Panic in Sage Park: The Gustavo Najera Trial


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1. First Day, Body-Cam Footage

“Oh shit!” gasped APD Officer German Alvarez to himself, just as the audio kicked in on his hastily activated body camera.  “Oh fuck!  Oh shit!”  He had just shot some young guy right in the forehead, probably killed him, out of pure fearful reflex.  What now?  He quickly re-holstered his Glock 45, hit 998 on his police radio (officer-involved shooting), rushed to the trunk for his first aid kit, and desperately tried to stop the bleeding.  “Oh fuck!”  How did this even happen?

By now his buddies began to arrive, first his “partner” Robert Benavides – they drove separate cars, but were considered partners and were never far apart.  “Did this guy have a gun?  A weapon?”  “No!  He – he threw sand at me!”  “He what?”  

Alvarez wiped more sand off his face and stood shivering in the cold night as his colleagues tended to the dying 22-year-old Gustavo Najera.  A female officer gave Alvarez a bottle of water, and eventually another cop walked by and turned off Alvarez’ body-cam which was still filming.

It’s hard to tell on camera what came first – the sand flies and Alvarez’ gun flashes at the same moment.  What happened just before the camera went on we have only Alvarez’ word for:  Najera was approaching the squad car from the left, his LED flashlight held in the left hand trained steadily at the cop and his right hand in the pocket of his oversized black sweater.  (It was cold, remember.)  Alvarez was sitting nervously in his squad car with his Glock clutched on his lap in his right hand, and rolled down his window with his left as Najera continued forward.  “You gotta go!” said the cop.  “Why?” responded the young man.  “Park’s closed!” answered the cop. And “I hate cops!” was the young man’s [alleged] last words as he moved closer, flinging sand, and fell to the ground with a fatal gunshot wound to the head.  [Update: On the body-cam recording you can hear Alvarez telling his buddies, “He said he didn’t like cops,” which is a little less scary than what he testified to afterward.]

Well, obviously “the poor officer feared for his life,” not knowing what was in Najera’s right hand, said the DA as always in 2016, and Anaheim attorney Moses Johnson said the same yesterday, at the family’s civil trial, as Officer Alvarez sat big, tall and miserable-looking, feet away from Gustavo’s grieving Mexican parents.  But the plaintiffs’ attorney Arnoldo Casillas wants the jury rather to think about how the hell Alvarez GOT into that situation – being so close to an apparently “irrational suspect” at night that panic kicks in, and killing?


“And you may say to yourself,
well,
how did I get here?”

Just a few minutes earlier, Alvarez, who’d been with the APD 14 years, had driven into central Anaheim’s Sage Park to roust any homeless folks who might be hanging out there, as he’d done countless times before.  Anaheim homedwellers don’t like the homeless sleeping in their parks, and there is an anti-camping ordinance and 10:30 curfew (not that there’s anywhere else for them to go.)  If Alvarez had run into any loiterers he would have told them to leave, but the park looked empty.  It was a little after midnight, but the park was very well lit.  Alvarez cruised through the park slowly, down the wide main sidewalk, with his headlights on, listening to sports talk radio.

Halfway through the park, not seeing anyone, he thought he’d slip out the back entrance as he often did, but it was chained, so he continued to circle back to where he came from.  (Just think – if that entrance hadn’t been chained, we wouldn’t be having this trial, or this conversation, and Gustavo Najera would be 24 now.)

Then, about 20-25 yards away, he did see a figure in a black oversized sweater, walking toward him with right hand in pocket and a flashlight in his left hand.  The figure raised his LED flashlight and shone it at Alvarez.  Alvarez continued driving slowly forward toward this mysterious figure, and slowly drew his Glock, holding it in his lap with his right hand as he drove closer and closer.

“WAIT!” says Arnoldo the lawyer.  What was Alvarez thinking?  The fact this guy was shining a flashlight at him and walking toward him was a huge red flag that this was an “irrational suspect,” and there is specific training regarding irrational suspects.  Arnoldo calls our attention to Exhibit 1, Training Bulletin #15-15, given and drilled in to all APD officers a year earlier in 2015.  KEEP YOUR DISTANCE.  “DISTANCE EQUALS TIME EQUALS OPTIONS!”  All of Alvarez’ training should have told him to stay put and evaluate the situation.  But he just kept moving closer, hand on his gun, and Gustavo kept moving closer, hand on his flashlight.

