By Cruz Reynoso
As we saw in Ferguson, Mo., and we have seen in Yolo County, procedures used by district attorneys raise more questions than answers in incidents of police shooting. Any killing of a fellow human being demands the attention of our society.
No peace officer goes to work each day thinking that he or she will be involved in a shooting in which a fellow human being dies. Yet it happens. Sometime it is justified, as when the officer’s life is in danger. Sometimes it is not justified when the cause is prejudice or poor training. Or it may be poor judgment by an otherwise exemplary officer. Not infrequently, the officer is traumatized by the unexpected incident.
Such a killing took place in Yolo County more than five years ago on the afternoon of April 30, 2009. Luis Gutierrez, an immigrant farm worker, was shot in the back by members of the Yolo County Gang Task Force. Members of the Chicano/Latino community marched and rallied in protest; hundreds of family and friends attended the funeral.
The district attorney issued a report on Sept. 9, 2009. It did not decrease what The Daily Democrat in Woodland described as “ill will” between the Latino community and law enforcement.
A citizens committee, representing various concerned groups that composed the Justice Coalition, had come to see me before the district attorney issued his report. The report raised more questions than answers. I agreed to chair an independent Civil Rights Commission composed of interested citizens, including a retired police officer and a former prosecutor.
With resources from two foundations, we held hearings regarding the killings, and worked with an investigator. We plan two more activities: holding hearings from gang experts on effective responses by communities that suffer from gang activity and publishing a detailed report about the Gutierrez killings and making recommendations.
What questions and concerns were raised by our hearings and investigation? Was the District Attorney’s Office truly independent? The district attorney had established the Yolo County Gang Task Force. He later turned it over to the county sheriff. His investigators were active in the probe. We had access to the videotaped interviews and reports made by the police, which we were able to obtain from the attorneys representing the Gutierrez family in a civil suit.
Should the investigation have been turned over to an agency that did not have interest in the well-being of the Yolo County Gang Task Force?
Here’s what happened
What happened is as follows: Gutierrez was walking home from the office of the Department of Motor Vehicles when an unmarked black Ford Taurus traveling west stopped suddenly in front of him, on East Gum Avenue in Woodland. The men were dressed in civilian clothes.
One man quickly exited the vehicle. Gutierrez ran immediately. The men were officers, members of the Yolo County Gang Task Force. Sgt. Johnson, the one who exited quickly, said in the taped interview that he showed Gutierrez his badge that was on his belt, and the district attorney’s report refers to this attempted conversation as a “consensual encounter.”
However, the U.S. Supreme Court has ruled that if an officer shows his authority, the encounter cannot be considered “consensual.” And if the encounter is consensual, the person can decline the encounter or terminate it at will.
Why does the district attorney’s report not deal with this issue? Did the circumstance of the sudden stop by plain-clothes men driving a large black car frighten Gutierrez, causing him to run? If the encounter was consensual, did Gutierrez not have the right to not participate and did nothing wrong by running?
Gutierrez ran with Johnson in pursuit, gun in hand. The U.S. Supreme Court has ruled that an officer violates the Constitution if he or she shoots to death a fleeing felon. That is, the officer may not act as accuser, judge and executor.
Why was Johnson pursuing a person, not known to have violated any law, with gun to the ready? Johnson reported that when he was running, Gutierrez had his right hand in his pocket or in and out of his pocket. Several witnesses we talked to or who testified before our commission observed Gutierrez running fast, swinging his arms as he ran, and not having his right hand in his pocket. Who is correct?
A struggle, then a shot
Gutierrez ran southward, and Johnson caught up with him. According to the district attorney’s report, the sergeant attempted to grab Gutierrez but he evaded his grasp. However, a witness testified that a short but violent struggle took place wherein Johnson received one or more serious blows to his face. Who is correct? If the blows were exchanged, it may be material in explaining the mind-set when shots were fired later.
Gutierrez then ran toward the opposite side of the street, near where he had started. His run took him a few feet from the witness. She describes Gutierrez as being in extreme fright. He turned and ran northerly. By that time, Deputy Oviedo had joined the chase. Gutierrez was cornered. According to the district attorney’s report, Gutierrez pulled his knife from his pocket and attempted “to either stab or slash” Sgt. Johnson, who “immediately jumped backwards,” and drew his gun and fired.
In fact, in his taped interviews, which we saw, Johnson says he made his body into a “C” shape to avoid the knife, but also states that he and Oviedo, who also fired, were a “car length” from Gutierrez when they shot, and that Oviedo was behind Johnson. Is that important in assessing whether Johnson’s life was in danger?
