Shore bars argues with his girlfriend after a few drinks; breaks some store windows, runs away, voluntarily returns to the scene after being chased, caught, calmed and convinced by security guards. He waits not far from the broken window for a police officer, whose arrival ignites a struggle that—one more time—ends when the officer fires five bullets into his body.

Oh, and then there’s this, just in: the lawsuit that Ernest Rodriguez filed last year against the City of Long Beach, the Long Beach Police Department and officer Jonathan Steinhauser comes before Judge David O. Carter in United States District Court on Aug. 8 (that’s this Monday).

LITTLE HAS BEEN HEARD from Rodriguez, at least publicly. An investigation by GreaterLongBeach.com—consisting of some interviews and a review of various legal documents–has flushed out a few small facts: he is still recuperating, and the process has been slow … and not only physical.

When Rodriguez was finally able to get about with a walker, he made his second trip to Belmont Shore. During a slow, painstaking trip down Second Street, he apologized to local merchants—including employees of Sweet Jill’s Bakery, where he’d smashed a window with his hand following an argument with his girlfriend on the night he made so much trouble.

In an April 2011 deposition, Rodriguez described those apologies as “… something I just—I had to do.” He added, “It was like a personal thing.”

Being shot multiple times is not something everyone recovers from. Rodriguez is still working on it.

“Rodriguez has sustained nerve damage. He has tingling and pain in his extremities,” said one of his attorneys, Tyler Dowdall, of Sayre & Levitt in Santa Ana, adding that there’s no telling how long this will last.

It wasn’t only Rodriguez’s body that took a hit: his criminal record suffered too—that is, now, he has one. His previously clean slate now features a no-contest plea to one non-strike, felony count of resisting an executive officer. He is on three years felony probation.

THE DEPOSITION is part of Rodriguez’s lawsuit, which will begin with a motion by the City of Long Beach for summary judgment—that is, to decide whether the case has any “trialable issues,” and whether it should continue to jury trial this fall, or be dismissed. Naturally, the City’s position is that the case should be dismissed.

“The evening of May 28, 2009, was not a good night for Ernesto Rodriguez,” begins the City’s introduction to its motion—a point on which both sides might conceivably agree. No matter whose version of events you believe, there’s no denying that within just a few hours, Rodriguez went from celebrating one of life’s milestone events—the graduation of his girlfriend, Bridgette Molina, from Long Beach State—to being critically injured.

The couple started the night in Huntington Beach, with drinks at BJ’s Restaurant and Brewhouse, then decamped to Belmont Shore.

“I think it was just like a last-minute thing,” Rodriguez said in his deposition, adding that he’d never been to Belmont Shore before. “We didn’t plan a certain bar or lounge.”

Their first stop was Shannon’s Bayshore. In his deposition, Rodriguez says he drank one 12-ounce beer. They then walked west on Second Street for what Rodriguez estimates was “about five minutes,” ending up at … well, wherever it was, Rodriguez drank and argued over a woman who’d asked Rodriguez “if me and her were together or not,” then left.

But what bar was it? This piece of information is important to the back story—the controversy that was raging in 2009 over rowdy bar patrons, who Belmont Shore residents claimed were routinely overserved by permissive and greedy bar owners. Speculation after the shooting was that Rodriguez had been thrown out of Legends earlier that night. Rotondo has emphatically denied that Rodriguez ever visited the bar that night, and court records … well, here’s an excerpt from the deposition.

carmeter Q: The color of the door? Whether there were windows? Bricks in front of it? Anything? [Legends has windows, overlooked by green awnings and lots of brick.]

Rodriguez: I would say yes.

Q: What do you remember about the front of the bar?

Rodriguez: I remember it was—it was a real small location.

Q: It’s west of Shannon’s?

Rodriguez: Yes. [Legends is not small, but it is west of Shannon’s Bayshore.]

Q: Was it like a sports bar? Was it like an old-fashioned bar? An Irish Pub?

Rodriguez: It seemed maybe kind of like a dive bar.”

So … was it Legends? When Rodriguez and Molina left the bar, still discussing the woman who’d talked to him, he struck a window at Sweet Jill’s—three doors west of Legends—breaking the glass and cutting his hand. Employees from Legends, including Rotondo, himself—brought Rodriguez back to the closest intersection, Second Street and Covina Avenue, to await the police.

That’s where Rodriguez was—waiting, the cut on his hand still bleeding—when Long Beach Police Officer Jonathan Steinhauser arrived.

THIS IS WHEN Rodriguez’s complaint for damages—an unspecified amount of money—for violation of his federal civil rights begins. Rodriguez’s attorney alleges that Steinhauser “and/or other officers or individuals employed by Defendants shot [Rodriguez] without legal cause or excuse.”

The attorneys also allege police “made an unreasonable seizure” of Rodriguez, “violating his rights under the Fourth and Fourteen Amendments to the … Constitution, and subjected him to summary, cruel and unusual punishment in violation of the Eighth Amendment.”