The closer Alvarez got, the more he limited his options.  A policeman – or anyone – sitting in a car right near somebody they think could be armed is a sitting duck.  And when Alvarez decided to pull out his gun and hold it in his right hand, he ruled out three much more sensible things he could have done with that hand, while keeping his distance: 

  • Shine his spotlights on Gustavo, blinding HIM; 
  • talk to him through his public address system; 
  • or call Benavides for back up.  

Pero no, Alvarez just kept moving closer, and so did Gustavo.  “It was just like Officer Alvarez took Training Bulletin #15-15, crumpled it up and threw it out!” exclaimed Arnoldo to the jury, crumpling and throwing it himself for emphasis.

And that’s why this tragic killing was unnecessary, and a nearly inevitable result of APD Officer German Alvarez not following his training but behaving like a cowboy.  Needless to say, Gustavo Najera was unarmed.  His friends remember the 22-year-old as an artistic, eccentric and sometimes troubled young man.  They wrote this song about him after the killing (which turned out to be the first of four APD killings in 2016):

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2. Days 2-4 of the Trial (May 1-3)

First: as I mentioned above, reptilian Anaheim attorney Moses Johnson (right) is back from his battle with cancer, back doing … wait.  I almost said “back doing what he does best, the smearing of victims.”  Pero no – he’s back but being KEPT from what he most likes doing, the smearing of victims.

Here’s what I mean:  First opportunity when the jury was out of the room, and in anticipation of the coroner’s testimony, Moses practically begged Judge Josephine Staton to let him discuss Gustavo’s “toxicology.”  “Just a little bit, your honor?” he pleaded.  And Judge Josephine said no dice.  Irrelevant, not allowed.

And it just so happened that Genevieve Huizar, the mother of the late Manuel Diaz, was in the room, so at that moment I congratulated her.  Because it was a direct result of her successful appeal of her own case, all the way to the SUPREME COURT exactly a year before, that lawyers like Moses can no longer try to justify their clients’ killings by trashing the victims with irrelevant tales of their past, or of their possible substance abuse.

I really don’t know if Gustavo’s unusual behavior was a result of just being weird, or on some substance, or upset about something.  None of those things were known to the officer, none of them justified his killing, and none of them made his life worth less.

Still, undeterred, Moses did his best to slip it into his closing statement:  “There is no evidence, THAT THE JURY HAS HEARD, that Mr. Najera was HIGH on something.”  Arnoldo immediately objected and Judge Josephine sternly instructed the jury to ignore Moses’ remark.

We could smell the unmistakable scent of desperation as Moses, denied his usual tools, felt the case slipping from his grasp.  Especially when he shouted out, “You know what I believe Mr. Najera’s plan was?  I believe he intended to BLIND Officer Alvarez with that sand, so he could grab his gun and KILL him, because he HATED cops so much!”  This sudden, over-the-top fantasy left the courtroom stunned.

And it was a probably unwise reminder to the jury of the unreliability of Alvarez’ testimony:  The fact that he testified Gustavo yelled “I hate cops!” while throwing sand, but was caught by his own body-cam mere moments after the murder stammering to a colleague, “He – he said he didn’t like cops!” was just one of the inconsistencies nobody could help but notice.

Germán (pronounced “Hermán”) Alvarez is one of those people about whom other people say “What a piece of work.”  6’3″, 250 pounds, severe-looking and supremely arrogant on the stand, he is very well educated.   Starting out as a helicopter mechanic in the Marine reserves and serving in Iraq in 2004-5, he put himself through the police academy on his return and joined the APD at 24, also receiving a BA in criminal justice at Cal State Fullerton and a Master’s in organizational management at Chapman.

But for all his erudition he took great pride in playing DUMB on the witness stand, feigning to not comprehend many of Arnoldo’s simplest questions.  This was part of a two-prong delaying attack from him and Moses, the latter of whom “objected” with the regularity of a troublesome hiccup, and was nearly always overruled, but still managed to eat up much of the plaintiff’s time.

