Yolo County District Attorney Re-Opens Investigation into Gutierrez Shooting

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The Vanguard has received word that the District Attorney’s Office is re-opening the investigation into the shooting of Luis Gutierrez.  At this time, the Vanguard is uncertain what that entails.

Last week, the Vanguard ran a story that questioned the official version of events based on the location of several bullet strikes in relation to where Mr. Gutierrez was eventually killed on the street adjacent to the south sidewalk on the Gum Ave overpass over Highway 113.  Based on that story, the Vanguard requested additional information from the county assuming that the investigation of the Office of District Attorney was complete.

The Vanguard was therefore surprised to receive a letter from the Yolo County Office of the County Counsel signed by Sonia Cortes, Senior Deputy County Counsel, stating that the records are exempt from disclosure under Evidence Code section 1040 “because there is an ongoing criminal investigation into the shooting death of Luis Gutierrez Navarro being conducted by the Yolo County District Attorney’s office and the Federal Bureau of Investigation Civil Rights Division.”

We were aware that the FBI was investigating the shooting, however, we were unaware that the District Attorney’s Office had an open or active investigation.

We received additional information from the folks at the Independent Civil Rights Commission who had received a voice mail message from Dan Cederborg, Assistant County Counsel for Yolo County.

He told them that due “the fact that there are some additional witnesses [of the shooting of Luis Gutierrez], the DA has re-opened their investigation, at least partially.”

Right before Thanksgiving, the District Attorney’s office concluded their investigation  more than six months after the April 30, 2009 shooting of Luis Gutierrez by three Yolo County Sheriff’s Deputies operating as part of the Yolo County Gang Task Force.  At the time they concluded, “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.”

Said Assistant Chief Deputy Jonathan Raven at the time, “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.”

However, many in the community were not comfortable with the decision and a group of citizens led by Former California Supreme Court Justice Cruz Reynoso formed an Independent Civil Rights Commission.  They held their first hearings in late February bringing forth witnesses and the testimony of investigator Frank Roman.

It was during these hearings that we heard additional evidence from Vienna Navarro who provided additional information above and beyond what was included in the report from the District Attorney’s Office.  Significantly she described in great detail Mr. Gutierrez running backwards away from deputies right before he was shot, moreover, she described the fact that she saw his hands very clearly and saw no knife.

According to her testimony in February, Ms. Navarro was driving very slowly on the bridge when she saw three men and Luis Gutierrez.  At first, she thought the men were playing around and simply running from one side of the street to the other.  However, then she saw them punching and swinging their arms.  She saw Mr. Gutierrez exchange punches with one of the officers.  She described Mr. Gutierrez’s face as very red, but said there was no blood that she could see.

She was driving about 2 miles per hour very slow and Luis came within three feet of her vehicle and made eye contact with her.  He looked very scared, confused, and shocked.

She said, “I didn’t know they were officers until one of their jackets flew open and I saw the badge.  And even then I wasn’t really sure, it didn’t click in my head that they were police officers.”

She described that he stopped and turned around.  “He was doing this backwards jog type move.  It kind of looked like he was turning to see where they were.  He turned around and I heard three gunshots as he was doing a jogging motion.”

“I heard three or four or five shots, and I was looking in my rearview mirror and I saw him fall down on his side.  When I saw that I took off down to Kate Lane.”

She would not find out that he had been killed until the next day when she looked up the story on the internet and saw the report.  She could not believe that he had been shot, since he did not have a gun.  It was only later on the internet that she learned that officers were saying that he had a knife.

She said the Chief of Police was the one who interviewed her.

“One thing that I thought was pretty odd, was at one point he had asked me to stand up and demonstrate how Luis was running.  He said, so Luis was running like this with his hands and everything.  I said yes.  And he said, did you notice that I had this knife in my hands the whole time?  He had a pocket knife, a black one, that was in the palm of his hands.  He said, did you see this?  And I said no, I didn’t.  He said, how do you know you didn’t just miss the knife [the knife that he alleged was in Luis’ hand]?”

She pointed out that the knife that the Police Chief held was closed.  In demonstration with the private investigator, it was clear that if there had been an open knife in Luis’ hands, as the officers allege in their report, she would have seen it. 

Other witnesses came forward on Sunday.  One was Javier Cabrera who witnessed Mr. Gutierrez on the bridge and largely corroborated what Ms. Navarro had testified to.

Of interest as well was Rosalia Redones who was an insurance broker who met with Mr. Gutierrez the day of the incident who reported she saw nothing strange about his behavior despite claims that he had been under the influence of meth at the time of the shooting so as to cause erratic behavior.

he witness described the fact that two of her brothers had died from drugs and alcohol and she had witnessed them under the influence, but said that the victim  (Gutierrez) showed no signs of being on drugs.  The victim did not have sniffles, shaking, slurred speech, or any other indications of drug use.  She also mentioned he spoke broken English.

District Attorney Investigators may also want to speak to the Ochoa family who came forward that Saturday to describe their treatment and the treatment of their daughter Christal who described in vivid detail as Deputy Oviedo put a gun to her head while serving a warrant looking for her brother who was later acquitted by a Colusa County Jury of firing a gun in an attempted drive-by shooting that was said to be gang-related. 

Of importance here is the conduct of two officers–Sgt Johnson and Deputy Oviedo, who according to records obtained by the Vanguard served a search warrant on the Ochoa House last June.  These two officers were the two primary officers involved in the Gutierrez shooting.

The Vanguard has also learned from investigators that at least two more witnesses may surface in an upcoming hearing on April 18 by the Independent Civil Rights Commission in which testimony will be given that they were on the bridge and witnessed Mr. Gutierrez running from deputies as they shot at him.

What the new investigation will entail is difficult to ascertain and the Vanguard received no calls in return to inquiries from earlier this week.  Nevertheless, this would appear to be a significant development in a case that the DA’s office appeared to consider closed and it calls into questions their findings from November but also the diligence of their investigation given the fact that additional witnesses have now come forward who apparently were too frightened to talk to the DA’s office originally.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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56 thoughts on “Yolo County District Attorney Re-Opens Investigation into Gutierrez Shooting”

  1. Doug Minnis

    I am pleased that the case is being reopened. It never seemed to me that the report of thesituation made sense. However, this tradegy is part of a much greater problem than this one terrible mistake. The citizens of Yolo county need to give some serious thought to the way in which the gang situation is being handled. It is clear that gangs are a problem. Prohibiting them to gather or profiling them does not do it. I hope this quaestion gets more attention than simply reopening the case. Some creativity and research might make a major national contribution. Many of the gang members of my generation lost interest while in the CCC s where they did something with their youthful energy and accomplished some remarkable social contributions. History is not a creative solution to this problem, but it does indicate that thereacan be a solution.

  2. Rich Rifkin

    [i]”Significantly she described in great detail Mr. Gutierrez running backwards away from deputies right before he was shot, moreover, she described the fact that she saw his hands very clearly and saw no knife.”[/i]

    The question as to whether or not Gutierrez-Navarro had a knife seems quite easy to prove forensically. That is, if he had a knife it would have been found on him or near him when he perished; and it would have had his finger prints or palm prints on it.

