No charges in police murder case that ignited Anaheim unrest
March 20, 2013
Officer Nick Bennallack was on a gang-enforcement patrol in the Anna Drive neighborhood on the afternoon of July 21 when he pulled up to a small group of men. Manuel Diaz, 25, a convicted gang member, bolted, the Orange County District Attorney’s Office concluded.
The officers gave chase, down an alley and into the front yard of an apartment house. There, Bennallack fired two shots, one hitting Diaz in the back-right side of his head, the other hitting him in his right buttock, District Attorney Tony Rackauckas said.
The police association said shortly after the shooting that officers saw Diaz pull something from his waistband and turn. Diaz was found to be unarmed; investigators found a cell phone registered to Diaz, as well as the two ammunition cartridges from Bennallack’s gun and a drug pipe, the District Attorney’s Office said.
Diaz’s mother, Genevieve Huizar, said she plans to stage a demonstration Thursday morning in front of the courthouse in Santa Ana.
“This is completely unjustified,” Huizar said. “The D.A. appointed himself the judge and jury for this officer. I’m never going to stop fighting until Nick Bennallack is in prison.”
Huizar has sued Anaheim for $50 million. Her attorney, Dana Douglas, said several witnesses reported seeing Diaz hit first in the buttocks. He fell to his knees, she said, and then was hit in the back of the head.
The D.A.’s account of events and his decision not to file charges does not change anything about the family’s civil lawsuit, Douglas said.
“This is exactly the result we unfortunately expected,” she said.
Bennallack said in a statement to investigators that he fired because he thought Diaz had a gun and was about to shoot at him and the officer with him. The other officer, Brett Heitmann, told investigators that he heard Bennallack shout something like “Guhhh!” immediately before the shooting, which he took to be the start of a warning: “Gun!”
The District Attorney’s Office concluded that Bennallack believed he was in imminent danger of being killed by Diaz, Rackauckas said.
“It is our legal opinion that the evidence does not support a finding of criminal culpability on the part of Officer Bennallack,” Assistant District Attorney Dan Wagner said. “There is significant evidence that the officer’s actions were reasonable and justified under the circumstances.”
At the time of the shooting, Bennallack was under investigation in an earlier fatal shooting at an Anaheim apartment building. The District Attorney’s Office cleared him in that unrelated January 2012 shooting a few months ago.
Bennallack is a five-year veteran and a department rookie of the year. He returned to duty two weeks after the shooting of Diaz, after officials reviewed preliminary results of their investigation.
On Anna Drive on Wednesday, few residents wanted to speak about the District Attorney’s Office’s findings, saying they were afraid to give their names after a gang sweep targeted the neighborhood last year.
But Margarita Flores, 42, who runs a produce truck on Anna Drive, said the officer should have faced charges.
“What he did was not right,” she said. “Those who were fond of (Diaz) are going to be mad – against the police, against everybody.”
The Diaz shooting touched off more than a week of unrest in Anaheim and helped expose deep and long-standing divisions in the city.
It started in the hours after the shooting, when residents who knew Diaz from the neighborhood gathered at the site, yelling at officers and demanding answers. Officers fired bean-bag rounds and pepper balls into the crowd at close range; a police dog charged into the crowd, toppling a baby stroller and biting at least one person.
Anaheim police Chief John Welter later apologized, saying the police dog broke loose from its handler.
A few nights later, after another fatal police shooting about which D.A.’s Office has not issued a report, a crowd estimated at 1,000 gathered in front of Anaheim’s City Hall, where a City Council meeting was under way. Some had come to demand greater accountability for police and a greater voice for neighborhoods such as Anna Drive. Others had come from outside of Anaheim to protest police brutality.
Scores of officers in riot gear confronted them and, when they would not disperse, fired pepper balls and bean-bag rounds at them. As the crowd scattered, a few people smashed windows and vandalized storefronts.
Justice for Manuel Diaz, Kimani Gray & all other victims of police murder now!