Deputy City Atty. Don Vincent countered Yagman’s claims by telling jurors that evidence presented in the case clearly shows the nine officers opened fire when they sensed they were in imminent danger. He defended the firepower – 35 shots from shotguns and handguns – as being an appropriate response when the officers saw the robbers brandishing weapons. The weapons were later discovered to be pellet guns resembling real handguns.

Vincent cautioned jurors not to confuse the superior firepower of police with excessive force, noting that each officer feared for his life and had reason to fire. “This is not the Old West where you get out on the street and have a shootout at noon,” Vincent said. “They are not the sitting ducks of the public.”

According to trial testimony, the officers opened fire on the bandits after they watched them break into the closed McDonald’s, rob the lone employee inside and then return to their getaway car. The shooting started almost immediately when officers converged on the car.

The plaintiffs contend that the bandits had put their unloaded pellet guns in the trunk of the car and therefore were unarmed when the shooting started.

Noting that U.S. District Judge J. Spencer Letts ruled earlier that the police had probable cause to arrest the four suspects before the robbery, Yagman argued that the officers allowed the crime to take place and orchestrated the stakeout in such a way that the shooting was “inevitable, inescapable.” He said the special police unit has a long record of using tactics that often end in shootings.

Yagman said police took the pellet guns from the trunk after the shooting and “planted” one inside the car and one on the body of a robber who had run from the car before being shot by police. He said police photos show the gun inside the car in different positions, indicating police tampered with the evidence.

He said that while the claim that guns were planted might be “hard to digest,” the alternative – the police story – defies common sense.

“What person, when faced with nine officers with shotguns, would point an unloaded, inoperable pellet gun at them?” he asked. “What does common sense tell you?”

In his closing argument, Vincent denied that Gates condones excessive force. He also said an extensive department investigation cleared the officers of any wrongdoing.

He recounted police testimony that the gun was indeed moved. Vincent said the gun was photographed as it was found by officers and then removed from the car but later replaced so additional photos could be taken. But the original photographs are clearly marked, he said.

Vincent noted that the weapon allegedly planted on the body of Herbert Burgos was the same weapon the survivor, Alfredo Olivas, testified that Burgos used during the robbery. Vincent asked jurors how the officers could have known on which robber to plant which weapon.

“Nothing was planted in that car,” he said. “It would mean that it was happenstance that they placed the right gun with the right body.”

Vincent said the explanation for why the robbers pointed unloaded pellet guns at the police will never be known. “They might have thought it was someone else and raised the guns to scare them,” he said.

note: The federal jury hearing the SIS case found for the plaintiffs, awarding the families of the killed robbers and the lone survivor a total of $44,042in damages.

Attorney offers to drop members as defendants if they make Gates pay damages assessed in same incident. Officials angrily charge extortion.

April 2, 1992

Los Angeles city council members were sued Wednesday over a police shooting that left three robbers dead, but the attorney who filed the case offered to drop them as defendants if they make Police Chief Daryl F. Gates personally pay for damages assessed against him this week for the same shooting.

Council members familiar with the new suit and a city attorney who defends the city in police-related cases reacted angrily to the offer from civil rights attorney Stephen Yagman, which was contained in a letter to the council that accompanied the new $20-million suit.

“Sounds like extortion, doesn’t it?” said Deputy City Atty. Don Vincent, head of the city’s police litigation unit.

Councilman Zev Yaroslavsky, who favors making Gates pay the damages from his own pocket, said he was nonetheless disturbed by Yagman’s letter.

“Nobody likes to be threatened,” he said.

Councilwoman Joy Picus, who is undecided on the issue of whether Gates should pay, said Yagman was using tactics of intimidation and harassment.

“The nerve of him,” she said. “I’ve dealt with attorneys who have tried to extort and threaten me before. I’ll be damned if I’ll be intimidated by him.”

Yagman denied his offer to the council was improper or threatening.

“Everybody has a right to ask people in the government to do or not do something, and to say if you do it the way we want we will take action or refrain from taking action,” Yagman said. “That’s not extortion. That is trying to settle the lawsuit.”

The lawsuit filed Wednesday in U.S. District Court against the council and numerous police officers and officials is the latest twist in the case that has followed the Feb. 12, 1990, shooting outside a McDonald’s restaurant in Sunland.

The shooting initially spawned a lawsuit on behalf of four family members of three robbers killed by members of the police Special Investigations Section and a fourth robber who was shot but survived.

The plaintiffs, represented by Yagman, contended that the police used excessive force and fired on the robbers without provocation. Gates was named as defendant because the suit said he was ultimately responsible for the officers’ actions and condoned the use of excessive force.

After a three-month trial, a federal jury returned a verdict in favor of the plaintiffs Monday and awarded punitive damages of $44,042 against Gates and nine members of the SIS. Jurors said the damage award was purposely set low because they believed the chief and his officers should pay it out of their own pockets. Gates was to pay $20,505of the award.

The verdict touched off a debate this week among council members over whether the city should pay the damages anyway. The council has routinely picked up the tab for punitive damages assessed against police officers for incidents that occurred while they were on the job.

On Wednesday, the new lawsuit further added to the controversy. The new suit is identical to the first one but was filed on behalf of two-year-old Johanna Trevino, daughter of Juan Bahena, one of the robbers police killed.

Yagman said Trevino was born six days after Bahena, whose real name was Javier Trevino, was killed and can file the lawsuit under a federal precedent set last year in another case involving the SIS. In that case, in which Yagman is also the plaintiff ’s attorney, a federal appeals court held that a child who was not yet born when a parent was killed by police may still sue for damages over losing a parent.

The new lawsuit names 20SIS officers, Gates, Mayor Tom Bradley, 17 former police chiefs and commission members and all city council members in office at the time of the shooting.

In a letter enclosed with the suit to the council, Yagman said:

“If the council votes not to indemnify Gates for the punitive damages in this case, then all of you who make up the majority so voting will be dismissed voluntarily as defendants in this new case.”

Vincent, the city attorney, said he could not comment on the lawsuit until he received it. But of Yagman’s letter to the council, he said, “I have never heard of an attorney doing anything like that at all.”

Council members who received it Wednesday also reacted strongly.