The Dinuba Set Team Shooting – A Tragic Story about Hasty Planning, Inadequate Training, Death, a $12 Million Verdict and Undeserved Discipline by Pass-the-Buck Politicians

Posted by Mike Rains

It is hard to imagine that a small and seemingly peaceful town named Dinuba, located in the Central Valley 40 miles southeast of Fresno, would serve as the backdrop for one of the more interesting cases I have handled at the request of the Legal Defense Fund. As a former police officer conversant about high risk incidents and tactical procedures, this case was fascinating.

As a lawyer vitally interested in careful analysis of physical and forensic evidence, this matter represented a case study like none I had seen before. As someone who cares about the impact of incidents on the emotional and physical well being of my clients, I was saddened to see their eventual victimization by politicians whose fingers pointed everywhere except where they should.

The Incident: On Easter Sunday in 1997, a physician was killed in a gang-related shooting in the City of Visalia, located in Tulare County. The assailants were not apprehended, but on June 26, 1997, a 19-year-old gang member, while in custody in Visalia for a weapons possessions charge, told police that he had come into possession of the 12 gauge sawed-off shotgun used by the assailants, and had sold it to 18-year-old Jesus Gallardo, who lived in the City of Dinuba.

On July 10, 1997, the Visalia police obtained a search warrant for the Gallardo family residence, which authorized a search for the 12 gauge sawed-off shotgun, a .380 pistol, and ammunition. The face of the warrant indicated that it could be executed anytime after 7 a.m. on July 11, 1997.

Originally, the Tulare County Sheriff’s SWAT team was going to serve the search warrant, and members of the City of Dinuba’s Special Enforcement Team (SET) were going to assist the Sheriff’s Department team through perimeter assignments. However, at nearly the last minute, the Sheriff’s Department team was unable to execute the search warrant due to another commitment, and the members of the Dinuba SET were advised by their commander that they would be serving the search warrant.

As a result of the last-minute change in plans and haste of the service, the SET met at 6 a.m. on July 7, and the commander went through a hastily prepared operational plan, hand-drawn on a single piece of paper. Although the police suspected that there might be numerous individuals inside the Gallardo residence, no prior surveillance had been conducted to enable the officers to know exactly who or how many individuals they might encounter.

During the subsequent civil case, the SET commander and the police chief came under extreme criticism by experts called by the plaintiffs for the faulty planning, intelligence gathering, and even the decision to utilize the SET to make entry, since there had been a number of previous occasions in which police officers, responding to complaints or conducting investigations, had merely gone to the door in uniform, knocked, and obtained entry.

At approximately 7 a.m. on July 11, 1997, the Dinuba SET and officers from other agencies who were supposed to maintain perimeter positions arrived at the Gallardo residence to serve the search warrant using a “dynamic entry” procedure. When the officers entered the residence, they encountered a number of individuals either sleeping or just waking up in various rooms.

As officers entered the rear bedroom of the residence, a struggle broke out between them and 64 year old Ramon Gallardo Sr., and his wife Carmen, the latter of whom grabbed a shotgun carried in a port arms position by the SET commander. Dinuba Officer Jon Reinnecius broke the grasp Carmen Gallardo had on the shotgun of the SET commander.

At the same time, Ramon Gallardo Sr. was struggling with Officer Cruz Balderas, who was armed with a Glock .40 caliber semi-automatic pistol. Gallardo punched Balderas numerous times in the torso and then, at one point, grabbed his hand and the gun, causing the gun to accidentally discharge.

Almost immediately, both Officers Balderas and Reinnecius, who was armed with a 9 mm MP5, saw Ramon Gallardo Sr. standing near the wall of the bedroom holding a switch-blade type knife in his hand. Gallardo began advancing toward Balderas and Reinnecius who were in close proximity. Officer Balderas fired his Glock one time at the advancing Gallardo, while Officer Reinnecius recalled firing his MP5 a single time as well.