(The Fourth Amendment is part of the Bill of Rights, and it guards against unreasonable searches and seizures. The Fourteenth Amendment offers due process and equal protection to all people regardless of race, color, etc. The Eighth Amendment—another in the Bill of Rights—prohibits the government from imposing cruel or unusual punishments.)

The complaint further alleges that “[excessive] force was used to injure Plaintiff;” that Rodriguez was “shot and seriously injured by Defendants without justification, cause or excuse;” and that the defendants “… had ample and reasonably sufficient time and opportunity to so intervene and prevent the shooting … .”

Long Beach Deputy City Attorney Monte Machit, who represents all defendants in the case—that’s Steinhauser, the City, and the Long Beach Police Department—denied the allegations in a conversation with GreaterLongBeach.com.

Steinhauser, presented a different, albeit brief, portrait of what took place that night. He said he responded to a vandalism call at Sweet Jill’s, and was flagged down by someone who identified Rodriguez as the person who had broken the window.

Although Rodriguez was waiting for the police with a group of people, Steinhauser’s evaluation of the situation he was entering was rather telling. He revealed it during a declaration made as part of the City’s response to the lawsuit.

“I observed Rodriguez and judged that he outweighed me by approximately 100 pounds,” Steinhauser said in his declaration. “Because Rodriguez had not yet been searched and because other persons were present who might be affiliated with Rodriguez, I considered Rodriguez to be a threat to my safety and possibly the safety of others. Based on my training and experience as a police officer, I believed that Rodriguez would be easier to control seated and handcuffed.”

A questioner at the deposition asked: “ … it sounds like you’re going to handcuff him before you ask him whether he’s the one that broke the window; is that right?”

“Yes,” Steinhauser responded, noting that Rodriguez hadn’t been searched, and that he wanted to “handcuff him, and then deal with the rest of it.”

Steinhauser stayed on this point, emphasizing it.

“Once again, I wanted to take control of him,” Steinhauser said.

Had this happened—and, hypothetically, had Steinhauser been able to control the situation that night and investigate his way—the evening could have ended much differently.

A questioner at the deposition asked, “ … if he [Rodriguez] had said that he had broken the window, would you have released him at that point in time?”

“Probably would have issued him a citation and unhandcuffed him and released him at the scene,” Steinhauser responded.

But that’s not how it happened.

“THE VERY FIRST THING HE SAID to you was ‘Sit down’?” a questioner at the deposition asked Rodriguez.

“Yes,” Rodriguez responded.

But Rodriguez did not sit down.

Dowdall, his attorney, explains: “Mr. Rodriguez did not comply with the command to sit down because there was insufficient space between the police car and the curb to sit down.” And then explains further: “Additionally, Mr. Rodriguez had voluntarily walked to the corner and waited for approximately 10 minutes for the officer to arrive. He intended to assume responsibility for the broken window; there was no need to sit him down and cuff him.”

After more commands from Steinhauser to sit down, and more refusals by Rodriguez, Steinhauser said he asked the gathering crowd to step back, then drew his baton and again ordered Rodriguez to sit on the curb.

When Rodriguez did not comply, Steinhauser struck him at least twice with his baton. At this point, Rodriguez reached out and took the baton away from the officer so that he would not be struck again.

Rodriguez immediately dropped the baton, say his attorneys.

But the City of Long Beach’s attorneys assert that Rodriguez held onto the baton, and in fact, appeared to be ready to use it on Steinhauser. This, they assert, is what prompted Steinhauser to draw his weapon and shoot Rodriguez five times.

“What we’re arguing,” Machit said, “is that the officer used reasonable force.”

REASONABLE VS. UNREASONABLE FORCE. This could be the central issue when Rodriguez’s lawsuit arrives before Judge Carter to face that summary judgment motion on Aug. 8.

Did Steinhauser and members of Long Beach Police Department—and by extension, the City of Long Beach—deprive Rodriguez of his civil and constitutional rights by using unreasonable force, on the night of May 28, 2009? Or does Rodriguez’s no-contest plea to the charge of resisting an order from an executive officer render the question moot?

The City’s position, naturally, is that it does.

“If the case goes to trial, that’s what we believe the evidence will show—that Mr. Rodriguez was a threat to Officer Steinhauser,” Machit said, asserting that a favorable ruling for Rodriguez in this case would negate the earlier no-contest plea. “A conviction by a plea is no different than a jury verdict. You’re just admitting that you’ve violated the law,” Machit said.

David A. Dusenbury, a former Long Beach Deputy Chief of Police, disagrees; he’s now an expert witness for Rodriguez.

“Officer Steinhauser’s use of the police baton and his firearm against the person of Ernest Rodriguez was not objectively reasonable,” Dusenbury is quoted as saying, in a declaration he made in June from Bend, Oregon. Steinhauser “never warned Ernest Rodriguez” before firing his weapon, Dusenbury said.

“Officer Steinhauser fired immediately after stepping back from Ernest Rodriguez,” Dusenbury said, opining that Rodriguez “had the right to use reasonable force to resist the excessive force used by Officer Steinhauser.”

Did he? On Aug. 8, that question will go before a judge.

Oh, and one more thing: The City contends that there was, in fact, enough space on the curb for Rodriguez to have sat there, too.