The Dinuba SET Team
Shooting - A Tragic Story About Hasty Planning, Inadequate Training,
Death, a $12 Million Verdict and Undeserved Discipline by Pass-The-Buck
Politicians
By: Mike Rains
It is hard to imagine
that a small and seemingly peaceful town named Dinuba, located in the
Central Valley 40 miles southeast of Fresno, would serve as the backdrop
for one of the more interesting cases I have handled at the request of
the Legal Defense Fund. As a former police officer conversant about high
risk incidents and tactical procedures, this case was fascinating. As a
lawyer vitally interested in careful analysis of physical and forensic
evidence, this matter represented a case study like none I had seen
before. As someone who cares about the impact of incidents on the
emotional and physical well being of my clients, I was saddened to see
their eventual victimization by politicians whose fingers pointed
everywhere except where they should.
The Incident: On
Easter Sunday in 1997, a physician was killed in a gang-related shooting
in the City of Visalia, located in Tulare County. The assailants were
not apprehended, but on June 26, 1997, a 19-year-old gang member, while
in custody in Visalia for a weapons possessions charge, told police that
he had come into possession of the 12 gauge sawed-off shotgun used by
the assailants, and had sold it to 18-year-old Jesus Gallardo, who lived
in the City of Dinuba.
On July 10, 1997, the
Visalia police obtained a search warrant for the Gallardo family
residence, which authorized a search for the 12 gauge sawed-off shotgun,
a .380 pistol, and ammunition. The face of the warrant indicated that it
could be executed anytime after 7 a.m. on July 11, 1997.
Originally, the Tulare
County Sheriff’s SWAT team was going to serve the search warrant, and
members of the City of Dinuba’s Special Enforcement Team (SET) were
going to assist the Sheriff’s Department team through perimeter
assignments. However, at nearly the last minute, the Sheriff’s
Department team was unable to execute the search warrant due to another
commitment, and the members of the Dinuba SET were advised by their
commander that they would be serving the search warrant.
As a result of the last
minute change in plans and haste of the service, the SET met at 6 a.m.
on July 7, and the commander went through a hastily prepared operational
plan, hand-drawn on a single piece of paper. Although the police
suspected that there might be numerous individuals inside the Gallardo
residence, no prior surveillance had been conducted to enable the
officers to know exactly who or how many individuals they might
encounter. During the subsequent civil case, the SET commander and the
police chief came under extreme criticism by experts called by the
plaintiffs for the faulty planning, intelligence gathering, and even the
decision to utilize the SET to make entry, since there had been a number
of previous occasions in which police officers, responding to complaints
or conducting investigations, had merely gone to the door in uniform,
knocked, and obtained entry.
At approximately 7 a.m.
on July 11, 1997, the Dinuba SET and officers from other agencies who
were supposed to maintain perimeter positions arrived at the Gallardo
residence to serve the search warrant using a "dynamic entry"
procedure. When the officers entered the residence, they encountered a
number of individuals either sleeping or just waking up in various
rooms.
As officers entered the
rear bedroom of the residence, a struggle broke out between them and 64
year old Ramon Gallardo Sr., and his wife Carmen, the latter of whom
grabbed a shotgun carried in a port arms position by the SET commander.
Dinuba Officer Jon Reinnecius broke the grasp Carmen Gallardo had on the
shotgun of the SET commander. At the same time, Ramon Gallardo Sr. was
struggling with Officer Cruz Balderas, who was armed with a Glock .40
caliber semi-automatic pistol. Gallardo punched Balderas numerous times
in the torso and then, at one point, grabbed his hand and the gun,
causing the gun to accidentally discharge.
Almost immediately, both
Officers Balderas and Reinnecius, who was armed with a 9 mm MP5, saw
Ramon Gallardo Sr. standing near the wall of the bedroom holding a
switch-blade type knife in his hand. Gallardo began advancing toward
Balderas and Reinnecius who were in close proximity. Officer Balderas
fired his Glock one time at the advancing Gallardo, while Officer
Reinnecius recalled firing his MP5 a single time as well. Evidence
gathered following the shooting indicated that Balderas’ Glock had, in
fact, been fired twice, the first round being the accidental discharge
and a second round being discharged intentionally as Mr. Gallardo
advanced on the officers. Evidence gathered after the incident also
indicated that 14 rounds had been fired from the MP5 which was, in all
likelihood, set on three round bursts. Thus, it was concluded that
Officer Reinnecius had actually pulled the trigger of the MP5 five
separate times in a span of approximately 6 seconds. The entire time of
the firing from the first accidental discharge by Officer Balderas to
the final round being fired was 8.2 seconds.
