Charges Further Reduced in Davis Gun Incident As Facts Continue to Emerge

police-lineJudge Timothy Fall on Thursday further reduced the charges faced by Nicholas Benson, stemming from the January 21, 2011, incident that captured regional headlines after he was arrested for making threats to harm himself and others,  and carrying an assault rifle with over 100 rounds of ammunition in his vehicle.

Following his preliminary hearing, Mr. Benson now only faces a single felony charge for possession of an assault weapon.  Judge Fall reduced the second charge, which had been a felony obstructing an executive officer, down to a misdemeanor after officers admitted on the stand that Mr. Benson did not strike them or use force to resist their commands.

By reducing that charge to a misdemeanor, the enhancement for being armed with an assault weapon was also dismissed.  Mr. Benson now faces one felony and two misdemeanors for the events that occurred on January 21, which have become far more clear.

Tim Benson testified that his son had spoken with him during the afternoon about a business plan in which he was hoping to grow medical marijuana for sale at the south end of their home in Winters.  His father rejected that plan and Nicholas Benson became angry and distraught.

Within an hour and a half he was angry and made threats to harm himself.  When Deputy DA Rob Gorman attempted to elicit that he made threats against others, Mr. Benson was adamant that it was only a threat to harm himself.

While Mr. Benson was not sure of the exact timing, he believed that things had escalated to the point of contacting the police within two hours of his initial conversation with his son about the incident.

Suzanne Coutchie, the mother of Nicholas Benson, testified to a phone conversation in which Mr. Benson told her, “I want you to hear me loading the gun.  I want to kill myself.”

She testified, “I heard metal clinking on metal.”

Mr. Gorman attempted to get both parents to testify that Mr. Benson had used the phrase “suicide by cop,” but neither recalled hearing Mr. Benson use that phrase.

Ms. Coutchie called the counselor, who advised her to call the police.  She testified that she went to her son’s apartment after the arrest and found a revolver in the apartment.

Officer Michael Arimboanga of the Davis Police Department testified that they went to the apartment at 422 A Street and Mr. Benson was not there. They looked around as they walked back toward the police cars and found him on Fourth Street between A and B, on the south sidewalk.

They yelled verbal commands from about 20 to 25 yards away, but he did not comply.  Eventually Mr. Benson would turn and walk away.  While Mr. Benson was not seen urinating on the sidewalk, one of the officers would testify that he saw a wet spot where Mr. Benson had been standing.

Officer Arimboanga testified that Mr. Benson slowly turned around and then walked around the rear of the pickup truck to the driver’s side.

They pursued him prior to his getting into the pickup truck, deploying a non-lethal weapon that fired a bean bag at him, hitting him in the chest but making no impact on the subject.

He got into the truck, and at that point Officer Michael Moore tried to pull him out of the vehicle by wedging himself between the subject and the steering column.  However, Mr. Benson was tensing up his body, preventing them from extracting him from the vehicle.

Officer Arimboanga testified that he yelled “gun” after seeing the rifle on the passenger side.  He saw Mr. Benson’s hand trying to reach the butt end of the weapon.  Officer Moore did a hand-strike, and eventually they were clear so they could deploy a Taser which allowed them to extract him from the vehicle.

According to the officer’s estimation, this entire incident took about two minutes.

Under cross-examination, the officer would acknowledge that he smelled alcohol on Mr. Benson’s breath, who then had acknowledged drinking a fifth of whiskey. However, there was no felony blood draw, even though he showed “objective signs of impairment.”

Officer Arimboanga also testified under cross that Mr. Benson made no attempt to strike him or any of the other officers.

Officer Christman, who was with the Davis Police Department at the time, but has since resigned for undisclosed reasons, testified that he went to the Benson home around 5:52.  He testified that the term “suicide by cop” was used by Nicholas Benson in an text message exchange with his brother Ben Benson (who did not testify on Thursday).

He testified that there were text message exchanges which said he wanted to commit suicide, but suicide was a mortal sin, so someone else had to do the act, and that suicide by cop was the way to go.

Officer Michael Moore testified that Mr. Benson had an AR-15 assault-style weapon, and that he offered passive resistance by tensing his body and pulling his arms inward.  He did not see Mr. Benson touch his weapon during the struggle.

Mr. Benson also had, in his truck, a 12-gauge shot gun which had a single slug in it.  The AR-15 was fully loaded with a scope that provided three to nine power magnification.

Officer Moore testified that he delivered a blow to Mr. Benson’s face with his right elbow in their struggle.

