Did a Cornered ‘Stomper’ Diaz Try to Shoot a Cop With His Finger? How Do We Know?


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I had an interesting conversation here last week with a commenter named “Nick Ceci” about the police shooting of Manuel “Stomper” Diaz, which happened nine months ago this upcoming Sunday.  I think that it’s potentially of sufficiently broader interest for me to pry it out of the comments and send it out over our RSS feed.  If Nick is right, it poses a problem — not insurmountable, but significant — for those of us who have expressed grave concern over the Anaheim Police Department’s interactions with the residents of its poorer communities (specifically, the “shooting young men without legal justification” part of it.)  If he’s wrong, then it’s evidence of how blinkered and conveniently credulous defenders of the police can be.

Is Nick right?  Is Nick wrong?  The best way I know of to get closer to the truth — even if the irreducible truth turns out to be that the truth is unknowable — is to get it out in front of more people and see who has good information.  My doing so is, to be clear, a compliment to Nick, who at a minimum has presented a cogent story leaving the police blameless of the Diaz.  (Note that even if Nick is right, it does not necessarily mean that the APD is blameless when it comes to the management of protesting residents of Anna Drive, including by shooting them with beanbags, let alone of their subsequent over-militarized squelching of protest.)  So this is an invitation to your commentary.

I think that he represented his position well, as I hope I did mine.  (By the way, if I thought that reprinting the exchange would embarrass Nick, I doubt that I’d do it.  It’s worth reading because he presents a credible case.)  What I found interesting is that the nub of our disagreement, at least about the limited question of whether the police shooting of Diaz was justified under law, is that what the disagreement came down to wasn’t a difference over values or opinions, but about facts.  Facts can, to a degree, be checked and verified.

I hope no one will be too freaked out if I acknowledge that Nick’s recollection of these facts could be right and mine wrong!  With one exception — where he’s right about what sort of fence it was (wrought-iron vs. what I recalled as chain link, although I think I’m right that it was not a barrier too high for a running gang member to have scaled as an alternative to de facto suicide) — I don’t think his representation of the facts are correct, or I wouldn’t hold my opinion about at least this portion of the issue.  But I could be wrong!  In any event, I think that a lot of people — not, I recognize, including the District Attorney’s office, but that’s no surprise — share my sense of the facts behind the shooting: specifically, that Diaz did not turn around and give the impression that he was going to shoot at the cop pursuing him before being shot.  If he did, then I may still have problems with many aspects of the case and it’s aftermath (and in some cases I definitely do), but not with the initial shot itself.

By the same token, I would hope that people like Nick would acknowledge that if it’s not clear that his take on the facts is correct, there is nothing inherently unreasonable about people in the community not giving the police the benefit of the doubt on this point.

Manuel "Stomper" Diaz lies dying on the ground after being shot last July

It’s been also nine months since Anaheim’s Manuel “Stomper” Diaz lay dying on the ground after being shot last July. We still disagree about it, but are we even clear on the facts? The video from which this still is taken appears below the transcript of our recent discussion.

To me, this is an example of the sort of conversation is one of the things that I really enjoy about Orange Juice Blog and its political-spectrum-spanning participants: I don’t know of another online venue in the county, either in blogs or in the more established media, where this conversation would be likely to take place (at least without degenerating quickly into mere insults.)  I appreciate it and I hope that my reprinting it here, where it can get into people’s RSS feeds, may help us resolve the factual aspect of this dispute.

Here’s the exchange we had in Cynthia’s recent story, following Inge’s comment stating in part that:

“I don’t know Diaz’s story. I don’t know his mom’s story, but what I do believe is that it is the parents number one responsiblity to raise their children to become responsible adults”

Greg: “Responsible adults” as in “don’t shoot people in the back of the head” or like “when the police roust you just take it, smile, and apologize — repeat as needed”?

