Jeffrey F. Rosen District Attorney To: Jeff Rosen, District Attorney CC: Brian Welch, Supervising Deputy District Attorney From: David Tomkins, Assistant District Attorney Re: March 7, 2010 Officer Involved Shooting in Cupertino Background On December 3, 2009, Charlie Maridon, 96 year of age, was brutally beaten during a home-invasion robbery at his residence in Saratoga. He died approximately 2 weeks later as a result of these injuries. The Maridon property and residence was maintained by Paulo Lopez who had worked for Mr. Maridon for several years. Paulo discovered the victims the next morning and called 911. Paulo told investigators that his son, Sonny Lopez, (hereinafter Lopez) had recently worked on the Maridon property with him but had never been inside the residence. Paulo did not, however, tell them that Lopez had recently been released from prison and was on parole. On March 1, 2010, Lopez’s uncle was murdered in Fremont and the Fremont Police Department considered Lopez to be the prime suspect. They also suspected Lopez in another murder that occurred in Fremont two years prior to the murder of his uncle. Lopez’s ex-wife showed Fremont detectives a letter written by Lopez to their son on February 28, 2010 where he expressed his belief that he would be killed resisting attempts to send him back to prison and that he would have killed his ex-wife but did not want to leave his son without both parents. On March 3, 2010, Fremont Police Department detectives met with Santa Clara County Sheriff’s detectives about the murder of Lopez’s uncle. The Sheriff’s detectives had collected the letter from Lopez to his son from Lopez’s ex-wife the day before the meeting. They discussed the murder of Charlie Maridon and their belief that Lopez was involved. On March 6, 2010, Fremont Police Department detectives obtained a Ramey 1 arrest warrant for Lopez for the murder of his uncle. The Ramey warrant was based on a witness who picked up Lopez near his uncle’s residence. The witness said that Lopez told him that he had killed his uncle. The 1 See People v.Ramey (1976) 16 Cal.3d 262. Ramey required police officers to obtain an arrest warrant based on probable cause before they are authorized to enter any residence in which they reasonably believe a suspect lives and is present in order to lawfully serve the arrest warrant. Jeffrey F. Rosen District Attorney witness indicated that he allowed Lopez to spend the night at his residence but that Lopez left the next day. The witness told officers that he believed that Lopez would kill him if he knew that he told the police about picking him up and about his admissions of killing his uncle. Also on March 6, Lopez spent the night with a former girlfriend, Latisha Adams and her mother. He arrived at their Cupertino residence located at 10299 Miller Ave., Number 4, in Cupertino unannounced on March 6th and told Adams and her mother that he had just killed his uncle in Fremont and needed a place to stay. Lopez said that he wanted to hide out in the mountains but believed his time was running out and that he would not be taken alive by police. Lopez told them that he shot and killed his uncle because the uncle had taken a car that Lopez had given him to give to Lopez’s girlfriend and had instead taken it apart and was selling the parts. Lopez also admitted to Adams and her mother that he was involved in the murder of Charlie Maridon. On March 7, 2010, Fremont PD SWAT officers shot and killed Lopez while attempting to arrest him on the Ramey warrant in Cupertino (detailed below). The Shooting On March 7, 2010, shortly after midnight, Fremont detectives and officers assigned to the SWAT Unit began conducting surveillance for Lopez in the area of Stevens Creek and Miller Ave. in Cupertino. They later received updated information that Lopez’s cell phone was at 10299 Miller Ave in Cupertino. Officers determined that 10299 Miller Ave. was a condominium complex but they did not know which one that Lopez was inside. They were attempting to determine his location in order to obtain a Steagald 2 search warrant for the new location. /// /// Fremont SWAT officers and Santa Clara Sheriff’s Deputies made plans for a car stop or pedestrian arrest if Lopez left the apartment before his exact location could be determined and a new arrest warrant obtained. In making their plans to arrest Lopez, they were familiar with the following information: that he was a suspect in the Saratoga murder of Charlie Maridon; that he recently wrote to his son promising that he would not be taken alive by police and that he wanted to kill his ex-wife; that he had killed his uncle with a firearm and was believed to be armed; that he was a suspect in another previous murder in Fremont; that he had a significant criminal record involving violence and 2 See Steagald v.United States (1981) 451 U.S. 204. Steagald introduced the requirement that police officers obtain a search warrant which expressly authorizes a search of a residence where a suspect does not live based on probable cause to believe the suspect is present before they can lawfully enter the residence to serve an arrest warrant. Jeffrey F. Rosen District Attorney weapons possession and had previously been sentenced to prison; and, that he was associated with criminal street gangs both in and out of prison and had numerous gang tattoos on his body (including “5150” tattooed on his neck) 3 . The Fremont officers were concerned that 10299 Miller Ave was in the middle of a residential neighborhood and most of the residents would be at home on a Sunday morning. They noticed increased activity and foot traffic by mid-morning. Fremont PD SWAT supervisors reminded their teams about the Fremont PD Operations Directive which authorized the use of deadly force in apprehending a fleeing felon. Fremont PD Operations Directive, Index Z-1, Section III, states: The use of deadly force is authorized: 1. When the officer has probable cause to believe that use of such force is justified to prevent death or great bodily injury to him/her or other persons and when all other reasonable means to capture have failed. 