None of the witnesses who saw the incident saw the knife reported by the two officers. One such witness testified before the commission, and others talked with our investigator. Most of the eyewitnesses are not mentioned in the district attorney’s report.
Deputy Bautista, the third member of the Gang Task Force who was driving the car, said in his video-recorded interview that he did not see or hear the shooting, and thus did not see a knife. Where does the truth lie? Was the D.A.’s Office simply incapable of finding those witnesses? Are they correct or are the deputies correct?
Fair treatment for all
The president of the University of California appointed me a chair of the task force that investigated the Nov. 18, 2011, pepper-spray incident at the UC Davis campus. I met with many experts. One told me that he is hired by police departments to do evaluations; of the 50 to 60 such departments that hired him he said only one met the standard, in his judgment, that all should meet.
That standard requires that all citizens be treated the same, citizens or fellow officers. He explained that his evaluations found that officers protect one another even when an officer violates the law, and they would not do so for a citizen who is not a police officer. Could that be true of the Yolo County deputies five years ago?
Is a scenario out of the question that imagines that Gutierrez, thinking the men were gang members, ran as fast as he could, fought one off in a short but vicious fight, was cornered, and the officers, in high emotions, used poor judgment and shot Gutierrez, meaning to subdue him? Their fellow officer, not involved in shooting, was reluctant to tell what he saw.
The case has come to an end. The D.A.’s Office indicated it was asking both the state Attorney General’s Office and a federal agency to investigate the matter. Later, the D.A.’s Office claimed to have been cleared by both agencies. In fact, no investigation was done by either agency.
I spoke with the attorney for the state Attorney General’s Office who told me that, based only on the district attorney’s report, she found no abuse of discretion. The Civil Rights Commission also asked the state attorney general and the federal government to do an independent investigation in light of the many questions raised by the D.A.’s report. No such investigation has taken place. Thus, in my view, no truly independent investigation has been undertaken.
People want the facts
There are alternatives. Many years ago, as a private attorney in El Centro, I represented a family of a Latino young man who was shot to death by a white police officer. The Latino community was up in arms. In a small town, one knows many of its residents. I knew the young white police officer, who was a good person.
The coroner decided to have a public inquest as to the cause of death. I requested and was permitted to participate in the inquest, including cross-examining the witnesses. The witnesses included the white officer.
What had taken place was clear: The young man was arrested at night in a bar but was left alone near the police car and was asked not to leave while another arrest was made. He ran. The officer gave chase.
The young man ran to an alley and then into a small alley connected to the main alley. The small alley light was out and the small alley was pitch-dark. The young police officer testified that he.saw the police car drive slowly in the main alley a few feet away. He did not call for backup but proceeded to try to make the arrest. A struggle ensued and the young Latino was killed.
What became clear was that the officer used poor judgment, but the death was not based on prejudice. The family and the community knew exactly what had happened. The Latino community accepted the findings and the family decided not to bring suit against the city.
What families and the community want to know is what actually happened. It is a disservice to have procedures that leave too many questions unanswered, as happened in Ferguson, Mo., in the case of Michael Brown’s death and in Yolo County in the case of Luis Gutierrez’s death.
Police experts have suggested that society places too heavy a responsibility on police officers who must deal with mentally disturbed people, situations of domestic violence and other cases that social-service agencies might be better equipped to handle.
Other experts have suggested that local district attorneys work too closely with local police to expect an unbiased report; rather, a third independent agency must undertake that task.
As one writer has put it: “We don’t need community control of the police. We need community control of services that will create safer, more stable neighborhoods and cities.”
Cruz Reynoso is a former State Supreme Court Justice and a Professor Emeritus at the King Hall School of Law at UC Davis
This case went to a civil trial where both defense and plaintiff’s witnesses had the opportunity to ask all relevant questions concerning what happened. The jury verdict was for the officers. Something that the author failed to mention. This failure and bias in this article further demonstrate why the author was removed from office on the California Supreme Court by the public. So instead of sitting as a justice on that court the best he can do is head an ad hoc self appointed citizens committee (kangaroo court) to investigate the incident.
Did this unnamed attorney with the AG’s office explain why they did not complete the independent investigation sought by both the DA and private citizens? Was it because the shooting was justified? It appears that the DA conducted an investigation and then invited both the AG and Feds to conduct an independent investigation and both declined. Then there was a civil wrongful death trial and the county (officers) won. The citizens serving on that jury supported the position of the DA and the officers. What stone was left unturned?