Evidence gathered following the shooting indicated that Balderas’ Glock had, in fact, been fired twice, the first round being the accidental discharge and a second-round being discharged intentionally as Mr. Gallardo advanced on the officers. Evidence gathered after the incident also indicated that 14 rounds had been fired from the MP5 which was, in all likelihood, set on three-round bursts.

Thus, it was concluded that Officer Reinnecius had actually pulled the trigger of the MP5 five separate times in a span of approximately 6 seconds. The entire time of the firing from the first accidental discharge by Officer Balderas to the final round being fired was 8.2 seconds.

In the ensuing civil trial, there was a dispute as to whether Gallardo, who died instantly, had been struck by 13 or 14 bullets from Officer Reinnecius’ MP5. There was also a dispute concerning whether the first accidental discharge of Officer Balderas’ .40 caliber Glock may have struck Gallardo in the hand/wrist area, thereby fracturing his wrist and rendering him incapable of holding a knife.

Additionally, in the civil trial, the plaintiffs and their experts would contend that Gallardo did not own a switchblade type knife which was recovered at the scene, that he did not threaten the officers with it during the incident, claiming that the officers planted it to justify their use of weapons.

Their experts would also testify that, even if Gallardo would have held a knife in his hand, as claimed by the officers, the first round fired accidentally by Officer Balderas would have rendered Gallardo incapable of holding the knife, thereby making it unnecessary for the officers to fire numerous additional rounds which proved fatal to Gallardo.

In the aftermath of the shooting, at the direction of the former police chief, and with the assistance of the day-shift patrol watch commander, Sergeant Darrell Tully, five members of the Gallardo family present at the scene of the shooting were taken to the Police Station, detained, and questioned by investigators of the Tulare County Sheriff’s Department.

Neither the sawed-off shotgun nor the .380 pistol were located in the search following the incident. The informant who alleged that the shotgun had been sold to Jesus Gallardo subsequently admitted that he had lied concerning this claim.

The Lawsuit: Carmen Gallardo, her 13 children, a granddaughter, and a family friend who was inside the house when entry was made and later detained at the Police Station, retained a large San Francisco law firm of very capable and effective lawyers to sue the City of Dinuba, the City of Visalia, and the Tulare County Sheriff’s Department for the events occurring on July 11, 1997.

The case of Gallardo v. Reinnecius, et al., was filed in the United States Federal District Court for the Eastern District of California in Fresno. The case was assigned to Federal District Court Judge Oliver Wanger for pretrial and trial. The City of Visalia settled the case in its early stages.

For various reasons, the plaintiffs decided not to pursue the lawsuit against the Tulare County Sheriff’s Department, leaving only the City of Dinuba, its police chief, the SET members, and Sergeant Tully as defendants.

At one point prior to the beginning of the trial, the plaintiffs made a Motion for Summary Judgment relating to the alleged false detention and arrest of the five Gallardo family members by the Dinuba Police Department. Judge Wanger granted the plaintiffs’ motion for summary judgment, finding that former Police Chief Emilio Perez and Sergeant Tully had falsely arrested/detained the Gallardo family members by taking them to the Police Station for questioning.

Although there was evidence that Chief Perez, in particular, had advised Mrs. Gallardo and the others that they could stay on the front lawn of the residence and be interviewed by Sheriff’s Department personnel there, they requested, according to Perez, to go to the air-conditioned Police Station. Sergeant Tully had arranged transportation for the family members in Dinuba police cars at the direction of Perez.

Nevertheless, Judge Wanger found that neither Perez nor Tully had informed the Gallardo family members that they had no legal obligation to accompany officers to the Police Station to be interviewed and that some type of affirmative admonition should have been given. Absent such an admonition, according to Wanger, the Gallardo family members were both transported and detained at the Dinuba Police Department against their will and unlawfully.

For lawyers and police SWAT members who have been in this type of situation before, Judge Wanger’s ruling on this issue came as a surprise, since it has become a rather common and universal practice by law enforcement officials to merely request that witnesses to officer-involved critical incidents submit themselves to interviews without simultaneously advising the witnesses that they had no legal obligation to do so.

When Wanger held that, as a matter of law, the five Gallardo family members had been falsely arrested and detained, the only issue remaining on that matter was the number of damages which were owed to those individuals.