    Are you saying, David, that there was no knife or that the knife found was not Mr. Gutierrez-Navarro’s? Is your contention (or interpretation) that this knife was a concoction of the officers? Or is your contention (or interpretation) that this was a case of misperception, where the officers thought Gutierrez-Navarro was wielding a knife but instead was holding up his keys or even nothing, much like the case of Amadou Diallo ([url]http://en.wikipedia.org/wiki/Amadou_Diallo#Events_surrounding_death[/url]), where he held up his wallet and was shot when cops in NY thought his wallet was a gun?

    [i]”However, many in the community were not comfortable with the decision and a group of citizens led by Former California Supreme Court Justice Cruz Reynoso formed an Independent Civil Rights Commission.”[/i]

    I think it is perfectly reasonable for citizens to be skeptical of internal police investigations or any other investigations of cops by cops. It is just natural that these sorts of investigations will clear cops, because the investigators have a bias which leads them to believe their fellow cops most of the time.

    It is for that reason that I think the City of Davis is very wise to have an outside ombudsman, like Bob Aaronson, to investigate serious accusations against the Davis police.

    But just because cops can be biased investigating other cops — including those in other agencies — does not mean that a citizens’ investigation is any less biased. I have no confidence whatsoever in the [i]independence[/i] of Mr. Reynoso or his Independent Civil Rights Commission. It seems like this group was set up from the start to make the case that Gutierrez-Navarro was the victim in this case.

    The people who selected Mr. Reynoso appear to me to have believed well in advance of this case, based on all of their comments in the media, that law enforcement in Yolo County has an anti-Hispanic bias (especially with regard to “gang profiling”) and they are trying to use this investigation to prove that contention.

    If the police report (reviewed since by Jerry Brown, et al.) is wrong — and for all I know it may be — I would have much more confidence in someone like Bob Aaronson taking a look at it than the ICRC.

  3. David M. Greenwald

    Rich:

    You ask a good question about the knife, right now I’m not “saying” anything, because I don’t know. I think that there’s a possibility that the knife was produced in order to justify the shooting, there is also a possibility that the knife was there and the witness just didn’t see it. I would however like to know how the victim was running with a knife in his pocket, reached into his pocket, and pull it out with the knife open and exposed. Was it a switch blade? Just a question about the official version.

    “But just because cops can be biased investigating other cops — including those in other agencies — does not mean that a citizens’ investigation is any less biased. “

    I agree with you on that. I see this as an exercise in raising questions, finding evidence, and finding witnesses and I think the authorities then need to follow up.


    If the police report (reviewed since by Jerry Brown, et al.) is wrong — and for all I know it may be — I would have much more confidence in someone like Bob Aaronson taking a look at it than the ICRC. “

    So would I.

  4. E Roberts Musser

    DPD: “She said, “I didn’t know they were officers until one of their jackets flew open and I saw the badge. And even then I wasn’t really sure, it didn’t click in my head that they were police officers.””

    The Guitierrez case is one that has always bothered me, mainly bc of the above issue mentioned by a witness. An undercover gang task force, not in uniform, stopping people based on “articulable suspicion” (standard required for such a stop), may cause a citizen approached to think s/he is being accosted, not questioned by proper authorities. How would anyone react when they think they are being accosted? We are taught to be wary of strangers for our own safety, no? I find this police technique troubling at best. What I hope is there will be a reconsideration of this police tactic. In a similar case, an out of control gang task force in another state was disbanded – after killing an innocent citizen reaching into his pocket for a cell phone…

  5. jake wallace

    Yolo County Board of Supervisors
    625 Court Street
    Woodland, California 95695

    October 13, 2009

    Jacob Tyler Wallace
    Hollywood, California 90038
    323-309-3115

    Re: Government Code 27641: Accusation Against California attorney acting as Assistant County Council, Daniel Carl Cederborg State Bar # 124260 for the subversion of GC 27641 filed against Cederborg’s superior county council and acting CAO, Robyn Truitt Drivon & Judge Steve Basha; Drivon’s former boss. Brown Act violation; violated Article 1; Rules Governing Meetings; Sec.2-1.101; Sec 2-1.113; Sec 2-1.208.

    Allegations:

    1)ACC Cederborg advised the supervisor’s to meet and address GC 27861 filed September 11, 2009, which was an undisclosed meeting held by local elected officials to avoid public scrutiny by holding secret “workshops” and “study sessions.” That resulted in the county council flipping the GC 27641 into a ‘claim’ against the county now being handled by Yolo Human Resources.
    2)ACC Cederborg told Wallace by phone on October 12, 2009 (530-666-8277) that Yolo had already investigated now Sacramento Probation Chief, Don Meyer, for the subversion, concealment and the production of a falsified law enforcement investigation by a subordinate Teri Hall, days before Yolo county appointed CPO Don Meyer. The facts refute that.
    3)ACC Cederborg told Wallace that Yolo had no liability as Yolo did not know of CPO Don Meyer’ alleged criminal acts before the appointment and that the acts took place in another county anyway. The facts refute that.
    4)ACC Cederborg told Wallace that the allegations against CPO Don Meyer had been lawfully investigated outside of Yolo. The facts refute that.
    5)ACC Cederborg told Wallace that the Yolo board chair, McGowan and CAO, Robyn Truitt Drivon can privately decide on what matters appear on the BOS agenda as received correspondence. The complaint was filed against Robyn Truitt Drivon and the GC 27641 never appeared as official received correspondence as of Oct 13, 2009. The facts refute that. But the GC 27641 was in fact acted upon anyway.
    6)ACC Cederborg told Wallace the GC 27641 included several supervisor’s and was fatal as the board had no quorum to act but ACC Cederborg then stated the GC 27641 had been acted upon. How would the ACC know that before a public hearing? Cited supervisor’s never had the chance to publicly oppose that allegation or disqualify themselves. ACC Cederborg’s acts continue to conceal the allegations against Truitt and Judge Steve Basha.

    Page 2 GC 27641 Filed Against Assistant County Council, Daniel Carl Cederborg

    October 13, 2009

    7)Wallace received a phone call from Yolo Risk Assessment Manager, Hugo Martinez, on Friday, October 2, 2009 (530-666-8425). Mr. Martinez stated that he had no authority to make the call nor the authority to address the GC complaint and was doing so due to the mistake of another county employee. Mr. Martinez participated in an in depth conversation and stated the county had 90-days to respond. Mr. Martinez was a tool used by ACC Cederborg to subvert the public disclosure and public handling of the GC 27641 complaint; where ever that may have led.
    8)Daniel Carl Cederborg, Yolo County Council subordinate addressed allegations against the county council. Cederborg should have recused himself for a conflict of interest and should have allowed the accusations to be cited as official board correspondence, publicly discussed and acted upon per Yolo county’s Article 1; Rules Governing Meetings and the Brown Act. No written response has been received to date though ACC Cederborg stated Human Resources had responded in writing.
    9)ACC Cederborg’s attempt to have the GC 27641 flipped into a claim against the county; counters a civil & penal code false claims act suit(s) CV06-581 filed in the Yolo superior court in 2006, where Yolo and Calaveras official’s (CV 32550) jointly hired the law firm of Angelo, Kilday & Kilduff with public funds to dismantle the suit(s) after the grand jury and an earlier GC 27641 complaint was subverted.

