By Benjamin Wood
A wrongful death suit filed against the Ontario Police Department, one of its officers and the City of Ontario came to its penultimate conclusion this week with a jury’s finding that a police officer acted negligently when he shot and killed a 59-year-old man in May 2014.
With the jury’s finding of liability on the part of the officer, the police department and the City of Ontario, the only remaining issue to be determined is the amount of damages sustained by the dead man’s family.
At issue in the case was whether Ontario Police Officer Nick Diaz used excessive force in the May 10, 2014 shooting death of José Herrera, 59. The plaintiffs in the case, Gladis Herrera and her two sons, Marlon and Ivan Herrera, sued Diaz, the Ontario Police Department, and the City of Ontario, alleging negligence and excessive force. They are represented by Woodland Hills-based attorney Dale Galipo. The city was defended by Daniel Roberts and Dennis Cota of the Cota Law Firm, located in Ontario.
Counsel for the city maintained that that the use of deadly force was not excessive and was in line with California Police Officers Standards and Training guidelines. The city has asserted that Mr. Herrera’s own negligence was the ultimate cause of death.
The lawsuit pertains to incidents arising out of occurrences late in the evening of May 10, 2014, on Placer Street in Ontario in the aftermath of a family Mother’s Day celebration, attended by the Herrera nuclear family and some other extended family members. That day, José Herrera, an immigrant from El Salvador with an existing heart condition, experienced a medical episode, and lost consciousness. Alcohol consumption appears to have been a factor in the devolution of events. When Herrera emerged from unconsciousness, he was agitated, which alarmed his family, who were accustomed to his having a far more upbeat demeanor, according to court testimony. Aware of his father’s medical condition, one of the sons, Ivan, called 911 to request emergency medical services.
There are some contradictions between the Herrera family’s version of events and that put forth by the city and its officers. Some of those differences are subtle but nonetheless significant and others are more pronounced. Among those discrepancies is the precise timeline of events, including the time at which authorities, including both police officers and firefighter/paramedics, first arrived on the scene. The family has said that Diaz was there first, and another officer, Patrick Birdsong, arrived second.
The San Bernardino County District Attorney’s Office, which reviewed the matter, contends the fire department personnel were there first, while the police maintain another officer, Ray Reyes, was present first. The order of arrival and the presence of officer Reyes was not disputed in court by the family in order to focus on more important issues.
According to Galipo, Officer Diaz, rather than an ambulance or paramedic team, was the first to respond.
Already upset, Herrera’s encounter with officer Diaz would intensify his state of agitation. José Herrera and his son Marlon were walking on the sidewalk of Placer Avenue toward Rosewood Court, where Officer Diaz encountered him. At some point in the encounter, José Herrera removed a pocket knife, which he customarily carried, from his pocket. In a matter of seconds, he was shot with both a taser and a pistol.
He was first hit by a taser fired by Officer Patrick Birdsong, the second officer to arrive on scene, which incapacitated him. Within four tenths of a second, according to expert testimony, he was hit with the first of four bullets. The first bullet grazed the top of the victim’s head from left to right, tearing skin, bone, and brain tissue. According to the testimony of the deputy medical examiner for the County of San Bernardino who performed the autopsy, that wound alone was enough to cause Mr. Herrera’s death. The other three bullets entered José Herrera’s body in the lower back, the left buttock, and the right gluteal fold, all of which lodged in the his body. The medical examiner testified that the bullets had an upward trajectory, which indicates that they entered the body either as it was falling to the ground, or once it had already hit the ground. In addition to the four bullets that hit José Herrera, another three bullets were fired, missing their intended target. One hit a house, while the other two hit vehicles parked in the area, for a total of seven shots fired.
San Bernadino County Deputy District Attorney Lynette Grulke, in an interoffice memorandum dated September 16, 2015 to district attorney Mike Ramos, assistant district attorney Gary Roth, chief deputy district attorney Bruce Brown and supervising deputy district attorney Terry Brown, Grulke, offered what was to be settled upon as the “official” version of events together with a tortured and tortuous justification for Diaz’s shooting of Herrera.
