3 Deaths, $4.25 M Settlement Heighten Concern Over Sheriff’s Deputy

A SB County sheriff’s deputy who in the past two-and-a-half years  has  been involved in the deaths of three suspects finds his action under increasing scrutiny as the family of one of those who died at his hands has received a $4.25 million settlement and the families of the two others are  pressing forward with civil suits against him, the sheriff’s department and the county.
San Bernardino County sheriff’s deputy Ismail Diaz was directly or indirectly involved in the officer-involved deaths of Allen Kephart in May 2011, Kenneth Munoz, Jr. in October 2011 and Merlin Factor in June 2013.
The 350-pound Kephart expired after suffering a heart attack when three officers, including Diaz, administered 16 taser gun jolts to him for his failure to comply with Diaz’s commands following a traffic stop. Diaz administered eight of those electrical shocks.
Munoz was shot twelve times by a sheriff’s sergeant and Diaz after deputies were summoned by Diaz’s father during a dispute over a pickup truck and the younger Munoz grappled with another officer after he was ordered to the ground. Diaz shot Munoz ten times.
Factor, who was allegedly combative and armed, was shot by two sheriff’s deputies after  a call reporting an act of vandalism at a mobile home park led to a confrontation with the deceased. The sheriff’s department has not confirmed that Diaz was one of the deputies involved in the Factor shooting.
The district attorney’s office has completed reviews of the deaths of Kephart and Munoz. A determination with regard to criminal issues in the Factor shooting has yet to be made but it is anticipated it will exonerate the involved deputies.
The district attorney’s office, while acknowledging that the ordeal Kephart was subjected to during the attempt to arrest him resulted in physical stress that was “a significant factor” in his death, concluded “there is insufficient evidence to establish criminal liability on the part of these deputies.”
Diaz maintained that on the afternoon of May 10, 2011, he had attempted pull Kephart over after Kephart failed to make a full stop at an intersection in the San Bernardino Mountains. Kephart, according to Diaz, drove nine-tenths of a mile before pulling over, at which time a confrontation ensued in which Kephart only partially complied with Diaz’s commands that Kephart get down on his knees and then lay prone on the ground. The district attorney’s office said the tactics used by Diaz and two other deputies and a sergeant that arrived on the scene to back up Diaz, “were not unreasonable.”
Kephart’s mother and father, Alfred and Carol Kephart, filed suit, naming the county of San Bernardino, the San Bernardino County Sheriff’s Department, and the three sheriff’s officers who used their tasers on Kephart, deputy Diaz, deputy Michael Gardea and sergeant Bryan Lane.
The Kepharts were represented by attorneys Marc Goldstein, Brian Pannish and Thomas Schultz.
The lawsuit offered a different version of events than was put forth by the sheriff’s department and accepted by the district attorney’s office.
An examination of the roadway Diaz and Kephart traveled  while Diaz was using his lights and siren in an effort to pull Kephart over demonstrated there were no safe spots at which to pull over, given the relative narrowness of the highway. Kephart appeared to have stopped at what was the first safe place. Utilizing an audio recording made by Diaz as well as the communications between Diaz and the sheriff’s department’s dispatcher, the legal team countered Diaz’s claim that the encounter ensued after Kephart ran a stop sign. Rather they maintained the encounter began when Kephart honked at Diaz after Diaz pulled in front of Kephart at the intersection. A witness, Magda Haran, testified Kephart had indeed stopped at the stop sign.  The legal team used eyewitness accounts and data retrieved from the Taser devices to show that Kephart was ordered out of his car at gunpoint, shoved face first to the ground and Tasered repeatedly in the upper back, neck and head. In pressing to make the case that Kephart’s civil rights were violated and that he had been subjected to excessive force, the plaintiffs encountered resistance from the county, which deemed  information in  Diaz’s personnel file confidential and at one point obtained a stay of legal proceedings. But after the stay was set aside, Diaz’s videotaped deposition was taken, in which he repeatedly demonstrated an inability to recall specific details relating to the incident as well as other times he had used potentially deadly force in the field, including the shooting of Munoz and at least five other times he had used a Taser.
More than two months ago and less than a month after the Factor shooting, the county on  July 26 quietly moved to close out the litigation, conferring a $4.25 million settlement on Mr. and Mrs. Kephart.