Nick:  Yes. This. May sound bad because you feel you don’t have too but doing this will make you never have an issue with the a police in your life. Ever. I think this is a smart way to live. My parents taught me this and I’ve never had a problem with a cop. Ever. Live and learn. Run from the cops and reach for your waistband and turn quickly toward them or any of the above, odds are you won’t live long. Fact.

Greg:

[D]oing this will make you never have an issue with the a police in your life. Ever.

What an easy promise to make to the African-Americans, Latinos, poor, youth, and others in our society– and how totally baseless. Of course “reached for the waistband” and “turned quickly towards them” are the sorts of things that can be imagined before a shooting or falsely asserted after a shooting by a cop, which is why people run from them.

Can you point to some authority that says that running from a cop is illegal? Sure, if the cop sees you coming out of a bank with a gun as the alarm blares, or if the cop sees you stabbing someone in the street, then you’re a fleeing felon. Otherwise? What’s your claim here?

Nick: 148 PC. If they have reasonable suspicion or probable cause to detain you, then you can’t run. Just like Diaz. They had the PC and he ran. He reached. He turned. He died. He knew what he was doing. If he didn’t run, didn’t reach, didn’t turn, he would be alive today. Simple.

Greg: Penal Code 148, you say?

Penal Code Section 148 Resisting Delaying or Obstructing Officer

Resisting, Delaying, or Obstructing Officer

148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

(2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.

(c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment pursuant to subdivision (h) of Section 1170.

(d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.

In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:

(1) The officer’s holster strap was unfastened by the defendant.

(2) The firearm was partially removed from the officer’s holster by the defendant.

(3) The firearm safety was released by the defendant.

(3) The firearm safety was released by the defendant.

(4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm.

(5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it.

(6) The defendant’s fingerprint was found on the firearm or holster.

(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.

(8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.

(e) A person shall not be convicted of a violation of subdivision (a) in addition to a conviction of a violation of subdivision (b), (c), or (d) when the resistance, delay, or obstruction, and the removal or taking of the weapon or firearm or attempt thereof, was committed against the same public officer, peace officer, or emergency medical technician. A person may be convicted of multiple violations of this section if more than one public officer, peace officer, or emergency medical technician are victims.

(f) This section shall not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act.

(Amended Sec. 258, Ch. 15, Stats. 2011. Effective July 1, 2011.)

I should have specified “that it is a felony” rather than just that it’s “illegal.” Do you think that, absent someone committing a felony (and as I recall from looooong ago, in Tennessee v. Garner I think it has to be a violentfelony, right?), the cops had the right to shoot Diaz at all, let alone shooting him in the back of the head once he was down?

Nick, if you don’t get that people doubt and dispute, with good reason, the assertion of cops in such situations that the fleeing misdemeanant “reached” and “turned,” you can contribute little to such a discussion other than the readily refuted proposition that “cops never lie.”

Diaz was well on his way to getting away. He would have known that the cops could legally shoot him if, and only if, he threatened them with violence. Why would he “reach for his waistband”? (Please don’t say “suicide by cop.”) Why, in the process of such an escape, would he even turn? Is it more likely that the cops saw a god-damned gang member who was outrunning him and one of them decided to go vigilante on him, knowing that you and other officers (and the DA and the courts etc.) would be highly unlikely to second-guess him in the absence of clear video evidence?

As I remember the case, it’s not even clear that he was in the process of being arrested (or that they did have probable cause beyond his being a known or suspected gang member talking to people in a car who didn’t want to deal with the cops — who may well have been known to roust people like him.)

While there is a Blue Wall of Silence, people in such situations are going to decide to shoot cops rather than be shot by them. I don’t want that to happen — partially due to the terrible effect on cops who just want to do their jobs the right way, partially due to the effect of consequent repression on the community, partially due to the effect on the entire county’s and region’s economy and culture. Making the poor areas of Anaheim into armed camps is flat-out unacceptable.

