Responding to Matt Rexroad on Gutierrez Shooting

Today, Yolo County Supervisor Matt Rexroad, a former Mayor of Woodland, has written a response that was published on the Daily Democrat site.  When I first met Mr. Rexroad, I told him that he and I would likely be adversaries quite a bit.  What I have found is that there are times when I disagree with him, but there have also been times when we have been on the same side of the issue.  This is probably the issue of the biggest disagreement between the two of us.

“The fundamental disagreement is on the roll of law enforcement in our community. It is my belief that law enforcement is a messy business. Very messy. Some things are clearly right and wrong, good or bad, shoot or no shoot. Other things are just murky, messy, and gray.”

I agree that law enforcement is a fundamentally messy business.  However, I also believe in a democratic society, that citizens are protected in their dealings with law enforcement by the constitution.  We entrust great responsibility to our police and as such, their actions rightly bear close scrutiny.

As such I have called for an independent investigation into the shooting of Mr. Gutierrez.  My chief complaint right now is that we have not received that independent investigation. 

Instead the state Attorney General’s Office reviewed the findings of the Yolo County District Attorney’s Office that found the shooting justified and concluded that given the evidence presented, the DA’s decision was “not unreasonable” and thus did not “constitute an abuse of discretion.”

The notion of abuse of discretion is a legal term that means “A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.”

This is generally used in appellant law.  “Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal.”

But all that really occurs here is a review of the investigation itself to determine if the ruling is reasonable based on the facts presented.

Thus in reviewing for abuse of discretion, there would be a problem if “the rendering of a decision by a court… is so unreasonable in light of the facts of the case or is such an unreasonable deviation from legal precedent that it must be reversed.”

Anything that falls short of that, ends up where this one did.

So here is the AG’s report:

“We reviewed your decision under an abuse of discretion standard. After a complete review of all available information, we have concluded that your decision was not unreasonable and thus did not constitute an abuse of discretion.”

What they did not do that people have called upon an independent body to do is conduct their own investigation, interview the officers and witnesses themselves, review the evidence, and produce their own unique report.

That is what I am calling for and what the justice community is calling for.

That is my first problem with the process.  I read the report, I have questions about it that I have highlighted elsewhere, I believe it warrants a full independent review rather than what it has received to date.

Mr. Rexroad continues:

“The officers involved in these cases are professionals. It is my opinion that they deserve the benefit of the doubt in these situations. This is especially true when the facts are still being determined.”

Do law enforcement officials get the benefit of the doubt?  That’s a subjective question that is not easily answered other than to suggest perhaps that in the absence of information to the contrary, the judgment of the police officer at the time is probably upheld by the legal system much as an instant replay is upheld in football when there is a clear video evidence to overturn the ruling on the field.

However, I do not think we are to that point and I think Mr. Rexroad somewhat acknowledges in the second statement that “the facts are still being determined.”  To me that is what this exercise is about–discovering what happened in a fair and as impartial way as possible and the system to this point has not produced that in my mind.  I think the conclusions of the DA’s report are highly subjective and that reasonable people can and do disagree on them.

Nowhere have I suggested that these officers were unjustified in shooting Gutierrez.  However, I am simply not satisfied with the official report that was released to the public.  In fact, I have stated that given the circumstances, it would appear at the point at which the gun were pulled, if the report accurately represents events, then the shooting at that point was justified.  Where I get a bit fuzzy is why it got to that point to begin with.

Mr. Rexroad writes:

“Gutierrez was on meth and pulled a knife on police officers. Simple rule — you pull a knife on a police officer and you will likely get shot. The analysis should be pretty easy on this one.”

I do not believe it is as simple as that.  I believe that the deputies created a situation that led to a justifiable shooting. The circumstances leading up to it are questionable. The whole field contact and chasing him down are questionable. What happened once the confrontation began justifies use of deadly force. So, if the deputies did not follow policy and procedure leading up to the confrontation, they may have caused the situation to escalate. If they had followed policy and procedure, perhaps they wouldn’t have chased him, and he’d still be alive.

Finally, Mr. Rexroad discussed the race card:

“The most outrageous comments in both of these cases have involved racism. Due to the ethnicity of the deceased some area activists have been playing the race card. It has been used against the officers and even our county sheriff. These claims have ignored the fact that the ethnicity of the deceased is actually shared by some of the officers and our Sheriff. This has to be viewed as nothing more than an effort to stoke the fires of racism in order to generate a controversy when none exists.”

Let me say up front, I do not think being of a same race immunizes someone from accusations of racism–if those accusations have merit.  I have heard anecdotally that African-American police officers do not have better relations with African-American individuals that they encounter.  One does not need to a different race in order to profile based on race.

I am loathe to do this, but after reading the report, I am increasingly coming to the view that this is an example of racial profiling.  Let me say, I actually believe that charge is overused.  I do believe the police profile, but especially in vehicles, it is difficult to know the race of the individual driving, particularly at night.  However they may notice an older model of a car or a vehicle that needs more maintenance work and therefore may profile based on those notions.

However, in this case, we have a street encounter in the middle of the day.  I am at a complete loss to understand why the officers believed that they need to contact Mr. Gutierrez (who the official report refers to by his full name Luis Gutierrez Navarro) to begin with.

Deputy Oviedo admitted, “There was nothing unusual about the person that attracted their attention.”

So why was he stopped? The report tells us, “Deputy Bautista thought Navarro looked familiar and might be on probation or parole. Deputy Oviedo thought Navarro looked familiar but was not sure of Navarro’s identity. Sgt. Johnson did not know Navarro.” However, it is unclear where they would have known him from as he had no previous reported contacts with any of them.

He was not wearing gang clothing according to the statements by officers.  We do have a strange statement however from Sgt. Johnson:

“Hispanic gang members will often not openly wear their gang colors. Instead, the gang member will wear generic colors to disguise their particular affiliation.”

I think that is a very telling statement.  It means that Hispanics are in a no win situation where gang clothing means they are gang members but non-gang clothing might mean they are trying to disguise it.

So what Mr. Gutierrez pulled over only because he was Hispanic?  This is tricky to prove because they have the defense that they thought he looked familiar–but they could say that about anyone.  I am sorry, but I have the feeling if this was not an Hispanic male walking down the street, he would never have been contacted by the police and therefore I am inclined to at least consider the possibility that there was a racial component here.  I am not suggesting that the officers, two of who were Hispanic are anti-Hispanic, but I do believe that they probably think that an Hispanic male in his twenties is more likely to be in a gang or in general up to no good than others.

In fact, from the police record, we might even infer that Mr. Gutierrez had been racially profiled on numerous occasions as he had many encounters–at least 15 with police on traffic stops, but only a few notices of violation.

There are clearly a lot of issues here that bear discussing and hopefully there will be a full discussion in the coming weeks and months, but one thing is clear, we need a full and independent investigation not only to determine the guilt or innocence of three Sheriff’s Deputies, but also to determine the true facts of what happened and maybe ascertain how this situation might be avoided in the future.  I simply do not think this request should be too much to ask.

—David M. Greenwald reporting