One of the critical questions regarding the propriety of the shooting of Luis Gutierrez on April 30, 2009 by three Yolo County Sheriff’s Deputies is the propriety of the consensual stop and encounter. One of the persistent questions we have had is whether Mr. Gutierrez – a non-native English speaker, reasonably knew that he was running from police officers.
To answer some of these questions, the plaintiffs brought in expert Stephen L. D’Arcy, currently a Criminal Justice Department faculty member at Sacramento State and a retired undersheriff of Placer County as recently as 2007.
He also worked for 24 years at the San Jose Police Department, serving as the Internal Affairs Unit Commander under Chief Joseph D. McNamara, and later was appointed to Office of the Chief of Police, Staff Inspections.
While his credentials were in dispute, he claims to been a nationally-recognized expert in police procedures, use of force and criminal investigations, testifying in federal and state courts, and has authored a number of law enforcement articles.
He testified that concerns about an unintentional illegal detention is greater while working undercover and that “blending in” brings an increased responsibility because citizens do not recognize that the individual is a police officer.
Mr. D’Arcy describes Lt. Johnson’s approach of Luis Gutierrez in which he exited his vehicle, claimed to have identified himself as a sheriff, and lifted up his t-shirt. Lt. Johnson testified earlier that the gun, magazine and badge were in clear view when he lifted his shirt.
However, Mr. D’Arcy disagrees, arguing that there is a deficiency – from Lt. Johnson’s testimony, where only the weapon and not the badge was exposed.
We do not know if Mr. Gutierrez ever saw the badge. And if he didn’t, he might have seen the gun as a threat, rather than the gesture as one of identification of Lt. Johnson as a Deputy.
Mr. D’Arcy argues that the positioning of the badge and the identification were deficient. That the gun sits high and the badge sits lower.
He testified that the manner of approach, when coupled with the mode of ID, was careless.
After some objections, the plaintiffs managed to get in testimony from Mr. D’Arcy that the manner of approach and identification was one that Lt. Johnson should have known risked harm.
He said there was a danger in creating the detention, especially while undercover and trying to impact crime in the community.
When you compare and contrast the various statements, there are big discrepancies about how Lt. Johnson identified himself, Mr. D’Arcy responded. He said that the act of detention is taught on a regular basis and that if you take “reasonable” out of “reasonable suspicion,” you just have suspicion without reason.
In his own testimony, Lt. Johnson said that there was no reason to believe that Mr. Gutierrez was committing a crime and that they stopped him because one of them thought erroneously that they knew him, that he was walking alone and in an area noted for gang activity.
Mr. D’Arcy discussed the Terry v. Ohio Supreme Court case that created the so-called “Terry Stop.” He said that suspicion must be based on a highly-generalized suspicion that must point to a specific person. It has to be explainable or articulable.
In their cross-examination, the defense spent considerable time going over Mr. D’Arcy’s resume and attempting to demonstrate to the jury that Mr. D’Arcy has been relegated to “cushy administrative” or political positions and has not done “real police work” since retiring in 2008.
The defense made the case that a knife is a deadly weapon and a deadly threat. They argued that a suspect with a knife can close a distance in a short period of time. D’Arcy said yes, distance is a factor. The defense added a prevailing belief that, in a 21-foot parameter, an officer cannot react in time to a knife with a firearm.
However, Mr. D’Arcy countered that studies have proved this false and discredited this belief. However, he added that being threatened with a knife is nonetheless dangerous.
The defense tried to argue that a consensual encounter can transform into a detention and arrest. However, Mr. D’Arcy stated his belief here that the officer was building suspicion from no suspicion.
Under continued cross-examination, Mr. D’Arcy maintained that he did not believe the badge was properly produced. He cited the picture as one of the things used in forming his opinion.
The main point was that there was no way that Lt. Johnson could be sure that his badge was actually displayed when he lifted up his shirt.
“Based on his description of the events,” Stephen D’Arcy testified, “I believe the picture of him on the side of the scene, on the side of the road, accurately displays my concerns about whether Mr. Gutierrez could see his badge.”
All of the information, starting with how they approached Mr. Gutierrez, Mr. D’Arcy would testify about. He added that he saw different inconsistencies in the statements.
For instance, Deputy Bautista’s statement “Hey, can I talk to you?” doesn’t reinforce what Lt. Johnson said.
In the walkthrough by Detective Hyde, Detective Hyde said “Johnson says doesn’t identify himself until the foot pursuit is underway”. He said that Deputy Oviedo said, “I believe someone said Sheriff but don’t know who it was.”
Mr. D’Arcy suggested that a better practice would have been to have removed the badge and hold it up. The defense pressed him as to whether it would have been easy to take it off, and he responded that he had the same badge and it is easy enough to unclip.
He responded, “It could have changed the situation, in my opinion, because it would have been proper identification at the time.”
—David M. Greenwald reporting
“Mr. D’Arcy suggested that a better practice would have been to have removed the badge and hold it up. The defense pressed him as to whether it would have been easy to take it off, and he responded that he had the same badge and it is easy enough to unclip.”
Actually, a better response would have been to have left him alone. Like they said they had no reason to believe he did anything. With the way the police are treating innocent people walking down the streets and peaceful protestors, they are just encouraging the younger generation to have complete mistrust and contempt of authority.