Flight To Fight: The Gutierrez Shooting

Situation:

The subject suddenly escalates a routine consensual contact by police, attempts to eviscerate a cop and is shot. Issues ensue.

Lesson:

In the wake of a fatal shooting, more than the pulling of the trigger may need to be explained, and motives other than justice may drive the inquiry.

It’s April 30, 2009, a routine day for the three members of the Yolo County Sheriff’s Department Gang Unit who are driving through Woodland, Calif., in an unmarked Ford sedan. They’re not undercover in the sense of maintaining false identities, but are dressed to “blend in.” Each is wearing jeans and an untucked T-shirt large enough to conceal their handcuffs, magazine pouches and the paddle-holstered Glocks riding on their right hips behind sheriff’s stars clipped to their belts.

The department issues Glock .40’s, giving individual deputies a choice of the full-size Glock 22 or the compact G23, with options for personal preference. All three are represented. Detective Hector Bautista, driving, is a big man who can comfortably conceal the full-size, 16-shot issue G22. In the shotgun seat, Sergeant Dale Johnson is carrying a privately-owned, department-approved Glock 36 subcompact .45 ACP with +1 magazines. In the right rear seat, Detective Hernan Oviedo has chosen the smaller department option, the G23.

Coming across an overpass, they observe a man walking down the sidewalk on the other side. His garb and shaven head fit the “gang dress code profile” of local members of the Sureños and Norteños. The man looks familiar to one of the officers, who says, “I think he’s on parole.”

The decision is made to pull to the curb and initiate a conversation, what is called in the profession a “consensual contact.”

In seconds, everyone’s day will cease to be routine.

The Incident

The pedestrian is Luis Gutierrez-Navarro, 26. The unmarked car glides to a stop abreast of him. Bautista remains at the wheel, his foot on the brake; Oviedo opens the right rear door and puts one foot on the pavement and Johnson steps out of the car. Johnson identifies himself verbally and asks if they can talk. As he does so, he raises his T-shirt to reveal the sheriff’s badge and gun, something the gang unit always does as part of the self-identification process when they’re not in uniform.

Gutierrez gives him a startled look. His eyes dart down to the badge, then back up to Sergeant Johnson’s face and suddenly, explosively, he turns and runs, back in the direction from which he came. Johnson sprints after him, and in an instant, Oviedo is out of the car and running behind both. Gutierrez-Navarro runs into the street, ignoring several moving vehicles in the roadway. Bautista wheels the car into a hard U-turn to follow as soon as traffic allows.

Gutierrez’s right hand dives into his front pants pocket. It’s a movement any experienced cop would associate with either reaching for a weapon or trying to grab evidence to throw away, and they have to assume the former. Both lawmen draw their Glocks, still running, still shouting their identity.

Gutierrez’s hand comes out empty. Johnson manages to holster his Glock 36 while still running. An athletic man, he is closing the gap. When he’s close enough, he reaches out and tries to grab the fleeing man’s shoulders. They have reached a point almost completely across the street at the edge of the bridge.

Gutierrez-Navarro ducks under the sergeant’s reaching arm, and suddenly, there is an open knife blade in his right hand. He slashes at Johnson, belly high, and the Sergeant “hollows out,” arching his lower back rearward and pulling his abdomen in, to barely evade being eviscerated.

Now Johnson has the Glock .45 in his hand, he is pointing rather than aiming, and firing, moving at the same time, trying to stay out of reach of the flashing blade. Running toward them, without breaking stride, Oviedo sees it happen and brings his own Glock up to eye-level and fires once, twice.

Gutierrez-Navarro suddenly goes rigid. He throws the locked-open knife deliberately away from him, and it lands in the dirt at the side of the road. Slowly, he crumples to the pavement.

The officers radio in for an ambulance and assistance and apply first aid themselves. Bautista, who has pulled in behind the shooting scene, strips off his own T-shirt to use as a hemorrhage-controlling, field-expedient wound dressing. While he’s doing so, Johnson disregards the personal danger of blood-borne pathogens and uses his bare hand to apply direct pressure, trying desperately to save the life of the man who just tried to disembowel him.
Paramedics arrive quickly. But Luis Gutierrez-Navarro, who has never spoken a word to any of the officers, including the one he tried to kill, doesn’t survive. The incident began and ended in seconds.

The aftermath will take much longer.

Criminal Investigation

The investigation of this incident was intensive and multi-layered. The Woodland Police Department did a thorough investigation. A parallel investigation was done by the lawmen’s employing agency, the Yolo County Sheriff’s Department. The District Attorney’s Office did its own investigation.

According to the toxicology report, Luis Gutierrez-Navarro had a substantial amount of methamphetamine in his system — a level commonly associated with irrational and violent behavior.

All the investigations came to the same conclusion: The death of Luis Gutierrez-Navarro was a justifiable homicide in the line of duty.

