Family of Eddie Irizarry files lawsuit against Philadelphia officers, including one who shot 27-year-old during August traffic stop

By Danny Freeman, Brynn Gingras and Dakin Andone, CNN

(CNN) — The family of Eddie Irizarry has filed a wrongful death lawsuit against two Philadelphia police officers, including the one who fired the gunshots that killed the 27-year-old during a traffic stop last month.

The civil lawsuit seeks at least $150,000 in monetary damages, claiming Irizarry was “inexplicably shot and killed … when he posed no threat of bodily harm, injury or death to anyone,” including the defendants, former officer Mark Dial, who fired the fatal shots, and his partner, officer Michael Morris.

News of the lawsuit comes just days after a Philadelphia municipal court judge dismissed a slew of charges against Dial, murder and voluntary manslaughter among them, stemming from the August 14 shooting, though prosecutors have refiled the charges with a higher court.

Police initially said Irizarry had “lunged at the officers” while outside his vehicle but later admitted that was not the case. The family’s complaint acknowledged Irizarry had a pocket knife he used for work as an auto mechanic, but added he “made no threatening motions or actions towards anyone.”

As a result, “no use of deadly force was reasonable or authorized under the law,” the lawsuit says.

CNN has reached out to Dial and Morris for comment about the lawsuit. In a statement earlier this week, Fortunato Perri Jr., an attorney for Dial, said, “despite what has been portrayed to the media, the facts will unmistakably show that Officer Mark Dial was legally justified in discharging his weapon while fearing for his life.”

Use of force was excessive, lawsuit claims

The complaint, filed Wednesday and brought by Irizarry’s sister, according to a family attorney, on behalf of his estate and son in the Philadelphia County Court of Common Pleas, claims three counts, including assault and battery and wrongful death.

The two officers approached Irizarry after they saw a car being driven erratically and began following it, according to the initial statement by police. But the lawsuit alleges the officers never used their sirens or lights to alert the driver he was being followed, contending the officers “essentially surprised” Irizarry while he was parking.

Irizarry was still in his vehicle when Dial approached the driver’s side door and pulled out his gun, the lawsuit says. The officer screamed at Irizarry to “show me your hands” and “I will f**king shoot you,” the lawsuit says. Irizarry’s doors were locked and he rolled the windows up as Dial approached.

The lawsuit claims Dial immediately resorted to lethal force by pulling out his gun, rather than attempting to use something like a Taser. Irizarry did not have time to react to the officer’s commands before he was shot, the lawsuit says.

“From the time that Defendant Police Officer Dial exits his vehicle with his gun out, until the time that he shoots the Plaintiff’s Decedent, approximately 5 seconds pass,” the lawsuit says.

The use of force was excessive, the lawsuit says, arguing that any traffic offense Irizarry was suspected of committing would not have been one for which he could have been arrested but likely punishable by a small fine.

Irizarry, according to the suit, “never exited the vehicle, never lunged at police officers, and the officers never even gave him the opportunity to drop the knife – which was completely legal to own and possess – before Defendant Police Officer Dial summarily shot him 6 times at point blank range.”

Charges refiled after being dropped

Police at first told reporters the officers gave the driver multiple commands to drop a weapon while he was outside his vehicle, and that Irizarry had lunged at the officers when he was shot.

But body camera footage showed Irizarry was still inside the vehicle when the shooting happened, Philadelphia Police Commissioner Danielle Outlaw said two days later, adding the video “made it very clear what we initially reported was not actually what happened.”

Dial was fired. The Philadelphia district attorney’s office filed seven charges against him earlier this month and released body camera footage of the shooting. District attorney Larry Krasner called that footage “crucial evidence.”

Outlaw stepped down as police commissioner on September 22 to take a new job with the Port Authority of New York and New Jersey.

But those charges were dropped during a preliminary court hearing Tuesday, which included testimony from Morris, Dial’s partner, who said he shouted “knife” when they approached Irizarry’s vehicle. The video shows Morris also yelled “gun,” and the officer testified that he was shouting because he feared for his life.

The defense argued that the knife Irizarry possessed had “a handle similar to a gun handle” and that it could have looked like a gun to the officers.

Prosecutors argued charges of first-degree murder were appropriate because Dial approached Irizarry’s vehicle with his gun already drawn for what was otherwise a “routine traffic stop.”

But Brian McMonagle, another defense attorney for Dial, said there was “no way in this world this man committed murder.”

Judge Wendy L. Pew said she agreed with the defense’s argument “100%” and dismissed the charges, prompting one side of the courtroom made up of Dial’s family and police officers to erupt in cheers.

The district attorney’s office refiled all seven charges against Dial by Tuesday afternoon in the Court of Common Pleas, a higher court. But the dismissal of charges upset Irizarry’s family, who said there was an abundance of evidence to make the case.

“What more evidence do you want? You can see the video; the video was played in the court,” said Zoraida Garcia, Irizarry’s aunt. “The judge has seen the video. For her to drop all charges, she shouldn’t even be a judge.”

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CNN’s Eric Levenson contributed to this report.