After nearly three weeks of trial, the federal civil rights trial on the shooting death of Luis Gutierrez finally closed this week. In the coming days, the Vanguard will analyze critical portions of the testimony and what we learned. We begin with the closing statements, which represent how the attorneys on both sides view the evidence as it came out in the case.
Unlike in a criminal trial, the burden of proof is at the level of preponderance of the evidence – that means that the plaintiffs in this case, the family of Mr. Gutierrez, only need a 51% belief that police acted unlawfully.
Paul Caputo for the plaintiffs put on a very strong showing. He argued that Mr. Gutierrez was seized for an investigatory stop. There were no articulable facts.
Mr. Caputo pointed to the jury instruction on the law of detention and argued that a detention by a police officer based on mere hunch is unlawful.
In order to detain lawfully, they must include specific and articulable facts. He argued that the detention has to relate to a specific crime.
The law puts limitations on a police officer’s harassing and detaining us. The person must be involved in a criminal act. If to a reasonable officer, not THESE officers, the events are consistent with an innocent act, the detention is unlawful.
He argued, what was Mr. Gutierrez doing? He was walking down the street, minutes after getting his driver’s license. Mr. Caputo argued to the jury that if they find no articulable crime, they must find the detention of Mr. Gutierrez unreasonable.
Lt. Dale Johnson explained his actions, based on that Mr. Gutierrez ran away from him.
Mr. Caputo argued that while the jury may consider the fact that Mr. Gutierrez ran, the decedent’s flight from the officer is insufficient to later justify a seizure.
This is the law, not what THEY’VE been taught, Mr. Caputo argued. The officers intentionally or unintentionally provoked a violent provocation. Officers may be held liable in the use of deadly force. Even if they fired in self-defense; they can be held liable if there was unnecessary provocation that created the need to use force.
He continued that this stop was done by surprise. The officers couldn’t see Luis Gutierrez until they got to the crest of the overpass. What is a reasonably prudent pedestrian supposed to think? Then he sees the gun?
It was a confrontational encounter. Luis was trapped on a bridge, he argued. A split second decision cost Luis Gutierrez’s life.
Mr. Caputo then addressed the critical point regarding the identification. He argued that Detective Hyde says that Lt. Johnson in his questioning never mentioned the phrase, “I’m from the Sheriff’s Department.” Other testimony of the other officers suggested that Lt. Johnson said “something.”
Mr. Gutierrez was a few feet away and he did not speak English very well.
Deputy Bautista heard, “Can I talk to you?”
Mr. Ayoob testified about the proper protocol, but he slipped. In his testimony he said the badge was next to the gun holster. But, in the picture E-4, the badge was clipped not by the gun but at the 12 o’clock position in front. There was a magazine between the badge and holster.
Officer Johnson testified “I didn’t tuck my shirt behind the badge” for the staged picture later that day.
Mr. Caputo noted that Lt. Johnson said Mr. Gutierrez during this time looked up and down and ran, and that it took ten seconds.
Mr. Caputo stopped talking, timing out ten seconds for effect, and said, that encounter took that long? No way. Moreover, he noted the initial interview where Lt. Johnson said, “He looked at me, and immediately ran.”
What did Luis Gutierrez see, Mr. Caputo rhetorically asked the jury. A gun, on someone who stopped in a confrontational manner.
Mr. Caputo argued that the identification was improper and “certainly negligent.”
He moved on to the issue of detention. Lt. Johnson, he said, testified that at a certain point, Mr. Gutierrez had become a suspect and that this was a detention. Mr. Caputo asked, was there any reasonable suspicion as he was standing there? “They try to soften it, but the evolution of their testimony is frustrating,” he argued.
Lt. Johnson would testify that at the time he was standing there, Mr. Gutierrez was a suspect.
Mr. Caputo argued, “Officer Johnson had the wrong understanding of the law. He believed he could chase Luis.”
Physical force was used by the officers on Luis Gutierrez. Lt. Johnson testified that he made contact with Luis and put his hands on his shoulders. Now Deputy Oviedo, on Friday, said there was an “attempt” to grab his shoulders. He said that for the first time on Friday. Why did Luis Gutierrez stop? Because there was physical force.
Paul Caputo then moved on to discuss the knives. He argued, they need the knife. Without it, they don’t have cause.
He then said the family had never seen Mr. Gutierrez with a knife. There are no fingerprints.
He argued, you saw a picture of the bloody hand, yet there was no blood on the knife.