The local Latino community became enraged. There were demonstrations and an unofficial “commission” was formed, including some influential citizens “demanding action” and chaired by a former member of the California Supreme Court. As a result, the California Attorney General’s Office reviewed the investigation in its entirety. It endorsed the findings of the District Attorney: justifiable homicide. This did not allay the furor. The FBI and the Department of Justice under Eric Holder were called in. They came to the same conclusion: justifiable homicide.

But none of this was enough to prevent the grieving family of the deceased from making a Federal case out of it. It was filed under 42 U.S.C. 1983, alleging the officers had conspired under color of law to violate the civil rights of the deceased. The case of Gutierrez v. Yolo County, et. al., went to trial in Federal court in Sacramento in September 2012.

Civil Issues

There are lessons any peace officer, indeed anyone who carries a gun, can learn from this case. The lawyers for the dead man’s parents, the plaintiffs, alleged the cops had racially profiled Gutierrez and stopped him for no reason, had no right to chase him when he ran and they failed to ID themselves. Poor Gutierrez probably thought they were gang-bangers come to hurt him and when they realized they had shot an innocent man for nothing, they planted a knife on him.

In cases like this, those involved for the defense feel like the sailors in the Walt Disney movie of Jules Verne’s 20,000 Leagues Under the Sea — they are submariners in the clutches of a giant squid and have to chop off the clutching tentacles one by one, destroying the other side’s case issue by issue.

Justification issues go back to before the trigger is pulled. I was asked by plaintiff’s counsel in pre-trial deposition what right the officers had to stop the man in the first place, let alone chase him when he fled. I replied under California State Supreme Court case law in People v. Souza from 1994, as well as the Supreme Court’s decision in Illinois v. Wardlow, when a man runs from identifiable police, there’s enough probable cause to sustain “investigative detention.” This means cops are allowed to chase him, detain him and determine what’s going on.

SCOTUS wrote in Wardlow, “Headlong flight — wherever it occurs — is the consummate act of evasion: It’s not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” To a lay person, “indicative” vis-à-vis “suggestive” may sound like legal doubletalk, but the highest court’s statement can be translated to: “Running away may not be proof beyond a reasonable doubt, but it’s a damn good clue.”

I didn’t have to testify to this at trial. By the time, veteran police defense lawyer Bruce Kilday and his brilliant protégé, co-counsel Amie McTavish, had established through testimony of the officers if Gutierrez had said “No, I don’t want to talk to you” or had even just silently walked away, it would’ve ended there. What I did testify to in court was once he ran and his hand went into his pocket in a movement consistent with going for a weapon, they were justified in drawing their guns. Moreover, his running into traffic showed a disregard for his own life and the lives of others: cops who could have been run over, other pedestrians who could have been killed by cars trying to avoid hitting him and motorists crashing for the same reason. Such disregard for life is another clear warning signal you may be dealing with someone desperate and dangerous.

Explaining Intent

Yes, people can be justifiably shot in the back. The bullet that killed Gutierrez was fired from behind him by Oviedo. The 180-gr. Winchester JHP entered the upper right rear quadrant of his shoulder and coursed through his neck, severing the jugular vein, before it exited through his left lower jaw. Oviedo had seen Gutierrez attempt to disembowel his brother officer (and, from his vantage point, reasonably feared he had succeeded), and saw the knife was poised for another strike as he fired the fatal shot. The jury “got it.” Oviedo wasn’t shooting in self-defense, he was shooting to save the life of a brother officer, and his angle to the man trying to kill the cop simply didn’t matter.

Point out evidence at the scene: When responding officers and paramedics arrived at the shooting scene, the involved officers pointed out where Gutierrez’s knife had landed, and evidence technicians meticulously photographed it in situ (where it was found) and preserved it for testing. It was a cheap copy of a tactical folder marked “Firefighter” with a serrated blade. Plaintiffs’ counsel alleged it was a “drop knife” planted by the officers to cover up the wrongful shooting of an innocent, unarmed man, and to support the allegation brought in a retired undersheriff from Placer County as an expert to testify cops often carried such knives.

Physical Evidence

The well-preserved evidence knife didn’t have fingerprints, which was to be expected with its textured grasping surface. However, there was DNA. The DNA testing came into evidence before I got there, thanks to the California Department of Justice and defense team member Kevin Dehoff, so I was able to refer to it when I testified. The testing absolutely excluded any of the three officers, but tied to a very high degree of certainty to Luis Gutierrez-Navarro. Altogether, Kilday and McTavish had driven a wooden stake directly through the heart of the allegation of a planted “drop knife.”

Remember this the next time someone tells you “Don’t say anything to the cops after you shoot someone in self-defense.” I’ve seen departments where the chief was throwing cops to the wolves in such cases, where the union told the officers “Don’t say nothin’!” Had this advice been followed here, the critical evidence showing the knife had been in the dead man’s hand when he was shot might have been lost and couldn’t have been used to help exonerate the defendants.

