Fresno Police Chief Jerry Dyer said in court Tuesday that in a high-tension pursuit involving an officer, a suspect can pull a gun and shoot in less than a second.
When an officer is in a confrontation with a possibly armed suspect who makes a sudden move, the officer knows from training that he must decide in a split second to defend himself or the lives of bystanders.
"The officers don't have the luxury to make a decision that we as a department, as investigators, make later," Dyer said during testimony in a federal wrongful-death trial involving his department.
Dyer was on the stand for a second day in U.S. District Court in Fresno. At the start of the day, attorneys representing the family of Steven Anthony Vargas -- who was shot and killed in October 2009 by Sgt. Mike Palomino -- continued to question the chief about 10 shootings they maintain are part of a pattern of unjustified shootings by Fresno police during Dyer's tenure as the city's top cop.
At day's end, Palomino took the stand for the second time in the trial and described a chaotic scene that ended with him shooting Vargas. It had similarities to the situation Dyer had earlier described.
"This wasn't the perfect world. This wasn't the perfect call," he said.
There were civilians around, and a school and an apartment complex nearby. A witness said that Vargas had either a gun or some type of weapon.
"At the time I fired my weapon, I felt there was no alternative," he said.
Palomino's testimony ended a day in which he, the city and Dyer had their chance to rebut claims by Vargas family attorneys Wesley Overson and Arturo Gonzalez, who earlier had gone through the 10 shootings in which suspects were shot but later found to be unarmed.
One of those was Vargas.
In earlier testimony, Dyer told the jury that during his decade as police chief, only two officers have faced disciplinary actions for shooting someone with a gun -- and those were personal, domestic-related incidents.
Every other shooting under his watch, including that of Vargas, was found to be justified, he said.
Two cases that have been a flashpoint in the trial are the shooting of a man after he allegedly tried to rob an ice-cream vendor and another in which a suspect -- cornered on a landing inside a warehouse and wielding a metal pipe -- was shot.
In the case of the ice-cream vendor, Gonzalez said an officer shot three times even though a chain-link fence separated them, meaning the officer was in no immediate danger. In the other, Gonzalez said the man was on a landing well above police and also was no danger to police.
In cross-examination, Dyer said the ice-cream vendor suspect had been chased for a long time, and after the suspect scaled the fence, the officer followed him. While on the fence, the officer saw a knife in one of the man's hands and his other hand concealed in his waistband. Fearing for his safety, Dyer said, the officer drew his gun and fired.
"I thought he acted very courageously in pursuing this individual on foot," Dyer said.
In the warehouse case, the suspect could have thrown the pipe at officers, Dyer said. He was threatening and was later found to have written a suicide note, the chief said. He said the man likely wanted to be killed by police. Instead, the shots only injured the man.
Dyer also rebutted his earlier testimony that no officers involved in shooting a suspect received additional training or had been reprimanded.
He said an outside agency with rigorous standards has certified Fresno's police training standards and protocols. He also said the California Peace Officers Standards and Training organization audits department records to ensure officers maintain a standard established by the state.
In addition, Dyer said, Fresno officers constantly receive training at the department's regional training center. Dyer said much of it involves "perishable skills training," which are skills that can erode over time if not maintained.
Dyer also cited the department's Early Alert system as an effective program that can point out officers whose conduct raises a red flag. But a just-released audit of the department by former police auditor Eddie Aubrey found several flaws in the program.
Dyer said he saw no reason for "remedial action" or "corrective measures" for Palomino in the Vargas shooting. The case is not officially closed because Dyer has yet to receive a final letter from the Fresno County District Attorney's Office that the shooting was legally justified.
Besides Dyer, another witness testified Tuesday -- Aurelio Santiago, the person who flagged down Palomino on Oct. 27, 2009, after Vargas had crashed his SUV into a van on the lawn of a home on McKinley Avenue near Cedar Avenue.
Santiago generally supported Palomino's version of events, including the contention that Vargas may have had a gun and was also high on PCP.
On cross-examination, however, Gonzalez was able to blunt some of his testimony, including whether he told police that Vargas had a "gun" or simply a "weapon." Santiago also seemed confused about other details of the day.
Tuesday's session started with U.S. District Judge Anthony W. Ishii rejecting a request by Gonzalez to use parts of Aubrey's report as evidence.
Ishii found that the report, which covers 2010, was not relevant in the trial. Vargas was shot in 2009.
Gonzalez wanted to use parts of the report to back his contention that Fresno police have engaged in a pattern of unjustified shootings, including that officers did not seek cover during a confrontation with a suspect and that police shot at a fleeing suspect who was not an immediate danger.
The reporter can be reached at [email protected] or (559) 441-6320.
Copyright 2011 - The Fresno Bee, Calif.
McClatchy-Tribune News Service