According to Grulke’s memorandum, the police were summoned to the Herrera home around 11:40 p.m. on that Saturday evening by one of Herrera’s sons, identified by Grulke only as Witness #1 but since ascertained to be Ivan Herrera. Ivan told the dispatcher that his father, who recently before had heart bypass surgery, had been drinking earlier that day and had passed out. Ivan Herrera said his father had awakened and was “getting belligerent” and “looked pale.” Ivan Herrera also told the dispatcher that José Herrera’s behavior was out of character for him and that he was unarmed. Ivan Herrera requested that his father be “checked out.”
Officers Ray Reyes, Patrick Birdsong and Nick Diaz were dispatched to the the Herrera home on North Placer Avenue, in Grulke’s words, “to assist the fire department on a medical assist call involving an uncooperative subject.”
When Reyes and Birdsong arrived at the location, according to Grulke, they encountered a firefighter already there who advised them that José Herrera had gone outside and, according to Grulke’s memorandum, “was belligerent, and had walked away northbound from the residence.” Birdsong radioed to request that officer Diaz attempt to make contact with José Herrera. Diaz saw José Herrera and another male, identified as Witness #2 and now determined to be another of José Herrera’s sons, Marlon Herrera, walking on the sidewalk. Grulke’s memorandum characterized José Herrera as “agitated and upset [and] cursing at officer Diaz.” Diaz took no immediate action. Shortly thereafter, when officer Birdsong arrived at the location and Herrera began directing obscenities toward Birdsong, according to Grulke’s memorandum, Birdsong noticed that Herrera’s fists were clenched. Birdsong readied his taser and told Herrera to get back, according to the district attorney’s office report. As Herrera was continuing to approach him and not complying with his order, Birdsong deployed the taser on Herrera, at which point he heard someone, later identified by Reyes as being Diaz, say “He has a knife.”
According to Grulke’s narrative, “When José Herrera got within a few feet of officer Birdsong, he deployed his taser. Prior to officer Birdsong deploying his taser, Officer Diaz noticed a knife in José Herrera’s right hand. Officer Diaz saw the blade was exposed. Officer Diaz ordered José Herrera to drop the knife. José Herrera failed to comply and continued to advance towards officer Birdsong. When José Herrera came within a few feet of officer Birdsong, he [Diaz] fired seven shots at José Herrera. José Herrera was struck 4 times. José Herrera fell to the ground. He was pronounced dead at the scene by paramedics. A silver folding knife with an approximate 4 inch blade was located on the roadway southeast of José Herrera’s body. The knife was in the open position with the blade facing upward.”
The shooting was investigated by the Ontario Police Department, which assigned detective David Rowe to carry out the inquiry.
According to Rowe’s report, as Reyes was driving towards José Herrera’s location, he was flagged down by a male subject, subsequently identified as Ivan Herrera, who told Reyes that his father, José Herrera, was really drunk and that the police were called because José Herrera had passed out earlier. Ivan Herrera told Reyes that José Herrera was walking down the street to cool off and that José Herrera was with his brother. Reyes said that as the incident approached its fatal conclusion, he too saw a knife in José Herrera’s hand, and both he and Diaz had unholstered their firearms and yelled at José Herrera to drop the knife.
Grulke’s memorandum references a video of the fatal encounter taken by the a camera affixed to the taser weapon wielded by officer Birdsong. In that video, according to Grulke, “José Herrera’s hands are swinging back and forth along his torso as he moves. There is a silver object in José Herrera’s right hand. José Herrera raises his arms and hands while advancing towards officer Birdsong when the taser is deployed. Gunshots are heard simultaneously to the taser being deployed.”
