Vanguard Challenges Clearance of Sheriff’s Deputies in Shooting of Gutierrez

A 37 page District Attorney report concludes:

“When considering all of the facts and circumstances known to them at the time, the use of deadly force by the deputies was objectively reasonable and justified and therefore does not warrant the filing of criminal charges against Sgt. Johnson, Deputy Oviedo or Deputy Bautista.”

“We address only whether or not there is sufficient evidence to support the filing of criminal charges in connection with the shooting death of Luis Gutierrez Navarro.”

In a Letter to Assistant Chief Deputy Jonathan Raven, Maggy Krell Deputy Attorney General concurs with the conclusions of the Yolo County District Attorney’s Office.

“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.”

Mr. Raven told the Sacramento Bee on Tuesday:

“The district attorney’s report was based on a lengthy (Woodland) Police Department investigation and we were thorough and deliberate.  We came to a decision and even asked the attorney general to review it, and we also asked the U.S. Department of Justice and the FBI to conduct their own investigation, and certainly we hope the community is comfortable with the decision, because that’s important to us.”

Woodland’s Vice Mayor Art Pimentel added:

“I hope these findings settle any confusion and mistrust about the situation now that an independent investigation has been conducted by the state attorney general.”

On the contrary, the Vanguard has concluded that people will likely be unchanged in their opinion of this incident after reading the report.  Despite the spin put on it by the Yolo County District Attorney’s Office, the Attorney General’s opinion seems to be nothing more than an NFL replay official concluding that the play stands as called because there is a lack of evidence present to overturn it.

As the letter indicates, the review was based on “all available information” and they did not conclude that the shooting was justified, but rather than their decision was “not unreasonable” and did not “constitute an abuse of discretion.”

It is also important to note, that neither the District Attorney’s Office nor the Attorney General’s Office do anything more than look into criminal charges.  The question is whether the shooting was justifiable.  In our reading of the report, the police created a situation that led to what is likely deemed a justifiable shooting.

The circumstances leading up to the action are questionable.  The entire field contact and chasing down of Luis Gutierrez lead to a lot of questions.  A thorough reading of the report shows contradiction both in witness statements and officer statements.  It appears that what happened once the confrontation began justifies the use of deadly force.  So, if the cops 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 would not have chased him and shot him and he’d still be alive today.

These are all questions that must be asked and addressed.  Protesters such as Al Rojas have put their faith in a still pending federal investigation.  That may bear fruit if the federal investigation does more than simply review the District Attorney report, however, the ultimate arbiter may be a civil lawsuit, if that lawsuit is filed.  Otherwise there is a good chance that the questions and issues raised in this report will never be satisfactorily addressed.

Luis Gutierrez was wearing a white baggy shirt and dark pants or shorts. Sgt. Johnson stated in the report that he is aware that “Hispanic gang members will often not openly wear their gang colors. Instead, the gang member will wear generic colors to disguise their particular affiliation.”

From this it would appear that wearing gang colored clothing demonstrates that one is a gang member but wearing non-gang colored clothing means that one is hiding their gang affiliation? 

The coroner’s office found evidence of tattoos consistent with gang tattoos on his hand.  However, there was no mention of them in the officer’s report.

“At the time of his death, Navarro had a single dot tattooed on his right index finger and single dots tattooed on his left middle, ring, and little fingers. Sureno gang members sometimes possess similar markings.”

The tattoos themselves – one dot on one hand and three on the other – signify the number 13 the symbol of Surreno gang members.  However, Gutierrez never had a real criminal history and encounters with police appear to be traffic stops and driving without a valid license.  Therefore, there would seem to be real reason to question the gang identity of Luis Gutierrez based on the information in the report.

Moreover, as stated in the report there were 15 independently verified contacts between law enforcement and Luis Gutierrez.  The report concludes:

“These 15 contacts included traffic stops, pedestrian contacts, vehicle code citations, and a warrant arrest. In the 15 verified contacts prior to April 30, 2009, there were no indications of any issues, conflicts, or confrontations between Navarro and officers. There is no record or indication of Navarro engaging in any type of resisting or assaultive behavior toward law enforcement or of Navarro being under the influence of a controlled substance.”