    Jake Wallace

    Benjamin Wagner
    United States Attorney
    501 I Street, Suite 10-100
    Sacramento, CA 95814

    Mr. Joseph P. Russoniello
    United States Attorney
    450 Golden Gate Avenue
    Box 36055
    San Francisco, CA 94102

    Sacramento Regional FBI Office
    4500 Orange Grove
    Sacramento, CA 95841

  6. Superfluous Man

    [quote]The question as to whether or not Gutierrez-Navarro had a knife seems quite easy to prove forensically. That is, if he had a knife it would have been found on him or near him when he perished; and it would have had his finger prints or palm prints on it.
    [/quote]

    Did you read the portion of the report that discusses the forensic analysis of the knife? I guess it’s not always that “easy to prove” or the report authors fall short of selling the forensic connections convincingly. To read the report, forensically, it’s not very clear or conclusive that Gutierrez is connected to the aforementioned knife.

    Regarding fingerprints the DA reports states:

    “The DOJ/BFS Latent Print Program examined the submitted knife. No identifiable latent prints were developed.”

    The report does not go on to explain the possible reasons why no prints were developed. Could the report’s authors not have taken a sentence or two to expand on the absence of or inability to process latent prints? Was there a texture to the knife, which would be consistent with the absence or inability to pull prints? Were there prints, but they were smudged and could not be developed? Is it difficult to leave a print on the knife’s blade? Could he have opened the blade without touching it?

    Regarding the DNA, the report reads:

    “He analyzed the DNA on the knife and compared it to a reference sample of DNA from Luis Gutierrez Navarro. He concluded that it is likely Navarro is the source of the DNA detected on the knife.”

    The authors do not quantify “likely”, nor do they mention whether or not the DNA on the knife was tested against the involved officers. Were the officers unlikely the DNA source? It sounds like this bit of forensic only can’t rule Gutierrez out as the source of the DNA found on the knife.

  7. Superfluous Man

    [quote]An undercover gang task force, not in uniform, stopping people based on “articulable suspicion” (standard required for such a stop), may cause a citizen approached to think s/he is being accosted, not questioned by proper authorities[/quote]

    During a consensual contact, fourth amendment scrutiny is not invoked. Therefore, articulable suspicion is not needed for the officers to stop and talk to a person in a public space or street, such as they did with Gutierrez.

  8. jake wallace

    County of Yolo
    Human Resources
    625 Court Street, Room 101
    Woodland, CA 95695
    (530) 666-8055 FAX (530) 666-8049
    http://www.yolocounty.org

    Mindi Nunes
    DIRECTOR OF HUMAN RESOURCES

    October 7. 2009

    Jacob Tyler Wallace
    Hollywood, CA 90038

    Dear Mr. Wallace:

    We have received your correspondence to our Board of Supervisors dated September 8, 2009. The Human Resources department handles all public inquiry related to claims and thus the Board Clerk has forwarded your request to our department. Your correspondence requests the Board reverse its previous response to your concerns regarding Don Meyer and demands that the Board authorize an independent investigation into your allegations. Your requests are denied.

    Your letter does not include any new evidence that would necessitate a new investigation. Furthermore. Mr. Meyer is no longer an employee of this County and the issues brought to light in 2005 were investigated as a matter of employment background. There exists no merit for your request and no reasonable justification for the expenditure of public funds.

    For the reasons enumerated above. Yolo County considers this matter closed.

    Sincerely.
    j ! ‘ ‘I II , j
    t ;, I
    Mindi Nunes
    Director of Human Resources

  9. merixcoatl20

    [quote]The people who selected Mr. Reynoso appear to me to have believed well in advance of this case, based on all of their comments in the media, that law enforcement in Yolo County has an anti-Hispanic bias (especially with regard to “gang profiling”) and they are trying to use this investigation to prove that contention. [/quote]

    Rich Rifkin,

    [u]What exactly do you mean by “the people” who selected Reynoso?[/u]”The People?” You speak like you have spoken to “the people” and share an understanding of how exactly Reynoso was appointed to be Chair of the commission.

    My contention is that you have not spoken to “the people”; and furthermore lack a complete understanding of the reasons why Mr. Reynosos created the civil rights commission.

    Are you saying that Yolo County law enforcement has absolutely no bias against Hispanics? Would you agree with the fact that woodland has rightfully validated its youngest gang member as an 11 year old Hispanic sureno?

    [u]Please explain the statements you made, because it seems to me you may have an anti-latino bias yourself. [/u]

  10. Rich Rifkin

    [i]”What exactly do you mean by “the people” who selected Reynoso?”[/i]

    I mean the people who believed in advance of an invesigation that the cops and the DA were biased against Hispanics, especially with regard to anti-gang measures.

    [i]”My contention is that you have not spoken to ‘the people.'”[/i]

    I never made any claim or pretense to have done so.

    [i]”Are you saying that Yolo County law enforcement has absolutely no bias against Hispanics?”[/i]

    I have never made any absolute statements on that question. I would be very surprised if there is not someone who is employed in some aspect of law enforcement somewhere who does not harbor some prejudice against Hispanics.

    But that, of course, is not the same thing as a systemic prejudice or institutional racism, neither of which is evident or, in my opinion, credible.

    In the specifics of this one case, it is interesting that 50% of the officers involved were themselves Hispanics.

    [i]”It seems to me you may have an anti-latino bias yourself.”[/i]

    You seem to find that bias just about everywhere, don’t you? It’s as if you are a latter day Joe McCarthy who makes wild, unfounded accusations against others to try to harm their reputations in order to advance your cause. Have you no decency?

  11. roger bockrath

    “I think it is perfectly reasonable for citizens to be skeptical of internal police investigations or any other investigations of cops by cops. It is just natural that these sorts of investigations will clear cops, because the investigators have a bias which leads them to believe their fellow cops most of the time”

    Rich,
    Can you remember the news accounts immediately after the Guiterrez shooting?. I seem to remember Yolo County Sheriff Ed Prieto stating in the Sac. Bee that this was a “good shoot” and that Mr. Guiterrez was a gang banger and that he had meth in his body. This was before his house was searched for gang periphenalia or drugs. It was before the Woodland Police had performed any kind of investigation. It was way before any toxicology tests were performed.

    Does anybody on this blog have the skills to go back to the very beginning of this case and find Prieto’s statements in the Bee? I remember at the time thinking that Ed had already cleared his deputies before any investigation had been performed.

    For this reason it would seem only reasonable and prudent for citizens to perform their own investigation.

    Way before any investigations were concluded Ed Prieto had all but publicly announced that Guiterrez was a bad guy who need to be taken down and that his officers were performing a public service in killing him.

    Will somebody who possesses the research skills please go back and find those first few news articles so that we can all be enlightened as to why it was deemed necessary to form a citizens committee in order to learn the truth about this sad incident?

    I can certainly see why a citizens committee would tend to be biased toward thinking that Guiterrez was innocent and the police officers were too quick to take a life, when Prieto was so premature in concluding that his deputies had done nothing wrong!

  12. Rich Rifkin

    One more point on this topic: I was just told (by an emailer) that Cecilia Escamilla-Greenwald, David’s wife who was very controversial in her inquisition of alleged police misconduct in Davis, is on the Reynoso commission. I have no objection to her participation, if my emailer is correct. However, it seems like any mention of that group’s activities on the Vanguard should make this point clear, if it is true.