Nick: You lost all credibility when you said shooting him in the back of the head when he was down. Wrong. Not even close to the truth. You are listening to the Diaz mama and their people that lie to make things sound good. He was shot in the head as he turned. Get it right. I won’t even address the rest because you are very lost. Felony? No, it can be fleeing a misdemeanor as well. Resisting any crime is a violation of 148. But you saying he was shot while down [in the] back of the head shows where your mind is at and the bias you have.

Greg:  I’m going by the word of witnesses and by my recollection (now over 8 months old) of video. That seems pretty responsible to me. On what are you basing your information?

I don’t recall whether the mother has a wrongful death claim, but a courtroom (more so that a DA’s office or even the Sheriff-Coroner) would be where I’d expect to get a definitive answer.

I was going to give you a Wikipedia cite to Tennessee v. Garner, but when I searched I found a link that seemed likely to be (1) more thorough in linking to a discussion of this shooting and (2) more infuriating to you. Enjoy! http://www.copblock.org/19331/tennessee-v-garner/

Here’s the money cite from Justice White’s opinion:

“This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” [Emphasis added].

To my knowledge, this is still good law. Do you know otherwise?

Nick: Yes that law is still great. Used often. You are just mixing up the story to make it look worse.

The cops had PC to contact and detain him. Known gang member, in a gang dope area, and doing what appears to be a hand to hand dope transaction. Sees the cops and runs. Cops chase him. Foot pursuit is on.

The cops can’t use deadly force to stop his flight unless they need to prevent injury or death to themselves or others. They don’t use deadly force for either of those to prevent further flight.

They corner him. He reaches into his waistband and pulls out his hand as if it’s a gun. Cops have a split second to react and they blow him away instead of dying themselves. Justified. Bad guy made that choice and only he knows why. Suicide by cop? Who knows. But he knew what he was doing and he knew what was going to happen.

Justified. Would happen again today if he or anyone else does the same thing anywhere in the USA.

Greg: The question of their having probable cause is interesting — depending as it does on how one’s views of policing itself in the area determines whether he’d have reason to run even if he’d simply been talking innocently to friends parked on the street on which he resides — but let’s set that aside. Let’s assume probable cause for a non-violent felony. You bring up something far more interesting.

“They corner him”?

Is that what you think happened? Because that’s not what I understand to have happened. Where did you get this information?

I’ll agree with you, right from the start, that if the police are chasing you, corner you, and with your back to the wall you actually make motions to indicate that you are going to shoot them (even if you’re bluffing), they’re going to be found legally justified in shooting you, whether or not they’remorally justified. But why would you think that that’s what happened here?

Do you think that Manuel Diaz was really so afraid of going to jail that he’d “commit suicide by cop”? Why? He had plenty of friends in jail; he’d have an easier time there than most would; he was likely to get out early given overcrowding, if he was even convicted in the first place. You think that maybe he just didn’t want to face having disappointed his family?

Maybe he shoots back, out of concentrated essence of dumb, if he’s armed — but if he’s not armed he’d probably try to get as close to witnesses as he could and then take the ensuing beating. A bad break, sure, but just part of the cost of his business. And he’d probably be out — if they had only evidence enough for resisting arrest — in six months or so, right? He had no apparent reason to decide to fake an attack on the cops and thus end it all.

So, again, I wonder where you get this notion. I hope that you don’t just toss it out there automatically, as standard procedure.

My sense at the time was that he’d probably clambered over an easily scaled (not by me, but by him) cyclone fence and was well on his way to getting away — when he was shot in the butt and fell down, leaving him vulnerable to a second (fatal) head shot. Anyone else out here remember that? Has there been evidence presenting of his being “cornered”? Is there a re-enactment of his path?