It is truly unfortunate when officers have to use force, either lethal or non-lethal, on a subject. It is never pretty or pleasant to observe. It is usually very ugly. I would expect that most law enforcement agencies would be looking for ways to reduce these incidents as much as possible while still enforcing the law. Police chiefs should want to avoid these incidents to avoid civil liability and the negative impact it has on the public’s perception of their agencies. The focus of the conversation should be on what training and policies will enable law enforcement to better accomplish their job, not on an allegedly flawed investigative process that is working as it did in the Gutierrez case.
I’ll address your first two points.
First, I attended a good portion of the civil trial, I think the verdict came down to the fact that was not enough evidence to conclude that the officers wrongfully shot Gutierrez. Because the burden of proof in this case is on the plaintiffs, the jury made the right call. However, for me, there is also insufficient evidence to conclude that the officers acted rightly. I would compare this to video review in a football game and in essence there was not enough evidence to overturn the call and therefore the call on the field stands, but is not confirmed. For me, there are more questions than answers about the shooting and so I think Cruz and others are right – despite the jury verdict – to persist in their belief.
Second, Cruz Reynoso was part of the Rose Bird court that the voters revolted against. It was the politics of the time – politics that have largely shifted in the other direction in the last five to ten years. Other than being a liberal on the court in the mid-80s, I’m not sure Cruz did anything wrong and without Rose Bird, I doubt he would have been removed. Does that have much bearing on now? I don’t think so.
in 2012, the vanguard wrote: “But the real tragedy here is that there are real questions in this case that were simply unanswered.”
you can read the analysis: https://davisvanguard.org/jury-acquits-the-officers-in-gutierrez-case-of-wrongdoing-and-liability/
i think the vanguard made a pretty compelling case based on the evidence – however, the jury probably decided that while there were questions about the officer’s conduct, they couldn’t conclude it was a wrongful death.
zaqzaq
“It is truly unfortunate when officers have to use force, either lethal or non-lethal, on a subject”
I think that the operative words in your sentence are “have to”. From the reporting in the Gutierrez case, it sounds as though the officers had many other alternatives that they could have chosen rather than pursuit and shooting. First choice is since they had witnessed no criminal activity at all, they could have let him go thus avoiding the confrontation altogether. It seems to me that the option for primary prevention by avoidance of a direct confrontation seems to have not been considered at all in this case.
“Police chiefs should want to avoid these incidents to avoid civil liability and the negative impact it has on the public’s perception of their agencies.”
It seems to me that police chiefs and officers in general might want to avoid these incidents not for the reputation of their agencies, but since their mission is to protect, perhaps to not take away innocent lives ! Unfortunately, on several occasions, I have heard this explained by police just as you said.
“The focus of the conversation should be on what training and policies will enable law enforcement to better accomplish their job,”
With this I agree. And I completely agree that when such an event does occur, the investigation should be performed from beginning to end by a truly independent source, not just a remix of personnel who have either a professional, personal, or philosophic bias towards the police. Any one who goes into an investigation believing that the police “do what they have to do” could hardly be considered objective, any more than could some one who makes their living or establishes their career demonizing police.
Tia wrote:
> I think that the operative words in your sentence are “have to”.
What do you think cops should do with guys that start shooting at THEM?
https://www.youtube.com/watch?v=O8-hgt8Z_qI
In less than 40 seconds you can see a guy try to kill a cop on the video above.
You can read more about the shooting early this month below:
http://www.kob.com/article/stories/s3666267.shtml#.VLaQ0CvF_7E
It is sad and I agree with David that we could review how police handle confrontations with citizens or alleged criminals. I’ve read several accounts over the years of what appear to be people who were having an apparent mental breakdown, who were shot holding a small knife. But I also know that we have to protect the safety of officers. Are there alternative methods of handling some of these confrontations?
I do make a clear distinction, though, between someone wielding a pear knife at a distance, and an enraged 300-pound man who has grabbed and fired an officer’s weapon once, and is charging him again.
I also read nothing here about the context and history of the local problem. Decades ago Woodland was an agricultural town, and I don’t recall there being any gang problem. When I google gangs and Woodland, one link says that the town has over 900 gang members (that was a 2009 article). Other articles mention assault weapons, vicious attacks, and the city having a higher crime rate than other cities of it’s size.
How many of these gangs members are citizens, and how many aren’t? I see that the law enforcement community has programs and education to try and limit gang activity. What does the Latino community and Catholic Church do to try and reduce this serious problem?
