Metropolitan News-Enterprise


Monday, August 20, 2018


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Ninth Circuit:

Jury’s Defense Verdict in Fatal Shooting of Handcuffed Man ‘Not Unreasonable’

Panel Says Evidence Supports Theory That Deputy Sheriff Had Cause to Employ Lethal Force


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed the denial of a motion for an order granting judgment to the plaintiffs, contrary to the jury’s verdict, in a case where a man who was handcuffed to a hospital gurney, but allegedly grabbed for a gun, was fatally shot by a Los Angeles sheriff’s deputy.

The action against Los Angeles County, alleging excessive force, was brought by the two minor children and the mother of the decedent, Jilberton Gutierrez. A three-judge panel on Thursday, in a memorandum opinion, affirmed the decision by District Court Judge Stephen V. Wilson of the Central District of California to deny a judgment as a matter of law or, in the alternative, a new trial.

The opinion says:

“Here, the Deputies presented substantial and reliable evidence supporting their theory that Gutierrez lunged at Deputy [Lawrence] Swanson’s gun, and, fearing that Gutierrez would seize the gun and hurt someone, Deputy [David] Chevez shot Gutierrez consistent with his training….Read in the light most favorable to the Deputies, the jury’s verdict was not unreasonable.”

Gutierrez was arrested on suspicion of being in possession of methamphetamine, collapsed at the police station, was taken by Chavez and Swanson to a hospital, and was handcuffed to a gurney by his left wrist.

Factual Scenarios

As Wilson on Aug. 18, 2016, recited the competing versions of the evidence, in his order denying the post-trial motions:

“Throughout the trial, Defendants argued that the decedent unexpectedly snapped from a passive, lethargic state and became violent, that he suddenly and forcefully grabbed Deputy Swanson’s gun, that each of the deputies’ repeated and escalating attempts to subdue the decedent with punches, baton strikes, and [oleoresin capsicum, (“OC”)] pepper spray was unsuccessful, and that the decedent leapt out of the hospital bed quickly and with tremendous force, lunging at Deputy Swanson and reaching for his gun, prior to Deputy Chevez resorting to firing his gun. In contrast, Plaintiffs argued that the decedent was calm and passive throughout, that the decedent did not grab Deputy Swanson’s gun, that there was no escalating struggle or leap out of the bed, and that instead, the deputies simply beat the decedent in his bed before shooting him in the head and murdering him in cold blood. Then, the deputies used their OC pepper spray on the decedent’s head and body to stage an escalating struggle and to cover up their crime. Faced with these two versions, the jury returned a verdict in favor of Defendants.”

Wilson continued:

“The shooting of Jilberto Gutierrez was undoubtedly a tragic event. However, the Court cannot grant a new trial merely because another reasonable jury or the Court itself might have reached different conclusion. On this record, the Court does not have a firm conviction that the jury made a mistake or reached a clearly erroneous result.”

Oral Argument

At oral argument in Pasadena on July 13, civil rights attorney Gary S. Casselman of Venice, representing the plaintiffs, insisted that the evidence showed the shooting was “excessive and unreasonable” and asserted that Gutierrez reached toward Swanson, who was unarmed.

James C. Jardin, of the Orange County office of Collins, Collins, Muir + Stewart, maintained that under the plaintiffs’ view of what occurred, there was a “fascist attack” by deputies, an “unprovoked murder of an unresisting suspect.” He contended the plaintiffs’ “theory just doesn’t make sense when we consider the circumstances.”

 The panel was comprised of Circuit Judges Sandra Segal Ikuta and N. Randy Smith, joined by Senior District Court Judge Stephen M. McNamee of the District of Arizona, sitting by designation.

Exclusion of Testimony

All of the panelists expressed disagreement with the contention by Casselman that Wilson improperly excluded testimony by an expert witness for the plaintiffs, a toxicologist, to rebut testimony by a toxicologist called by the defense. Each pointed out that the plaintiff’s trial counsel had an opportunity to cross-examine the defendants’ expert.

Smith commented, “You got good cross-examination.”

The judge from Idaho—who assumed senior status on Aug. 11, his 69th birthday—said he sees no abuse of discretion by Wilson in barring the rebuttal testimony, adding:

“Having been on the District Court, I don’t like a circuit court coming in and doing something on me unless I abuse my discretion.”

Thursday’s opinion recites that Wilson “concluded that Plaintiffs could adequately challenge” the testimony of the defense witness “through cross-examination and that an additional expert was not necessary to present the jury with a balanced view of the facts.” It notes that a judge has broad discretion in admitting or excluding expert testimony.

At trial, Casselman objected to any post-mortem toxicology evidence being admitted, and at oral argument told the judges it was “unnecessary and unfair.” The evidence adduced by the defense showed that Gutierrez was under the influence of methamphetamine.

The opinion says:

“Because the parties disputed what happened before Deputy Chevez shot Gutierrez, the evidence of Gutierrez’s intoxication became relevant to corroborate the officer’s version of events. Accordingly, the district court did not err in admitting the evidence.


Hearing argument on July 13 in the appeal from a judge’s denial of a motion to reject a jury’s verdict in favor of the County of Los Angeles in connection with the shooting death of Jilberton Gutierrez are, from left, Ninth U.S. Circuit Court of Appeals Judges N. Randy Smith (now on senior status) and Sandra Ikuta, along with Senior District Court Judge Stephen M. McNamee of the District of Arizona, sitting by designation.


Wilson’s Questioning

At oral argument, Smith expressed disapproval of Wilson’s intensive questioning of witnesses and his commenting on the evidence.

“As a district judge, I’ll be fair,” Smith remarked. “I felt like where this district court went was out of kilter.”

He went on to say:

“Coming from the situation where the judge is supposed to be the impartial, is supposed to make sure everything is fair, and then the judge gets involved in the questioning—talking about jury questioning being a problem, some people think it’s OK—but the bottom line is: here’s the judge involved.”

Jardin responded that Wilson questioned witnesses for both sides, acted “even-handedly,” and repeatedly told jurors that they were the sole deciders of the fact.

Medical Examiner’s Testimony

In seeking judgment as a matter of law or a new trial, the plaintiffs focused, in particular, on Wilson’s questioning and commentary in connection with the testimony of the medical examiner, Dr. Cho Lwin, a neuropathologist. Despite criticisms Smith voiced at oral argument as to Wilson’s conduct, he did not dissent from any portion of the memorandum opinion, which includes a rejection of the contention that Wilson improperly interjected himself.

The opinion says:

“The district court did not prejudice Plaintiffs by questioning, and commenting on the testimony of, the medical examiner. District courts have wide discretion to question witnesses during trial….

“Here, the district court sought to clarify and simplify testimony from the medical examiner who, despite his knowledge, was difficult to understand due to an apparent language barrier. The questions themselves did not suggest preference or bias toward any side, and the district court explicitly instructed the jury that they alone must determine the facts. Therefore, we conclude that the district court did not prejudice Plaintiffs in questioning, and commenting on the testimony of, the medical examiner.”

A footnote adds:

“Also, when the court questioned the medical examiner, the court noted that it understood what the medical examiner was saying, but the court was ‘not the jury.’ This comment signaled to the jury that, regardless what the court thought, only the jury’s understanding of the testimony mattered.”

The case is N.G. v. County of Los Angeles, No. 16-56318.


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