  13. David M. Greenwald

    Rich: While that is a fair point (and I think I did mention it in one of the stories), but Cecilia has played almost no role in anything I have reported on. She sat on Mr. Reynoso’s panel and asked some questions along with the other commissioners, but she played no role in finding the witnesses, hiring the investigator, or setting up the meetings, unless she plays a direct role in something I am reporting on, I see no reason to mention her involvement each time I report on Commission activities.

  14. Rich Rifkin

    Roger, I recall much the same thing. However, I believe the police investigation was conducted by the WPD, not by Mr. Prieto*. That does not overcome the problem, even if it is a different agency, that cops will normally view the work of other cops in a biased, pro-cop light. I think that is human nature.

    **Never mind, by the way, that Mr. Prieto himself is Hispanic and that he and Mr. Oviedo are being accused of racial prejudice against themselves.

  15. Matt Rexroad

    David:

    You can’t re-open something that never closed. This article would indicate that some major change has happened in the case or the investigation. It has not.

    The case remains open until the FBI concludes their evaluation. It never closed.

    Until the investigation closes any new witness or evidence that is compelling would have to be considered. The DA is obligated to do that. You know that.

    This story reads as if their has been some change in the process or some new finding. That is not what has happened here. The fact is that nothing at all has changed.

    Matt Rexroad
    662-5184

  16. David M. Greenwald

    Matt: You are correct in that the DA’s office always has the prerogative to file charges later and they did not dismiss with prejudice. However, the point of the article and btw, take it up with Dan Cederborg, I used his words, is that additional witnesses have emerged that they are interviewing and that is accurate at least based on what I know. Also it would help if the DA’s office returned a simple phone call to me.

  17. Superfluous Man

    “I remember at the time thinking that Ed had already cleared his deputies before any investigation had been performed.”

    Roger-he all but wrote off the Ochoa family and the little girl as being untruthful in their recount of the YCGTF’s conduct as well, before the internal investigation had begun. He can’t help himself apparently.

    Oh, I forgot to indicate in my prior posts that the quotes to which I repsonded were from Rich and ERM’s posts.

  18. Superfluous Man

    David-Who is the investigator they hired? Is it Frank Roman? If so, his objectivity is certainly worth questioning is it not?

    Mr. Roman questioned witnesses at the ICRC hearing, why? He’s not listed as a commission member, so what exactly is his involvement?

    One would think that given the ICRC’s concerns about law enforcement objectivity in their investigating the conduct of these officers, that they would attempt to remain as objective as possible. So, why are they so closely involved with Roman and should he be involved at all, other than testifying to his findings and opinions,
    considering his pecuniary interests?

  19. David M. Greenwald

    Superfluous: I would question everybody, in fact, that’s a prime reason that I have undertaken a bit of my own investigation running parallel to the ICRC’s. I would say that it would be difficult for a commission to operate without an investigator, almost all body’s including civil review boards have an investigator to go out and find witnesses and conduct an investigation. It is the commission’s job to weigh the evidence.

  20. Superfluous Man

    David-I agree that it is necessary, for the purposes of the investigation and hearing, for the ICRC to hire an investigator. However, I think obtaining one that wasn’t hired by the family’s attorney and by default worked for the Gutierrez family, would be the wise things to do. So if Roman the official ICRC investigator?

    Matt-I was wondering the same thing, isn’t the investigation ongoing as long as the FBI is still investigating the incident, but according to Cederborg, there are other reasons.

  21. JustSaying

    David: Most of what I have read about the Guiterrez death comes from the Vanguard, so hope your reporting is sound. But your coverage of this case is getting more disconcerting.

    You say the DA has “re-opened” the case (because of your requests and reporting?) even though you were “unaware” whether the DA had an open investigation all along. Maybe it’s been reopened because “additional witnesses have now come forward who apparently were too frightened to talk to the DA’s office originally,” as you said, citing unnamed “investigators.” Implications abound!

    You ask a good question about the knife, right now I’m not “saying” anything, because I don’t know.

    Although you tell Rich otherwise, You ARE “saying” something. Who can doubt you already have selected the option that deputies “produced” the knife to cover up a “bad shoot” rather than that Ms. Navarro might not have seen everything that happened? It’s clear from your reports on this–as well as you other stories on the DA’s and Sheriff’s offices–that you come each with a strong point of view. You seem to select facts to support your preconceptions. (Why would it surprise you that the DA’s office doesn’t return your calls?) That’s okay; it’s your Vanguard. It usually makes for interesting reading and reactions, but generates charges of racism based on your suggestions that so many reported legal actions are race-based.

    In demonstration with the private investigator, it was clear that if there had been an open knife in Luis’ hands, as the officers allege in their report, she would have seen it.

    How can you possibly claim this with such conviction? Eyewitness reports aren’t positively reliable even in much better circumstances than Ms. Navarro observed.

    Re. your wife’s involvement in this case, you did acknowledge her membership on the “Independent Civil Rights Commission” in a previous story. Now, you say: unless she plays a direct role in something I am reporting on, I see no reason to mention her involvement each time I report on Commission activities.

    I disagree. You have room to repeat with certainty in each writing what Ms. Navarro saw or didn’t see while driving by the incident. You certainly have room to disclose your own personal connection (via your wife, the commissioner) to the case whenever you write about it. It’s an important fact that needs to be considered when we read your reporting, even though I guess the need doesn’t just jump out to you.

    It’s so difficult to really know everything that’s involved in this tragic case. Maybe all that you imply eventually will turn out to be true. But, in the meantime, there’s agony all around. And will it all be worth it if it turns out that you’re not correct in your assumptions?

  22. David M. Greenwald

    “You say the DA has “re-opened” the case (because of your requests and reporting?) even though you were “unaware” whether the DA had an open investigation all along.”

    I reported what the Assistant County Counsel said, that the DA had re-opened (his words) the case, not based on my reporting, but rather based primarily on the new witnesses that the commission found.

    “Although you tell Rich otherwise, You ARE “saying” something. Who can doubt you already have selected the option that deputies “produced” the knife to cover up a “bad shoot” rather than that Ms. Navarro might not have seen everything that happened? It’s clear from your reports on this–as well as you other stories on the DA’s and Sheriff’s offices–that you come each with a strong point of view.”

    Right now I’m skeptical of the DA’s report, I do not know whether he had a knife or not, I’m certainly not going to take their word for it at this point. I think you are reading my skepticism at their claims and inferring that I have a conclusion, I do not have one.

    In terms of my wife’s involvement, I was involved in this case before the civil rights commission, I don’t really see your point there. She didn’t produce the witness here or testify, so for this story, I don’t see the need to mention it. Now if I go on April 18, I probably will mention it since she will be involved in the meeting.

    “In demonstration with the private investigator, it was clear that if there had been an open knife in Luis’ hands, as the officers allege in their report, she would have seen it.

    How can you possibly claim this with such conviction? Eyewitness reports aren’t positively reliable even in much better circumstances than Ms. Navarro observed. “

    That’s a fair point, I probably should have used “should” or “could” rather than “would”

  23. David M. Greenwald

    Superfluous: I have had this discussion with others. There is an upside and a downside to having Roman as the investigator. You mentioned the downside and I agree there is a possibility of bias and taint there even if he is not currently working for the family. The upside though I think outweighs it and that is he was actually working on the case when the case was fresh, he actually found some of the evidence, and saw a somewhat live crime scene. In short, that cannot be replicated by another investigator. I do think that the commission and Justice Reynoso need to be very careful with how they use Mr. Roman, but I think he has some valuable things to offer. For my part, I have always tried to go back and verify some of the work he has done, I went back to the scene for instance and looked at the home that was hit by the bullet and took my own photos.

