‘I’m Not Going Anywhere Until They Stop Killing People’
In 2009, Anaheim police shot and killed Theresa Smith’s son. A new California law promises police transparency, but her quest for answers faces a substantial cost.
Theresa Smith’s memory of Dec. 11, 2009, is vivid. It was a rainy Friday in Anaheim, California. With Christmas on the way, traffic was heavy. And that afternoon, five Anaheim police officers shot and killed her son, Caesar Ray Cruz.
Cruz, a 35-year-old married father of five young boys, was in between jobs, so his cell phone service had just been cut off. There was, however, a final message to his family that day.
“He asked us to go tell his wife to have the boys ready,” Smith remembers, “because they were going to go to football practice.”
But Cruz never picked up his sons. At around 3 p.m., Anaheim police, acting on a tip from a confidential informant who said Cruz was an gun-toting gang member who sold methamphetamine, stopped him for a broken tail light on his SUV. Cruz then pulled into a Walmart parking lot, where several police cars surrounded him. A fearful Cruz backed his SUV into one of the police cars. Officers drew their weapons and demanded that Cruz exit his vehicle and get on the ground. Cruz swung the front driver’s side door open and then five officers, four of whom later said he reached for his waistband, opened fire. Cruz was shot at least 15 times and his body slumped over in the SUV, hanging from the seatbelt. Cruz did not have a weapon in his hands, although police said they recovered a firearm, its safety still on, from the SUV’s passenger seat.
As local news descended on the tragic scene, Smith’s son-in-law drove her to the Walmart, where the SUV was cordoned off with yellow police tape. Police then directed Smith to UCI Medical Center in the nearby city of Orange, where she and her daughter waited for hours without information. “Finally they said, ‘Well, Caesar expired,’” Smith said. It stung to hear her dead son spoken about so clinically. “I’ll never forget those words. I thought that was horrible.”
Cruz died of multiple gunshot wounds, about an hour after police shot him.
Answers elusive in Cruz Case
In May 2010, Cruz’s family filed a wrongful death claim and a federal civil rights lawsuit against the city and the police department. About two months later, the Orange County district attorney’s office cleared the five officers involved in the shooting—Michael Brown, Bruce Linn, Kelly Philips, Nathan Stauber, and Philip Vargas—of wrongdoing. “The shooting of Caesar Ray Cruz was justified under the totality of the circumstances,” wrote senior deputy district attorney Scott Simmons in a letter to the Anaheim police chief.
In 2012, a U.S. District Court judge granted summary judgment in the officers’ favor. But in 2014, the Ninth Circuit Court of Appeals revived the case. In 2015, Smith, Cruz’s family reached a $175,000 settlement with the city of Anaheim. The city’s payment was not, however, an admission of wrongdoing in the killing of Cruz.
But Smith feels that answers—and justice—are elusive in her son’s case. The family has not seen police dashboard camera videos, surveillance footage from the Walmart parking lot, and crime scene photos.
Perhaps most troublingly for Smith, the informant who told Anaheim police that Cruz was a violent gang member remains unidentified. And she learned of the person’s involvement in the case years after her son’s death.
The U.S. Department of Justice has established guidelines for the use of confidential informants by FBI and Drug Enforcement Administration agents, although they routinely violate them. Such guidelines don’t exist at the state level in California. Cases in Anaheim are prosecuted by the Orange County district attorney’s office which has a manual on informants stipulating that informant deals have to be disclosed to defense attorneys and that officers apprise a supervisor of any and all such deals. But in 2014, an Orange County public defender learned that the sheriff’s department and the district attorney maintained an illegal network of jailhouse informants to gather information against a client accused of killing eight people in 2011. That revelation led to the unraveling of at least 18 high-profile criminal cases in Orange County.
This rule-breaking atmosphere can make the use of informants deadly. In 2006, Atlanta police executed a no-knock warrant on a home based on information provided by an informant who claimed he purchased drugs there; a 92-year-old woman named Kathryn Johnston was killed during the raid and the city later settled a lawsuit brought by her family for $4.9 million. This year, on Jan. 28, Houston police entered the home of Dennis Tuttle, 59, and Rhogena Nicholas, 58, after they said an informant told them that drug sales were conducted there. Police said the couple fired upon them when they raided the home and they were forced to shoot back. Nicholas and Tuttle were shot to death and five Houston police officers were injured. On Feb. 16, Houston Police Chief Art Acevedo said one of the officers involved in the raid lied about using an informant and that his search warrant affidavit contained “material untruths or lies.” On Feb. 20, Harris County District Attorney Kim Ogg announced that her office is reviewing 1,400 cases involving the officer.
