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| Written by David Greenwald |
| Monday, 24 September 2012 05:55 |
 Last fall, when a Woodland police lieutenant took money from the Woodland Police Supervisors Association funds, the DA's office was quick to charge him with embezzlement even though the defendant believed no crime occurred, as the money was re-paid through payroll deductions. Similarly, in 2009, when a former Yolo County sheriff's deputy sergeant got drunk and shot his dog, he was charged with illegal discharge of a firearm in a grossly negligent manner that could result in injury or death of a person, and wounding an animal. He quickly pled to the former charge. However, when it comes to charging officers acting in the course of their official duties, the DA has failed to act in three critical and high profile cases. There is the case of Ernesto and Fermin Galvan. Back in 2005, the brothers got into a confrontation with West Sacramento Police and Ernesto Galvan was beaten into a coma, suffered permanent disfiguring injuries to his face and skull, and is left with severe brain damage that has induced a psychosis on him. Instead of charging the police for their excessive use of force, the DA's office, first under predecessor Dave Henderson and twice under current DA Jeff Reisig, charged the brothers  with minor resisting arrest offenses.
During the third trial, when asked by the judge why this case was even back before him, the DA acknowledged that they were doing it because West Sacramento was being sued in federal court - a case that is still pending.
While the first two trials hung 11-1 for guilt, in the third trial holes began to appear in the police account. Inconsistencies appeared from trial to trial, more than simply a matter of the passage of time, suggesting that the police's account might be more problematic than prosecutors and previous juries believed. Most of all, the public was beginning to put pressure to drop the relatively minor charges and move on. Attorney Anthony Palik, who represented Ernesto Galvan in the first and third trials, and both brothers in the civil suit, told the Vanguard early in 2011, "I, personally, was very concerned during the third trial when one of the police officers claimed Mr. Ernesto Galvan was still wearing his boots at the time he was in restraints, and that being kicked by Mr. Galvan with his boots was the only way that officer could have torn his trousers during that incident." He continued, "This was especially concerning since the three officers who were actually involved in the altercation claimed steadfastly, through three trials, that Ernesto had kicked off his boots and took a barefoot 'fighting stance' prior to being subdued by the officers' batons." Despite the egregiousness of the attack, the DA insisted that it was the brothers, and not the officers, who were out of line.  Last week the DA's office, following a ten month investigation, declined to charge Lt. John Pike and other officers with criminal charges stemming from the November 18, 2011, pepper spray incident on the Quad of the UC Davis campus.In their conclusion, the DA writes, "Lieutenant Pike's pepper spraying of the seated protesters has been seen by and has outraged millions of viewers throughout the world. Based on the thirty seconds of video that most people have seen the pepper spraying may look like unreasonable force." The DA instead argues, "Whether or not the force was unreasonable and criminal cannot be judged solely on that brief moment in time. The conflict that resulted in the pepper spraying had been evolving for several days before November 18, 2011, and must be examined in the light of the totality of the circumstances."
"In evaluating the totality of the circumstances under a reasonable doubt standard, we have considered and given substantial weight to the opinions and conclusions set forth in the Kroll Report," the DA writes. "In light of this additional evidence, and viewing the incident through the totality of the circumstances, there is insufficient evidence to establish proof beyond a reasonable doubt that the use of force involved in the November 18, 2011, pepper spraying was unlawful and therefore warrants the filing of criminal charges."
Attorney Alexis Briggs, who is representing some of the protesters in a subsequent criminal matter, told the Vanguard that she had reviewed the lengthy statement from the DA.