In January 2013, the district attorney’s office entered a determination that Diaz and sergeant Michael O’Brien were legally justified in fatally shooting Kenneth Munoz Jr. on October 26, 2011. Sheriff’s deputies  had been summoned to the 35200 block of Avenue B in Yucaipa by Kenneth Paul Munoz Sr., who reported that his son was refusing to return to him his truck, which they used in common as a work vehicle in their family run business. After deputies arrived and attempted to persuade the younger Munoz to comply with his father’s request, he refused and ran away. The officers gave chase, utilizing a Taser, and a bean-bag shotgun before deputy Joseph Perea commanded him to lie face down on the ground in a neighbor’s yard. After Perea knelt upon Munoz’s back in an effort to handcuff him, Munoz became resistant and combative. In the ensuing struggle between Perea and Munoz, Perea’s gun, a 45-caliber Glock 21 pistol, fell out of its holster. The scuffle between Perea and Munoz continued and when Perea separted from Munoz, O’Brien opened fire, striking Munoz twice. Diaz then shot Munoz ten times as he lay on the ground. Munoz died at the scene.
In ruling the shooting  justified, the district attorney’s office noted that Munoz had numerous intoxicants in his system, including  methamphetamine, opiates and hydrocodone.
Paul Munoz, Jr’s estate, including his father and mother and two of his minor children, have filed a lawsuit against the county, the sheriff’s department, Diaz and O’Brien in U.S. Federal Court. They are represented by attorneys Antonio Rodriguez and Jorge Gonzalez.
In court papers, Rodriguez and Gonzales maintain “the actions of the deputies from start to finish were overly aggressive and drove the situation until lethal force was used. Their actions were independent and reckless uses of force, and have a direct causal relationship to the end result. The officers did not have probable cause to arrest Kenny.”
Rodriguez and Gonzales maintain that Munoz was in the midst of an emotional and psychological breakdown, but did not constitute a physical threat to his father, himself or the responding deputies. “The use of force and attempt to subdue Kenny when he was clearly experiencing a mental breakdown was very provocative, and exactly the opposite of what a well-trained officer would do in such a circumstance,” accoring to Rodriguez and Gonzalez.  They say Diaz arrived at the location at a latter stage of the confrontation with Munoz  and “acted without any knowledge of the prior events, or of Kenny’s mental disturbance… and displayed a severely aggressive attitude to apprehend Kenny regardless of the costs. Further, Diaz was the last of the deputies to fire his handgun, shooting 10 rounds at Kenny, five times that of Sergeant O’Brien.” Diaz, according to Rodriguez and Gonzales, “acted in a panic, and fired an excessive number of rounds for the situation. His conduct in this regard was clearly incompetent.”
Rodriguez and Gonzalez have taken depositions of several of the deputies involved, including Diaz; have made analyses of other materials relating to the case, including the audio recordings from the recorders carried by the officers; and obtained witness statements from civilians who watched the chase and shooting, including Robin Dyrland, in whose yard the shooting occurred.
“The shooting was not in response to an imminent threat of deadly force or great bodily injury, and the deputies later conspired to use this as the justification for the shooting, thus manufacturing the sequence of events,” according to Rodriguez and Gonzalez. “Furthermore the version of the deputies that a wrestling match between Perea and Munoz was underway, described by Perea as a ‘life and death struggle,’ was directly contradicted by Robin Dyrland, who was standing at her back door watching the events unfold, and did not see the deputies wrestling with anyone just before the shooting. She recalls the deputies were all standing erect and stepped back just before they started shooting.  Both the sound recording and the two percipient witness directly contradict the entire version of events as stated by the deputies “
The Munoz case will likely go to trial in 2014.
The case involving the shooting of Merlin Factor is somewhat nebulous, as is Diaz’s role in it.  The district attorney’s office has yet to make a finding with regard to whether the shooting death was a justifiable homicide, although such a finding is anticipated. And while several reliable sources have given indication that Diaz was one of the deputies involved in the shooting, there has been no confirmation of that at an official level.
Los Angeles-based attorney Dale Galipo is representing Factor’s sister, Cassandra Hudson, in a wrongful death complaint against the county, the sheriff’s department and the involved deputies. Galipo told the Sentinel that “We believe Ismail Diaz was one of the two deputies involved in the death of Merlin Factor based upon several statements we have and other information but I do not have confirmation. It has been pretty difficult to get information on this shooting. That may be because of this deputy’s involvement in these other deaths but I cannot say that definitively.”
