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Modesto, CA — Over the years, the Free Thought Project has reported on police officers shooting people for holding toys, pencils, screwdrivers, food, and even nothing. However, we had never seen a cop shoot a person wielding a junior high yearbook — until video was released of a Modesto police officer doing just that. Though the following incident unfolded in October 2014, a judge finally ruled this week that the shooting of Jesse Montelongo, 35, will go before a jury — as shooting a man over a book is excessive force.

The decision by District Judge Troy Nunley said “a reasonable jury could conclude that [the man] did not pose an immediate threat” when the shot was fired.

This is indeed true which is why a lawsuit was filed by Montelongo against the Modesto Police Department — after Montelongo underhand tossed the book, officer Dave Wallace tried to kill him. He fired a single shot into Montelongo's abdomen, which has since caused and will continue to cause Montelongo a lifetime of suffering.

According to the police department, they responded to Montelongo's home that night over a domestic dispute. Montelongo was reportedly in a heated argument with his mother and intoxicated. When officer Wallace showed up to the scene, he had his gun drawn.

As the body camera shows, Montelongo is standing in the doorway to his home holding an object on his side. That object was the book. He then tosses the book — underhanded — in Wallace's direction and turns to go back inside. This would be a near-fatal mistake. Wallace then fires as Montelongo retreats, hitting him once in the abdomen, through his back.

"Shots fired — he threw something at me. He wouldn't show me his hands. Threw his object at me," Wallace is heard saying in the video, falsely claiming Montelongo "lunged" at him.

Attorneys for Montelongo claim that Wallace's use of force was excessive that night, especially considering the fact that their client was unarmed and walking away when the officer fired and the judge agrees.

As Mercury News reports, the decision to grant a jury trial cited these factors:

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  • Body cam video indicates the man was not lunging toward the officer but standing with his feet not moving, 6 to 10 feet from the officer, when he tossed the book.
  • There is no evidence that the officer believed the man was armed. He never stated that belief, and the officers had been told before they got to the house that there were no weapons there.
  • The officer fired his gun after dodging the thrown object.
  • The man was retreating and closing the door when he was shot.

"Jesse was shot even though he was unarmed and clearly did not pose an immediate threat to the officer," said Montelongo's attorney DeWitt Marcellus Lacy.

Naturally, police dispute this claim and say that Montelongo posed an imminent threat to the officer's safety and Wallace had no other option but to try to kill the unarmed man for tossing a book because he "suddenly lunged."

"Detective Wallace's actions were consistent with his training and Modesto Police Department policy to try to avoid a lethal threat (by ducking or moving) while simultaneously neutralizing the threat (including with the use of force), which is exactly what Detective Wallace did," said Modesto Police officials in a statement at the time.

Adding to the irresponsible nature of the shooting is the fact that just behind Montelongo, inside the home, there were multiple small children in the officer's line of fire.

"One has to think and remember there were small children right behind this front door where officer Wallace shot into," Lacy said. "And it was a traumatizing event."

Montelongo filed the lawsuit in 2015 and police subsequently denied the release the body camera footage for five years. The department claimed — likely falsely, according to the attorney — that the video was part of an investigation. This is in spite of the fact that Wallace retired from the department in 2018.

"I can only believe it was because they had a vested interest in keeping this video private," Lacy said when the video was released last year. "They have tried everything they could to stall and prevent the disclosure of the video to plaintiffs and to the public, including attempting to unnecessarily mark this video as confidential, pursuant to a protective order."

As you watch the video of the book tossing below, remember the other officers on which TFTP has reported who have diffused far more dangerous situations with no violence at all.