In the ensuing civil
trial, there was a dispute as to whether Gallardo, who died instantly,
had been struck by 13 or 14 bullets from Officer Reinnecius’ MP5.
There was also a dispute concerning whether the first accidental
discharge of Officer Balderas’ .40 caliber Glock may have struck
Gallardo in the hand/wrist area, thereby fracturing his wrist and
rendering him incapable of holding a knife.
Additionally, in the
civil trial, the plaintiffs and their experts would contend that
Gallardo did not own a switch blade type knife which was recovered at
the scene, that he did not threaten the officers with it during the
incident, claiming that the officers planted it to justify their use of
weapons. Their experts would also testify that, even if Gallardo would
have held a knife in his hand, as claimed by the officers, the first
round fired accidentally by Officer Balderas would have rendered
Gallardo incapable of holding the knife, thereby making it unnecessary
for the officers to fire numerous additional rounds which proved fatal
to Gallardo.
In the aftermath of the
shooting, at the direction of the former police chief, and with the
assistance of the day-shift patrol watch commander, Sergeant Darrell
Tully, five members of the Gallardo family present at the scene of the
shooting were taken to the Police Station, detained, and questioned by
investigators of the Tulare County Sheriff’s Department. Neither the
sawed-off shotgun, nor the .380 pistol, were located in the search
following the incident. The informant who alleged that the shotgun had
been sold to Jesus Gallardo subsequently admitted that he had lied
concerning this claim.
The Lawsuit: Carmen
Gallardo, her 13 children, a granddaughter, and a family friend who was
inside the house when entry was made and later detained at the Police
Station, retained a large San Francisco law firm of very capable and
effective lawyers to sue the City of Dinuba, the City of Visalia, and
the Tulare County Sheriff’s Department for the events occurring on
July 11, 1997. The case of Gallardo v. Reinnecius, et al., was filed in
the United States Federal District Court for the Eastern District of
California in Fresno. The case was assigned to Federal District Court
Judge Oliver Wanger for pretrial and trial. The City of Visalia settled
the case in its early stages. For various reasons, the plaintiffs
decided not to pursue the lawsuit against the Tulare County Sheriff’s
Department, leaving only the City of Dinuba, its police chief, the SET
members, and Sergeant Tully as defendants.
At one point prior to the
beginning of the trial, the plaintiffs made a Motion for Summary
Judgment relating to the alleged false detention and arrest of the five
Gallardo family members by the Dinuba Police Department. Judge Wanger
granted the plaintiffs’ motion for summary judgment, finding that
former Police Chief Emilio Perez, and Sergeant Tully had falsely
arrested/detained the Gallardo family members by taking them to the
Police Station for questioning. Although there was evidence that Chief
Perez, in particular, had advised Mrs. Gallardo and the others that they
could stay on the front lawn of the residence and be interviewed by
Sheriff’s Department personnel there, they requested, according to
Perez, to go to the air conditioned Police Station. Sergeant Tully had
arranged transportation for the family members in Dinuba police cars at
the direction of Perez. Nevertheless, Judge Wanger found that neither
Perez nor Tully had informed the Gallardo family members that they had
no legal obligation to accompany officers to the Police Station to be
interviewed and that some type of affirmative admonition should have
been given. Absent such an admonition, according to Wanger, the Gallardo
family members were both transported and detained at the Dinuba Police
Department against their will and unlawfully. For lawyers and police
SWAT members who have been in this type of situation before, Judge
Wanger’s ruling on this issue came as a surprise, since it has become
a rather common and universal practice by law enforcement officials to
merely request that witnesses to officer-involved critical incidents
submit themselves to interviews without simultaneously advising the
witnesses that they had no legal obligation to do so.
When Wanger held that, as
a matter of law, the five Gallardo family members had been falsely
arrested and detained, the only issue remaining on that matter was the
amount of damages which were owed to those individuals.