Under cross-examination, he acknowledged that Mr. Benson was not armed except with ammunition on his person.  He said that in retrospect, he was unarmed but at the time it was not clear.

He said that he did not see Mr. Benson urinate on the sidewalk but saw the wet spot.

He said that Officer Eric Labbe had pulled the weapon out of the vehicle through the passenger window and, after that, Mr. Benson was Tased.  Officer Moore testified that he was in contact with Mr. Benson when he was Tased, but it did not affect him.

Officer Moore, under direct examination, testified that they had found a map of the UC Davis campus on Mr. Benson.  Deputy DA Gorman attempted to examine Detective John Evans about the map and about Mr. Benson having access to the university dinning commons via an access card. 

However, Judge Fall ruled it was irrelevant to the specific charges, and therefore did not allow Mr. Gorman to undertake a fishing expedition.

A preliminary hearing is basically an establishment of probable cause that a crime occurred.  As such, all evidence is viewed in the best possible light and the only consideration is whether there is credible evidence to charge a crime.

Judge Fall ruled that there was sufficient evidence to support the felony charge of the possession of an assault weapon and the misdemeanor possession of a firearm.

Defense Attorney Steve Sabbidini disputed Count 2, which was a felony charge for  obstructing an executive officer, arguing that there was only passive resistance that the officer testified to, and which did not rise to obstruction of a peace officer by means of force or violence.

Mr. Gorman countered that the threats presented within the statement “suicide by cop,” along with the passive resistance, was sufficient.

Judge Fall ruled that there was sufficient evidence to support the first and third counts.  However, he ruled that suicide by cop was not sufficient to support the second count, since it is not clear that he had ever made the threat to any specific individual, rather he used the phrase in an exchange with his brother via a text message.

However, he also ruled that Mr. Benson was not merely passively resisting, which would be akin to a protester going limp.  Instead, he used his strength to keep in place.  He ruled that the charge was still a PC 69, but not a felony. 

By reducing the charge to misdemeanor, that caused him also to throw out the enhancement, a charge of being armed with an assault weapon.

This case has changed a lot since the initial charging, when the police had charged  a willful threat to others, and some reference had been made to street terrorism, that had caused the bail at arraignment to be set at $1 million.  The PC 422 was not charged by the DA, and the bail was reduced at the OR (own recognizance) hearing to $100,000.  Mr. Benson was out on bail for this hearing.

It is instructive that no one testified that Mr. Benson made threats towards others.  Yes, he was loaded with ammunition and he clearly was distraught. 

While we have only heard the police’s side of the story, based on the testimony, the police appear to have done a good job to bring Mr. Benson in without harming him.  That the police did not shoot and kill Mr. Benson is credit to their quick work at apprehending him, before he harmed himself or others.

Facing only one felony, it seems likely that Mr. Benson will cop a plea at some point which will allow him to avoid prison time, and instead be mandated to receive the kind of mental health services which he most desperately needs.

—David M. Greenwald reporting

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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14 Comments

  1. E Roberts Musser

    dmg: “Mr. Gorman attempted to get both parents to testified that Mr. Benson used the phrase, “suicide by cop,” but neither recall hearing Mr. Benson use that phrase.”

    It is possible the parents changed their story bc they realized how much legal trouble their son was in if they dared to admit he expressed threats to kill himself via a “suicide by cop” scenario. Just an observation. It is not uncommon for witnesses to recant testimony on the stand when they better understand the ramifications of what they are about to testify to. However, the entire legal system worked just as it is supposed to on all sides, and this troubled young man will hopefully get the mental health/alcohol rehab services he so desperately needs. Obviously if this kid becomes distraught/suicidal over mere sensible advice against starting up a business growing medical marijuana, something in his thought processes is way out of whack and he desperately needs the services of mental health/medical professionals.

    I do wonder, however, how the defendant came into possession of so many firearms – revolver and assault rifle. I would hope that he will never be able to get a hold of another firearm in his lifetime…

    By the way, what was the point to all the discussion in court of urinating on the sidewalk? I’m not seeing the relevancy of that issue…

  2. David M. Greenwald

    I think it goes to his state of mind and the fact that he was intoxicated. I probably could have left it out, but I was trying to paint a full picture.

    Hard to know on the suicide by cop reference.

    I tend to agree with your bottom line though, the system is working as it should in this case, reasonable charges and the kid will get the help he needs.