Don’t expect the other guy’s “bad guy status” to be introduced to help your case. Gutierrez’s fingers sported “dot tattoos” indicating the number 13, a gangbanger symbol of “M,” the 13th letter of the alphabet — which in gang argot, stands variously for murder and/or marijuana. A warrant search of his home found gangbanger music, and he had a history of associating with a certain gang. However, none of this was known to any of the officers (there wasn’t time in the first few seconds to see the inconspicuous dots tattooed on his fingers), and Federal Rule of Evidence 404(b) holds prior bad acts or associations, unknown to the shooter at the time of the shooting, can’t be used to defend the shooter’s actions. The standard is: what would a reasonable and prudent person (or, for cops under the SCOTUS standard of Graham v. Connor, a reasonable, prudent, trained and experienced police officer) have done in the same situation, knowing what the defendant knew at the time.

I didn’t expect this evidence to come in, and it didn’t. The trial judge was Lawrence Karlton. I had testified in his court before, and knew him to be very strict, but very strict with both sides, and therefore very fair. I can always live with that. However, the exclusion required the defense team to show the jury some other answer to the question, “Why the hell would he try to rip a cop’s guts out?”

The jury needs to know why! The evidence was allowed in — because it was scientific evidence and part of the autopsy and its attendant toxicology screen — included the fact the dead man had a large quantity of methamphetamines in his system at time of death.

Emphasize Impossibilities

Be able to explain why adverse witnesses couldn’t have seen what they said they saw. At trial, the plaintiffs put forth two young Hispanic women who claimed to have seen the shooting, and swore Gutierrez never had a knife when he was shot. While some on the cops’ side felt it was racially motivated false testimony, neither the Kilday/McTavish defense team nor I were convinced of it. Their testimony was destroyed much more cleanly, without playing the race card.

Kilday, while questioning the officers, showed the jury Johnson and Oviedo were watching Gutierrez’ hands, as they were trained to do, and were the closest to him when it all went down. Ms. McTavish, delicately but expertly cross-examining the adverse witnesses, got them to admit they weren’t watching the hands of Gutierrez, they were tunneled in on the cops who, after all, had guns in their hands and drew their attention. The defense finished this line with my direct testimony, where I explained of course you wouldn’t see something you aren’t looking for.

McTavish had also established one of the women was confused as to which side of the street it even happened on, and the other was driving at 40 MPH trying to watch it in a rear-view mirror which reduced the size of the reflected images and couldn’t have seen a knife if she was looking for it.

Identifiability is important. Plaintiffs’ theory, supported by their expert witness, was Gutierrez didn’t speak English, saw only the gun instead of the badge and assumed gangbangers instead of plainclothes cops were attacking him. Kilday and McTavish established Gutierrez did indeed speak English, and fortunately, investigators had photographed the officers in detail immediately after the shooting to document their appearance at the time. I showed those photos to the jury, who could clearly see the big gold sheriff’s star in front of Johnson’s weapon was far more obviously visible than the black holster with the dark gray Glock.

Understand not everyone on the plaintiffs’ side is malicious. Yes, there are cases where the man you have to kill is of a second- or third-generation crime family, and his relatives know he needed killing but they see a lawsuit against you as a lottery ticket. I honestly don’t think this was the case in the Gutierrez suit. I saw his parents in court, and I believe they were truly stricken and grieving. I suspect they believed what the people with agendas told them — jackbooted thugs killed their son simply for being Hispanic. Ask yourself: when you were young, did you ever do stupid things you went to great lengths to conceal from your parents? I believe this is what happened here, and I believe it happens a lot.

Don’t play the race card! An hour or two on Google reading what’s available from a search for Gutierrez v. Yolo County, et. al. will show the incredible amount of propaganda race-baiters applied to this trial. As you read all those allegations of “cops kill Latino out of racial hatred and police brutality,” consider these simple facts: Two Hispanic officers and one mixed-race officer (Japanese-American, Johnson) engaged a Hispanic man who attempted to murder the mixed-race officer and was killed by a Hispanic officer, who worked for a Hispanic sheriff named Ed Prieto. The defense ignored the invisible elephant in the courtroom, and focused simply on the indisputable facts in evidence. Which is one reason why the defense prevailed.

Epilogue

On October 24, 2012, the Federal Court jury returned a “complete defense verdict,” which totally exonerated the cops from any wrongdoing. The Sacramento Bee newspaper reported, “The parents of Luis Gutierrez have only their son to blame for his death at the hands of a Yolo County sheriff’s deputy, a federal court jury in Sacramento decided Tuesday.” The long ordeal was over at last.

The involved officers have all continued their careers, some of them receiving promotions. Their sheriff, Ed Prieto, stood strong for them throughout. Yes, life goes on after these things. But the odyssey of this case reminds us all of the foolishness of the saying, “A good shoot is a good shoot.”
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By Massad Ayoob

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