Officer testifies Woodland man ran away, brandished knife before he was shot

Dale Johnson was confident he had a legal right to pursue and detain Luis Gutierrez that fatal day in April 2009.

The Yolo County sheriff's lieutenant, who was then a sergeant and head of the county's gang task force, testified in Sacramento federal court that, when Gutierrez ran from him, he had cause to believe Gutierrez was up to no good.

He was a "Hispanic male" in baggy clothes walking in an area where gang members hang out, Johnson testified.

He saw the officer's badge, Johnson said, yet ran away, with his hand in the right front pocket of his shorts.

"It was a very dynamic thing that had happened," Johnson told the jury of eight women and one man. "It was not normal. I believed that some criminal activity could be taking place. He could have just committed a crime. He may have a warrant out for his arrest."

It was over in less than a minute, according to Johnson. He caught up with Gutierrez, grabbed him briefly by the shoulders but couldn't hang on, and Gutierrez ducked away and stopped. Gutierrez swiped at him with a folding knife, he testified, so Johnson pulled his service handgun and fired four times.

In testimony that stretched over parts of three days and ended Tuesday, the 20-year veteran of the Yolo County Sheriff's Department gave his first public account of the incident.

Hernan Oviedo, another task force member, now a Yolo sheriff's sergeant but then a deputy, fired the shot that killed Gutierrez. He had joined the pursuit and was behind Gutierrez when he stopped. He squeezed off two rounds and one went through Gutierrez's back near his right shoulder, severed the aorta, and exited through the jaw.

Gutierrez, 26, crumpled to the pavement of Gum Avenue in Woodland. Like the other members of the close-knit family of Jose and Irma Gutierrez and their five children, he had come from Mexico and established permanent residency. The family lives in a three-bedroom mobile home in a trailer park within sight of the spot where the eldest child died.

He had no criminal record other than traffic-related violations and no prior contact with the gang task force.

Cruising in the early afternoon in an unmarked car with black glass, Johnson, Oviedo and Hector Bautista, the driver and task force member, saw Gutierrez walking along Gum on his way home from the Department of Motor Vehicles, where he had passed the test to renew his driver's license.

They decided to make what they call "consensual contact" with him. Johnson acknowledged that means the person is free to leave at any time.

According to Johnson, when he stepped out of the car, identified himself and told Gutierrez he wished to speak with him, Gutierrez bolted and raced into the street. At that point, Johnson told the jury, he had ample legal reason to detain him.

Whether Gutierrez was detained is a critical issue in the trial. Lawyers for his parents, who are suing Yolo County and the three deputies for monetary damages, claim that, once Gutierrez stopped after Johnson grabbed him, and with Johnson in front of him and Oviedo behind him, he was trapped, and thus detained in violation of the Fourth Amendment's protection against unreasonable seizure. That led to Oviedo killing him – the ultimate unreasonable seizure, the lawyers claim.

But lawyers for the defendants argue there is no seizure without the person's actual submission, and Gutierrez did not submit to the deputies. The lawyers argue that Gutierrez pulled a folding pocket knife out of his shorts and swung it at Johnson. So, they insist, Gutierrez is the one who provoked the confrontation that ended in his death.

Overlaid on the proceedings is the suggestion by attorneys for the parents that a knife found at the scene of the shooting was planted there by someone.

It is what is known as a "rescue tactical" knife. It has the word "Firefighter" and the national insignia for firefighters emblazoned on one side and a belt clip on the other side. It is advertised on the Internet as "firefighter preferred."

Firefighters, as well as police officers and paramedics, responded to the deputies' call for help after Gutierrez was shot.

Johnson testified that Gutierrez tossed the knife away as he fell to the street mortally wounded.

The knife was later collected a few feet from his body with the blade stuck into some gravel between a sidewalk and a guardrail and its handle upright.

"It's common for everybody to carry this type of knife," not just firefighters, Johnson testified when questioned about it by plaintiffs' attorney Robert Burchfiel. He said he had never owned such a knife and has never seen either of the other deputies with one.

Under questioning by Bruce Kilday, his own attorney, Johnson swore he did not take the knife out of Gutierrez's pocket after the shooting. He said he never touched the knife.

"Do you have any doubt Mr. Gutierrez did in fact pull a knife and attempt to slash you?" Kilday asked.

"None at all," Johnson replied.

The trial resumes today with Oviedo on the witness stand.

• Read more articles by Denny Walsh

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