The remaining claims of the plaintiffs, for violation of civil rights under the Fourth and Fourteenth Amendments, unlawful entry into the Gallardo family home in violation of the Fourth Amendment, wrongful death, and negligence, along with the amount of damages owed to the five family members concerning the unlawful detention/arrest issue, became matters to be tried before a jury.

The Evidence: As those who attended my recent class at the PORAC Symposium in Palm Springs will recall, I discussed the importance of a careful analysis of available physical/tangible evidence in police shooting cases, and presented a discussion of the physical evidence I introduced before a Federal Court jury in last years prosecution of State Correctional Officer Christopher Bethea at Corcoran Prison for the fatal shooting of an inmate.

In the Gallardo case, the physical/tangible evidence relating to the shooting of Mr. Gallardo was carefully analyzed and presented by both the plaintiffs and the defendants, but the jury verdicts made it clear that the analysis and determinations presented by the plaintiffs were far more compelling.

Actually, I became aware of this incident before I was asked by Larry Friedman and the Legal Defense Fund to provide assistance to Officers Reinnecius and Balderas concerning punitive damage claims made by the plaintiffs in the civil suit. One day, while talking to police special tactics and weaponless defense expert Don Cameron about an unrelated matter, he mentioned to me that he was testifying as an expert witness for the plaintiffs in this case.

Since Cameron does not often testify for plaintiffs in cases involving alleged police misconduct or inappropriate procedures, I asked him some questions about the case. He told me that virtually all of the rounds fired by Officer Reinnecius, as well as perhaps the single round fired intentionally by Officer Balderas, had entered the body of Mr. Gallardo, and had then exited the body and gone into either furniture, the wall, or the floor of the Gallardo bedroom.

The trajectory of the bullets through Gallardo’s body and into fixed objects, according to Cameron, made it reasonably clear that many of the rounds fired at Mr. Gallardo by the officers had been fired in a downward motion, either when he was falling or, even possibly, when he was already down on the ground. In either event, Cameron indicated that the bullet holes found in either furniture or the walls were found very close to the ground, and belied claims by the Dinuba officers that Gallardo was standing in an upward position and advancing at them with a knife was they fired their rounds.

In my opinion, having both followed the civil trial and read many transcripts of testimony by various experts, it seems reasonably clear to me that the plaintiffs’ presentation of this evidence, and a rather scattered and unconvincing discussion by the defense of “human factors” which affect perception and reaction time in a situation such as this, led to the eventual disastrous jury verdict in this case.

My Role as LDF Counsel in this Case: When the lawsuit was initially filed by the plaintiffs, Officers Reinnecius and Balderas had contacted the PORAC Legal Defense Fund and requested representation under the civil defense portions of the LDF plan. Sergeant Tully, for reasons which I’m sure he would regret later, did not call and request representation until much later in the case.

At one point, Larry Friedman, the LDF legal administrator, contacted me and advised me that Darrell Glahn, the LDF attorney who monitors and oversees civil cases for LDF members, had become concerned enough about the facts of the case to want a closer examination undertaken concerning the exposure of both Reinnecius and Balderas for punitive damages. It was probably only a matter of a week or two after I had talked to Don Cameron about the case that Friedman contacted me and requested that I take a look at the punitive damage issue relating to these two officers.

It was not long after that, that I received from LDF some deposition transcripts of various members of the Dinuba SET, including Officers Reinnecius and Balderas. I also contacted Jim Weakley and Rosie McGuire, the two attorneys hired to defend the City of Dinuba, its police chief, Sergeant Tully, and all of the SET members in the lawsuit. I obtained additional materials and information from Weakley and McGuire concerning the status of discovery, some of the disputed factual and legal issues, and the prospect for settlement.

Needless to say, as I reviewed more and more materials concerning the case, my interest in seeing the case settled prior to trial gained momentum. Unfortunately, in my various discussions with Weakley and McGuire, I was led to believe that settlement of the case was next to or completely impossible.

