Lawyer of ex-Modesto cop who killed Trevor Seever says he shouldn’t stand trial. Here’s why

Under California law, a person cannot be found guilty of certain crimes if he did not know or mistakenly believed a fact because he did not have the mental state or intent to commit the crime.

In the case of the fatal shooting by former Modesto police officer Joseph Lamantia, that fact was that Trevor Seever was unarmed, Lamantia’s defense attorney Roger Wilson said in a brief filed in Stanislaus Superior Court last week.

“Of course, this fact was only determined after the shooting,” the brief says. “Prior to that point, Mr. Seever’s family and every officer that encountered Mr. Seever believed him to be armed with a gun.”

Lamantia shot Seever at the Church of the Brethren in west Modesto in December 2020. He was fired several months later and charged with voluntary manslaughter.

Seever’s sister told a 911 dispatcher that her brother had purchased a gun the night before and told their mom he was coming to their house. The dispatcher told responding officers that Seever had told his family, “Watch what is going to happen to you guys when I get there.”

“This threat was sufficient to place Mr. Seever’s sister, mother and stepfather in sustained fear such that they left the sanctuary of their home and called the police for help,” the brief said.

The family went to a different church catercorner to the Church of the Brethren.

An officer and a sergeant who also responded to the call testified that they, too, believed, based on the dispatch call, that Seever was armed, the defense brief says.

The prosecution filed its brief last month. Judge Carrie Stephens will consider the arguments and evidence that was presented during the preliminary hearing to determine if there is enough probable cause for Lamantia to go to trial on the charge. She is expected to make her decision later this month.

Law changes how deadly force is deemed justifiable

The shooting occurred almost one year after a new California law went into effect that changed the circumstances under which homicide by a peace officer is deemed justifiable.

The law required deadly force to be used only “when necessary,“ compared to the previous standard of “when reasonable.”

The law didn’t define “necessary,” but said the force should be evaluated based on what a “reasonable officer” in the same situation would do given the “totality of the circumstances known or perceived at the time.”

The prosecution argued that Lamantia’s actions were counter to his training and experience and that a reasonable officer’s response was that of Sgt. Derrick Tyler. The sergeant testified that as he approached the scene, his plan was to wait for additional officers and resources and set up a perimeter around Seever.

Lamantia instead drove into the parking lot of the Church of the Brethren where he saw Seever sitting in an alcove outside.

According to testimony from an internal affairs investigator, Lamantia thought he’d be ambushed by Seever so he drove and parked around the corner along the side of the church.

Lamantia’s body camera video shows him get out of his patrol car with his gun drawn and run around the corner toward the alcove.

The use-of-force law says officers needn’t “retreat or desist” if a suspect is resisting.

Finding Seever running away from him, Lamantia twice yelled, “Get on the ground,” then fired four shots at him. Seever dropped to the ground after the first shots were fired. Lamantia, according to his statements to the investigator, believed Seever still was trying to retrieve a firearm and yelled at him, “Show me your hands.” Seever’s right hand went down and Lamantia fired three more rounds.

Wilson in his brief cited testimony from Jeffrey Martin, a retired police officer who now works as an expert witness for topics including use of force and forensic video analysis.

Martin testified that Lamantia’s actions were “consistent with those of a trained and reasonable officer” and that deadly force was necessary “to defend himself against an imminent threat of death or serious bodily injury by Mr. Seever.”

A threat of death or serious bodily injury is imminent when, according to the law, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury.

The present ability was a gun that everyone assumed Seever had, according to the brief.

The opportunity was Seever’s clear line of sight and close proximity to Lamantia.

And Seever’s apparent intent was shown by the threats he made toward his family and previous statements he’d made on social media that “A good cop is a dead cop” and “All I want for Christmas is another dead MPD Officer.”

Lamantia told the IA investigator that Seever was not pumping his arms like someone normally would when running. He assumed Seever was reaching for a waistband.

Officers are trained that suspects can fire at them while running away and often hide firearms in their waistband, according to the brief.

“Trained and reasonable officers know that once suspects have a hand on a firearm, that the suspect can usually point and fire the gun at officers in well under one second,” Wilson said in the brief. “Peace officers are trained that they do not have to wait until a handgun is pointed at them before they use deadly force; after all, if officers wait for the gun to be pointed at them, the officers’ reaction will be too late.”