The remaining claims of
the plaintiffs, for violation of civil rights under the Fourth and
Fourteenth Amendments, unlawful entry into the Gallardo family home in
violation of the Fourth Amendment, wrongful death, and negligence, along
with the amount of damages owed to the five family members concerning
the unlawful detention/arrest issue, became matters to be tried before a
jury.
The Evidence: As
those who attended my recent class at the PORAC Symposium in Palm
Springs will recall, I discussed the importance of a careful analysis of
available physical/tangible evidence in police shooting cases, and
presented a discussion of the physical evidence I introduced before a
Federal Court jury in last years prosecution of State Correctional
Officer Christopher Bethea at Corcoran Prison for the fatal shooting of
an inmate. In the Gallardo case, the physical/tangible evidence relating
to the shooting of Mr. Gallardo was carefully analyzed and presented by
both the plaintiffs and the defendants, but the jury verdicts made it
clear that the analysis and determinations presented by the plaintiffs
were far more compelling.
Actually, I became aware
of this incident before I was asked by Larry Friedman and the Legal
Defense Fund to provide assistance to Officers Reinnecius and Balderas
concerning punitive damage claims made by the plaintiffs in the civil
suit. One day, while talking to police special tactics and weaponless
defense expert Don Cameron about an unrelated matter, he mentioned to me
that he was testifying as an expert witness for the plaintiffs in this
case. Since Cameron does not often testify for plaintiffs in cases
involving alleged police misconduct or inappropriate procedures, I asked
him some questions about the case. He told me that virtually all of the
rounds fired by Officer Reinnecius, as well as perhaps the single round
fired intentionally by Officer Balderas, had entered the body of Mr.
Gallardo, and had then exited the body and gone into either furniture,
the wall, or the floor of the Gallardo bedroom. The trajectory of the
bullets through Gallardo’s body and into fixed objects, according to
Cameron, made it reasonably clear that many of the rounds fired at Mr.
Gallardo by the officers had been fired in a downward motion, either
when he was falling or, even possibly, when he was already down on the
ground. In either event, Cameron indicated that the bullet holes found
in either furniture or the walls were found very close to the ground,
and belied claims by the Dinuba officers that Gallardo was standing in
an upward position and advancing at them with a knife was they fired
their rounds.
In my opinion, having
both followed the civil trial and read many transcripts of testimony by
various experts, it seems reasonably clear to me that the plaintiffs’
presentation of this evidence, and a rather scattered and unconvincing
discussion by the defense of "human factors" which effect
perception and reaction time in a situation such as this, led to the
eventual disastrous jury verdict in this case.
My Role as LDF Counsel
in this Case: When the lawsuit
was initially filed by the plaintiffs, Officers Reinnecius and Balderas
had contacted the PORAC Legal Defense Fund and requested representation
under the civil defense portions of the LDF plan. Sergeant Tully, for
reasons which I’m sure he would regret later, did not call and request
representation until much later in the case.
At one point, Larry
Friedman, the LDF legal administrator, contacted me and advised me that
Darrell Glahn, the LDF attorney who monitors and oversees civil cases
for LDF members, had become concerned enough about the facts of the case
to want a closer examination undertaken concerning the exposure of both
Reinnecius and Balderas for punitive damages. It was probably only a
matter of a week or two after I had talked to Don Cameron about the case
that Friedman contacted me and requested that I take a look at the
punitive damage issue relating to these two officers. It was not long
after that, that I received from LDF some deposition transcripts of
various members of the Dinuba SET, including Officers Reinnecius and
Balderas. I also contacted Jim Weakley and Rosie McGuire, the two
attorneys hired to defend the City of Dinuba, its police chief, Sergeant
Tully, and all of the SET members in the lawsuit. I obtained additional
materials and information from Weakley and McGuire concerning the status
of discovery, some of the disputed factual and legal issues, and the
prospect for settlement.
Needless to say, as I
reviewed more and more materials concerning the case, my interest in
seeing the case settled prior to trial gained momentum. Unfortunately,
in my various discussions with Weakley and McGuire, I was led to believe
that settlement of the case was next to or completely impossible.
