On the afternoon of Saturday, July 21, 2012, Manuel Diaz, a 25-year-old Latino, was talking to some friends in an alley when Anaheim police pulled up in an unmarked car. As police approached the group Manuel and the others took off, and police chased Manuel into an apartment complex.  Anaheim police officer Nick Bennallack shot him from behind, in the buttock first and then in the head. As Manuel lay face down on the lawn dying, police cuffed him, then ignored him and refused to offer medical aid. He died at a local hospital three hours later.

Bennallack claimed that Manuel Diaz was reaching for his waistband and that he threw an object—first police said onto a roof, then they said over a fence. (If an ordinary citizen who is not a cop and was under suspicion for an unlawful killing changed their story like the police did after killing Manuel they would likely be charged with murder.) The alleged object Manuel was supposed to have thrown was never recovered. Manuel Diaz was unarmed. Police said they found a cell phone nearby, and a glass drug pipe.

As always, the Orange County D.A.’s Office with D.A. Tony Rackauckas at the helm signed off on the killing. Maybe the fact that Officer Bennallack was cleared of wrongdoing after a prior shooting made him feel he had a license to kill.  Apparently, he did.

 

Nick Bennallack – not his first shooting

Manuel Diaz was Bennallack’s second victim that year, the first being Bernie Villegas, who Bennallack shot and killed in January. According to police, both victims put officers in fear of their lives, which would give them legal standing to use deadly force. However, when one pays close attention as the cops recount the events leading up to the shootings, applying a reasonable person standard, a reasonable person would not be in fear for their life. In the prior shooting, Villegas had a BB gun but was not pointing it at the officers when Bennallack opened fire.

Manuel Diaz was running away. Yes, he may have had drug paraphernalia, and that could have been why he was running. Did he pull a weapon on police? No. Is the fact that he was a young Latino male in a gang neighborhood who ran away from cops, threw something (the alleged object Manuel threw was never found) and they claimed he reached for his waistband probable cause to use deadly force?  

 

Orange County D.A. Office Rationalizes Yet Another Police Shooting of an Unarmed Suspect

The D.A. investigation cited three facts that they claim proved that Manuel could have had a gun:

  • Diaz had a prior felony conviction for gun possession “for the benefit of the gang”
  • His cell which was found after the shooting contained pictures of him posing with a gun
  • Weeks after the shooting, police raided gang members and found 40 guns

So, when is it probable cause to use deadly force if you think somebody might have a gun?  

The killer cop, Nick Bennallack, didn’t know about the prior conviction when he shot Manuel, and he did not know what pictures he had on his cell phone. All he knew was that Manuel was a young Latino male who looked like he might be gang affiliated. Nowadays everybody has tattoos and it’s the style to look like a gangsta’. He ran away and, instead of pumping his arms, his hands stayed towards the front of his baggy pants while he was running, maybe to hold them up as he ran.

 

Manuel Diaz’s Mother, Genevieve Huizar, Has Turned to Civil Litigation for Justice

Manuel Diaz’s mother, Genevieve Huizar, turned to civil litigation to obtain justice for her slain son. Genevieve filed a Civil Rights and Wrongful Death lawsuit against the city of Anaheim and Nick Bennallack in federal district court on July 24, 2012, three days after the killing of her son. The lawsuit asserts that police shot Manuel from behind, then shot him again execution-style in the back of the head after he crumpled to his knees.

On March 6, 2014, after a six-day trial and only two hours of deliberation, a federal jury found the defendants not liable for the wrongful death of Manuel Diaz. Genevieve Huizar left the courtroom in tears, but she said she would not give up and intended to appeal the District Court’s decision.

 

Federal Appeal Court Reverses the Lower Court’s Decision, Remands the Case for Retrial

On August 24, 2016, the 9th Circuit Court of Appeals overturned the District Court’s ruling and ordered a new trial. The appeal court said that the lower court allowed inflammatory evidence into the trial which had no bearing on whether or not the shooting was justified.

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Federal Circuit Court Judge John Owens said the trial should have been bifurcated (split into two separate phases), and the gang affiliation and drug use evidence should not have been introduced in the first part of the trial. The first part of the trial was to determine whether Nick Bennallack and the city is liable for use of deadly force against an unarmed suspect who was not under suspicion of a crime and was running away. Judge Owens said the evidence was irrelevant to the shooting because Bennallack did not know about Manuel Diaz’s prior conviction, gang affiliation, or drug use when he opened fire. Judge Owens wrote that the gang and drug evidence could be introduced during the second phase of the trial, to determine damages (compensation).

With the trial remanded back to the lower court, we will see whether the federal court rules that it is okay to shoot down an unarmed fleeing suspect who is not under suspicion of a crime simply because of the way he looks and the neighborhood he’s in. We pray that the federal court finds the city of Anaheim and the killer cop liable.

 

If the Federal District Court Finds the Defendants Not Liable, the Decision Can Be Appealed

If the lower court still finds that Nick Bennallack and the city of Anaheim are not liable for gunning down Manuel Diaz after inflammatory and prejudicial evidence has been barred, Genevieve Huizar can appeal the ruling to a higher court.

In Orange County, community leaders seem to feel that it’s okay to marginalize segments of our community as if they don’t count. At a recent meeting at the Episcopal Church of the Messiah, Santa Ana Mayor Miguel Pulido responded to a question about where the homeless who live at the Civic Center would go once they built a fence around a big part of the Civic Center grounds, ostensibly to repair a building. Mayor Pulido’s response was to say that these people are mostly addicts and criminals who have been released from jail [the implication being who cares where they go? These people don’t count]. When Orange County’s leaders glibly marginalize a group of people with little evidence to support categorization of an entire group, it may lead police to also feel free to marginalize people and abuse their power.

 

Civil Litigation is a Path to Justice for People Who are Marginalized and Then Attacked

We can be thankful that our founding fathers, who fought our war for independence and drafted our United States Constitution, were nothing like D.A. Tony Rackauckas and Mayor Miguel Pulido. The Declaration of Independence reads:

“We hold these truths to be self evident, that all people are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or Abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Our Civil Rights and Freedoms were hard won after years of oppression, and it is up to each new generation to fight for them anew. There will always be those who want to bully and oppress and abuse their power. We must hold them accountable to obey the law through Civil Litigation.

Recent events around the country have made it evident that we are becoming a police state, and that police are taking their cue from those in power in our local governments. Our founding fathers created the judiciary to keep abuses of power in check. It is up to us to use the power they gave us at the polls, and in the courts, to fight to enforce our rights and freedoms before we lose them.

Genevieve Huizar is demanding justice for her slain son, who was gunned down by Anaheim police officer Nick Bennallack without committing a crime or threatening the cop in any way. Her battle has been ongoing for over four years, and she will continue to fight to hold wrongdoers accountable for her son’s death, using our lawful court system to obtain justice rather than taking the law into her own hands. At Sehat Law we applaud her courage and determination—she is demanding justice for us all.

If you or somebody you know has been victimized by abuse of police power you must stand up for all of us by filing a Civil Rights lawsuit to hold wrongdoers accountable. You will not have to stand alone.  Lawyer for police misconduct Cameron Sehat and his team of dedicated attorneys and legal support professionals will stand up with you against police misconduct and help you to demand justice. Together we can defend our communities from abuse of police power.