Arnoldo established early on that Alvarez had admitted in deposition to rarely wearing his seatbelt in his vehicle, and began to establish a pattern of his general disregard for rules.   If he thought, from 20-25 yards away, that Gustavo looked dangerous enough for him to pull out his Glock, why did he not also switch on his bodycam at the same moment – why wait until a couple seconds before he fired?  (For one thing, we’d know what was REALLY said between the two.)  “When do you generally turn on your bodycam?”  “Whenever I’m about to have an interaction with the public.”  “So… you would switch it on when you’re making a traffic stop, for example when you’re pulling someone over for not wearing a seatbelt?”  “…Yes.”

As Arnoldo pointed out, after Alvarez shot blindly at Gustavo he didn’t behave like he had just wounded a man he thought could be armed.  He re-holstered his Glock, radio’d for backup, and went to administer first aid without even checking if the suspect was conscious and dangerous.  But the biggest screwup, when the die was cast, was back at 25 yards when Alvarez deemed the suspect dangerous enough to draw his gun, but JUST KEPT MOVING FORWARD.  He actually admitted on stand, “I had reached the point of no return.”  And through nobody’s fault but his own.  Training Bulletin #15-15, “keep your distance especially when dealing with irrational suspects,” was just ONE MORE RULE that this policeman ignores.

There was a moment in Moses’ closing statement where, while lamenting the damage being done here to this “model officer’s” reputation, his voice cracked a little and he paused.  I really thought Moses was thirsty or ill or something.  I couldn’t believe it when both Mark Daniels and Arnoldo explained to me – this was Moses Johnson’s sixth-rate attempt to appear to be CHOKING UP, over his client’s sullied name.

This drove Arnoldo Casillas to launch furiously into his final rebuttal, of which I remember some:  “Yes, we should ALL be crying!  Welcome to Anaheim, folks,  WE DON’T FOLLOW THE RULES HERE.  When they blow it they’ll make up stories, and then shed crocodile tears over the ‘character’ of the guy who blew it.  They lie, they exaggerate, they play stupid.  Mr. Johnson told you all what he THINKS was in Mr. Najera’s mind, well let me tell you what I believe Officer Alvarez was doing with his left hand [which you couldn’t see on camera] as his elbow rested out the door – I believe he was BECKONING MR. NAJERA OVER, while he held a gun in his right hand knowing he was likely to shoot him.

“You can’t let Mr Alvarez be a ‘model police officer.’  We are ALL in serious trouble if Mr. Alvarez is a model police officer.   You can NOT let that happen.  You have to be STRONG, to find a police officer in the wrong.  We pledged allegiance to the flag this morning, to liberty and to justice for all, and you all must be STRONG to live up to that pledge.  Otherwise, we should all be crying.”,

The jury has been deliberating since Thursday before noon, on whether Alvarez used unreasonable or excessive force, whether he was negligent before the killing, and whether these factors led to Gustavo’s death.  Later they will decide on an award amount.  The Orange Juice Blog will tell you the results as soon as we know.  — Friday 10:44 am

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3. Verdict:  No, and No.

It did take the seven-member jury a long time – from 11am Thursday to around 2:30 or 3 Friday – to come up with their unanimous verdict:  No and No.  No on whether Alvarez used excessive or unreasonable force on Gustavo Najera, and no on whether he was guilty of negligence leading to Gustavo’s death.  No justice.  No peace.

We were hopeful.  The public consciousness about police killings has been moving in the right direction, but this was not a decision that moves us forward.  The jury consisted of six women (3 Asian, 2 white, 1 apparently Latina) who chose as their foreman their one male, a hulking blond football player Alvarez’ size, with a Michael Rapaport face (left.)  Whatever the qualms of some of them, they eventually all agreed that Alvarez had done nothing (important) wrong when getting closer and closer to the strangely-behaving Gustavo until he was so close that, if startled as he was, he would see no choice but to KILL him.  And no problem with his contradictory testimony.

A sad day.

Next week, let’s start fighting for Shirley Weber’s bill AB-931, which changes the criterion for justifying a police killing from “reasonable” concern to “necessary.”

Vern out.


About Vern Nelson

Greatest pianist in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at vernpnelson@gmail.com, or 714-235-VERN.