The San Bernardino County District Attorney’s Office has initiated what Barstow police officers have been promised would be an expedited review of the April 5 shooting of Diante Yarber.
That review, the police officers have been assured, will conclude before District Attorney Mike Ramos leaves office in January with a finding that criminal charges against the involved officers are unwarranted.
Yarber, 26, who was at the wheel of a black Mustang and accompanied by three passengers in that vehicle in the Walmart parking lot at 301 Montara Road in Barstow around 10 a.m. on April 5, was shot and killed by four Barstow police officers, at least two of whom believed the vehicle to be stolen. The officers were attempting to stop the vehicle after a department dispatcher had broadcast that the department had received a call pertaining to a suspicious vehicle in the parking lot.
Accompanying Yarber in the Mustang were Marlin Hawkins, Mariana Tafoya and Wesley Yarber. Diante Yarber had driven to the Walmart to pick up someone who was shopping in the store. Accounts differ as to what occurred when police attempted to effectuate the stop.
According to a lawsuit filed by attorney S. Lee Merritt on behalf of Diante Yarber’s heirs, Hawkins, Tafoya and Wesley Yarber maintain that Diante Yarber was surprised when three police vehicles with their sirens blaring converged on him, and that he was uncertain as to why they were attempting to detain him. The trio recounted that Diante Yarber opened the driver’s side door of the Mustang, displaying his hands as he attempted to step out of the car.
“B[arstow] P[olice] D[epartment] officers [Jimmy Alfred] Walker, [Jose] Barrientos, [Vincent] Carrillo and [Matthew Allen] Helms drew their weapons and began to shout profanity and other violent threats at Yarber as he attempted to step out of the vehicle,” according to the lawsuit. “In fear of his life and the safety of the passengers, Yarber put his hands back into the vehicle and closed the door. The BPD officers began to take aim at the vehicle and shout threats, profanities and racial slurs. The front seat passenger recalls hearing “Nigger we will fucking kill you!” as officers pointed their weapons at the driver and passenger seats. In order to get out of the eminent (sic) line of fire, Hawkins alighted from the vehicle, opening the passenger door and leaping face down onto the ground. In fear of facing imminent death, Yarber attempted to slowly maneuver his vehicle away from the pointed guns of the officers by moving the car forward and then backwards into a space between the police vehicles. As Yarber’s vehicle slowly reversed away from police vehicles, without warning, Barstow police officers Walker, Barrientos, Carrillo and Helms, upon and information and belief, began to fire an estimated thirty rounds into the windshield and driver side door of the vehicle. Mr. Yarber was struck at least ten times by the barrage of bullets by the defendant officers. Two rounds entered Yarber’s chest, six rounds entered his left arm, one round entered his back, and another in the back of his right arm.”
In the initial aftermath of the shooting, the police insisted the action the officers had taken was both reasonable and justified. Yarber, police said, drove towards officers, almost hitting one and striking a patrol car. It was only then that the four officers opened fire on the Mustang, killing Yarber, according to the department.
The department simultaneously sought to illustrate that Yarber had a history of entanglements with the Barstow Police Department. Information with regard to Yarber’s criminal record was made public, as was a report that Barstow police had grounds to believe he was yet engaged in criminal activity at the time of the shooting. On April 23, the department posted to Facebook that Yarber was the same individual who ran away from officers in the 200 block of Yucca Avenue on March 18 following a traffic stop of a blue Hyundai that had been reported stolen. “The owner of the vehicle reported to police that Diante Yarber stole the vehicle on March 16, 2018,” the post states. “Based on this information, the Barstow Police Department issued a probable cause declaration for the arrest of Diante Yarber for the charges of Vehicle Code 10851(a) – Unlawful Taking of a Vehicle and VC 2800.2 – Evading Police.”
It was subsequently determined that the black Mustang in which Yarber was mortally wounded was owned by Yarber’s aunt and was not stolen.
