In the classic 1983 film A Christmas Story, adults repeatedly caution a boy named Ralphie he will shoot his eye out with the Daisy Red Ryder BB gun he covets. And once he received the toy, he somehow manages to hurt himself, though without permanent injury. But in Anaheim, an after-dark incident involving the same make of toy gun carried much deadlier real-world consequences.
On the night of Jan. 7, 2012, Bernie Villegas and Tristan Rosal turned the visitor parking lot of an Anaheim apartment complex into their own personal firing range. Villegas, a 36-year-old father of two, had given a Red Ryder BB gun to his son, but he wanted to have a little fun with it himself. At 10:49 a.m., when he and Rosal began blasting pellets at a propped-up plastic Pine-Sol bottle, a concerned neighbor phoned the local police with the description of a known drug dealer toting a shotgun.
Within minutes, four officers arrived on the scene, parking their patrol cars on West Ball Road. Policemen Nick Bennallack, Brett Hietmann, Matt Ellis and Kevin Voorhis advanced in a military-style “diamond formation.” Turning a corner, they happened on Rosal and Villegas, who was holding the BB gun by the end of its barrel, with the wooden stock resting on the ground. Bennallack and Hietmann ordered Villegas and Rosal to put their hands up. Villegas raised the BB gun pointing upward with his hands. In quick succession, Bennallack fired five shots, which ripped through Villegas and killed him instantly.
The Villegas family filed a $20 million federal lawsuit against the city of Anaheim and its police department in October 2012, two months before an Orange County district attorney's office (OCDA) report cleared Bennallack of wrongdoing. The complaint alleged that Bennallack had an itchy trigger finger, gunning down Villegas without warning or provocation. In 2014, U.S. District Court Judge Cormac J. Carney sided with police by blocking a civil trial and sticking the Villegas family with the Anaheim Police Department's legal costs.
In late May 2016, when the case reached the Ninth Circuit Court of Appeals, a three-judge panel in San Francisco reversed a critical part of Carney's decision. Judge John B. Owens pointed to key discrepancies in the officers' recounting of the shooting, particularly that of Bennallack. “In Bennallack's account, Villegas moved quickly to grab the gun near the end of its barrel with one hand and lift it about a foot off the ground,” Owens wrote of his judgment. “His other hand was not near the trigger area, and Villegas did not point the gun in the officers' direction.”
The notion that a quick-draw shootout was about to happen isn't consistent with statements by Bennallack's fellow officers, none of whom could provide details of the time between police commands for Villegas to raise his hands and drop the weapon. “Viewing the facts in this light, deadly force was not objectively reasonable,” Owens continued. “The district court erred in holding that Bennallack's use of deadly force was justified as a matter of law and in granting summary judgement on that basis.”
In defense of the officers' actions, Anaheim assistant city attorney Moses Johnson argued that the diamond formation and apartment-complex layout account for the inconsistencies in their statements, with Bennallack's recollections being the most accurate. While weighing the potential truth of that, the Ninth Circuit called it a “quintessential jury question.”
The appellate court didn't scrap all of Carney's work. The oft-used legal doctrine of qualified immunity grants protection if officers don't knowingly violate a person's rights at the time of the alleged misconduct. “We agree with the district court that it was not clearly established on Jan. 7, 2012, that using deadly force in this situation, even viewed in the light most favorable to Plaintiffs would constitute excessive force under the Fourth Amendment,” Owens wrote.
Qualified immunity doesn't shield the officers against state law claims, though, and with that, the Ninth Circuit essentially revived the Villegas family's lawsuit. Traveling back from San Francisco, arguments in the case resumed July 28 before Carney in Santa Ana's Ronald Reagan Federal Courthouse. “Judge Carney asked me what I wanted to do, and I told him I want the case remanded back to Superior Court,” says Federico Sayre, an attorney for the Villegas family. The judge agreed, pending Johnson's request that the case be appealed before the United States Supreme Court.
The Villegas reversal joins a list of wrongful-death lawsuits involving Anaheim police in recent years that the Ninth Circuit brought back to life. In March 2014, the court revived the excessive deadly force claim for Adolph Anthony Sanchez Gonzalez, citing a “significant inconsistency” in officers' testimony. In that 2009 shooting, Anaheim officers Daron Wyatt and Ellis pulled over the 21-year-old, even though he committed no traffic violation. They claimed Gonzalez refused police commands and tried to sneak something into his mouth. The cops entered his van and pummeled Gonzalez with their fists and flashlights, but he managed to put the van in drive with Wyatt still in it. Wyatt feared for his life and shot Sanchez nearly point-blank to the head.
Originally, two out of three circuit judges affirmed a lower court's decision to toss a wrongful-death lawsuit in 2013. Later that year, judges re-opened the case after the National Police Accountability Project called into question the speed and distance the van traveled, while noting the only non-police witness, Gonzalez, is dead. The hearing went before the entire bench of the Ninth Circuit before being given a second chance.
In August 2014, the legal battle over the death of Caesar Cruz landed in the Ninth Circuit. In that case, five Anaheim police officers tailed Cruz into a Wal-Mart parking lot in December 2009, then opened fire when, they claimed, the 35-year-old reached for his waistband. The OCDA justified the killing, and a district court judge tossed out the wrongful-death lawsuit that followed. But the Ninth Circuit cited “curious and material factual discrepancies” in the police account, asking why Cruz would reach for a gun not on his person. The Cruz family settled with the city last year for $175,000.
“I don't think it matters much,” Sayre says of the Ninth Circuit reversals. The court revived a lawsuit he previously handled in 2003 for Brian Drummond, a man Anaheim police left in a permanent vegetative state for more than seven years. Sayre lost the civil trial that followed, but he negotiated a $145,000 settlement for the Drummond family in 2009. “Anaheim lives in Neverland,” he says. “It's millions for defense, but not a penny in tribute.”
Anaheim's city attorney's office declined to provide a comment for this story.
Meanwhile, another reversal from the Ninth Circuit in an Anaheim case may yet still be in the works. Seven months after killing Villegas, Bennallack slugged an unarmed Manuel Diaz in the butt and back of the head during a foot pursuit, a deadly shooting that sparked riots in Anaheim that summer. After losing a civil trial in 2014, the Diaz family attended a July 7 hearing in San Francisco. Johnson faced tough questions from the panel of judges about why Bennallack feared for his life before opening fire.
“It was either a black cloth, a black bag, nobody was certain exactly what it was,” Johnson muttered about what Diaz allegedly pitched.
“These gang members aren't using cloth guns these days, are they?” Judge Algenon Marbley sardonically asked.
“No, but the gun could have been wrapped in a black cloth,” Johnson replied.
“Okay, well, if he was throwing it away,” Marbley followed up, “what's the point in shooting him?”
A decision is expected in the coming months.