  3. Bill Ritter

    Again the Davis Police did a great job in apprehending Mr. Benson and they clearly prevented a dangerous situation from escalating any further. Mr. Benson had threatened suicide and his family feared for his safety and that of others. His mother called his counselor who recommended they call the police for help which the family did. The police had been told by his brother that Mr. Benson was armed with an assault rife and when he refused police commands the officers apprehended him from his truck. The police discovered he had a loaded shotgun, a loaded assault rifle and lots of ammunition both on his person and in the truck too. No doubt the police officers saved Mr. Benson’s life and potentially other lives as well. It appears by his irrational and threatening behavior as well as his armaments he may have intended to harm others, not just himself. The type of guns and the amount of ammo he had in the truck were much more than needed to carry out only his threatened suicide.

  4. rdcanning

    This was a pretty scary situation that the Davis police probably handled as best as could be expected. The outcome was much different than the sad events in Woodland a couple years ago where a mentally disturbed and distraught man “armed” with a pencil died after an encounter with police. These incidents suggest that efforts to help our police with increased training on how to work with mentally disordered individuals can help police better protect themselves, the individuals they encounter, and the public.

  5. Alphonso

    [b]”Again the Davis Police did a great job in apprehending Mr. Benson and they clearly prevented a dangerous situation from escalating any further.”[/b]

    I agree with that statement – the intitial response was great! I do have some questions about the investigation and review activities. I looks like they may have overplayed the situation when they released information to the Press. I know there is a tendancy to build up the importance of police activities in the way they present information to the press – it would be better if they provided a more reasonable explanation rather than exagerating the “crime” in a effort to promote themselves. Also, why charge a felony for police obstruction if they can not support it – charges should fit the activity, not something dreamed up back at the station.

    Another observation – if you are part of the community, you are not Hispanic and you hire a local attorney, you have a reasonable opportunity for justice in Yolo county. If any of those qualities are missing then you have a problem. Clearly there a two justice systems in Yolo and that is because the Judges lack the quality of being impartial.

  6. Rifkin

    [i]”Another observation – if you are part of the community, [b]you are not Hispanic[/b] and you hire a local attorney, you have a reasonable opportunity for justice in Yolo county.”[/i]

    I know that David has reported on a number of cases where he believes a Hispanic person (defendant, mental patient or just regular citizen) was mistreated by local law enforcement or by the judicial system. However, even if you agree with him that in every one of those cases or just the majority of those cases the person David has deemed to be a victim was in fact a victim of “the system,” it’s hard to understand how the individual’s ethnic heritage was a factor in those cases, especially when almost all of them fall under the authority of our sheriff, who happens to be of Hispanic heritage as well.

    I cannot imagine a professional like Ed Prieto or Landy Black would tolerate a force full of prejudiced officers.

    Likewise, a number of cases where the supposed victim was mistreated by police officers or sheriff’s deputies the lawmen in question have often also been Hispanics.

    I don’t know for sure if people like Mr. Gutierrez Navarro were completely innocent, but I tend to suspect that their interactions with law enforcement were not driven by an ethnic prejudice on the part of these Hispanic cops or others with a prejudice against Latinos as a group.

    My guess is that their negative interactions with the law are much more likely the product of them being young males in high crime and low-income areas.

  7. Alphonso

    “My guess is that their negative interactions with the law are much more likely the product of them being young males in high crime and low-income areas.”

    I do not want to overstate my case, but I have been watching the Yolo court system for ten years. Many cases start off well out of proportion due to overcharging by local police. I have read about quite a few cases that have been resolved or reduced to a more reasonable level relatively quickly. None of those cases have involved a Hispanic – that is just a fact. Based on that, I am certain there is too much bias in the Yolo system. I wish a study was done to analyze that conclusion. Much of the Yolo power base reflects an old two class system – farmer and farm worker with the farmers taking the priority position.

  8. E Roberts Musser

    A: “I do not want to overstate my case, but I have been watching the Yolo court system for ten years. Many cases start off well out of proportion due to overcharging by local police. I have read about quite a few cases that have been resolved or reduced to a more reasonable level relatively quickly. None of those cases have involved a Hispanic – that is just a fact. Based on that, I am certain there is too much bias in the Yolo system. I wish a study was done to analyze that conclusion. Much of the Yolo power base reflects an old two class system – farmer and farm worker with the farmers taking the priority position.”

    This gets to the issue of a basic part of the criminal legal system. The prosecution will put the best possible people’s case before the courts. What constitutes “best possible case” is left up to the discretion of the DA/law enforcement. It is a matter of style/judgment. I suspect since CA has a reputation for being “tough on crime”, the DA (who is an elected official) and law enforcement are only too happy to oblige, and throw every possible charge they can think of against the defendant. After all, it is what voters seem to want, no?