One of the most significant issues I had to resolve was whether or not to associate into the case so that I could actively engage in discovery on behalf of Officers Reinnecius and Balderas, and represent them at the trial, or whether to merely “lay in the weeds” to provide whatever assistance I might to the officers and the city’s attorneys behind the scenes. In making a decision on this issue, I weighed heavily the fact that the city’s attorneys told me that they believed Officers Reinnecius and Balderas had acted entirely appropriately, consistent with the law and department policy in connection with the fatal shooting of Gallardo.

The city’s attorneys also stated that they had conveyed their conclusions on this matter to city officials, who were apparently also supportive of the officers and their actions in connection with the incident.

As I read more deposition testimony, including that of the SET members and experts for both sides, and reviewed various documents, it became clear to me that there was a serious issue concerning both the adequacy of training received by the Dinuba SET members between its formation in approximately February 1997 and the execution of this search warrant some five months later. Similarly, there was an issue concerning the adequacy of planning as well as the strategy for executing the search warrant in this matter. Finally, there was an issue concerning the lack of distinctive police markings and identification on the camouflage uniforms worn by the SET members.

Faced with the reality that the city’s attorneys and city officials were supportive of these officers, and that my entry into the case would most likely drive a “wedge” between the city and these two officers because of issues relating to the training they received and the adequacy of planning, as well as the strategy for executing the warrant, I decided that it was best that I stay in the background and continue to nurture the support these officers had been promised by the city, hoping all the while that the verbal support would translate into financial support in the event damages of any type were awarded.

The lead counsel for the plaintiffs, in this case, was a very strong, well prepared, aggressive and effective advocate for his clients. For that reason, it would have been wonderful for me to have done battle with him and his team of lawyers on behalf of Officers Balderas and Reinnecius. On the other hand, I could not help but think that my active involvement in the case could backfire and cause the city to withdraw its support for these two officers.

The Verdict and Eventual Settlement: On March 12, 1999, following a nine-day jury trial and three days of deliberations, the jury found that the defendants had violated plaintiffs’ civil rights, had caused the wrongful death of Ramon Gallardo Sr., and had been negligent. They returned a verdict in favor of the 16 individual plaintiffs in the total amount of $12,675,000.

Much to my surprise, when jury instructions had been submitted to the judge for consideration by both sides, the judge had agreed to instruct the jury on a standard for punitive damages which is typically seen in state courts (malice, oppression, fraud, and despicable conduct), instead of a more lenient punitive damage instruction which is typically given in federal civil rights cases (actions undertaken in violation of the plaintiff’s civil rights, or in reckless disregard of the plaintiff’s civil rights).

As a result, the jury did not award punitive damages against either Balderas or Reinnecius, even though they found that both officers had violated the Constitutional rights of Gallardo by unlawfully taking his life, had wrongfully caused his death, and had been negligent in the manner in which they used their weapons.

The jury award was substantial, in part, because in addition to awarding damages to Gallardo’s widow, Carmen, the jury also awarded substantial damages to the 13 children and to the granddaughter and family friend who were in the house when an entry was made.

Punitive damages were awarded by the jury only against Chief Perez in the amount of $10,000 and against Sergeant Tully in the amount of $10,000, for the unlawful arrest and detention of Carmen Gallardo and four other family members following the shooting. Needless to say, after the jury awarded punitive damages against Tully, he contacted the Legal Defense Fund and requested representation to assist him in connection with dealing with that award.

At that point, my task, on behalf of Tully, was to ensure that the city and its insurers attempted to settle the case by payment of the punitive damages on behalf of Sergeant Tully. Both the city’s attorneys and I sent letters to the city council demanding that the council agree to pay the punitive damage award against Sergeant Tully as part of a settlement of the case.

Ultimately, the city and its lawyers filed a Notice of Appeal, and the plaintiffs and defendants then entered into mediation which resulted in a settlement of the case (and payment of the punitive damages awarded against Sergeant Tully) for a sum of $6 million. At that point, I thought the problems for my three clients were over.