One of the most
significant issues I had to resolve was whether or not to associate into
the case so that I could actively engage in discovery on behalf of
Officers Reinnecius and Balderas, and represent them at the trial, or
whether to merely "lay in the weeds" to provide whatever
assistance I might to the officers and the city’s attorneys behind the
scenes. In making a decision on this issue, I weighed heavily the fact
that the city’s attorneys told me that they believed Officers
Reinnecius and Balderas had acted entirely appropriately, consistent
with the law and department policy in connection with the fatal shooting
of Gallardo. The city’s attorneys also stated that they had conveyed
their conclusions on this matter to city officials, who were apparently
also supportive of the officers and their actions in connection with the
incident.
As I read more deposition
testimony, including that of the SET members and experts for both sides,
and reviewed various documents, it became clear to me that there was a
serious issue concerning both the adequacy of training received by the
Dinuba SET members between its formation in approximately February 1997
and the execution of this search warrant some five months later.
Similarly, there was an issue concerning the adequacy of planning as
well as the strategy for executing the search warrant in this matter.
Finally, there was an issue concerning the lack of distinctive police
markings and identification on the camouflage uniforms worn by the SET
members.
Faced with the reality
that the city’s attorneys and city officials were supportive of these
officers, and that my entry into the case would most likely drive a
"wedge" between the city and these two officers because of
issues relating to the training they received and the adequacy of
planning, as well as the strategy for executing the warrant, I decided
that it was best that I stay in the background and continue to nurture
the support these officers had been promised by the city, hoping all the
while that the verbal support would translate into financial support in
the event damages of any type were awarded.
The lead counsel for the
plaintiffs in this case was a very strong, well prepared, aggressive and
effective advocate for his clients. For that reason, it would have been
wonderful for me to have done battle with him and his team of lawyers on
behalf of Officers Balderas and Reinnecius. On the other hand, I could
not help but think that my active involvement in the case could backfire
and cause the city to withdraw its support for these two officers.
The Verdict and
Eventual Settlement: On March 12,
1999, following a nine day jury trial and three days of deliberations,
the jury found that the defendants had violated plaintiffs’ civil
rights, had caused the wrongful death of Ramon Gallardo Sr., and had
been negligent. They returned a verdict in favor of the 16 individual
plaintiffs in the total amount of $12,675,000. Much to my surprise, when
jury instructions had been submitted to the judge for consideration by
both sides, the judge had agreed to instruct the jury on a standard for
punitive damages which is typically seen in state courts (malice,
oppression, fraud, and despicable conduct), instead of a more lenient
punitive damage instruction which is typically given in federal civil
rights cases (actions undertaken in violation of the plaintiff’s civil
rights, or in reckless disregard of the plaintiff’s civil rights). As
a result, the jury did not award punitive damages against either
Balderas or Reinnecius, even though they found that both officers had
violated the Constitutional rights of Gallardo by unlawfully taking his
life, had wrongfully caused his death, and had been negligent in the
manner in which they used their weapons.
The jury award was
substantial, in part, because in addition to awarding damages to
Gallardo’s widow, Carmen, the jury also awarded substantial damages to
the 13 children and to the granddaughter and family friend who were in
the house when entry was made.
Punitive damages were
awarded by the jury only against Chief Perez in the amount of $10,000
and against Sergeant Tully in the amount of $10,000, for the unlawful
arrest and detention of Carmen Gallardo and four other family members
following the shooting. Needless to say, after the jury awarded punitive
damages against Tully, he contacted the Legal Defense Fund and requested
representation to assist him in connection with dealing with that award.
At that point, my task, on behalf of Tully, was to ensure that the city
and its insurers attempted to settle the case by payment of the punitive
damages on behalf of Sergeant Tully. Both the city’s attorneys and I
sent letters to the city council demanding that the council agree to pay
the punitive damage award against Sergeant Tully as part of settlement
of the case.
Ultimately, the city and
its lawyers filed a Notice of Appeal, and the plaintiffs and defendants
then entered into mediation which resulted in a settlement of the case
(and payment of the punitive damages awarded against Sergeant Tully) for
a sum of $6 million. At that point, I thought the problems for my three
clients were over.
