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Manuel Diaz: OC District Attorney's Report Is 'Biased and Inaccurate,' Say Lawyers for Dead Man's Family

The family of Manuel Diaz, 25, has scheduled a protest in the aftermath of a controversial announcement by the Orange County district attorney's office (OCDA) yesterday. Anaheim police officer Nick Bennallack was found to have acted in a "reasonable and justified" manner when he fired two bullets, ending Diaz's life on the lawn of an Anna Drive apartment complex. 


The conclusion was announced during a media-only roundtable and hour-long Power Point presentation by Assistant District Attorney Dan Wagner yesterday afternoon. 

So far, all is quiet but far from content in Anaheim. Genevieve Huizar, Diaz's mother, is planning an immediate protest for this morning in Santa Ana at 9 a.m. outside the Orange County Superior Courthouse on Civic Center Drive.

For their part, lawyers representing the family have been ultra-critical of the investigative letter released by the OCDA. "We feel that the report shows just how biased they are to the point that, in this case, they are almost acting as an advocate of the shooter, while painting the victim in the worst possible light," says attorney Diana López, whose firm--Douglas, Lopez & Rumm LLP--has been retained in a $50 million wrongful-death lawsuit.


The investigative letter is the lengthiest of all previously released findings concerning an officer-involved shooting by a member of the Anaheim police department. It notes the primary witnesses to the incident as Bennallack; his patrol partner, Brett Heitmann; and three "Jane Doe" residents.

On the afternoon of July 21, 2012, the two Anaheim cops and a civilian on a ride-along rolled up on an Anna Drive alley in a gang-suppression police car. Diaz was said to have been hanging out, leaning into the front passenger window of another vehicle when Bennallack and Hietmann stopped and approached the men. It was at that point that Diaz fled, leading to a short pursuit. In a statement, Bennallack told DA investigators that as the young Mexican man turned the corner from the alley into an apartment complex, he kept looking back at the officer.

"At that point, it appeared as if he had removed the object that I believed to be a firearm from his waistband," Bennallack said. "As he began to turn, in fear for my life, I drew and fired my weapon two times. I did this to save my life, as well as my partner's life." In a critical moment, the Anaheim officer claims, he saw Diaz throw an object into the air.

 

Assistant District Attorney Dan Wagner gives his presentation
Assistant District Attorney Dan Wagner gives his presentation
Gabriel San Román / OC Weekly
This declaration of self-defense was evaluated by the OCDA, who claims it is corroborated in multiple manners. Heitmann gave a statement in which he said he heard his partner yell something to the effect of "Guhh" right before the shooting. As Diaz laid on the ground bleeding, Bennallack turned on his digital audio recorder and told his partner to look for a gun he believed had been pitched. At the roundtable, Wagner said there were no plans to make the recording public.

However, there was no gun. A cell phone and a glass pipe were said to have been recovered near his body. Much was made of the photographic contents of the phone. Wagner released pictures of the young man posing with guns and throwing up gang signs.

The autopsy report notes that Diaz sustained two wounds, one to his buttocks, the other a through-and-through shot to the head. The Orange County Coroner's Office says the first gunshot wound was "consistent with what would be expected if his head were facing at roughly a 90-degree angle to the gun."

That notion finds no favor, though, with lawyers for the Diaz family.

"We believe the DA's report does not accurately reflect their own autopsy findings, including photographs of the head and the angle of the shooting," López tells the Weekly. Her firm has had an independent autopsy conducted, but what it revealed has not yet been made public.

The investigative letter claims due scrutiny was given to the positioning of the gunshot wounds, the self-defense argument, and residential witness statements, some of which were initially unrecorded police interviews and later subpoenaed by the OCDA. They were found to be ultimately unconvincing in terms of contradicting the officers' version of events.

Said positioning between Bennallack and Diaz at time of fatal shooting
Said positioning between Bennallack and Diaz at time of fatal shooting
Gabriel San Román / OC Weekly

During a brief question-and-answer session following the Power Point presentation, it was mentioned that the family was notified of the report before its release to the public. According to Genevieve Huizar, two men identifying themselves as being with the OCDA came to her Santa Ana home with an envelope.

"They didn't have a business card, nor did they leave the envelope with my daughter," she says. It was only when Huizar left work that she received a copy of the report from her lawyers at their office. It had been provided to them by the OCDA.

Upset with the conclusions reached in her son's killing, Huizar says she will be taking to the streets."There's no way I'm giving up," she says. "I'm going to fight until Bennallack is arrested, prosecuted and is in prison for murder."

The DA's report can be read in its entirety by clicking on the appropriate links on the "Investigative Letters" page of the DA's website.

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