Out of 30 possible locations, the DNA is inconclusive as a match to Luis Gutierrez. More striking is the report by Kacer (from the DOJ), that there should be proof positive. But, the statistics show it’s more probable that the source came from a Caucasian. The DOJ said that, Mr. Caputo argued.
The defense brought in high-powered and expensive experts, Mr. Caputo continued.
How did the knife get in the ground if it skidded along the sidewalk? How did it get in the ground, sticking up? Nobody explained that.
He added, there is a troubling synchronization of the officers’ testimony: they yelled at Mr. Gutierrez to drop the knife after he got shot. Never once in 3 years did they say that. Why? No one ever asked?
Not one independent eyewitness saw the knife or saw Mr. Gutierrez put his hands in his pockets. Never did they say they saw a slashing motion. And Lindsay Freitas had a front row view.
There is more trouble with the knife testimony. Lt. Johnson testified that Mr. Gutierrez had his hands in his pockets the entire time. Deputy Oviedo testified that they were in and out. He was running down the street with an exposed blade – Mr. Caputo argued, “That’s a trick!.”
Mr. Caputo next addressed the issue of meth use.
The family says they never saw him even drink alcohol, much less use drugs. The insurance lady, the DMV clerk – all said he was a polite man. “When would he have taken the drug?” Mr.Caputo asked the jury.
He argued that what is troubling is that Dr. Kelly was never given the sample from the femoral artery with the lower meth number. Other experts said if the sample is from the heart they are skeptical of the results.
“The totality of the circumstances was manufactured,” he argued.
Bruce Kilday presented the defense’s closing arguments.
He began by addressing Mr. Caputo’s point. He said that Mr. Caputo omitted an important component of the facts, the behavior of Mr. Gutierrez. He’s not here, but his actions, his decisions, played an important role. They dictated the event. Mr. Gutierrez ran, Mr. Gutierrez pulled a knife. The knife has his DNA and none of the officers’ DNA.
He argued that while he may have stopped, his stopping was not submission. Yielding is not a stop, and he did not yield, he changed directions and would slash with a knife at Deputy Johnson.
Mr. Kilday argued that the facts lead to the belief of reasonable suspicion. Deputy Johnson said he looked up, down, and up, put his hands in his pockets and ran, ran into traffic, ran into a dangerous situation.
He argued that the behavior of Mr. Gutierrez clearly created a reasonable suspicion. He argued, does that not justify the pursuit – to see what happened?
He argued that while flight alone is not sufficient, flight plus his hands in his pockets and running into traffic after the identification is sufficient.
There are speculations about what Mr. Gutierrez had seen, thought and heard. We can’t know what he thought.
On April 30, he had meth in his system. If it was at an abuse level, it affects people, makes them suspicious, have irrational behavior and be aggressive. There is no contradiction in the amount in his system. It doesn’t matter, it was over 100 ng/ml. There are studies about abuse levels. There is no question it was an abuse level, Mr. Kilday argued.
He shows a picture to the jury showing them that the gun is on the belt, very close to the badge. What did he see first? A shiny gold badge. Why is it next to the belt buckle? So you can see both, he argued.
Why did Luis run? He saw the gun. Mr. Caputo ignored Johnson’s testimony that he said: “Sheriff’s Department, can I talk to you?”
Mr. Kilday continued that Mr. Caputo criticized Johnson for bad motives and the use of the word “suspect.” The word suspect has different meanings to officers. It doesn’t mean he was a suspect 30 seconds earlier on the sidewalk. In reasonable suspicion of criminal activity, it is silly to think they would consult each other and decide on a crime before they chased him. What are they going to do, stop and discuss it?
He then addressed the knife. He noted that the prints weren’t recoverable – this sometimes happens.
He noted that it did have DNA. He argued that Mr. Kacer said it did not match a Caucasian.
Mr. Kilday argued that, based on Dan Coleman’s testimony, any level higher than 100 ng/ml is an illicit dose, not a therapeutic level. The stipulation from Tuesday was 420 in one sample and 160 in another.
No matter which you use it’s still over 100. The effects of meth include risk taking. That’s what happened on April 30, 2009. Mr. Gutierrez knew he had taken meth and he was nervous about that.
The meth levels were an abuse level. The behavior the officers described is consistent with the behavior of abuse levels. At the time they didn’t know he had meth. Later they found out from the lab analysis.
His actions showed paranoid and irrational behavior. But they didn’t know why at the time.