The Discipline of
Sergeant Tully and Officers Reinnecius and Balderas Three Years Later: Shortly
after the verdicts were announced in the case, Police Chief Emilio Perez
resigned, and after a period of time in which an interim chief served,
the city hired another police chief to replace Perez.
Within weeks of the new
chief’s arrival, and very soon after the case was settled and
settlement documents executed by all parties, the new police chief
notified Sergeant Tully of his intent to demote Tully for the alleged
false arrest and detention of Mrs. Gallardo and the four other family
members. Similarly, the chief announced that he intended to suspend
Officer Balderas for 40 hours and Officer Reinnecius for 120 hours for
their improper use of lethal force during the incident. Ironically, the
Notice of Intent to Discipline all three of these individuals appeared
almost three years to the day of the date of the underlying incident.
Needless to say, LDF had
not hired me to represent any one of these three employees in a
disciplinary case, but a disciplinary case had now, regrettably, evolved
out of the unfortunate aftermath of the civil case. When I contacted the
new police chief, it became very clear to me that he had been directed
to undertake an investigation and initiate disciplinary proceedings
against these officers. In doing some homework on the case, it was also
clear to me that the direction had come from the city manager, and it
was not hard for me to ascertain that the motivation behind the
discipline was pressure being felt by the manager to show constituents
in the city that the hefty jury award and settlement was attributable to
the conduct of these three employees. I filed an appeal and request for
arbitration on behalf of Sergeant Tully and Officers Reinnecius and
Balderas. Ultimately, arbitrator Philip Tamoush was selected by the
sides to serve as the arbitrator. The arbitration consumed two days of
hearing on April 2 and 3, 2001.
During the arbitration
itself and in closing briefs, I reminded the arbitrator that, since the
city had predicated discipline upon the jury verdicts in the case, the
city could not ignore the fact that the jury issued special verdicts
specifically finding that the former police chief, as well as the
"City of Dinuba" had "adopted a wrongful practice that
legally caused violation of Fourteenth Amendment rights or failed to
properly train and/or supervise Officers Reinnecius and Balderas."
The jury also found that both Chief Perez and "the City of
Dinuba" had adopted a wrongful practice that caused unlawful entry
into the Gallardo family home and had failed to train or supervise
defendants who had unlawfully entered the Gallardo family home.
I called Don Cameron as a
witness at the arbitration to testify that the training which had been
provided to the Dinuba SET members concerning high risk entries in the
approximate five months prior to the execution of this search warrant
had been woefully inadequate. Indeed, while POST normally mandates that
SWAT members receive a minimum of 80 hours of specialized training in a
certified course, the Dinuba SET members had conducted only
approximately 15 hours of training under the direction of its SET
commander. Much of the training was on subjects other than tactics or
procedures relating to high risk entries. Although Officer Reinnecius
had fired the MP5 submachine gun a number of times some years earlier,
before the former Dinuba SWAT had been disbanded, Officer Reinnecius
believed that he may not have fired an actual live round from the MP5
for as much as four to five years before this incident occurred on July
11, 1997.
Testimony and evidence
was introduced that neither Officer Balderas nor Officer Reinnecius
played any role in either the planning or the formulation of strategy
for entry into the Gallardo residence, and that the lack of consistent
and distinctive markings on the camouflage uniforms of the Dinuba SET
members was a function of budgetary constraints rather than a conscious
or deliberate decision by any of the SET members to wear uniforms which
failed to identify the individuals as police officers. Former Chief
Perez testified that, even though the city manager had enthusiastically
requested the reformation of the former SWAT as the SET, there was no
training budget whatsoever for the SET. As a result, the team members
had to do whatever training they could with limited amounts of time and
budgetary constraints. This precluded the team members from firing
sufficient rounds to become thoroughly familiar with their weapons and
become precise in executing high risk entries.
With regard to the
demotion of Sergeant Tully for his alleged "involvement" in
the detention of Mrs. Gallardo and the four other family members at the
Dinuba Police Station for questioning, former Chief Perez and Tully
testified that it had been Perez who made the decision that the family
members be transported to the Police Station. Tully had been directed by
the chief to obtain transportation and had done so.
Mike Schott, our legal
investigator, all around genius and tactical expert (formerly a member
of the Contra Costa County Sheriff’s Department SWAT) also testified.