Shortly thereafter the Barstow Police Department ceased commenting on the case, stating all relevant information had been passed along to the San Bernardino County Sheriff’s Department, which was conducting an investigation of the shooting, including the review of video footage from at least three sources.
Initial statements from the sheriff’s department conveyed a presumption that the officers had acted reasonably under the circumstances.
“Officers believed the driver was a subject wanted for questioning in a recent crime involving a stolen vehicle,” according to a sheriff’s department release. “Officers attempted a traffic stop of the Mustang when the driver suddenly reversed the vehicle and struck one of the patrol cars. When the driver again accelerated toward the officers and struck a second patrol car, the officer-involved shooting occurred.”
In addition to the sheriff’s department investigation, the Barstow Police Department did its own internal affairs review of the shooting. Both the sheriff’s department’s findings and the Barstow Police department report, the latter of which exonerates the officers, are now in the hands of the district attorney’s office. While conveying that his office might yet detail its own investigators to do further examination of the shooting and the events surrounding it, District Attorney Mike Ramos, who was defeated in the June 5 contest for reelection as San Bernardino County’s top prosecutor, is committed to his office making a determination that there is no basis for a criminal case being brought against any of the officers.
When advocates for the police officers said they were concerned that a spate of bad publicity over the Yarber shooting, including the revelation that Ramos’s office had prosecuted Jimmy Walker over a 2010 off-duty incident involving his use of racial slurs and taunting a black couple, Ramos offered them an assurance that no charges would be filed against the officers on his watch and that the matter would be laid to rest before he left office, with a certified finding of justifiable homicide that could not be countermanded by Ramos’s successor as district attorney, Jason Anderson.
Walker was arrested on August 26, 2010 by sheriff’s deputies in Hesperia responding to a disturbance call in the 11200 block of Fifth Avenue outside a bar. Walker, who is white, allegedly assaulted a 32-year-old black man and a 31-year-old black woman at the scene. In the presence of the responding deputies, Walker, who was apparently intoxicated, directed racial epithets toward the man, calling him a “stupid fucking nigger.”
In November 2010, the San Bernardino County District Attorney’s Office charged Walker with one misdemeanor count of violating the man’s civil rights, two counts of battery and one count of disturbing the peace. He was charged under a provision of the law known as the hate crime statute that makes it unlawful to use force, threats or intimidation to interfere with another person’s rights because of disability, gender, nationality, race, religion or sexual orientation.
Walker, who joined the Barstow Police Department in May 2009 after working as a San Bernardino County sheriff’s deputy, was placed off duty by the police department pending resolution of the case against him.
On March 26, 2014, Walker, who had remained suspended from the department for much of the intervening time, consented to a plea arrangement in which he entered guilty pleas to misdemeanor charges of public intoxication and inciting a fight in exchange for the dismissal of the battery and hate crime charges. He was sentenced to 36 months of probation, ordered to pay $285 in court fees, required to make a $200 donation to the NAACP and to attend 24 Narcotics Anonymous meetings. He was officially fired by the department after the two convictions were recorded, but was later reinstated, with $163,403 in back pay after he contested the firing with the civil service commission and an administrative law judge ruled that because the action for which Walker was charged and convicted was a misdemeanor that occurred while he was off-duty and outside the City of Barstow, he had been wrongfully terminated.
Ramos said the nighttime 2010 Hesperia incident was irrelevant to the shooting that occurred during daylight hours this year. The district attorney said that any and all of the prosecutors in the pool of attorneys to whom the evaluation for prosecution could be given – including Deputy District Attorney Alberto Juan, Deputy District Attorney William Lee, Deputy District Attorney Sean Daugherty, Deputy District Attorney Lynette Grulke, Chief Deputy District Attorney Julie Peterson, Supervising Deputy District Attorney Steven P. Sinfield or Supervising Deputy District Attorney Simon Umscheid – could be counted upon to return a finding that the shooting was justified. He further averred that Assistant District Attorney Gary Roth and Assistant District Attorney Mary Ashley would ensure that no criminal charges would be leveled at the officers.
-Mark Gutglueck