Family seeks $10M for son's death

The family of 15-year-old Derrick Gaines, shot and killed by South San Francisco police Officer Joshua Cabillo in June, is seeking $10 million in damages from the city, Police Chief Mike Massoni and Cabillo, civil rights attorney John Burris announced yesterday.

Mother Rachel Guido and father Derrick Gaines stood alongside Burris at the scene of their son's death at the Arco gas station on Westborough and Gellert boulevards as he told family supporters the complaint was filed yesterday in United States District Court, Northern District of California.

The complaint is for wrongful death, violation of civil rights and damages.

In August, the San Mateo District Attorney's Office released a report after a lengthy investigation that cleared Cabillo of any wrongdoing in the teen's death.

The complaint filed yesterday alleges Cabillo was motivated by prejudice against Gaines, who was readily recognizable as African-American. It also alleges the officer's conduct was "extreme, unreasonable and outrageous.”

Gaines had actually been living with great aunt Dolores Piper in South San Francisco at the time of his death, within walking distance of the gas station.

Gaines was shot June 5 at the Arco gas station at about 9 p.m. after he and another teen were stopped by Cabillo, who suspected the teen was carrying drugs or possibly a weapon due to his suspicious behavior, according to a letter sent from the District Attorney's Office to Massoni in August after it concluded its investigation into the boy's death.

The officer told Gaines to put his hands in the air and the teen started to comply before fleeing the scene. The officer gave chase and caught up to him quickly before grabbing his clothing and striking him on the back of the head with a gun, according to the letter.

As Gaines fell to the ground, a gun fell from his person onto the ground close to the teen's knee, according to the letter to Massoni.

"Before Officer Cabillo could even manage to say the words ‘don't,' Mr. Gaines lifted up his shoulders, began to sit up, and with his right hand reached across his body toward the firearm on the ground by his left side. At that point, Officer Cabillo believed that the subject was reaching for the firearm. Officer Cabillo concluded that he did not have enough time to get to the firearm before the subject would, and believed that once the firearm was seized by Gaines that it would be used on the officer. Fearing for his life, Officer Cabillo fired a shot, which hit the subject in the neck,” according to the letter.

Yesterday, Guido told the Daily Journal "the truth needs to come out” and that the officer has to be accountable for his actions.

"They didn't even come to my house and tell me he's dead,” she said about police. The friend who was with Gaines that night, Remy Carrillo, told her that her son had been shot, Guido said.

Piper, who is not a signatory in the complaint, told the Daily Journal yesterday that only the officer and any witnesses to the incident know what happened that night.

The family is seeking a jury trial to get any witnesses on the stand to hear their accounts of the events that night.

The attorney the family hired, Burris, represented the family of Oscar Grant after he was shot and killed by a Bay Area Rapid Transit officer in 2009.

Grant's family was awarded millions in two separate civil suits.

The complaint alleges Cabillo shot Gaines twice, once in the base of his neck and another in his lower back.

While Piper said she would never condone the action of the boy she helped raise, she said Gaines would not have been reaching for the gun because he knew it did not work. The gun was not loaded nor did it have a firing pin.

"I wouldn't condone what he did in a million years. If he was here now I'd kick his butt,” she said.

Piper, too, has suffered from the incident as, she told the Daily Journal, many in the community have shunned her for continuing to seek accountability from the officer and police department.

"No one is talking to me anymore. No one wants me to question what happened. I'm being alienated from the community and it is just sad,” she said.

She recently buried some of the boy's ashes in Montana, a place he loved to visit and even hoped to live one day.

"I wish I would have moved him there,” Piper said yesterday.

The plaintiffs are seeking damages for mental and emotional injury from the loss of familial relations with Gaines', his companionship, love, affection, solace and moral support.

Guido told the Daily Journal the case is not about "raking in money” but rather to seek justice for her slain son.

The DA's investigation concluded that Cabillo feared for his life and the shooting was a lawful response to the boy's actions that night.

An autopsy showed Gaines had cocaine, methamphetamine and amphetamine in his blood. Both marijuana and methamphetamine pills were also recovered from his person upon removal of his clothing, according to the District Attorney's Office.

The complaint filed yesterday alleges Cabillo violated Gaines' constitutional rights including: the right to be free from unreasonable searches and seizures; the right not be deprived of life or liberty without due process; and the right to be free from the use of excessive force by police officers.

The family was joined by friends and acquaintances yesterday at the Arco to support the family and decry police violence.

Bill Silverfarb can be reached by email: silverfarb@smdailyjournal.com or by phone: (650) 344-5200 ext. 106.