Ms. Briggs told the Vanguard, "As a former resident of Yolo County, I am deeply disappointed that the people of that county can no longer rely on their public officials to protect their civil liberties." In her analysis she argued, "While the legal analysis identifies the critical issue, whether there is admissible evidence which proves it was reasonable for Lt. John Pike or other officers to use force, it fails to justify or conclude that the specific force used was reasonable." "The decision contains only cursory mention of the fact that the officers were not trained to properly use [this type of] pepper spray and contains absolutely no analysis of the method pepper spray was used in this case," she added. "The images that have led the world to condemn the actions of UC Davis on November 18 did so because they depicted the application of a type and kind of force that is objectively unreasonable and therefore criminal." The third incident where the DA declined to file criminal charges was the 2009 fatal shooting of Luis Gutierrez-Navarro by sheriff's deputies working in the gang task force. 
On April 30, 2009, Mr. Gutierrez was walking home from the DMV on East Gum Avenue in Woodland, when he encountered what turned out to be three plain-clothed officers, Dale Johnson, Herman Oviedo and Hector Bautista, in an unmarked Yolo County Sheriff's Department vehicle.
What happened next is subject to dispute. However, there seems to have been an attempt to contact Mr. Gutierrez, who had no real criminal record aside from some vehicle code violations. Mr. Gutierrez, for reasons that are unclear, fled the scene, the officers pursued him, and eventually at the top of the overpass there was a final confrontation in which the officers claim he pulled a knife and he was shot and killed. In December of 2009, the DA's office released a report that examined whether there was "sufficient evidence to support the filing of criminal charges in connection with the shooting death of Luis Gutierrez-Navarro." Similar to their findings in the pepper spray case, the DA concluded: "When considering all of the facts and circumstances known to them at the time, the use of deadly force by the deputies was objectively reasonable and justified and therefore does not warrant the filing of criminal charges against Sgt. Johnson, Deputy Oviedo or Deputy Bautista." The Attorney General's office, just like in the pepper spray case, reviewed the decision, "We reviewed your decision under an abuse of discretion standard. After a complete review of all available information, we have concluded that your decision was not unreasonable and thus did not constitute an abuse of discretion." However, subsequent investigations found additional witnesses who potentially could have shed additional light on the incident. The family of Mr. Gutierrez have filed a civil suit, and now, for the first time, the facts of the case will go before a jury. The trial is scheduled to begin on September 25 in Federal Court in Sacramento. In their amended complaint, the plaintiffs claim, "Defendant Bautista pulled the vehicle to the curb and defendant Johnson exited the vehicle in order to confront Navarro, apparently due to the fact that he appeared to be a Hispanic male. The defendant officers failed to properly identify themselves as peace officers and without justification or probable cause, attempted to physically detain the decedent." The complaint continues: "Fearing for his life, the decedent turned and ran. Both Johnson and Oviedo drew their weapons. After a short pursuit on foot, defendants Johnson and Oviedo fired their weapons at decedent at least seven times as decedent was attempting to flee from the defendants. The decedent was struck and mortally wounded." As noted, this week, in the United States District Court, Eastern District of California, Sacramento, the civil rights lawsuit will go to trial in this matter. Will we learn the truth? Will enough come out at the trial to force the DA's office to reconsider their previous decision? All three of these matters have resulted in lawsuits. The UC Davis pepper spray incident has already settled and we may learn, as soon as this week, exactly what the terms and conditions of that settlement are. The Galvan case is moving toward trial and, as we just mentioned, the Gutierrez matter begins on Tuesday.
While criminal charges are relatively rare against police operating under official duty, the duty of the DA's office to protect the public must extend not only to criminals carrying out crimes against citizens but also against police officers who abuse their charges and carry out criminal acts under the color of authority.
This DA's office has been willing to charge those accused of minor crimes such as stealing a package of shredded cheese, stealing Chinese food, bouncing checks and stealing candy bars, among other petty crimes, with serious felonies - threatening them with third-strike offenses and imposing lengthy prison sentences. Yet they are unwilling to protect the public against the abuse of authority by some police officers. As we have previously noted, the vast majority of law enforcement officials are good people trying to do their job in honest ways. However, incidents like the ones described above taint the conduct of all officers and it behooves law enforcement to appropriately deal with officers who commit transgressions, in order to preserve the public's confidence.
---David M. Greenwald reporting
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