I’d think these non-Ferguson issues would warrant their own article and discussion.
There was a case somewhere where a 28 year old man (white guy… so it wasn’t in the national news) was shot in the head and killed after a traffic stop where the officer said he reached for something, and it turned out to be nothing. The cop was exonerated and the father of the dead man (the father was a retired Marine officer) sued and won a settlement. That settlement was around $2 million if I remember. Then the father used the money to push for legislation or local laws to require outside investigation of shootings by cops. The outside investigators would be experienced in and knowledgeable of law enforcement, but would have no connection or potential conflict of interest with the individuals or department they would investigate.
I would support this.
However, I’m sure that any investigation from an outside source that exonerates the cop will still come under fire from those that cannot seem to develop an accurate perspective for criminal behavior nor can they accept the role of law enforcement to prevent it.
a good suggestion frankly. to address your last point first, yes, there will be people who criticize any investigation. can’t get around that. the question is whether they have reasonable complaints. in the gutierrez case here is what happened. deputies with the yolo county gang task for killed a man. who investigated? the yolo county district attorney. the interesting thing about that is that in april 2009, the gang task force was housed in the yolo county sheriff’s department but just four months earlier, the same task force was housed in the da’s office and the very people who investigated the shooting would have been their direct supervisors a few months before.
so should the da’s office have recused itself? yes.
when the da completed their investigation it was forwarded to the ag’s office, and maggie krell, who last year ran for sac da, reviewed the report. she didn’t re-investigate. instead she reviewed it at a very high level of scrutiny – abuse of discretion – which basically asks whether the da so violated their discretion that their conclusion was objectively unreasonable.
that’s the extent that this case was reviewed by anyone “independent.”
todd leras hammered maggie krell over this issue last year.
https://davisvanguard.org/sac-da-candidate-calls-out-gutierrez-case-concerns-about-officer-involved-shooting-investigations/
so yes – i agree with you a report that exonerates the cops will still come under fire, but in the gutierrez case, the fire was deserved.
Frankly, your suggestions sound reasonable.
Here is the article. It took me a while to find it.
http://www.usatoday.com/story/news/nation/2014/01/02/wisconsin-father-police-shooting-investigation/3992957/
While I read the previous article, it still mentions no reason for pulling the guy over, or why. Was there a history of arrests with this guy, and why were they plainclothes officers with no backup? Sounds more like a TV show, and the stories seem so inconsistent, according to Mr Reynoso.
The statement by Mr Leras does not mention that most DA Investigators are former Sheriff and PD Officers. How can they be “independent”, especially if they work other cases in between?
I will also say the verdicts and judgements in these cases usually favor the living. Speaking against the people you work for is often bad for your career, I know from experience, right or wrong.
in the initial report they said he looked like a guy they recognized though further scrutiny found that it wasn’t true – there had never been interaction between gutierrez and these officers. gutierrez had a series of traffic stops but no meaningful criminal record outside of some moving violations.
Thank you, DP. This makes it even more suspicious.
I thought the Gang Task Force was a group of PD and Sheriff sharing resources, but like the old “warrant squad” when they go after hard cases, this sounds like a bunch of cops running off the reservation. Sergeant? Deputy? So these were Sheriffs in plain clothes under the auspices of the DA?
I will try to read more on this. I just hate the hyperbole on some of these stories.
In Montana, police officer Grant Morrison was just cleared in the shooting (and death) of an unarmed suspect Richard Ramirez (who was high on meth). It’s gone viral because the dashcam shows the officer breaking down on the hood of the police car after the shooting.
In the first article I read, the last sentence was the kicker: he was cleared in the shooting and death of another unarmed citizen who reached for a BB gun.
While he may be innocent two times in two years, I think it’s time he be moved to a desk job, or find another line of work. Don’t they call this an itchy finger?
http://www.nbcnews.com/news/crime-courts/dashcam-video-shows-montana-officer-breaking-down-after-fatal-shooting-n285331
what if he was justified in shooting both? it seems like he didn’t want to do it.
We now know from the Washington Times that George Soros-funded organizations played a key role in keeping Ferguson alive. Soros donated over $33 Million to various groups that helped drive the ongoing Ferguson “story”.
George Soros funds Ferguson protests, hopes to spur civil action
Liberal billionaire gave at least $33 million in one year to groups that emboldened activists
Read more: http://www.washingtontimes.com/news/2015/jan/14/george-soros-funds-ferguson-protests-hopes-to-spur/#ixzz3OvciWiSG