  9. David M. Greenwald

    From my observations, the handling of the case post-arrest looks to be an exception rather than the rule. I’m not ready to make a claim on ethnicity, though I do wonder how a white defendant, looking middle class and clean cut in a suit and tie impacted how this was handled. I do question a lot of things, but if there is an Hispanic effect it is certainly at a more subtle level.

  10. Rifkin

    [i]” I’m not ready to make a claim on ethnicity, though I do wonder how a white defendant, looking middle class and clean cut in a suit and tie impacted how this was handled. I do question a lot of things, but if there is an Hispanic effect it is certainly at a more subtle level.”[/i]

    I continue to doubt that the system or its most important players (the DA, the sheriff, the police chiefs, the Superior Court judges, etc.) are biased against Hispanics as Hispanics.

    However, David’s post makes me think there probably is a class-race mixture at play which effectively (if not intentionally) has a racial (or ethnic) bias component when it comes to juries.

    To wit, David mentions “a white defendant, looking middle class and clean cut in a suit and tie.” I would guess that the vast majority of white defendants in criminal cases are lower income, not middle class. However, as David suggests, such defendants, unless they are all tattooed up or have terrible scars or some other incriminating features which make them look scary, can pass for middle class to the eyes of most jurors.

    At the same time, there are probably a lot of lower income and middle income and maybe even higher income Hispanics or African Americans who, even in a suit, might be presumed to be lower class and to that extent dangerous.

    It would all depend on the life experiences of the jurors, but I don’t find it incredible that people tend to judge other people on the way they look. It’s largely just human nature to do so. But those judgments can always be inaccurate. (I know there is also prejudice against people who speak poor English or with a heavy accent. To the extent some jurors have that bias, that might work against some immigrant defendants.)

    All that said, I remain doubtful that “people who look scary” get worse treatment from the people at the top of the system. I have more faith in their characters.

  11. David M. Greenwald

    Rich: If that were the case, why is that defense attorneys go to such lengths to make sure their clients in trial are not in prison jump suits and are not seen by the jurors in shackles or cuffed? It’s because perception matters.

  12. roger bockrath

    Looks to me like Mr. Benson is looking at a maximum $500. fine if he was legally in possession of his AR-15 prior to 1989, when it’s legal description got changed to “assault weapon” by the Roberti-Roos Assault Weapons Control Act. Before then it was just considered a semi automatic rifle.

    These guns are commonly used,all over the West, by farmers and ranchers for varmint control. The 223.Remington round has excellent long range trajectory because it uses a light projectile and high muzzle velocity. A visit to the Yolo Sportsman’s practice range will reveal many Yolo County resident shooters who target practice with affordable military surplus ammo.
    The label of “assault weapon” is little more than political rhetoric, designed to scare an increasingly urban California electorate, ignorant of hunting/firearms culture, into thinking they are being protected by removing a small portion of available firearms.

    Roberti-Roos was feel good legislation, designed to make folks feel better after one of the many heinous mass shootings perpetrated by some person who should have never been in possession of a fire arm, due to their mental illness. The legislation that is needed would take care of our mentally ill citizens, not remove our sporting and self defense fire arms. Guns don’t kill people. People kill people.

    There exists, in California, a list of citizens who are not allowed to possess fire arms due to diminished mental health. Unfortunately , most law enforcement organizations never seem to get around to removing the weapons from listed individuals until something like our Davis incident gets their attention. In my opinion, if existing gun safeguard laws we actually enforced, we would have little need to keep adding new ones.

    I don’t see, in David’s article, anything about Mr. Benson being charged with having a loaded weapon in his vehicle, which is also a violation of California law. Perhaps this is because “loaded weapon in vehicle” is only a misdemeanor and only felony counts were being discussed in David’s article.

  13. rdcanning

    Sensible gun safety laws and campaigns can also have an impact on the public health by helping to lower suicide rates – guns remain the means of choice for most suicides in the U.S. Suicide remains the third leading cause of death among young people – with guns predominating. Often the guns belong to family members and are not kept in a gun safe or with trigger locks. Good examples of these types of programs can be found at: http://www.hsph.harvard.edu/means-matter/index.html. Similarly, in Australia, gun buy back programs have reduced suicide rates. Simple efforts to educate can help save lives. In this case there seems to have been a positive outcome.

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