Schott had authored an article entitled "Critical Incident
Management for Patrol Supervisors" which discussed procedures
typically employed by SWAT members or patrol supervisors in the
aftermath of an officer-involved shooting. In addition, Schott
introduced a series of policies of various agencies, including a policy
of the International Association of Police Chiefs, which validated a
procedure of transporting witnesses to an officer-involved shooting to
the Police Station for questioning as had been done in this case.
As a result of the
testimony concerning Sergeant Tully’s discipline, it became clear that
the five individuals had been transported to the Dinuba Police
Department for questioning at the direction of the police chief after he
conferred with Tulare County Sheriff’s personnel, and that Tully had
no role in that decision. It was also clear from the testimony of Schott
and the various policies he introduced, that even the decision of Chief
Perez was not inconsistent with written policies of numerous police
agencies, the ruling by Judge Wanger on this issue notwithstanding.
At the conclusion of the
hearing of the arbitration, and following submission of briefs by both
sides, arbitrator Tamoush rendered his decision. He set aside entirely
the demotion of Sergeant Tully. He reduced the suspension of Officer
Reinnecius from 120 hours to 40 hours. He upheld the 40 hour suspension
of Officer Balderas. The arbitrator’s determination to reduce the
suspension of Reinnecius was undoubtedly based upon the fact that both
Reinnecius and Balderas had been charged with identical violations of
the Dinuba Lethal Force Policy, and had been on the police department
virtually the same amount of time with very commendable employment
records. The only distinction which the police chief could offer at the
hearing for imposing greater discipline against Officer Reinnecius than
Officer Balderas was the fact that Reinnecius pulled the trigger of his
weapon more times than Balderas did.
Much to my
disappointment, arbitrator Tamoush declined to rescind the discipline
against all three individuals entirely, based upon my argument that the
case of Brown v. State Personnel Board, 166 Cal.App. 3d 1151
(1985) very clearly denounces an employer’s attempt to discipline an
employee three years after the alleged misconduct has occurred.
During my opening
statement at the arbitration, my examination of witnesses, and in my
closing brief, I offered very few kind words to the city manager for
refusing to accept responsibility for any of the violations announced by
the jury. The conduct of the city in this case was particularly
distasteful because the former police chief had wanted to initiate an
internal investigation of the shooting immediately after it had
occurred, but had been told that he should wait, undoubtedly because of
the prospect of civil liability. In the event an investigation had been
conducted on a timely basis, and a determination made that any one of
these employees had acted improperly, they would have had the right to
be afforded legal counsel at city expense separate and apart from the
attorneys representing the city. It was my argument, and remains my
belief, that the city leaders purposefully delayed an internal
investigation of this incident fearing that an adverse finding against
the officers would not only cause greater exposure to the city’s
position in underlying civil litigation, but could cause the city to
have to hire a slew of additional lawyers to represent officers whose
interests conflicted with those of the city.
Lessons to be Learned:
With every case I handle, there
are lessons to be learned. I learned long ago that remaining bitter
about the way politics often interfere with impartial decision-making
and fairness to my police officer clients will never change the reality
of the phenomenon. However, when all is said and done, this case holds a
wealth of information concerning issues concerning SWAT member training,
high risk entry planning and strategy, and execution of the plan once
made. The evidence surrounding the shooting and the analysis of the
scene is a textbook for criminalists and forensic investigators. Since I
was relegated to watching other lawyers do a trial, I must confess that
watching the tenacious, well prepared, confident, and at times almost
flamboyant lead counsel for the plaintiffs, I became even more convinced
that the art of aggressive and sincere but passionate advocacy by
lawyers, which I have always tried to follow, can often make the
difference between winning and losing in the courtroom.
My experience with the
aftermath of the civil verdicts and the untimely and politically
motivated discipline imposed upon my clients also reaffirmed my belief
in the accuracy of an observation made by writer George Orwell in a
famous essay he wrote many years earlier entitled "Politics and the
English Language," where he offered up the thought that "all
issues are political issues," and that politics is a
"mass" of folly, hatred, euphemism, question begging,
paranoia, and schizophrenia. Having, I am sure, just offended some of my
good friends in PORAC, I think it is time to bring my Dinuba saga to a
close.
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