An unarmed, 25-year-old man not wanted for any crime was exercising his constitutional rights to move away from Anaheim Police Department (APD) officers when 20 seconds later one of the cops, armed with a semi-automatic Glock, decided without warning to kill him with shots to the buttock and back of the head.
That's the story Dale K. Galipo, an attorney for the estate of Manuel Diaz, told a jury of six men and two women in his Feb. 25 opening statement at the excessive force and wrongful death trial inside U.S. District Court Judge James V. Selna's Santa Ana courtroom.
"Mr. Diaz had nothing in his hands," Galipo said. "He was no threat when he was shot [in the buttock]. As he was going down to his knees, there was a second shot to his head . . . Diaz landed face down. The officers handcuffed him, patted him down and didn't find a weapon. They never found a weapon."
Steven Rothans, a Los Angeles-based lawyer that specializes in defending law enforcement agencies and cops in police brutality cases, told jurors that officer Nick Bennallack, had every right to kill Diaz because, even though he never saw the man holding a weapon, he "reasonably" assumed he had one in his waistband and might have been preparing to shoot.
"The officers did not see a firearm in the hands of Mr. Diaz, but then again the officers couldn't see his hands," said Rothans, who criticized the victim for failing to hold up his hands so a pursuing Bennellack and his partner, Brett Heitmann, could see they were empty. "The officers don't have x-ray vision . . . Officers are trained that concealed hands equal concealed weapons."
Rothans labeled Diaz a worthless, homeless, convicted felon, Eastside Anaheim gangster and methamphetamine/marijuana user who essentially asked to be executed by not following police commands to stop and get on the ground.
"In California, officers are not required to wait to see a gun [to use deadly force in alleged self-defense situations]," Rothans said. "If they wait to see a gun, it's too late."
He said Bennallack rightfully "feared" Diaz was luring the officers into a "gunfight" and he encouraged jurors–four Caucasians, three Latinos and one Asian–to place themselves in the white officers' shoes: Patrolling a dangerous, gang-infested, Latino area of Anaheim in the middle of the afternoon and knowing that hoodlums sometimes carrying guns in the waistbands of their pants.
"You have to evaluate [the killing] from the perspective of the officer [and] not 20-20 hindsight," Rothans told jurors.
To distract from the fact that Diaz was not seen with a weapon when he was killed, the defense lawyer got Judge Selna's permission to show the jury private cellphone photographs of the gangster holding a black handgun two days before the killing.
The defense lawyer also claimed that after Bennallack fired his first shot he saw Diaz toss a black cloth containing "something" heavy over a fence and offered an explanation for why searching officers couldn't find the object: Men with names like "Rojas and Rodriguez" were in the area and, while cops weren't paying attention, must have removed it from the scene.
Said Rothans, "It should not be a surprise that this black object thrown over the fence has disappeared."
Imaginary guns, faulty assumptions, dubious claims of fear and hamfisted stories about allegedly missing evidence don't impress Galipo, who noted that Bennallack was unaware Diaz had been a gangster with a long criminal record prior to the shooting and could have employed a non-lethal Taser dart blast to stop the man.
"Unless Nick Bennallack saw a gun and Diaz was starting to point it at him, the shooting was excessive and unreasonable force," he said.
Acknowledging Diaz "was not perfect," Galipo called the killing "a devastating loss" to the man's surviving family members, including his mother, who is attending the trial with a large group of supporters.
Getting to the opening statements portion of the case took awhile yesterday because several prospective jurors proudly declared they always side with police; those individuals are not on the jury.
The trial is expect to last until March 4 or 5.