Some major questions include whether the shooting was reasonable. Both state and federal law use the concept of reasonableness. Shooting is reasonable if confronted by the knife. That’s not the question. The question before you is whether there are acts by the officers that provoked the fatal confrontation with Mr. Gutierrez.
What is the evidence that Lt. Johnson did not identify himself properly? he asked. From the photo B-25, standing at the scene the badge is not visible. A lot has transpired in between the identification and this photo.
Mr. Caputo then got the last word.
He said, Mr. D’Arcy said suspicion without reason is unreasonable and told the jury he had an issue with Mr. Kilday’s interpretation of the law.
About detention and hunch instruction, in order for a police officer to detain lawfully, an officer must include specific and reasonable facts relating to a crime.
He also took issue with Mr. Kilday’s interpretation of the evidence.
He read the transcript where Lt. Johnson was asked, to your mind, did you have sufficient evidence? Lt. Johnson responded that it took a moment for him to realize that Mr. Gutierrez just ran.
Did you believe he was no longer free to leave once he ran? he was asked. Lt. Johnson said, “I don’t think it registered.”
In your mind, did you have the right to stop him? he was asked. He responded, “It’s not normal for someone to turn and run. So, something could be taking place. Some criminal act could be occurring. He could have just committed a crime, or be on active parole, it could be anyone else ‘wanted.’ “
He was asked if running alone was a sufficient basis, and he said yes.
Mr. Caputo noted that Lt. Torres did not testify to training that way. He argued, Mr. Kilday knows Lt. Johnson is in trouble here.
He said, it’s not my interpretation of the facts, it’s not Mr. Kilday’s, it was the testimony.
Mr. Gutierrez is responsible for 100%? Who started the confrontation? Who escalated it? It wasn’t Luis. Who made the first physical contact? It wasn’t Luis. Running into traffic. There’s no evidence of traffic. He ran into the street. It’s not Wilshire Boulevard.
All of a sudden blaming meth use, blaming the dead? No, the only thing they have is putting his hand in his pocket and running.
He clarified that Mr. Kacer was asked about the statistics of Caucasians regarding the DNA results, and he said, it could be.
During his closing, Mr. Kilday made a number of statements that seemed erroneous and at odds with the evidence that was testified to.
First, he argued that there was no contradiction in the meth amounts. On April 30, Mr. Gutierrez had meth in his system, he said. The defense argued that he that it was at an abuse level, and therefore it affects people, makes them suspicious, have irrational behavior and be aggressive.
He stressed that there is no contradiction about the amount in his system. It doesn’t matter, it was over 100 ng/ml. There are studies about abuse levels. There is no question it was an abuse level.
He continued arguing that Mr. Caputo said the evidence of the femoral artery was kept away from Dr. Kelly because it wasn’t 200 ng/ml. The stipulation from Tuesday was 420 in one sample and 160 in another. Dan Coleman said over 100 is an illicit dose, not a therapeutic level. No matter which you use it’s still over 100.
However, that is not what was stipulated. What was stipulated was 0.13 ng/ml.
Second, Mr. Kilday argued that, while it was suggested by the plaintiffs that Mr. Gutierrez couldn’t speak English (and therefore would have had difficulty understanding Lt. Johnson when he approached), he took the DMV test in English.
But in fact, the testimony from the staff at the DMV indicated he took the “sign” test which is for non-English speakers, according to Cheryl Perry at the DMV.
Finally, Mr. Kilday said that Mrs. Gutierrez says she dropped Mr. Gutierrez off at the DMV between noon and 1 p.m. and that even if he came in earlier there were 1 to 1½ hours unaccounted for.
Mrs. Gutierrez said in her testimony that she went to the bank at 11:30 with Luis Gutierrez and they got to the insurance office at noon. They left the insurance office about 12:30 and ended up at the DMV at 1 pm.
Rosaria Ordonez sells insurance, and 75% of her clients are Hispanic. She testified that Mr. Gutierrez came in around 12:10 accompanied by his mother on April 30. He left around 12:29 (the time is on the policy when she printed it out) after signing four pages.
Cheryl Perry testified that he came in and passed the test just after 1 and it would have taken him 30 to 40 minutes to do so.
The timing here is critical because of when the toxicologist testified he would have taken the meth. But the defense got the timeline wrong based on the testimony of not only Mrs. Gutierrez, but also the corroboration by independent witnesses.
The jury will deliberate this week. The Vanguard will have further updates and analysis.
—David M. Greenwald reporting
Am praying for justice.