So why was Mr. Gutierrez stopped as frequently as he was without evidence of criminal conduct?  Was this an example of racial profiling on the part of law enforcement in Woodland, seeking out Hispanic Males to see if they are up to something untoward?

Consensual Contact – Why Was Gutierrez Stopped?

The next critical question is why was Luis Gutierrez stopped by law enforcement.  From the report, he was walking on East Gum Avenue, two of the officers thought he looked familiar and one did not know him.

“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.”

Although later it says:

“Deputy Bautista did not recall any of them recognizing the Hispanic male.”

There are somewhat conflicting reports of who decided to stop him.

“Initially during the interview, Sgt. Johnson was not sure whether it was Deputy Bautista or Deputy Oviedo who suggested that they contact this person, later identified as Luis Gutierrez Navarro. Later in the interview, Sgt. Johnson said that it was Deputy Bautista’s idea to make the contact, and he, Sgt. Johnson, agreed.”

However, Bautista never said it was his idea to stop Navarro.

There is considerable question as to why the officers believed they needed to contact Luis Gutierrez.  But critical questions surface about the role of meth in his system and whether Mr. Gutierrez reasonably knew that police officers were pursuing him.

“The toxicology analysis (report dated May 6, 2009) by NMS Labs on Navarro’s subclavian (heart) blood sample revealed the presence of amphetamine at 48 ng/mL and methamphetamine at 420 ng/mL. The toxicology report indicated that blood levels of 200-660 ng/mL have been reported in methamphetamine abusers who exhibited violent or irrational behavior.”

The Toxicologist Dan Coleman reviewed this in August:

“He stated that the concentration of certain drugs, when measured post-mortem, may differ depending on the portion of the body where the sample of blood is taken. The concentration of certain drugs in heart blood (subclavian) is often found to be higher than that in the peripheral blood (e.g., femoral). He stated that a methamphetamine concentration above 100 ng/mL in blood is consistent with an illicit dose. Methamphetamine is abused due to the intense feelings of euphoria and strength. Symptoms from recent use include dilated pupils, rapid speech, nervousness, tense or rigid muscles, bruxism, increased risk-taking behavior, or aggression. Repeated dosing, constant use, or binging may result in a mixture of fatigue and stimulation.”

However, it appears that the science involving meth levels is not nearly as settled as that involving blood alcohol level and there are a number of unanswered questions.

There is a question as to whether they found actual meth or metabolized meth in his system.  That would bear on the question of how long ago he ingested it.  With the level of blood in the femoral artery – more reliable than the heavy concentration in his heart – it looks like it had metabolized to some extent.  There is also some question as to whether this is meth or a product that would look and metabolize the same way as meth.

The expert never made the claim he was under the influence of meth.  Moreover it appears that the meth had metabolized to some extent, and that his femoral blood levels were below that threshold of “violent and irrational behavior” noted in the section talking about the levels in his heart’s blood.

Bottom line is that there is no way to prove from this evidence that meth was a factor in this incident.  Luis Gutierrez’s prior activities may bear on that as well.  In a criminal case against Gutierrez this might be thrown out, however, they do not need to prove their claims in this report.

In Deputy Bautista’s statement he said:

“Sgt. Johnson contacted the Hispanic male, later identified as Luis Gutierrez Navarro. Sgt. Johnson said, “Can I talk to you?” Navarro then immediately ran from Sgt. Johnson, moving eastbound up the overpass and then into the roadway of East Gum Avenue. Deputy Bautista did not recall hearing Navarro say anything.”

He never mentioned that Sgt. Johnson identified himself as a police officer.  All accounts had them in plainclothes and in an unmarked car.

“All three officers were in plain clothes. They were all wearing Sheriff’s badges and guns on their belts, which were covered by their shirts. They were working in an unmarked black Ford Taurus equipped as an undercover emergency police vehicle.”

