A series of tactical blunders, a “cowboy” attitude and the rewarding of unprofessional conduct resulted in the unnecessary killing of a Latino grandfather by an Orange County sheriff's deputy, according to an expert in police tactics and use of force.
Roger A. Clark, a decorated 27-year-veteran cop who led a major-crimes task force in Los Angeles as a sheriff's lieutenant before retiring in 1993, studied the 2003 shooting of Roberto Peralez at the request of the victim's widow, who is asking a six-member federal jury to find the Orange County Sheriff's Department negligent in the death.
“[The deputies'] actions were so far below the established professional standards that, in view of their extensive training and field experience, they can only be viewed as deliberately reckless and dangerous,” Clark wrote in a 10-page report submitted in the case.
What impact Clark's opinion will have on the ongoing trial, which is being held in U.S. District Court Judge David O. Carter's Santa Ana courtroom, is unknown. Orange County jurors rarely, if ever, side against cops who insist they've done nothing wrong. Joseph William Balicki—the deputy who killed Peralez during the execution of a traffic-stop search warrant—says he had no choice but to use lethal force. The 7:30 a.m. incident in an industrial area of Stanton was a case of suicide by cop, the deputy's legal defense team suggests.
“The van moved,” Balicki said. “And I was shooting.”
It's the OCSD position that if Balicki merely says he believed Peralez wanted to kill him, then the use of deadly force was justified.
It might not be so simple. Numerous witnesses to the killing offer a mixed bag for the deputy, who was promoted to sergeant before the trial by Sheriff Michael S. Carona despite a history of questionable use of force involving Latino citizens (see “To Protect and Swerve,” April, 8, 2004, and “Draw Your Own Conclusions,” Nov. 16.). They saw Peralez's old van move slowly forward two or three feet before Balicki rapidly fired three shots through the windshield. The bullets pierced Peralez's heart and chest.
Those same witnesses remembered that Balicki, dressed like a hoodlum because he working undercover, pointed his gun at Peralez and called him derogatory names before firing. They also recall that Balicki and his partner, Deputy Ray Wert, simultaneously issued multiple, conflicting commands to the unarmed man, who had just left a clinic for a methadone treatment.
Balicki repeatedly ordered Peralez to hold his hands up, while Wert repeatedly yelled for him to grip the steering wheel. Everyone, including the officers, agrees the disabled 69-year-old Peralez, who'd battled a lifelong heroin addiction, appeared “confused” and “slow and lethargic” before the shooting.
Clark, who testified over a two-day period in late October, compiled a “laundry list of tactical criticism” and believes that “a deadly confrontation could have been avoided,” in part, if Carona's management team (including current acting Sheriff Jo Ann Galisky) had disciplined Balicki for previous use-of-force missteps. His points include:
. Deputies failed to perform basic pre-search-warrant-execution surveillance of Peralez, so they didn't know he'd gone to a medical clinic shortly before their early-morning raid on his house. “They should have scouted first,” says Clark. “It's hard to imagine why they didn't if it was such a dangerous situation.”
. Though deputies now claim Peralez was an “extremely high-risk” suspect, Balicki and his partner dropped off a third deputy to do paperwork at a sheriff's substation and went without backup to intercept Peralez as he returned home from the clinic. “Why would they pursue him alone if he was so high-risk?” Clark asks.
. Because he and Wert were undercover in an unmarked vehicle, Balicki should have tailed Peralez home or waited until uniformed backup patrol units arrived to make the stop and help control the situation.
. After making the stop, Balicki “recklessly” placed himself in the “kill zone,” feet in front of the Peralez van. “You just don't get in front of a car and expect you are going to stop the suspect by standing in front of his car,” says Clark, who described the move as “tombstone courage” at the scene. “I mean that's taught at every level of training.”
. Balicki didn't identify himself as a cop at the scene.
Clark testified that these “fatal errors . . . exacerbated the situation” and resulted in “a tragedy.”
“[The stop] could have been easily and safely handled if they weren't in a hurry,” according to Clark. “An officer must be reasonable in the use of force. . . . He should have stepped aside [when the car moved instead of firing his weapon].”
It also didn't impress Clark that 10 minutes after the killing, Balicki ordered breakfast at a nearby McDonald's restaurant. Or that Balicki and his then-sergeant, Mike Betzler, later shared laughs over a doctored crime-scene photograph of the windshield bullet holes. That photo mocking the killing made its way into my hands, into print and, despite objections from Carona, finally into evidence against Balicki.
In the courtroom, Balicki's primary taxpayer-funded lawyer, Norman J. Watkins, a frail but feisty veteran insider in the county's government circles, worked strenuously for hours to undermine Clark's credibility. He described Clark's police work in Los Angeles as cushy. In comparison, he hailed Balicki for “working the mean streets of Orange County.”
“Pretty risky business,” Watkins told a majority-female jury. “It's pretty tough in [Balicki's] world.”
You'll have to excuse Watkins' laughable inference that OC is tougher than LA. Clark had visibly riled him. Cops aren't supposed to point out another cop's blunders in public. It's a code that has protected Balicki for years.
But Watkins couldn't hide his contempt for Clark. He called him a liar, incompetent, petty, unprofessional and a traitor. He loudly sighed at Clark's answers. Before Carter stopped him, Watkins even absurdly alleged that Clark is a criminal.
Apparently an easygoing fellow, Clark—who has trained rookie officers in the use of force—withstood the grilling calmly. Balicki looked on, rolling his eyes and snorting. Clark wouldn't budge on his central point: The Peralez stop hadn't required the use of lethal force.
“I'm just at a loss why this [incident] was done this way,” he stated.
Watkins opened his mouth, threw his hands in the air and shook his head. He tossed his pen on the podium. He looked at the jury, then back at Clark on the witness stand and angrily accused the retired cop of having a “grudge against police.”
Testimony is scheduled to resume this week.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.