  24. Superfluous Man

    David-

    I’m not discounting everything Roman says or produces at this point, but I have my doubts. I think they absolutely should consider, just as law enforcement had, Roman’s findings.

    I don’t understand how hiring outside investigator with no connections to the Gutirrez instead of Roman really hinder the ICRC’s efforts?

    Would the ICRC and the investigator have no access to Roman, his findings and opinions, if they did not hire Roman? I would err on the side of caution and at least appear as objective as possible, given the questions of impartiality surrounding the investigations conducted by law enforcement. I guess it doesn’t matter, the public and the ICRC will have to judge for themselves what is and what isn’t completely objective.

  25. E Roberts Musser

    ERM: “An undercover gang task force, not in uniform, stopping people based on “articulable suspicion” (standard required for such a stop), may cause a citizen approached to think s/he is being accosted, not questioned by proper authorities…”

    Superflous Man: “During a consensual contact, fourth amendment scrutiny is not invoked. Therefore, articulable suspicion is not needed for the officers to stop and talk to a person in a public space or street, such as they did with Gutierrez.”

    A police officer may not STOP a person unless he has articulable and reasonable suspicion of criminal activity. This man was walking home from having taken a driving test, so there is a huge question whether there was any articulable and reasonable suspicion of criminal activity that even justified a stop. Then you suggest somehow there was “consent” by the victim for the police to perform a warrantless search. Please explain where the idea of “consent for a warrantless search” comes from? And by the way, the consent must be “voluntary and intelligent consent”. I just don’t see any evidence of a consent for a warrantless search in this situation, or did I miss something?

  26. Plankton

    After reviewing these comments it strikes me that Mr. Rexroad and Mr. Rifkin would be pro law enforcement regardless of the facts. Sorry gentlemen, you just don’t sound objective.

  27. Superfluous Man

    ERM-

    You are incorrect. A police officer absolutely may legally stop and talk to a person on a public street without articulable suspicion, as the officers did in the Gutierrez incident. What does “consent for a warrantless search” have to do with the officers stopping to speak with Gutierrez?

    The contact is consensual in that Gutierrez, at the time Sgt. Johnson exited the vehicle and asked to speak with him, could legally walk away or decline to speak with the officers, as long as the officers do not observe or suspect criminal activity. The point in which Gutierrez put his hand in his pocket and ran across East Gum, the consensual encounter no longer applies because the officers have articulable suspicion of criminal activity and they could(did) legally pursue him. At the moment Gutierrez slashed or stabbed at Sgt. Johnson with the alleged knife, the officers fired and shot him, for fear of their safety, and at that point Gutierrez was legally detained.

    This sums up consensual encounters quite well:

    “A consensual encounter does not require any type of suspicion or cause. An officer may approach someone on the street or any other public place and contact that person and talk with them if they are willing to do so. There is no Fourth Amendment violation as long as that person would feel free to leave or end the encounter.2 It is also well-settled that a consensual encounter may also take place at the doorway of a home. 3 Consensual encounters require no articulable suspicion of criminal activity.4”
    http://www.tdcorg.com/download/ConsensualEncounters-9-17-07.pdf

  28. Alphonso

    “The contact is consensual in that Gutierrez, at the time Sgt. Johnson exited the vehicle and asked to speak with him, could legally walk away or decline to speak with the officers, as long as the officers do not observe or suspect criminal activity. The point in which Gutierrez put his hand in his pocket and ran across East Gum, the consensual encounter no longer applies because the officers have articulable suspicion of criminal activity and they could(did) legally pursue him. “

    Did they really see Gutierrez put his hand in his pocket or was that something they contrived to support an unjustified chase? The police statement about the chase may be true and if it is true an independent polygraph test would support that position. The fundamental issue in this entire matter is the chase explanation.

  29. Superfluous Man

    “Did they really see Gutierrez put his hand in his pocket or was that something they contrived to support an unjustified chase? The police statement about the chase may be true and if it is true an independent polygraph test would support that position. The fundamental issue in this entire matter is the chase explanation.”

    All we have are the officers’ accounts, no one else claims to have witnessed that part of the contact. We can play conspiracy theorist all day long, but I’m going off of what we know and what has been made available to the public.

    Even if he didn’t put his hand in his pocket, I believe there are additional circumstances that lend themselves to the officers’ legal justification to pursue Gutierrez. Moreover, these include him running, running into traffic and the area in which the incident took place being defined as a “high crime area.” This doesn’t mean I am personally comfortable with all this, but this is the law and the law gives law enforcement a lot of wiggle room in certain circumstances.

    I can’t think of any reason why these officers would be required to take a polygraph test.

  30. E Roberts Musser

    SM: “The contact is consensual in that Gutierrez, at the time Sgt. Johnson exited the vehicle and asked to speak with him, could legally walk away or decline to speak with the officers, as long as the officers do not observe or suspect criminal activity. The point in which Gutierrez put his hand in his pocket and ran across East Gum, the consensual encounter no longer applies because the officers have articulable suspicion of criminal activity and they could(did) legally pursue him. At the moment Gutierrez slashed or stabbed at Sgt. Johnson with the alleged knife, the officers fired and shot him, for fear of their safety, and at that point Gutierrez was legally detained.”

    So what you are saying is that you are perfectly comfortable with the idea that a car of three men in civilian clothes can pull beside ANYONE walking down the street, get out of the car, and call out. As soon as the person being “questioned” makes the mistake of putting their hand in their pocket as they turn to walk away, the police now have permission to do a warrantless search or just shoot the person bc they might be reaching for a weapon? How would you feel about such a scenario if the person shot had been your family member or friend?

    SM: ““A consensual encounter does not require any type of suspicion or cause. An officer may approach someone on the street or any other public place and contact that person and talk with them if they are willing to do so. There is no Fourth Amendment violation as long as that person would feel free to leave or end the encounter.”

    Do you honestly think Guitierrez felt “free to leave or end the encounter”? This situation was ripe for a killing, much as a similar case in another state (New York I believe). There, an innocent man was questioned by a gang task force in civilian clothes, reached into his pocket for a cell phone, and was shot 37 times. THE GANG TASK FORCE WAS DISBANDED. The almost exact same scenario played out here. Furthermore, your cite refers to an “officer” – intimating a uniformed officer. How did Guitierrez even know these three men were police officers? Two of the three policemen said in sworn testimony they could not remember the other officer even identifying himself as a policeman. At what point and how was Guitierrez allowed to “end the encounter”? Let’s see, he can’t put his hands in his pockets, he can’t run, even tho he may think he is being accosted by strangers. Exactly how does a civilian disengage from such an encounter without getting shot?

    Sorry, but we will have to agree to disagree on this one. I am very uncomfortable with undercover policemen feeling free to stop civilians for any reason or for no reason, setting up a scenario where the person being stopped has no idea if they are being accosted by a stranger or not. If the person stopped then makes the mistake of reaching for a cell phone to call for help, they can then be shot to death by the police bc the police suspect the person is reaching for a weapon. This is just bad police procedure IMHO…

  31. Superfluous Man

    ERM-“So what you are saying is that you are perfectly comfortable with the idea that a car of three men in civilian clothes can pull beside ANYONE walking down the street, get out of the car, and call out. As soon as the person being “questioned” makes the mistake of putting their hand in their pocket as they turn to walk away, the police now have permission to do a warrantless search or just shoot the person bc they might be reaching for a weapon? How would you feel about such a scenario if the person shot had been your family member or friend?”