I don’t know, Nick — what’s more likely? That this guy just decided to end it all despite being close to getting away, or that some cop decided that he was tired of people like Stomper getting away from the likes of him by doing things like clambering over chain-link fences into an area where the cops might well decide not to pursue him out of fear for their own lives — and decided that the world would be better (and in his case involve fewer such chases) if he just brought the guy down by shooting him in the ass? After all, he’d always be able to claim that he turned, or reached for his waistband, and most (or all?) of his colleagues, whether they had any knowledge of what happened or not, would quickly fall into line!

Can you “paint us a word picture,” as they say on NPR, of how Diaz got from the car to the place where he died, and how and where “they cornered him”?

Nick: If you research the case and look at the drawings and sky views of the area, you will see that he turned the corner and ended up against a wrought iron fence. He hit the fence and then when the cop turned the corner, Diaz reached and turned toward the cop as if he was pulling a gun and shooting the cop. Now this is all per the cop that shot and that was the only actual witness to the actual shooting event. But that is also all we have to go by. Video confirms the statements made, although grainy and not of the actual shooting and movements. It is very odd that he ran in that direction though because he was so familiar with the area but he must have forget once he turned that corner, he forgot where he was and had no option but to turn around and do what he did.

It was wrought iron fencing and there was no way for him to scale it or climb over it and that part never happened. He shot to the butt was when he turned as the shooting was happening. Back or butt shots aren’t always bad and some are usually exit wounds as well. Just ask the coroner.

Greg: I find that hard to reconcile with my memory of the video showing him next to what appeared to be a scalable fence, through which he could be clearly seen (enough so that cops had to stand in front of the people taking video.) I admit that I haven’t seen the video in six months or so. Sure, I’ll take a look at drawings and sky views if you’ll let me know where to find them.

I tend to doubt the “chose suicide by cop” scenario for the reasons that I’ve already expressed. Once cornered, if cornered, he was simply going to jail (at worst.) “Hardened gang member,” maybe going to jail for resisting arrest? Well, then — so what?

 

As I note above, Nick is right that it was a wrought-iron rather than (as I’d remembered more than eight months after last viewing it) a chain link fence; I think that I have the better of the argument that he’d likely have at least tried to scale it, presuming that he hadn’t already done so to get into the courtyard.

Beyond that — well, what do we know?  As Gustavo Arellano reported last month, the DA’s office found that

“It is our legal opinion that the evidence does not support a finding of criminal culpability on the part of Officer [Nick] Bennallack.  … There is significant evidence that the officer’s actions were reasonable and justified under the circumstances.”

Gustavo adds: “This, despite the fact Diaz was unarmed and facing away from the police officer.”

So, my memory matches his; Nick claims something different (at least the “facing away” part.)  Can we figure out who’s right?  (I thought I remembered there also being video showing the police blocking onlooker’s view from the sidewalk of Diaz lying on the ground with blood coming from his head, but I wasn’t able to find that online.  Maybe someone else will have better luck locating it, in which event I’ll update.)


About Greg Diamond

Prolix worker's rights and government accountability attorney and General Counsel of CATER. His anti-corruption work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, leading them to work with the Democratic Party of Orange County Chair and other co-conspirators (who had long detested the internal oversight his presence provided) to remove him from the position of DPOC North Vice Chair of in violation of party rules and any semblance of due process. He also runs for office sometimes. Unless otherwise specifically stated, none of his writings prior to that lawless putsch ever spoke for the Democratic Party at the local, county, state, national, or galactic level. He tries to either suppress or openly acknowledge his partisan, issue, ideological, and "good government" biases in most of his writing here. If you have a question about any particular writing, just ask him about it and (unless you are an pseudonymous troll) he will probably answer you at painful length. He lives in Beautiful Bountiful Brea, but while he may brag about it he generally doesn't blog about it. A family member works as a campaign treasurer for candidates including Wendy Gabriella in AD-73; he doesn't directly profit from that relatively small compensation and it doesn't affect his coverage. He does advise some campaigns informally and (except where noted) without compensation.