2. When the officer has probable cause to believe the person whom the officer seeks to arrest has committed, or is charged with, a violent felony, and when the officer reasonably believes that: a. The crime for which the arrest is to be made involved conduct including the use or threatened use of deadly force; or b. If there are circumstances which reasonably create a fear of death or serious bodily harm to the officer or other person. The Fremont SWAT officers were told by their supervisors that Lopez was not, under any circumstances, to be allowed to escape the parameter set up around 10299 Miller Ave. The officers believed that if Lopez had no qualms about killing others, including a family member, he would not hesitate to kill or take hostages to escape. This was not, however, a green light to shoot Lopez on sight. If Lopez left the apartment before they could obtain a new arrest warrant, the arrest plan was for Lopez to be taken into custody using a minimum amount of force. However, if Lopez resisted 3 See Welfare and Institutions Code Section 5150 which pertains to involuntary treatment of mentally disordered persons. Institutionalized defendants have been known to tattoo their bodies with code sections which imply that they are dangerous or unstable as a status or defensive mechanism while in custody. In this instance, 5150, in the criminal justice setting, is shorthand for mentally imbalanced or unstable. Jeffrey F. Rosen District Attorney arrest and was in a position to escape and come in contact with members of the public, officers would, individually, have to make a determination of whether deadly force was warranted. By 11:00 a.m., Fremont officers determined that Lopez was inside 10299 Miller Ave., apartment 4 and were in the process of obtaining a new arrest warrant, and the Sheriff’s Department had agreed to take over the operation from the Fremont PD officers. Most of the Fremont Officers had been awake for over 24 hours. After Sheriff’s deputies began arriving at the command post set up by the Fremont officers at N. Portal and Stevens Creek Blvd, the decision was made to move the command post to Cupertino High School which is located at 10100 Finch Ave. The Fremont officers briefed the Sheriff’s SERT Team (SWAT) members, hostage negotiators and plain clothes deputies utilized for surveillance about Lopez when they arrived at the command post. The Sheriff’s Department was in the middle of relieving the Fremont officers when a male matching Lopez’s description was seen leaving 10299 Miller Ave and walking northbound on Miller Ave on the west sidewalk. Fremont PD SWAT Sergeant Duckworth was given permission to determine if the male was Lopez. Duckworth drove past the man, made a left turn on Richwood Drive, made quick a u-turn and pulled up to the curb near Miller Ave. Duckworth got out of his car, pulled out his service handgun and placed it behind his back. As the man walked by on Miller Ave, Duckworth made eye contact with him and determined that it was Lopez. Duckworth ordered Lopez to stop and put his hands up. After quickly looking around, Lopez dropped a bag he was carrying and ran across Miller Ave in a southeasterly direction toward an alley that that runs behind the residences located on Richwood Court. Richwood Drive turns into Richwood Court east of Miller Ave and is a dead end. As Duckworth approached the alley, he could see BNE Commander Bouchet drive into the alley in front of him. Duckworth could see that Lopez was about to enter the gate leading to the backyard of the last residence off of the alley and believed that he could not catch up to Lopez in time to prevent him from entering the backyard. Fearing that Lopez would take hostages or kill anyone in the backyard or residence in order to escape, Duckworth fired 4 shots from his service handgun as Lopez jumped over the gate. When Bouchet drove into the alley his car was close enough to Lopez that he had to take his foot off of the gas pedal to avoid hitting him. As Bouchet stopped his car half way down the alley and got out, he could see Lopez running toward the fence and drop his coat, but did not shoot at him because he could not see if Lopez had anything in his hands. Bouchet immediately heard several shots fired from behind him and saw Duckworth run by him toward the gate that Lopez had jumped over. It did not appear to him that any of the shots had hit Lopez. Jeffrey F. Rosen District Attorney As Duckworth approached the gate, he feared that Lopez was waiting on the other side to ambush him, but he immediately jumped over the gate due to a greater fear that Lopez was now in a position to threaten any occupants in the backyard or residence. The backyard appeared empty when Duckworth jumped over the fence. However, as Duckworth approached the fence that ran along the east side of the residence, he saw Lopez about to jump the north