An expert on police procedures testified Wednesday that three Yolo County sheriff's officers acted contrary to accepted practices when they attempted to question a man who was later fatally shot.
Stephen D'Arcy, who spent 38 years as a police officer, the last 14 as undersheriff of Placer County, testified that the deputies' approach was reckless and unnecessarily escalated the encounter.
The deputies have testified that Luis Gutierrez ran from them, and when they gave chase, he turned on one of them with a knife, and another one of them shot him dead. A minute before, the 26-year-old had been walking down a Woodland street at a normal pace on his way home from the Department of Motor Vehicles after passing a test to renew his driver's license.
The trial of a civil rights lawsuit filed by Gutierrez's parents against Yolo County and the three officers is in its eighth day today. D'Arcy was called as a witness by the attorneys for the parents.
Sgt. Dale Johnson and Deputies Hernan Oviedo and Hector Bautista, all big men clad in T-shirts and jeans, were riding in a black unmarked Ford Taurus with black glass when they pulled up next to Gutierrez on a Gum Avenue sidewalk and all three started to get out of the car.
Johnson testified that, as he alighted from the front passenger seat and stood in front of Gutierrez, he said he was from the Sheriff's Department and would like to talk to Gutierrez, at the same time tucking his T-shirt behind the Glock 36 .45-caliber handgun on his waist. Bautista slid out from behind the wheel and started around the car, while Oviedo was coming out of the back seat.
They said Gutierrez turned and ran back down the sidewalk and into the two traffic lanes of an overpass above state Highway 113. When he took off, Johnson said, Gutierrez stuck his hand in the right front pocket of his shorts.
Bautista got back in the car while Johnson and Oviedo pursued and quickly caught Gutierrez on the overpass. According to Johnson, Gutierrez turned, took a folding knife out of his right front pocket and slashed at the officer. Johnson and Oviedo testified they both discharged their weapons at that point and Oviedo, who was behind Gutierrez, fired the fatal shot in his back.
It was the early afternoon of April 30, 2009. The three officers, who were members of the Yolo County Gang Task Force, have testified they sought to contact Gutierrez because he was wearing baggy clothing, his hair was cut very short and he was walking in an area where gang members are known to hang out.
The trio "broke the rules of consensual encounters," D'Arcy told a Sacramento federal court jury of eight women and one man.
"If you blend into the neighborhood," he said, "you have an increased responsibility because people don't readily recognize you. This was more like a 'swoop and scoop' than a consensual encounter.
"You should always try to slow things down," said D'Arcy, a faculty member in the Department of Criminal Justice at California State University, Sacramento, where he teaches police techniques. "Instead of a controlled environment, these officers come bailing out of the car as if they wanted to surprise the pedestrian. That creates a much higher likelihood of instigating flight or some type of confrontation."
Johnson testified that Gutierrez looked down and must have seen Johnson's badge clipped to his belt after he tucked his shirt behind his weapon. To the contrary, D'Arcy said, under the circumstances, he doesn't believe Gutierrez saw the badge.
The badge is clipped at belt level, while the gun and magazine ride above the belt, so the badge would not be exposed simply by tucking the shirt behind the gun, D'Arcy said. Johnson is assuming Gutierrez saw the badge, he reminded the jury.
"Absolutely that's recklessness, because they are making a big assumption," he testified. "They should have known the risk of harm from the manner they adopted."
If Gutierrez saw the gun but not the badge, he probably would have seen the three deputies as a threat, D'Arcy said.
When Johnson and Oviedo cornered Gutierrez, that was an unlawful detention, because they had no reasonable suspicion that he had committed, was committing, or would commit a crime, D'Arcy said.
Johnson testified that when Gutierrez ran and put his hand in his pocket, it raised a suspicion he had some type of contraband, such as a weapon or dope.
"You can't use a hunch, even if it is based on your training and experience," D'Arcy testified. "You have to have a reasonable suspicion of a specific type of explainable crime. Sgt. Johnson didn't articulate any type of particular crime that he was investigating when he seized Mr. Gutierrez."
"Did these officers provoke this confrontation?" asked attorney Robert Burchfiel, who represents Gutierrez's parents.
Defense attorney Bruce Kilday objected to the question, arguing that the answer should come either from the jury or the judge. U.S. District Judge Lawrence K. Karlton sustained the objection.
On cross-examination by Kilday, D'Arcy acknowledged that when an officer says he is on the job with a certain department, it is adequate identification.
The defense lawyer pressed him on whether Gutierrez's hand in his pocket and the fact he ran into traffic lanes was enough to create reasonable suspicion, but D'Arcy insisted those factors are "of no significance under these circumstances."