Because the informant system operates under a veil of secrecy, it often takes high-profile tragedies like the drug raid deaths in Houston or the killing of Cruz for the public to learn about it, said Alexandra Natapoff, a professor of law at the University of California, Irvine and author of “Snitching: Criminal Informants and the Erosion of American Justice.”
“Unfortunately, we do rely on individuals, on families, on parents to stand up to the secrecy of the criminal informant apparatus, to demand information,” Natapoff said, “even if it’s too late to protect their own family, in order to learn about some very basic law enforcement policies and practices that the criminal system is loath to disclose.”
“I need to know what happened to my son,” Smith said. “I need to know, and I think that’s what most of us want. It’s some sense of closure for us, because we have none.”
Smith is joined in her quest for justice by another grieving mother whose son was killed by Anaheim police in October 2018. In mid-February, Teresa Perkins filed a civil rights lawsuit against the city alleging that two officers fatally choked her son, Justin Perkins, and withheld medical aid after they responded to a call regarding a man who appeared to be under the influence of drugs and allegedly assaulted an employee at an Anaheim apartment complex. Police officers struck Perkins repeatedly with their fists as his uncle warned, “He’s not trying to hurt you! He’s just scared, he has a mental disorder!” according to the lawsuit.
“I’m not tired enough to give up.”
Now, Smith may find the answers she has sought for nearly a decade. On Jan. 1, a new state law, Senate Bill 1421, went into effect. The law requires public access to the investigative records of officer-involved shootings and uses of force that result in serious injury or death. Previously, these records were confidential. On New Year’s Day, Smith was ready with her request for records about her son’s death as well as any misconduct records related to the officers who killed him. But on Jan. 28, Anaheim’s city attorney wrote to Smith that some of the records she requested are video and audio files requiring “multiple layers of review and ‘extraction’ to protect information exempt from disclosure.” Smith would be charged $80 per hour for the review and the city would not begin the process without a $3,000 deposit.
California’s public records law allows municipal governments and other public agencies to charge requesters for the costs associated with reproduction of requested material. So Smith is far from alone in being assessed sizable costs for records: The Burlingame, California, police charged a local TV station $3,258.40 for records regarding an officer who was terminated after his superiors discovered his inappropriate relationships with women arrested by the department.
Although the hefty price tag was routine, Smith said she was upset. “We’ve gone through so much to just get accountability, to know what happened. I’ve been doing this almost 10 years. I’m tired. I’m not tired enough to give up. But this is outrageous. They know most families cannot afford that. I’m a retired mother, who is on a fixed income, and there’s just no way I can come up with $3,000 in 20 days.” (Under California law, municipalities can set their own deadlines for payment for records.)
On Feb. 1, Smith took to Facebook to warn other grieving parents about the process. “My son and all of those killed by law enforcement deserve this,” Smith wrote. “So please, families, don’t let them discourage or stop you from getting the truth out there!”
In a statement released to local media and The Appeal, Anaheim spokesperson Mike Lyster said city officials “pride ourselves on openness in how we keep our community safe. … As a city, though, we must always safeguard the use of public money. In some cases, a request under SB 1421 could result in hundreds of thousands of dollars of public resources [spent] to compile.”
The city typically makes paper records available for copying fees, Lyster said. “Those all have been made available to the family, in this case.”
Lyster also said city officials would consider making accommodations for families who cannot afford the costs of records requests “in individual cases.” But he added that “we still would require a significant down payment or payment guarantee.”
Death births an activist life
Smith says the death of her son sparked her activism, although she credits her then-10-year-old grandson with pushing her into action. “He had been reading about Martin Luther King and Cesar Chavez,” she remembered. “He said, ‘Let’s go protest!’ And I said, ‘Let’s do it!’”
From 2009 to 2012, Smith led weekly protests at the Anaheim Police Department. In 2010, she founded the Law Enforcement Accountability Network, an organization that connects victims of police brutality and their families and offers resources for healing.
