Metropolitan News-Enterprise


Thursday, August 25, 2016


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Court Orders New Trial in Anaheim Police Shooting Case




A federal district judge erred in allowing wide-ranging and prejudicial evidence about a shooting victim’s alleged gang membership to permeate the trial of his family’s wrongful death suit against the City of Anaheim and the officer who shot him, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

U.S. District Judge James V. Selna of the Central District of California correctly issued pretrial rulings limiting the extent to which the city’s lawyers could use Manuel Diaz’s affiliation against him, Judge John B. Owens explained. But by trying liability and damages together, Selna—who ruled that gang affiliation was admissible only as to damages—made it possible for the city to present  “considerable and inflammatory evidence that had nothing to do with” whether the shooting was justified, Owens said.

“Police shootings are often the most difficult—and divisive—cases that our legal system and society encounter,” the appellate jurist wrote. “Wrapped in strong emotion and often opaque case law, they can perplex even our most experienced trial judges, like the judge in this case. To avoid the runaway case—like this one, where the Defendants and their witnesses repeatedly overstepped the judge’s rulings—courts should use bifurcation to corral lawyers and witnesses, so the jury hears only evidence relevant to the issues at hand.”

The July 2012 shooting of Diaz, 25, by Officer Nick Bennallack came the day before another Hispanic was shot by another officer, leading to several days of unrest in the city. Diaz’s mother, Genevieve Huizar, sued the city for wrongful death and violation of her son’s constitutional right to be free from excessive police force.

Federal Trial

The action was filed in Orange Superior Court and removed to federal district court, where Bennallack and Officer Brett Heitmann testified that they saw Diaz and another man standing near a parked vehicle in an alley in a gang-infested area of the city. Bennallack said he suspected something was amiss, because Diaz was dressed like a gang member.

Diaz ran and the officers pursued him on foot, with Bennallack testifying he intended to arrest him for resisting an officer, a misdemeanor. The officers said they could not see Diaz’s hands, but Bennallack claimed he thought his hands were in his waistband.

The officers said Diaz ignored their commands to stop, and that they feared he was attempting to lure them into a trap because he could have exited the alley onto a street, but didn’t. Bennallack said he saw a black cloth object being thrown over a fence close to Diaz, that he believed Diaz had a gun in a “low-ready” position and was about to fire, and that as Diaz turned, he saw the object in the air and fired twice. 

Bennallack said he could not see any part of Diaz’s arms or hands when he shot him. One bullet entered his buttock and the other hit him above his ear.

He died a short time later in the hospital. A black cell phone and a narcotics pipe, but no weapon, was found nearby.

Bennallack was returned to duty two weeks after the shootings, and the District Attorney’s Office cleared him of any wrongdoing. News accounts said he has also been involved in two other fatal shootings.

Motions in Limine

In ruling on a number of motions in limine, Selna said that Daniel Gonzalez, a gang expert, could testify as relevant to the non-economic damages sought by the plaintiff, who alleged loss of her son’s love, companionship, care and moral support. The judge noted that the relevance of the issue was limited, and said any testimony should be brief.

The judge agreed to bifurcate the issue of punitive damages, but rejected the plaintiff’s argument that allowing compensatory damages and liability to be tried in a single phase would lead to evidence of Diaz’s gang membership, along with related photos and testimony about his drug use, being admitted despite its lack of probative value as to the central question of excessive force.

Jurors returned a defense verdict after less than two hours of deliberations at the end of a six-day trial.

What was “most troubling” about the trial, Owens wrote yesterday, was the “highly prejudicial” testimony of the gang expert. The district judge recognized there was a problem, Owens explained, by giving a limiting instruction at the end of the testimony.

Owens, however, questioned the adequacy of that instruction, noting that Gonzalez was allowed to testify that gang members carry guns to demonstrate that they are “against law enforcement,” and that the area in which the shooting occurred was a center of gang activity, even though the judge had previously excluded such testimony.

Instead of giving “narrow” activity, focused on the decedent’s gang membership and “not the activities of the gang at large,” as Selna had originally directed, the witness “took every opportunity to opine on matters squarely forbidden by the court’s previous rulings,” Owens said. “As a result, the jury was exposed to inflammatory testimony that was wholly irrelevant to liability, and of limited relevance even as to damages.”

On remand, he declared, liability must be tried separately from damages; evidence of gang membership and drug use excluded other than as to how it affected Huizar’s reactions to her son’s death, and permit the plaintiff to stipulate that Diaz was a gang member, in which case no expert gang witness will be allowed to testify.

Estate of Diaz v. City of Anaheim, 14-55644, was argued in the Ninth Circuit by Dale K. Galipo for the plaintiff and by Assistant City Attorney Moses W. Johnson IV for Anaheim.


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