The initial report of the Saturday, June 29, 2013 shooting, based upon the information provided in a sheriff’s department press release, maintained that deputies opened fire on the 26-year-old Factor after a series of events beginning with a call reporting vandalism to a mobile home in the 12900 block of Second Street in Yucaipa. Factor was identified as having vandalized the mobile home and that he had left the scene with the woman who lived there, possibly against her will. Shortly thereafter, the allegedly abducted woman placed a 911 call and deputies went to the location from which the call had been placed, near Yucaipa Boulevard and Third Street. At that point, deputies were advised  Factor was wanted on a felony warrant.
Deputies located Factor and the woman in a vehicle and pulled him over in the parking lot of the First Baptist church. “Factor got out of the vehicle and began fighting with the deputies,” according to the sheriff’s department statement. “Factor attempted to retrieve a weapon during the struggle, forcing a deputy to shoot him.”
The arrest warrants issued for Factor pertained to his failure to appear in court 23 days earlier on misdemeanor theft and providing a false name to a police officer.
The department seems to have backed off from the assertion that Factor had a gun, but has not clarified its position.
“Our information is that he had no gun when he was shot,” Gallipo told the Sentinel. “We do not know if there was a gun. If there was, where was it? Was it under the seat of the car? He did not have a weapon of any kind when he was shot. We have talked to several witnesses and no one saw a gun or said anything about him having a gun.”
Factor did have a criminal record. He  pleaded guilty to burglary in 2012 and was on probation at the time of his death.
Gallipo said that he and his legal staff have only undertaken a preliminary examination of the circumstances and facts, having been hampered by the sheriff’s department’s reluctance to release information on the shooting. He said it appeared the sheriff’s deputies acted out of anger and annoyance in their fatal confrontation with Factor. “He was known to the sheriff’s department,” Gallipo said. “They had been looking to arrest him on the outstanding warrants before this. They were looking forward to arresting him and he had run away from them before and had gotten away. They were frustrated. They caught him and then just lost it and overreacted.”
Gallipo said he did not expect the district attorney’s office to determine the shooting was an unlawful one. “In almost every case, the district attorney’s office finds officer involved shootings to be within policy and legally justifiable. But when you take these matters to trial and lay out all the facts, juries in many of these cases find the officers’ actions to have been excessive and unreasonable. In officer involved shooting cases, juries tend to disagree with the district attorney.”
While county officials and sheriff’s brass are publicly maintaining a stiff upper lip with regard to Diaz and his continuing tenure with the department, internally there is concern that he may represent a liability to both the department and the county governmental structure. Reportedly, Diaz  is a  foremost concern within the county’s risk management department with respect to current employees. Having been stung for $4.25 million on the Kephart case and with the Munoz and Factor  matters wending their ways through the court system, pressure is mounting to ease Diaz out of the department or transfer him into a role in which he will be unlikely to encounter a use of force situation. When queried about Diaz, county risk management director Hueston Whiteside said, “That is something you should discuss with the sheriff’s department because a reassignment is not something my department is likely to have a hand in.”
The sheriff’s department’s public affairs division, citing the lateness of the Sentinel’s inquiry about Diaz this week, was unable to offer input.
Deputy district attorney William Lee, who reviewed the Kephart matter for his office, maintained that during his encounter with Diaz, “Kephart was defiant and resistant. The force used by the deputies was limited to overcoming that resistance. Diaz is obligated to enforce the laws of the state. It was Kephart’s obligation to submit to legal authority, to follow all reasonable commands and to cease any active resistance. Kephart failed to meet these obligations.”
Chief deputy district attorney Karen Bell, who reviewed the Munoz matter for her office, concluded “The officers had cause to pursue Kenneth Jr. when he failed to cooperate and would not respond to questions.  They had a duty to investigate a possible auto theft but his conduct was out of the ordinary and he might have posed a danger to himelf or others. Despite repeated efforts to convince him to stop running he did not. When Kenneth Jr. finally stopped… the officers approached with great care, based on his earlier conduct to insure (sic) their safety, the public’s and his. Unfortunately, at that moment the circumstances changed radically In such circumstances officers are entitled to use deadly force in protection of themselves or others., Kenneth Jr left them little alternative but to use their last tool – deadly force.”

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