In Sgt. Johnson’s account he showed his badge and gun.

“Deputy Bautista stopped the car, and Sgt. Johnson exited the car and exposed his badge and gun to Navarro. Sgt. Johnson wore his gun and badge on the right side of his waist. The gun was in a paddle holster and the badge was attached to his belt. Sgt. Johnson explained that he always lifts up his shirt, which exposes his gun and badge, when making a consensual contact. Sgt. Johnson identified himself to Navarro and asked to speak to him.”

Deputy Oviedo also did not appear to see or hear an identification at the beginning.

“Deputy Oviedo did not hear what Sgt. Johnson said, nor did he hear Navarro say anything. Deputy Oviedo was not sure what Deputy Bautista did.”

He continued:

“Deputy Oviedo did not recall Sgt. Johnson or Navarro saying anything during the pursuit.”

It appears then that only one of the involved officers, Sgt. Johnson, recalls clearly identifying himself to the victim.  That has to be a matter of considerable question.

The witnesses have a variety of different accounts.

Javier Cabrera provided a statement to a private investigator representing the family of Luis Gutierrez.  In the summary, it said that Mr. Cabrera was driving on the bridge and saw the incident.

“Cabrera thought the individuals in the car might be gang members because he did not see a police car or any police identification on the car. Cabrera thought they wanted to beat up the kid.  Cabrera did not know the kid.”

It does not appear however that Mr. Cabrera saw the start of the incident.

Ronald Vasquez was contacted by Woodland Police Detective Jameson.

“When he was contacted, Vasquez did not see any badges on the officers, nor did he recall them identifying themselves as such.  Vasquez, however, was aware of who they were and recognized them as police officers from prior contacts.”

The one witness who seems to at least corroborate the fact that Mr. Gutierrez was dangerous was Rudolfo Flores:

“On June 1, 2009, Yolo Sheriff’s Office Deputy J. Lazaro contacted Flores at Woodland Memorial Hospital. At that time, Flores was in the custody of the Yolo County Sheriff. Flores told Lazaro the person who died was known as “Indian Gutierrez” because he was a good knife thrower. According to Flores, the deputy was lucky not to get killed because Gutierrez, who is a Sureño gang member, is a dangerous person and had said he would not let the cops take him.

On June 2, Woodland Police Department Detective Ron Cordova reinterviewed Flores. Flores advised he knew Gutierrez (Navarro) as a Sureño because since he (Flores) associates with Sureños. Gutierrez always carried a knife and was good with it. Gutierrez’s nickname was “Indio” because he was good with a knife. Flores knew Gutierrez used controlled substances and was considered dangerous.”

This individual has been well publicized, but his account of Gutierrez does not seem to fit with others accounts, particularly since Gutierrez had no real criminal record aside from driving without a license and had never had a violent confrontation with the police despite 15 encounters.

The report never identified Flores’ background.  And what is also not clear is the  credibility or value of Flores as a witness since he never corroborated the police’s version of events.  Certainly the police in search of character witnesses alone could have selected from a wider swath of people.  From that viewpoint, it seems that the inclusion of Flores in this report is meant to confirm their pretext without much of a thorough investigation to find out if his account of Gutierrez is accurate.

The question here is whether that situation presented itself.

Here is Sgt. Johnson’s account:

“Navarro then pulled a knife out of his pocket and made a slashing motion at Sgt. Johnson. Sgt. Johnson evaded the assault by quickly moving back away from Navarro. Sgt. Johnson described his maneuver as “trying to make myself into a C or reverse C type of thing.” After he jumped back, he saw the knife, which was a folding type knife, not a buck knife. Sgt. Johnson heard a gunshot, which he assumed was fired by Deputy Oviedo. Sgt. Johnson drew his gun and fired two or three times. Navarro was about seven to ten feet away. Sgt. Johnson believed that Deputy Oviedo fired another shot.”