Smith said her own healing process involved offering forgiveness to the five officers who killed Cruz. Several years ago, Smith said she called former Anaheim Police Chief John Welter and delivered a handwritten letter to the department in which she said, “I forgive you for killing my son. But I will never stop fighting for him.” Smith added that “the forgiveness wasn’t for them. The forgiveness was for me.”
Smith made her peace with the police while the family’s attorney, Richard Herman, litigated the civil rights complaint against the city and the police department in federal court.
“Everything that Theresa does is positive,” Herman said. “Every action that she takes brings light practices that are bad and results in some reform. Just the fact that there is somebody there watching improves the way that policing is done in Anaheim.”
The Justice Teams Network, a California coalition of grassroots social justice groups, helped Smith file her early January records request to the city of Anaheim.
Smith said he hopes that she will eventually receive a slew of now-public records related to her son’s killing including the identity of person who acted as a police informant. She said she is bracing for the possibility that a detailed account of her son’s death could retraumatize her.
“Most families are torn between you want to know, and do you really want to know,” Smith said. “And when you do find out, what are you going to do with it?”
On Feb. 8, Smith and others launched a GoFundMe campaign to help families of police brutality victims raise money for the costs of public records requests.
An unreliable informant remains unidentified
Herman said he doubts that the records request by Smith under SB 1421 would reveal much more than what is already known about the informant. But he says, “It is possible that, without identifying the informant, they can provide information about how informants are used or, we should say, misused.”
Herman maintains that the informant got a litany of things wrong about Cruz. The informant told Anaheim police that Cruz was on probation and was “a member of the Atwood gang” wanted in connection with an unspecified crime that occurred in Fullerton. The informant also said Cruz had previously participated in a shootout on a freeway. Herman said all of those claims were false. For instance, Cruz hadn’t been on probation for at least three years leading up to his death. In 2002, Cruz was convicted of drug possession, served less than one year in jail and was given three years of probation.
In 2011, Herman asked to depose the informant. But a judge denied his request and an appeals court affirmed the denial. The appeals court ruled that Anaheim presented “credible evidence that revealing the informant’s identity could harm both the informant and law enforcement efforts.”
“We never found out who it was,” Smith said.
“Caesar really wasn’t doing anything wrong,” Herman continued. “It was a false report by an informant who was an agent provocateur, really, that was used as an excuse.”
Anaheim police shootings share similar circumstances
The appeals court, however, raised a new, perhaps even more disturbing dimension of the role of informants in the Cruz case. Judge Alex Kozinski wrote that Bruce Linn, one of the Anaheim officers involved in the shooting of Cruz, shot and killed David Raya during a foot pursuit in 2007. Linn said an informant tip about an armed and dangerous man led him to pursue Raya; he also said Raya reached for his waistband just before he shot him. “Like Cruz, Raya was tracked down after a confidential informant told police that he had a gun and that he ‘wasn’t going back to prison,’” Kozinski wrote, “and, as with Cruz, the tip led to an altercation with Anaheim police that ended with an unarmed Raya biting the dust.”
Anaheim police have been involved in numerous deadly shootings that share similar circumstances: In 2012, the city was rocked by protests after two Latinx men, Manuel Diaz and Joel Acevedo, were killed in just two days in July. Both Diaz and Acevedo were shot in the head during a foot pursuit. Kelly Phillips, the officer who shot Acevedo, was also one of the five officers who shot Cruz. (The Orange County district attorney’s office found both shootings to be legally justified; in a federal civil case, a jury determined that the officer who shot and killed Diaz used excessive force and awarded his family $200,000 in damages.) There were nine police shootings in Anaheim in 2012; a 2017 ACLU report found that nearly 40 percent of people killed by Anaheim police from 2003 through 2016 were unarmed.
Encouraged by the damning appeals court opinion and SB 1421’s promises of transparency, Smith says she won’t rest until she knows everything there is to know about her son’s death.
“We all have a right to know,” Smith said. “And if they’re not hiding anything and they’re so transparent, as they all say they are, why are they fighting us so hard?”
“This is important to me, because this is my child,” she continued. “This is my son that I carried, brought into this world and had to bury. So, I’m sorry, they messed with the wrong mother! I’m not going anywhere, until they stop killing people—or until I take my last breath.”