The Discipline of Sergeant Tully and Officers Reinnecius and Balderas Three Years Later: Shortly after the verdicts were announced in the case, Police Chief Emilio Perez resigned, and after a period of time in which an interim chief served, the city hired another police chief to replace Perez.

Within weeks of the new chief’s arrival, and very soon after the case was settled and settlement documents executed by all parties, the new police chief notified Sergeant Tully of his intent to demote Tully for the alleged false arrest and detention of Mrs. Gallardo and the four other family members. Similarly, the chief announced that he intended to suspend Officer Balderas for 40 hours and Officer Reinnecius for 120 hours for their improper use of lethal force during the incident. Ironically, the Notice of Intent to Discipline all three of these individuals appeared almost three years to the day of the date of the underlying incident.

Needless to say, LDF had not hired me to represent any one of these three employees in a disciplinary case, but a disciplinary case had now, regrettably, evolved out of the unfortunate aftermath of the civil case. When I contacted the new police chief, it became very clear to me that he had been directed to undertake an investigation and initiate disciplinary proceedings against these officers.

In doing some homework on the case, it was also clear to me that the direction had come from the city manager, and it was not hard for me to ascertain that the motivation behind the discipline was pressure being felt by the manager to show constituents in the city that the hefty jury award and settlement was attributable to the conduct of these three employees.

I filed an appeal and request for arbitration on behalf of Sergeant Tully and Officers Reinnecius and Balderas. Ultimately, arbitrator Philip Tamoush was selected by the sides to serve as the arbitrator. The arbitration consumed two days of hearing on April 2 and 3, 2001.

During the arbitration itself and in closing briefs, I reminded the arbitrator that, since the city had predicated discipline upon the jury verdicts in the case, the city could not ignore the fact that the jury issued special verdicts specifically finding that the former police chief, as well as the “City of Dinuba” had “adopted a wrongful practice that legally caused violation of Fourteenth Amendment rights or failed to properly train and/or supervise Officers Reinnecius and Balderas.”

The jury also found that both Chief Perez and “the City of Dinuba” had adopted a wrongful practice that caused unlawful entry into the Gallardo family home and had failed to train or supervise defendants who had unlawfully entered the Gallardo family home.

I called Don Cameron as a witness at the arbitration to testify that the training which had been provided to the Dinuba SET members concerning high-risk entries in the approximate five months prior to the execution of this search warrant had been woefully inadequate. Indeed, while POST normally mandates that SWAT members receive a minimum of 80 hours of specialized training in a certified course, the Dinuba SET members had conducted only approximately 15 hours of training under the direction of its SET commander.

Much of the training was on subjects other than tactics or procedures relating to high-risk entries. Although Officer Reinnecius had fired the MP5 submachine gun a number of times some years earlier, before the former Dinuba SWAT had been disbanded, Officer Reinnecius believed that he may not have fired an actual live round from the MP5 for as much as four to five years before this incident occurred on July 11, 1997.

Testimony and evidence was introduced that neither Officer Balderas nor Officer Reinnecius played any role in either the planning or the formulation of strategy for entry into the Gallardo residence, and that the lack of consistent and distinctive markings on the camouflage uniforms of the Dinuba SET members was a function of budgetary constraints rather than a conscious or deliberate decision by any of the SET members to wear uniforms which failed to identify the individuals as police officers. Former Chief Perez testified that, even though the city manager had enthusiastically requested the reformation of the former SWAT as the SET, there was no training budget whatsoever for the SET.

As a result, the team members had to do whatever training they could with limited amounts of time and budgetary constraints. This precluded the team members from firing sufficient rounds to become thoroughly familiar with their weapons and become precise in executing high-risk entries.

With regard to the demotion of Sergeant Tully for his alleged “involvement” in the detention of Mrs. Gallardo and the four other family members at the Dinuba Police Station for questioning, former Chief Perez and Tully testified that it had been Perez who made the decision that the family members be transported to the Police Station. Tully had been directed by the chief to obtain transportation and had done so.

