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An Anaheim police officer used excessive force when he gunned down a 25-year-old man who was running away from him and his partner in an apartment building courtyard, an attorney told jurors Friday in a federal civil trial.

An attorney for Officer Nick Bennallack, however, argued that the officer acted reasonably when he opened fire on a suspect dressed like a gang member who was fleeing police and appeared to be turning around to shoot them.

The Orange County District Attorney’s Office prosecutors cleared Bennallack of any criminal wrongdoing in the fatal shooting of 25-year-old Manuel Angel Diaz of Anaheim on July 21, 2012. A day later, another Anaheim police officer fatally shot 21-year-old Joel Acevedo at the end of a stolen-car pursuit, which touched off several days of demonstrations, some of which turned violent.

At issue before jurors in the federal trial is if the city of Anaheim and the officer should be held liable for violating the Fourth Amendment rights of Diaz against unlawful search and seizure. If jurors rule the city is liable then they would consider damages.

Jurors must also consider if the officer violated a state law on unreasonable force as well.

“We believe the evidence shows the force was excessive and it wasn’t necessary to shoot and kill him,” said attorney Dale Galipo, who is representing Diaz’s family in the federal lawsuit.

Galipo said what made the case “unique” was Bennallack and his partner Officer Brett Heitmann were not responding to a specific service call when they spotted Diaz standing outside a car in an alley near 700 North Anna Drive.

“They don’t see any specific criminal activity,” Galipo said.

Diaz, however, started running when he saw police. The officers shouted to him to stop, but he kept going into a courtyard, where he was gunned down before a fence.

The entire incident took about 10 seconds.

Bennallack testified he was concerned Diaz had a gun because his hands appeared to be near his waistband.

“He’s using both hands in a location where a weapon is typically kept,” Bennallack said.

Also, just before he opened fire Bennallack noticed Diaz was not “pumping his arms” as if he were trying to get away and was “looking back” as if he were sizing him up, the officer testified.

“He didn’t appear to be looking for the path of least resistance to escape me,” Bennallack said.

“I think he could have easily escaped on foot,” Bennallack said.

The officer also testified that the suspect appeared to have an object in his hand that he believed may have been a gun. Then, Bennallack added, that Diaz, with his back to him, was assuming a posture of a “low ready position” to quickly turn and open fire.

Bennallack felt that Diaz could have “easily” jumped the fence to get away but did not choose to do so.

Bennallack said his decision to open fire twice was because of an “accumulation of many things.”

“I thought he would shoot me and my partner,” Bennallack testified.

Galipo argued there was testimony that Diaz had a glass pipe, a cell phone and a cloth bag with something in it at various times during the seconds- long pursuit.

“How many objects can Mr. Diaz have in his hand? Is he a circus juggler,” Galipo said.

And if Diaz were slowing down to confront the officers, how did he manage to keep a 10-foot distance ahead of the officers, Galipo asked.

Galipo also doubted speculation that the black cloth bag contained a gun that someone else swept up away from the shooting.

Three teenage girl witnesses testified Diaz was shot twice — in the back and in the back of his head — with a pause between shots, Galipo said.

Galipo argued that the officers had to see a gun or fear there was an “imminent threat” of danger to them before opening fire and that wasn’t the case in this instance.

The officers also did not warn Diaz they would shoot if he did not stop, Galipo said. It appeared Diaz could have been surrendering when he was shot, the attorney argued.

Attorney Steven Rothans, who represents the city in the trial, said the officers were in a high-crime neighborhood and that Diaz appeared to be clad like a gang member when they officers tried to approach him.

“These were boy scouts hanging out. They were talking about a merit badge,” Rothans said sarcastically. “That’s what Mr. Galipo would like you to believe.”

If Diaz had just a glass pipe or cell phone on him he would have little reason to run away from police, Rothans said.

“We wouldn’t be here — none of us would be here — if Mr. Diaz listened to one of those commands” to stop from police, Rothans said.

If an object was flung over the fence just before the shooting then where is it, Rothans asked.

“Why wasn’t that object tossed over the fence not found?”

Heitmann testified that Bennallack said “gu…” before opening fire, not quite finishing “gun.” After the shooting, Bennallack implored his partner to help find the gun he thought he saw thrown over the fence, Rothans said.

Rothans also argued it was unfair to break down an 8-second incident in segments.

“Folks, this happened way too fast to break down into segments, and it didn’t happen in slow motion,” Rothans said. “Folks, this is not a video game. It was real life.”

Before closing arguments began, the trial was almost upended when Diaz’s “best friend,” Gerardo Reyes, ran into a juror on the way into Friday’s proceedings and told him he hoped the panel would make the “right decision” in the case. One juror was excused and the trial continued.

Bennallack has been involved in three deadly officer-involved shootings since January 2012.

Diaz’s mother, Genevieve Huizar, lost her first bid to hold the city liable for her son’s shooting in a 2014 trial, but the Ninth Circuit Court of Appeals overturned the verdict because Diaz’s gang affiliations was wrongly included in evidence.

–City News Service

Police shooting, dead suspect: Did Anaheim cop use excessive force? was last modified: by

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