Tuesday, November 12, 2019
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday affirmed a judgment in favor of the City of Anaheim and a member of its police force in connection with the fatal shooting of a 22-year-old man who was acting suspiciously.
The parents and the estate of Gustavo Adolfo Najera appealed from the defense judgment in a case in which it was alleged that Officer German Alvarez used excessive force and was negligent in connection with the Feb. 9, 2016 shooting.
Alvarez, shortly after midnight, investigated a report of a man turning knobs and ringing doorbells at an apartment complex, but found no suspicious person there. He drove through a park just north of the complex and spotted a person in the playground and assumed he was a transient.
As the officer later recounted it, that person—Najera—walked toward the vehicle, shining a flashlight at it, which Alvarez found odd because most transients avoided contact with police. Najera kept his right hand out of sight.
‘I Hate Cops!’
The officer told Najera the park was closed and he had to leave; Najera continued to approach; he shouted, “I hate cops!”; Alvarez was in fear for his safety; Najera began to bring his right arm from behind his back; his fist was clenched, and the officer thought he might be holding a weapon; Alvarez threw something—possibly sand—at the car, hitting him in the face; he fired.
Alvarez attempted to administer first aid. Paramedics arrived and took Najera to a hospital, where he was pronounced dead.
The Orange County District Attorney’s Office investigated the shooting and concluded, in a report, “that Officer Alvarez acted reasonably under the circumstances, and that there is a lack of sufficient evidence to justify the filing of criminal charges against Officer Alvarez in connection with the Feb. 9, 2016, shooting of Najera.”
A lawsuit was filed July 5, 2016 in the U.S. District Court for the Central District of California. Trial was held on April 30, 2018 in the courtroom of Judge Josephine L. Staton.
A jury of eight persons was asked, “Did Officer Alvarez use excessive or unreasonable force against Gustavo Najera”? It answered “No.”
It was asked, “Was Officer Alvarez negligent in his tactical conduct and decision-making before using deadly force under all of the circumstances?” It answered “No.”
The family appealed, on various grounds, including a reference to Najera’s intoxication. In a memorandum opinion, a three judge panel—comprised of Circuit Judges Mary H. Murguia and Andrew D. Hurwitz, joined by District Court Judge Joseph F. Bataillon of the District of Nebraska, sitting by designation—said:
“The district court did not abuse its discretion in concluding that defense counsel’s reference to Najera’s intoxication on the night of the shooting was not misconduct that ‘so permeated the trial that the jury was necessarily prejudiced.’…The single reference to Najera’s intoxication occurred after four days of evidence and during ‘closing argument, rather than throughout the course of the trial,’ and any misconduct was thus ‘isolated, rather than persistent.’…The district court also repeatedly instructed the jury that the arguments of counsel were not evidence.”
The opinion adds:
“The district court did not plainly err in denying a new trial because of defense counsel’s arguments in closing describing this as ‘a serious case because plaintiffs are questioning the integrity of Officer Alvarez,’ and requesting that the jury not ‘sully this good man’s name.’ ”
The judges found no abuse of discretion in Staton allowing Anaheim Assistant City Attorney Moses W. Johnson IV to question Alvarez briefly on his military background and no abuse of discretion in finding that the jury pool was not tainted by a prospective juror who had “indirect” contacts with Alvarez alluding to “his professionalism in a general sense.”
The case is Estate of Najera v. City of Anaheim, 18-56057.
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