Mike Schott, our legal investigator, all-around genius and tactical expert (formerly a member of the Contra Costa County Sheriff’s Department SWAT) also testified. Schott had authored an article entitled “Critical Incident Management for Patrol Supervisors” which discussed procedures typically employed by SWAT members or patrol supervisors in the aftermath of an officer-involved shooting.

In addition, Schott introduced a series of policies of various agencies, including a policy of the International Association of Police Chiefs, which validated a procedure of transporting witnesses to an officer-involved shooting to the Police Station for questioning as had been done in this case.

As a result of the testimony concerning Sergeant Tully’s discipline, it became clear that the five individuals had been transported to the Dinuba Police Department for questioning at the direction of the police chief after he conferred with Tulare County Sheriff’s personnel, and that Tully had no role in that decision. It was also clear from the testimony of Schott and the various policies he introduced, that even the decision of Chief Perez was not inconsistent with written policies of numerous police agencies, the ruling by Judge Wanger on this issue notwithstanding.

At the conclusion of the hearing of the arbitration, and following submission of briefs by both sides, arbitrator Tamoush rendered his decision. He set aside entirely the demotion of Sergeant Tully. He reduced the suspension of Officer Reinnecius from 120 hours to 40 hours. He upheld the 40-hour suspension of Officer Balderas.

The arbitrator’s determination to reduce the suspension of Reinnecius was undoubtedly based upon the fact that both Reinnecius and Balderas had been charged with identical violations of the Dinuba Lethal Force Policy, and had been on the police department virtually the same amount of time with very commendable employment records. The only distinction which the police chief could offer at the hearing for imposing greater discipline against Officer Reinnecius than Officer Balderas was the fact that Reinnecius pulled the trigger of his weapon more times than Balderas did.

Much to my disappointment, arbitrator Tamoush declined to rescind the discipline against all three individuals entirely, based upon my argument that the case of Brown v. State Personnel Board, 166 Cal. App. 3d 1151 (1985) very clearly denounces an employer’s attempt to discipline an employee three years after the alleged misconduct has occurred.

During my opening statement at the arbitration, my examination of witnesses, and in my closing brief, I offered very few kind words to the city manager for refusing to accept responsibility for any of the violations announced by the jury. The conduct of the city, in this case, was particularly distasteful because the former police chief had wanted to initiate an internal investigation of the shooting immediately after it had occurred, but had been told that he should wait, undoubtedly because of the prospect of civil liability.

In the event, an investigation had been conducted on a timely basis, and a determination made that any one of these employees had acted improperly, they would have had the right to be afforded legal counsel at city expense separate and apart from the attorneys representing the city. It was my argument, and remains my belief, that the city leaders purposefully delayed an internal investigation of this incident fearing that an adverse finding against the officers would not only cause greater exposure to the city’s position in underlying civil litigation but could cause the city to have to hire a slew of additional lawyers to represent officers whose interests conflicted with those of the city.

Lessons to be Learned: With every case I handle, there are lessons to be learned. I learned long ago that remaining bitter about the way politics often interfere with impartial decision-making and fairness to my police officer clients will never change the reality of the phenomenon. However, when all is said and done, this case holds a wealth of information concerning issues concerning SWAT member training, high-risk entry planning, and strategy, and execution of the plan once made.

The evidence surrounding the shooting and the analysis of the scene is a textbook for criminalists and forensic investigators. Since I was relegated to watching other lawyers do a trial, I must confess that watching the tenacious, well prepared, confident, and at times almost flamboyant lead counsel for the plaintiffs, I became even more convinced that the art of aggressive and sincere but passionate advocacy by lawyers, which I have always tried to follow, can often make the difference between winning and losing in the courtroom.

My experience with the aftermath of the civil verdicts and the untimely and politically motivated discipline imposed upon my clients also reaffirmed my belief in the accuracy of an observation made by writer George Orwell in a famous essay he wrote many years earlier entitled “Politics and the English Language,” where he offered up the thought that “all issues are political issues,” and that politics is a “mass” of folly, hatred, euphemism, question-begging, paranoia, and schizophrenia. Having, I am sure, just offended some of my good friends in PORAC, I think it is time to bring my Dinuba saga to a close.