A Cook County judge Thursday said he will rule in December whether a Chicago Police officer who shot and killed an unarmed man during an off-duty argument is guilty of murder.
The Dec. 20 date Judge William Gamboney scheduled for his ruling was an portentous one for Angelica Nieves, whose brother, Jose, was killed on the street outside his Hermosa apartment after quarreling with Officer Lowell Houser on the chilly morning in January 2017.
“[Dec. 20] is my father’s birthday, and it was the [same day] as the last time I saw Jose,” Angelica Nieves said outside the courtroom after closing arguments in Houser’s bench trial. “It’s gonna be a really long time for us.”
Houser’s lawyers rested their case Wednesday without calling any witnesses. Houser declined to take the stand, a somewhat unusual move for a defense based on the 28-year veteran officer’s claim he shot Jose Nieves after Nieves threatened him and appeared to be reaching for a weapon.
It was not disputed that Houser, then 58-years old and on medical leave from the CPD, shot 37-year-old Nieves, who lived on the floor above Houser’s girlfriend’s apartment. Houser called 911 after firing three shots at Nieves and spoke to detectives at the scene, handing over the .40-caliber pistol he’d fired at Nieves.
The shooting came moments after Houser pulled his car up to Nieves’ longtime girlfriend, Michelle Malkowski, and told her that Nieves was “no good to women” — a remark that touched off a verbal argument.
Houser could have driven away or called police, but instead got out of his car and, as the argument escalated, shot Nieves, Assistant State’s Attorney Ken Goff said.
Houser told police that Nieves reached toward his waistband as if to draw a gun, but Nieves had no weapon, Goff said.
“All Jose had that day was words, and that’s not worth your life and that’s not worth [Houser] taking his life,” Goff said in his closing arguments. “He [Houser] said, ‘I had to shoot him,’ but I think we all know now, he didn’t have to shoot him.”
Nieves was shot in the hand, likely while standing just feet from Houser’s car, then was struck in the back before falling on the street, signs that he was retreating from the officer, Goff said.
Goff pointed to Houser’s calm demeanor after he called police and the fire department, and noted that the veteran officer didn’t act like a cop who’d just fired on a gun-wielding assailant. Houser never went to check on Nieves as he lie bleeding between parked cars, didn’t look for a weapon or secure the scene, Goff said. Talking to a detective in the back of a squad car, Houser didn’t mention that he knew Nieves, and claimed that Nieves made confused remarks about a local street gang before finally saying Nieves had threatened to shoot him.
Houser’s lawyer Thomas Needham argued that it was Nieves who “erupted” after Houser had insulted him to his girlfriend, and that Houser had no other motivation to shoot Nieves other than out of fear for his life.
“Mr. Houser at this point in his life, probably a year from when he would have retired and gone off into the golden years...he was not looking to shoot an unarmed guy in the back,” Needham said his closing arguments.
Needham pointed out that Gamboney has the option to find Houser guilty of second-degree murder if he believes the police officer thought he was acting in self-defense, even if it turned out Nieves was not a threat.
A conviction on the lesser charge would allow Houser to potentially avoid prison time, as second-degree murder carries a potential sentence ranging from probation to up to 20 years in prison.
A jury last year convicted Chicago Police Officer Jason Van Dyke of second-degree murder in the fatal on-duty shooting of 17-year-old Laquan McDonald. Van Dyke is serving nearly seven years in prison.