According to Grulke’s reduction of detective Rowe’s report, “Officer Reyes heard the taser and the first round from officer Diaz’s firearm simultaneously go off. Officer Reyes heard several more gunshots. José Herrera was approximately 3 to 4 feet away from officer Birdsong when officer Reyes heard the taser and gunshots. Officer Reyes saw José Herrera fall to the ground. Witness #2 [Marlon Herrera] continued yelling and cursing at the officers. Witness #2 asked the officers why they killed his father. The officers tried to keep Witness #2 back and away from the crime scene.”
A postmortem examination of José Herrera was conducted on May 14, 2014 by Dr. Glenn Holt, a forensic pathologist for San Bernardino County.
According to Grulke’s report, José Herrera had a total of four gunshot wounds, one to the head, directed left to right and slightly front to back; a penetrating gunshot wound to the right lower back, directed right to left, back to front, and slightly upward; a penetrating gunshot wound to the right gluteal fold, tracking right to left, back to front, and upward, and a penetrating gunshot wound to the left buttock tracking upward, right to left, and back to front. In addition to the gunshot wounds, Dr. Holt noted two barbed conducted electrical weapon darts embedded in José Herrera’s skin. Associated with each dart was an injury consisting of a needle puncture and a red-brown contact abrasion/contusion. According to Grulke, “Dr. Holt determined the cause of death for José Herrera was multiple gunshot wounds and death was within minutes.”
Furthermore, the report states “Right femoral blood, heart blood, and vitreous samples were collected from Herrera during the autopsy. Toxicology report results: 0.10% alcohol in the right femoral blood sample and 0.13% alcohol in the vitreous sample. There was no evidence of drugs of abuse.”
Notably, Grulke references Herrera as “the defendant,” though she simultaneously states that Herrera “was not charged with attempted murder or assault with a deadly weapon upon a peace officer.”
Grulke’s memorandum reports that Diaz discharged his firearm seven times simultaneously with officer Birdsong deploying his taser. Grulke does not dwell on the number of times Diaz shot or the timing of the shooting beyond stating, “The law recognizes, as to self-defense, that what is being put to the test is human reaction to emotionally charged, highly stressful events, not mathematical axioms, scientifically provable and capable of exact duplication.”
Grulke, in her memorandum refers to the spot where Diaz shot Herrera as “the crime scene.” Ultimately, however, Grulke’s memorandum concludes, “Based on the facts presented in the reports and the applicable law, officer Diaz’s use of deadly force was a proper exercise of officer Diaz’s right to defense of another and therefore his actions were legally justified.”
The number of shots fired was an issue at trial and was crucial in the jury’s attempts to reach a decision, as they were instructed to consider the amount of force used in their attempt to ascertain if the officers involved used excessive or unreasonable force. The jury was ordered by U.S. District Judge Jesus Bernal to consider all evidence, including footage of the incident captured by the taser camera, in deciding whether Herrera’s actions represented an “immediate threat to life,” which is the only circumstance which justifies the use of deadly force.
At least some of what is contained in Grulke’s memorandum is disputed by the plaintiff and the evidence presented at trial.
The defense claimed that the officers yelled at José Herrera to drop the knife but no such yells are heard in the audio recording. What are audible are commands from the officers to Herrara to “get back.”
Another dispute was Mr. Herrera’s direction of travel. The defense says that the decedent, in the last moments of his life, moved towards officer Birdsong, but the plaintiffs argue that the direction of travel was lateral – neither toward nor away from the officer. In the video, it did not appear that Herrera was approaching Birdsong, as his figure did not get larger as the video progressed. Officer Birdsong’s testimony was that Mr. Herrera was four to six feet from him when Herrera stepped into the street, and that he was still four to six feet from him when he fired the taser.
Yet undecided is the monetary award that will go to the plaintiffs. José Herrera’s widow and two sons maintain they suffered immensely from witnessing and enduring the shooting death of their husband and father. Witnesses testified that they suffer from depression, insomnia, and other such effects of a traumatic incident.