Here is Deputy Oviedo’s account:

“Deputy Oviedo saw Navarro reach into his right pocket and remove a knife. He could see the three-or four-inch blade. Navarro lunged at Sgt. Johnson as if to stab him, but Deputy Oviedo qualified that by saying he could not recall the exact movement. Deputy Oviedo drew his duty weapon. Both Sgt. Johnson and Deputy Oviedo discharged their firearms. Deputy Oviedo fired twice but was not sure if it was he or Sgt. Johnson who fired first. Navarro threw the knife onto the sidewalk, and it slid off into the gravel.”

From his own account Deputy Bautista did not see or hear the shooting nor did he see the knife in Luis Gutierrez’ hands.

“Deputy Oviedo told Deputy Bautista that Navarro had a knife. Deputy Bautista saw an open blade knife on the gravel about eight feet from Navarro…  Deputy Bautista did not fire his weapon. He did not see or hear the shooting. He did not see the knife in Navarro’s hand. He estimated the distance of the pursuit at about 100 feet.”

Based on these statements alone, there is certainly not enough evidence to conclude that the officers were wrong in this case.  Only Johnson calibrated the distance, but two of the officers saw the knife and witnessed some sort of attacking motion.

The best eyewitness account from from Vieana Navarro, of no relation to the victim.

“She saw the guy the officers were chasing stop and turn around. She did not see anything in the person’s hands. The officers were about 10 feet away from the person. The person backed away from the officers, and Ms. Navarro heard four shots. Ms. Navarro then decided to leave the area. By this time, she was at the bottom of the hill. She did not see the officers’ firearms. She heard the officers yelling but could not tell what was being said. She thought the subject’s arms were swinging as he ran. She did not see him pull out a knife.”

There are two points of interest here in her testimony.  First, she did not see him pull out a knife nor did she see anything in the victim’s hands.  However, she also seems to indicate that the person was backing away from the officers.

The critical questions occur before the shooting and they are fraught with inconsistencies and problems.

The questionable actions are the decision to contact Gutierrez, the contact itself, and the chasing down of Gutierrez.   Once the pursuit and confrontation began, the use of force by most law enforcement standards is likely justified.  The question is whether they unnecessarily escalated a situation that did not need to be escalated.

This is what follow up reports should focus on.  First, we have considerable question as to why Mr. Gutierrez was contacted in the first place.  He was not wearing gang colors.  The officers did not see his hand.  He had no criminal history.

Second, we have considerable questions as to whether Mr. Gutierrez knew these were actually police officers.  The report claims that they identified themselves, however, reading further only one of the three officers actually corroborated that.  We should qualify that with the caveat that we are basing this only on what it says in this report.  Only Sgt. Johnson claims to have identified himself, one of the deputies does not mention identification and the other did not hear it.  This is crucial, because if Mr. Gutierrez did not know who was pursuing him, it would be reasonable to expect him to run.

Third, the meth evidence is shaky at best.  It appears that part of the pretext is that he was volatile and violent, but it appears  that his first instinct was to run and only when cornered did he attempt to pull a knife.  Was this a defensive posture against an unknown assailant or an attack on an officer?  Again, from this evidence, we cannot make that conclusion.

Fourth, we have news accounts quoting Flores when his account seems irrelevant and prejudicial.  If he is an eyewitness, what did he witness?  If he is a character reference to justify their cover story and conclusion, why not get more statements from people who know him better and form a more complete picture?  The decision to include him in this report is very questionable.

Finally, given all that transpired, we probably concur with the Attorney General’s Office:  “we have concluded that your decision was not unreasonable and thus did not constitute an abuse of discretion.”  In other words, there is no evidence to suggest that the shooting was not justified once the incident unfolded.  Severe questions need to be asked about what led to the shooting, however, from our standpoint the deputies should be far from “off-the-hook.”  At best the Attorney General’s Office has ruled that the call on the field stands.  That may work in football, but this community needs there to be a bit more definitive judgment in this case.

—David M. Greenwald reporting