    No, which is why, in my response to Alphonso, I stated “This doesn’t mean I am personally comfortable with all this…”. My point was just that law enforcement officers can legally contact an individual, plainclothes or in uniform, on a public street or space without articulable suspicion.

    There is a grey area in which it becomes unclear as to whether or not the consensual encounter has ventured into detention territory(ie is the line of questioning as such that the contacted individual doesn’t feel they can leave or decline to speak with the officer-coercive in nature-would a reasonable person feel they could leave?) and that is something to consider. However, assuming Sgt. Johnson just stepped out of the vehicle, clearly identified himself as a law enforcement officer and just said “can I speak with you”, I don’t see this consensual encounter as legally being perceived as anything but.

    Regarding the officers’ legal justification to pursue him, your characterization that Gutierrez put his hand in his pocket and turned to walk away is not accurate according to the report. Assuming the officer statements are truthful, Gutierrez put his hand in his pocket and ran into oncoming traffic, not continuing to walk along the sidewalk. That gave the officers the right to pursue him, which ultimately led to Gutierrezs’ detention, as he assaulted, not reaching for a weapon as you asserted, assaulted Sgt. Johnson with a deadly weapon.

    How would I feel, I’m not sure, but I will tell you this-I’m not comfortable with this, nor am I convinced that the DA report’s substance(or lack thereof) explains the many questions I have surrounding this incident.

  32. Superfluous Man

    ERM-

    ERM-

    I think I responded to most of your points in my previous post. Determining whether or not a reasonable person would believe they could leave or end the conversation is key and not black and white. I can’t find a legal reason, based on the available information, which would suggest that the officers’ actions and questions would lead Gutierrez to believe he did not have the right to leave at the initial contact.

    Now, I also think most people don’t understand that they can legally leave or decline to speak with an officer when a consensual encounter takes place, which is a problem in my mind. So then it becomes a question of Gutierrez not understanding his constitutionally protected right to end the consensual encounter in a manner that would not prompt the officers to witness or suspect criminal activity.

    How did Gutierrez know they were officers, according to Sgt. Johnson statement in the report, he lifted up his shirt which exposed his badge and sidearm to Gutierrez. My question: how does Johnson know with absolute certainty that he exposed both and not just the gun. Again, that’s what Johnson’s statement says in the report, there’s no mention of him verbally identifying himself as law enforcement. However, in the ‘Detailed Chronology” portion of the report, it is stated the Johnson did verbally identify himself as being with the Sheriff’s Department. For whatever reason, the official statement portion does not discuss Johnson verbally identifying himself, just lifting up his shirt, as to expose his badge and gun. It’s worth noting that nowhere in the report is it corroborated that Johnson exposed his badge or verbally identified himself as law enforcement.

    Assuming Sgt. Johnson properly identified himself when he contacted Gutierrez, verbally and/or by showing his badge, it is not his fault that Gutierrez responded as he did. Gutierrezs’ right to end the consensual encounter ended when he put his had in his pocket and ran into oncoming traffic.

    It’s not a matter of agreeing or disagreeing, it’s a matter of law. I don’t like how this whole thing was handled and I still have questions. If think that the officers in the plain clothes(not undercover) YCGTF should at least be required to tuck their shirts in, so that there badge is visible, especially when popping out of unmarked cars to speak with people. I agree that who they actually are could be confusing and that Gutierrez may very well have not known they were officers.

  33. David M. Greenwald

    One of my questions is that given Gutierrez spoke broken English, how well he understood that they were law enforcement. What was striking to me is that the report says they said “Task Force”, “Sheriff’s Office” and “S.O.” An English speaker might not understand that two of those are law enforcement. A Spanish speaker may not understand any of those. One of those might sound more like “ese” to someone not familiar with the term than “S.O.”

  34. Superfluous Man

    David-“ One of my questions is that given Gutierrez spoke broken English, how well he understood that they were law enforcement. What was striking to me is that the report says they said “Task Force”, “Sheriff’s Office” and “S.O.” An English speaker might not understand that two of those are law enforcement. A Spanish speaker may not understand any of those. One of those might sound more like “ese” to someone not familiar with the term than “S.O.””

    At the initial contact, according to the “Detailed Chronology” portion of the report, Sgt. Johnson told Navarro he was with the Sheriff’s Department. How would you have liked Johnson to verbally identify himself as law enforcement?

    I too believe the question of Gutierrezs’ understanding of English is important here and it’s hasn’t been made clear to me that he would understand the meaning of those words. Legally, however, law enforcement isn’t required to identify themselves in any language other than English when making contact with an individual.

    I believe it’s possible Gutierrez did not understand the verbal identification and only saw the gun, which prompted him to flee the area. I definitely see the possibility of confusion on Gutierrezs’ part, but his confusion or limited understanding of English doesn’t necessarily mean the officers’ conduct was unlawful, when considering the totality of the circumstances.

  35. David M. Greenwald

    “how would you have liked Johnson to verbally identify himself as law enforcement?

    I too believe the question of Gutierrezs’ understanding of English is important here and it’s hasn’t been made clear to me that he would understand the meaning of those words. Legally, however, law enforcement isn’t required to identify themselves in any language other than English when making contact with an individual.”

    I don’t view it as a matter of how I would like them to do something, the question really is, why did he react the way that he did. If he only saw the gun and did not understand the language, it might be understandable why he might run. Moreover, it still begs the question as to why they would attempt to contact him in English, particularly with two Latino Deputies, are you telling me neither of them spoke Spanish and none thought to approach an Hispanic male attempting to speak in Spanish? Law requiring be darned, prudence dictates that you contact someone in a manner they will understand.

  36. Superfluous Man

    David-“ I don’t view it as a matter of how I would like them to do something, the question really is, why did he react the way that he did. If he only saw the gun and did not understand the language, it might be understandable why he might run.”

    Poor phrasing on my part. I agree that him not understanding English and only seeing Johnson’s sidearm could absolutely be the reason why Gutierrez fled, but legally the officers can’t be held accountable for his reactions if Johnson properly identified himself? Perhaps, procedurally, this is something the YCGTF should consider change(ie visibly display who they are at all times and approach certain individuals speaking Spanish) in the future when making those type of contacts.

    Couldn’t it be argued that if they were, when making the initial contact, to speak Spanish to the contacted individual that this could also result in an adverse reaction by a non-Spanish speaking individual? In other words, confuse the person they are contacting?

    “ Moreover, it still begs the question as to why they would attempt to contact him in English, particularly with two Latino Deputies, are you telling me neither of them spoke Spanish and none thought to approach an Hispanic male attempting to speak in Spanish?”

    Seems presumptuous to me that the two Latino Deputies speak Spanish and that when approaching a Hispanic male they should first speak to him in Spanish. I have no clue if any of the involved officers speak Spanish, it would make sense for the unit to have a officer who does though.

    “Law requiring be darned, prudence dictates that you contact someone in a manner they will understand.”

