Hillsdale County man's fatal shooting by deputy sparks federal lawsuit

Mark Hicks
The Detroit News

The family of a man fatally shot by a Hillsdale County Sheriff’s deputy last spring have filed a federal lawsuit, alleging the officer did not properly respond to what started as a complaint about a pet dog.

Oscar Herrera’s death was “preventable,” said Ian Fallon, the attorney with the Chicago-based firm Romanucci & Blandin LLC representing his family, in a statement Thursday.

“The deputy’s conduct is a direct result of how he was trained, and the tragic lack of compassion and common sense used by members of the department. The Sheriff and the Deputy will be held accountable for the ‘shoot first and ask questions later’ decision making that cost Oscar Herrera his life.”

Michigan State Police investigated the April 28 incident and later released the findings to Hillsdale County Prosecutor Neal Brady’s office for review. No charges were filed.

Oscar Herrera

In August, Brady told The Detroit News that after reviewing all the evidence provided, he “concluded that (the deputy’s) decision to shoot (Herrera) was justified in order to save himself from death or great bodily harm.”

According to the suit filed Wednesday through U.S. District Court in the Western District of Michigan, the 32-year-old did not pose a major threat when Deputy Adam Burlew arrived at Herrera's home in the 6500 block of South Edon in Reading on a "dog-at-large" complaint.

"When the deputy made contact at the residence of the dog, the deputy was immediately attacked by the dog ..." and bitten, the agency said at the time. "The deputy fired shots at the dog, which resulted in killing the dog."

The deputy shot Herrera, who was angry about the death of his dog, Rico, after Burlew said the man confronted him with a knife, state police have said. 

In their lawsuit, attorneys for Herrera’s family claim Burlew “sentenced Oscar to death for a perceived municipal ordinance violation, despite the fact that there was no evidence that any such violation was occurring.” 

Citing audio and body cam footage, the attorneys allege Herrera “advanced and retreated when directed numerous times” but was an estimated 20 feet away when Burlew opened fire.

Herrera “posed no threat of grave bodily harm or death to Burlew at the time he was shot, regardless of whether he was armed or not,” the lawsuit said.

Burlew and County Sheriff Scott Hodshire did not immediately respond to requests for comment Thursday night on the case.

In a state police incident report The News obtained, an investigator wrote that the deputy “took actions consistent with a deadly force assault on a police officer."

A neighbor told state police he noticed a shirtless Herrera “agitated and walking back and forth” when the deputy “had his gun drawn but pointed at the ground … trying to calm the male down” after the death of his dog, according to the report.

The witness said he saw Herrera initially kneel then “stand up and charge aggressively at the officer,” who fired multiple shots. Another neighbor told state police she also watched Herrera move “like he was going to attack” the deputy, the investigation's report said.

A black folding knife with a 2.75-inch blade was recovered at the scene, state police said.

The federal lawsuit alleges Burlew covered his body cam multiple times after the shooting and authorities did not have the knife analyzed for potential DNA evidence.

It also accuses the deputy of assault, gross negligence and failing to immediately render aid, “despite the fact that Oscar Herrera was unresponsive yet had a pulse immediately following the shooting,” the attorneys wrote, citing a paramedic's report.

“The day Oscar was born was the happiest day of my life, and the warmth a mother feels for her son is incredible," said his mother, Guadalupe Herrera, in a statement Thursday. "The day they tore him away from us was the darkest day and changed my life forever. He was my only child, and in his death my family line ends. I will not have any grandchildren.”

The suit claims Burlew violated Herrera’s Fourth Amendment rights “to be free from excessive, life-threatening force” and his bosses did not properly train him or other deputies to handle such encounters.

It seeks compensation, the deputy’s firing and changes in the Sheriff’s Office.

“It is impossible to quantify the impact of a traumatic death of this nature on the family,” said attorney Robert Palmer with Michigan-based Pitt McGehee Palmer Bonanni and Rivers, which also represents the plaintiffs, in a statement Thursday.

"But the family does not grieve alone, and this loss reverberates throughout Michigan community, making incredibly clear the need for accountability and change in the Hillsdale County Sheriff’s Department.”