Retrial ordered in suit over man's killing by California cop

AP News
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Posted: Aug 24, 2016 8:48 PM

LOS ANGELES (AP) — A federal appeals court ordered a new trial Wednesday in a lawsuit brought by the mother of a gang member whose killing by an Anaheim police officer four years ago sparked nights of raucous protests.

The 9th U.S. Circuit Court of Appeals ruled that the trial judge allowed harmful, inflammatory evidence that was irrelevant in determining whether the police officer used excessive force.

A jury in Orange County federal court found in favor of the city of Anaheim and Officer Nick Bennallack in the fatal shooting of Manuel Diaz. He was shot in the back after running from the officer down an alley in Anaheim in July 2012.

Bennallack said he shot Diaz during a short foot chase because he thought he had a gun and was preparing to fire it. Diaz, who was not suspected of any crime at the time of the chase, was unarmed.

The shooting of Diaz and another man on consecutive days led to four nights of large street protests that included looting and bottles being tossed at riot police. Officers fired bean bags and pepper balls to disperse crowds.

Diaz's mother, Genevieve Huizar, sued the city and Bennallack for excessive force and battery.

Her attorneys argued that the trial should be split into separate liability and damages phases. They also argued that evidence of Diaz's gang affiliation and drug use should be excluded because the officer didn't know at the time that Diaz was a gang member and under the influence.

In the appellate ruling, Judge John Owens said the trial judge erred in not dividing the trial into separate phases and failed to limit gang and drug evidence, which should only have been admissible to determine damages.

"As a result, the jury was exposed to a copious amount of inflammatory and prejudicial evidence with little (if any) relevance," Owens wrote.

Attorney Melanie Partow, who represents Huizar, said many excessive force cases focus unfairly on the character of the person who was shot. She said she was thrilled with the opinion and Huizar was overwhelmed when she let her know.

"She was crying," Partow said. "She's just thankful she gets a second chance to get justice for her son."

A spokesman said the city was disappointed with the decision, but it would continue to see the case through the legal process.