    Like so many occurrences in law enforcement the officers are forced to make judgement calls, often times these are split-second decisions. Furthermore, there are circumstances in which a Spanish-speaking officer is not in a position to be the one doing the contacting and as far as I know fluency in Spanish is not a requisite for one to serve as a peace officer or work in the YCGTF. Again, what if the same thing happened, but they contacted the individual in Spanish and that person spoke no Spanish, which in turn resulted in the contacted individual fleeing and so on, what would we be saying about that judgement call?

  37. Superfluous Man

    I wanted to add something else in regards to the consensual encounter. It is considered a seizure of his person if the officers blocked Gutierrezs’ movement in anyway. Similarly, if the officer displays his gun it can be considered a seizure of his person.

    I recall reading somewhere that the witness(Mr Cabrera) testified that the car came in diagonally and blocked Gutierrezs’ path. If that is true, they can’t do that without articulable suspicion. That would violate his protection from an unreasonable seizure. The report isn’t clear where Sgt. Johnson is in relation to Gutierrez at the time he made contact with him. Was Johnson standing in front of Gutierrez? When Johnson opened the car door did he impede Gutierrezs’ movement in any way, such that a reasonable person would feel restrained? For the record, the report states that the car pulled up next to Gutierrez.

    Depending on how the gun is displayed, that can be perceived as a “show of authority”, in which a reasonable person could feel restrained from movement, which is a seizure and the officer must have articulable suspicion.

    So the question is did the manner in which Sgt. Johnson displayed his gun to Gutierrez effectively seize his person, without articulable suspicion?

    Just some food for thought.

  38. E Roberts Musser

    How about we knock off the esoteric discussion, and use plain “good ol’ fashun” logic – in my day it was called “horse sense”. Bottom line, the law enforcement technique used – an undercover task force in civilian clothes questioning people on the street for no reason whatever – sets up too dangerous an encounter frought with too much freedom to misunderstand by all parties concerned. It gives law enforcement almost unfettered power to shoot civilians by mistake, and later claim the “the law was followed”. There is good reason police officers normally wear uniforms – so the public clearly knows, no matter their first language spoken, that the individual questioning them is in fact from law enforcement. The important result I want to come out of this case is for law enforcement to remove this questionable tactic from its crime fighting repertoire. Choke holds by law enforcement used to be legal too, until too many suspects died from it and the technique was outlawed.

  39. Superfluous Man

    ERM-

    Unfortunately the esoteric conversation is necessary, I think, to better understand the legal issues surrounding the killing of Gutierrez, which some apparently have difficulty grasping.

    The YCGTF, as far as I know, does not use undercover agents as part of their efforts combating criminal gang activity. The three officers were not “undercover” as so many have asserted, rather they were dressed in “plainclothes” and there is a difference, legally and tactically.

    I find this entire thing disturbing too, but the courts have continuously upheld the peace officers’ right to approach an individual in a public space or on a public street, without articulable suspicion. Are you arguing that plainclothes officers should not have the legal right to contact someone without suspicion? I would like an explanation by the YCGTF, Reisig or Prieto detailing why it is necessary for them to work effectively and efficiently, to dress in plainclothes, hiding their badges and guns under their untucked shirts.

    Remember in the report Deputy Oviedo states “wore his badge on his belt and always tucked his shirt behind his gun to display the badge and gun.” Well, in another portion of the report, it is claimed that all three had their badges and guns covered by their shirts, but I’ll assume Oviedo’s statement is accurate. It apparently isn’t an issue for him to expose his badge and gun when out in the field, does he see it as important to display them, so he can be identified as law enforcement, thus decreasing the possibility of any confusion? That doesn’t hinder his duties as an officer in the YCGTF?

    Deputy Bautista mentions taking his badge and putting it around his neck, after he called the shooting in. That’s interesting, did he think having his badge covered by his shirt could lead to confusion on the part of the first responders, as to whether or not he is a peace officer? Did he believe that simply lifting up his shirt to expose his badge and gun would not suffice, in that scenario?

  40. Superfluous Man

    I would think that it would be in the best interest of the officers, contacts and civilians in the immediate area(bullet penetrate the mobile home) for the officer to be clearly identifiable as law enforcement officials. It becomes a public safety issue, in my mind.

    These people they are contacting are allegedly(or potentially) violent individuals who could respond to the confusion of the officers identity with violence, which might have happened in the Gutierrez case(although it doesn’t sound like he has a history of violence). The officers should have their badges and guns always exposed when conducting these consensual encounters. I would also suggest that they always wear their Gang Task Force shirts while conducting their business in the field.

  41. E Roberts Musser

    Superfluous Man, you made my point for me. If there are no outward identifiers on law enforcement, so a person on the street would undoubtedly know them to be a police officer, then law enforcement has no business contacting anyone on the street without “articulable suspicion” IMHO. (For example, normally if a plain clothes detective approaches someone for questioning, he shows his badge by taking it in hand and putting it out in front of his body at eye level for everyone to see.)

    All the YCGTF has to do is come up with a consistent policy on exactly how they will approach civilians w/o articulable suspicion, so that there will be no confusion as to who is approaching. It could be as simple as law enforcement hanging the badge around their necks/displaying their guns in plain view as they get out of the car/approach the person. Now why wouldn’t the YCGTF be willing to take such simple precautions for public saftey’s sake? Am I missing something here? To me, it is a matter of common sense. How many dead civilians will be enough to change this practice by gang task forces who are unwilling to clearly identify themselves?

    If a random shot ended up in a mobile home, that is also problematic from a public safety point of view, and was precipitated by the entire unfortunate scenario occurring in the first place. Once you start a train rolling downhill (the scenario of potential confusion as to who the officers are), it is hard to stop the train, and the ultimate damage it will cause (dead civilian; bullet in a mobile home).

    If there is a failure to change this policy, then what we have is an unacceptable contradiction, in which civilians are told to be wary of strangers, but can be shot dead legally by the police if the person approached should be naive enough to put their hands in their pockets. Once the hand is placed in the pocket, somehow a “consensual encounter” is somehow elevated to “articulable suspicion of criminal activity”. This suddenly allows for a warrentless search/being shot by law enforcement – who fear the person is reaching inside their pocker for a concealed weapon. Yet law enforcement set the entire mess in motion by failing to identify themselves in the first place – so the person approached is less likely to make a suspicious move/isn’t confused they are being accosted by strangers.

    If case law allows this “approach” as you claim, then the law needs to be changed. Unfortunately the Guitierrez civil suit against law enforcement was settled out of court. Therefore there is no impetus through the courts, to make a definitive determination as to whether what happened was legal. A change in police tactics would have to be done legislatively, which is difficult, unless the police themselves are big enough to take a good hard look at what happened and make the change themselves. This is what I was hoping for, but thus far it has not occurred. Perhaps with enough public pressure…

  42. Superfluous Man

    ERM-The Gutierrez civil suit has been settled already, I haven’t heard anything to that effect.

    The law, to an extent, gives peace officers unfettered authority to contact individuals for absolutely no reason, in a public space or on a public street. Not sayin’ I like it, but they can. Once they do contact someone, they can’t seize that person without articulable suspicion. If they blocked Gutierrezs’ movement, that would violate his Fourth Amendment Right to free movement because at that time they had no articulable suspicion.

    I would like some answers(apparently Woodland City leaders met seeking the same, but got nowhere) explaining why concealing their identity is vital to their method of operation. If incidents such as this one can be avoided in the future, by simply wearing their badges around their necks or tucking their shirts in, why not change the policy? Makes sense to me, unless they need to conceal their identity to do their job, which apparently isn’t the case with Oviedo, who tucked his shirt behind his badge and gun.

    According to the law, Johnson’s verbally identifying himself and lifting up his shirt to expose his badge and gun is acceptable. Case law appears to uphold their right to operate in that manner, when approaching an individual, even in absence of suspicion.

    There are many DA investigators and other law enforcement officials that carry out their business in plainclothes and have their sidearms covered by their shirts. I believe some don’t even wear their badge on their waste(flip open wallet), could be a policy thing.

    Here’s what I take issue with: when in plain clothes and dealing with individuals who may not understand English well and contacting people on the street, they need to make it clear that they are law enforcement, to the eye. Moreover, when lifting up ones shirt to expose badge and gun, isn’t it possible that the contact would only observe the gun and not the badge? Could the gun or part of the shirt obstruct the badge? How does the contacting officer even know for sure that they exposed their badge and gun, would they take their eyes off of the contacted individual and look to their waistline as to assure they properly exposed their badge? Could the contact see what appears to be a gun(or some other weapon) protruding through the officers shirt(before the officer even lifts his shirt up) and react adversely? These are some of the questions, I think legitimate ones, that the YCGTF should consider when deciding on their policies and procedures in the field.

    The consensual encounter ended because he put his hand in his pocket and ran into oncoming traffic. If there was no articulable suspicion, Gutierrez could have put his hand in his pocket and continued to walk along the sidewalk, without giving the officer’s articualble suspicion or cause, I think.

    Law enforcement will never actively change the law, prohibitng consensual contacts.

  43. Superfluous Man

    I had this information sent to me regarding the DA Budget Workshop and if anyone is interested, there’s some interesting stuff in there- (http://yolo.granicus.com/MetaViewer.php?view_id=2&event_id=27&meta_id=86727.)

    The document indicates that Jonathan Raven oversees the Gang Task Force, which is interesting because the Gang Task Force is overseen by the Sheriff’s Department, technically speaking, despite that fact the unit still operates out of the DA’s Office and not the SD. So, who really has influence over the YCGTF, the DA or Sheriff?

    Was Raven officially overseeing the YCGTF when he was investigating the killing of Gutierrez and writing the report exonerating the officers on any wrong doing? Can the DA’s Office say that’s an unequivocally objective report and conclusion?

  44. Primoris

    Based on your pics there appears to be a discrepancy as to the exact location. Your arrow points to a differenct spot than that which is designated by the memorial/flowers etc. Are we to assume the family/friends are incorrect?

  45. Primoris

    Superfluous Man wrote:

    [quote]I recall reading somewhere that the witness(Mr Cabrera) testified that the car came in diagonally and blocked Gutierrezs’ path. If that is true, they can’t do that without articulable suspicion. That would violate his protection from an unreasonable seizure[/quote]

    I don’t recall that the vehicle had blocked the sidewalk. I believe the witness’ statement dealt with how the vehicle arrived/ended up (which does not necessarily mean anyone’s movement was impacted). When Navarro (after ID of Johnson, and showing of credentials and sidearm) made a furtive gesture, left the sidewalk and ran, he was a violator of the law and was detainable per caselaw.

    What’s a seizure? Terry v. Ohio, 392 U.S. 1 (1968), California v. Hodari D., 499 U.S. 621 (1991), Florida v. Bostick, 501 U.S. 429 (1991), Michigan v. Chesternut, 486 U.S. 567 (1988),U.S. v. Mendenhall, 446 U.S. 544 (1980) Florida v. Royer, 460 U.S. 491 (1983), INS v. Delgado, 466 U.S. 210 (1984), Ohio v. Robinette, 519 U.S. 33 (1996), Cupp v. Murphy, 412 U.S. 291 (1973).

  46. David M. Greenwald

    “Based on your pics there appears to be a discrepancy as to the exact location. Your arrow points to a differenct spot than that which is designated by the memorial/flowers etc. Are we to assume the family/friends are incorrect? “

    The arrows are an attempt to anticipate not where the body is but rather where an officer might have been and show a potential flight path of the bullet.

    As far as I can tell the flowers do not market the exact spot of the death, but rather the death occurred on the street adjacent to the sidewalk.

  47. Superfluous Man

    Primoris-

    “I don’t recall that the vehicle had blocked the sidewalk. I believe the witness’ statement dealt with how the vehicle arrived/ended up (which does not necessarily mean anyone’s movement was impacted). When Navarro (after ID of Johnson, and showing of credentials and sidearm) made a furtive gesture, left the sidewalk and ran, he was a violator of the law and was detainable per caselaw. “

    As I previously stated, I thought I heard or read somewhere that the testimony of one witness brought into question how the vehicle approached or stopped, in relation to Gutierrez. If the vehicle “arrived/ended” in a particular manner, which would be consistent with the vehicle impeding Gutierrezs’ free movement, isn’t that indicative of movement being impacted? Therefore, if the vehicle came up on the curb and blocked his movement along the sidewalk, without articulable suspicion, would a reasonable person feel that they have the freedom to leave? Would that person have been considered seized? That was my point, but it sounds like the car didn’t drive up on the curb, according to the report.

    There’s also the issue of the door, could a door, when opened, impede someone’s movement?

    I understand the caselaw and why the officers had the legal right to pursue Gutierrez, we pretty much discussed it to death above.

  48. Superfluous Man

    Can someone explain to me why the DA report asserts:

    “The United States Supreme Court has made clear there is no “seizure” until the police have actually physically stopped the person, or the person stops on his own and submits to police authority… Even if the police yell “stop” or “freeze,” display a weapon, or assert their authority in some other manner, there cannot be a detention until and unless the suspect stops fleeing in response.

    Ummm, can’t a person be seized for a number of reasons? I don’t believe the US Supreme Court has ruled that those(mentioned in the DA report) are the only instances in which an individual is legally seized or detained. I don’t believe the suspect has to be physically stopped or yield to the commands of the officer in order to be legally considered seized. For example, if the officer displays his or her weapon in such a manner that a reasonable person feels they cannot end the encounter, they can be legally seized, regardless of their movement.

  49. Primoris

    SM

    You aren’t intimating that you don’t believe what our supreme court has decided, are you?

    You seem to be focused on the reasons for seizure as opposed to a definition of seizure? Think of the plain language re: seizure.

    Try googling a little more since that is how you obtain much of your information.

  50. Superfluous Man

    Primoris-

    Actually, I now realize the report was referencing the US Supreme Court’s ruling on officer pursuits and seizure, so in that context there is no seizure “until the police have actually physically stopped the person” and so forth. I misread the report and I though the report was suggesting that a person is legally seized only once that person has been physically stopped, etcetera, etcetera.

    I was focused on the Gutierrez killing and what constitutes a seizure. Specifically, at what point does a consensual encounter become a seizure? The Court has ruled that a seizure of a person can occur if a reasonable person would feel as though they cannot leave or end the encounter.

    Not sure how you know where I get my information or what it matters, but like most people, I do use the World Wide Web as a research and information gathering tool.

  51. Primoris

    [quote]Not sure how you know where I get my information or what it matters, but like most people, I do use the World Wide Web as a research and information gathering tool[/quote]

    It is sufficient to say I know.

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