fence that faces the end of Richwood Court. Duckworth was unsure of his location and fearful that Lopez was going to escape the parameter and be in a position to threaten other residents. Therefore, Duckworth fired 4 more rounds at Lopez while running toward the fence. It did not appear that any of these shots hit Lopez as he was able to scale the fence. Duckworth was again fearful that Lopez was waiting on the other side of the fence to ambush him. Duckworth, therefore, kicked in a fence plank rather than leave himself exposed by jumping over the fence. As he stepped through the fence he heard several shots and saw Lopez fall to the ground to his right at the end of Richwood Court. Fremont PD Sergeant Epps was in charge of the SWAT officers on scene and had given Duckworth permission to approach and attempt to identify Lopez while sitting in a SUV in the parking lot of a real estate business located on the northeast corner of Richwood Court and Miller Ave. Two mini- vans containing other Fremont SWAT officers turned right out of the driveway on Richwood Court towards Miller Ave., which left Epps alone inside the car which was pointed toward the dead end portion of Richwood Court. Epps heard 2-3 gunshots and after a short pause, 2 more gunshots. Epps saw Fremont SWAT Sergeant Harnett running east on the south sidewalk of Richwood Court. Epps got out of his car, retrieved his SWAT rifle from the back seat and pointed it in a southerly direction while standing on the north curb line of Richwood Court. Although his view was partially obstructed by a tree, Epps was able to see a man matching Lopez’s description running from the direction of the gunshots. Epps saw Lopez stop and crouch down with his hands in his waist area and face back in the direction of the gunshots but did not see a gun in his hands. Epps believed that Lopez was involved in a running gun battle while being pursued by other officers and was setting up to ambush the pursing officers. He believed that there was no time to yell at Lopez to distract him as he had already turned his body toward the direction of the pursuing officers. Believing that the pursuing officers were in danger of being shot by Lopez, Epps fired 7 rounds from his service rifle at Lopez. He saw Lopez immediately fall face down on the ground with his hands underneath his body. Epps was also concerned that Lopez would escape into the residential area and potentially create a hostage situation. Fremont PD Sergeant Harnett was in a white van in the parking lot near where Sergeant Epps was seated in an SUV. When he heard that Lopez was walking towards their position on Miller Ave, he Jeffrey F. Rosen District Attorney drove the van out of the parking lot on Richwood Court toward Miller Ave and saw Lopez running across Miller Ave with Duckworth running after him toward an alley that paralleled Richwood Court. Harnett got out of the van and started running east on Richwood Court in an attempt to cut off any escape avenues on to Richwood Court. He heard several shots and believed that a running gun battle was taking place between Lopez and pursuing officers. He saw Lopez jump the fence and crouch down and look back toward the fence. Lopez was facing away from him with his hands concealed in his waistband. Harnett was concerned that Lopez was waiting to ambush officers that were pursuing him and also that Lopez would escape into the residential neighborhood. He dropped to one knee and fired 3-4 rounds from his service handgun at Lopez. He heard other shots being fired at about the same time. Lopez fell to the ground face down with his hands underneath his body. Fremont PD SWAT Officer Snow was in the parking lot sitting in a grey van near the SUV driven by Sergeant Epps and the mini-van driven by Sergeant Harnett. After hearing that Lopez was walking north on Miller Ave, Snow drove out of the parking lot on to Richwood Court behind Harnett. He saw Duckworth running southeast across Miller Ave before loosing sight of him. Almost immediately, he heard shots coming from the south and someone saying, “Shots fired” and “Slow down” over the radio. Snow saw Harnett running east on Richwood Court and decided to follow him because Harnett was alone. He was thinking that Duckworth was in a shootout with Lopez. Snow saw Harnett drop to one knee and shoot from what Snow believed to be a rifle. He then heard another gunshot from his southeast. Snow moved to the right of Harnett so that he would not be in Snow’s line fire. He saw Lopez fall to the ground near the curb. He saw Lopez raise his head and shoulders but he could not see his hands. Snow was not sure that Lopez had been hit and was concerned that he was rolling his body to get into position to shoot or get up and run. Based on these concerns, he fired one round from his M4 rifle at Lopez and immediately heard someone yell, “Hold. Hold. Hold.” Fremont SWAT medics arrived on scene immediately after the shooting and administered emergency medical aid to Lopez but he died shortly after fire department medical personnel arrived to relieve them at 2:09 PM. Officers searched Lopez and found a makeshift holster near his waist containing a loaded .38 caliber revolver. It did not appear that the gun had just been fired. Jeffrey F. Rosen District Attorney Crime scene officers recovered four .40 caliber shell casings in the alley where Sergeant Duckworth first fired his handgun as Lopez climbed over a gate. They also noted a bullet hole in the garage door frame near the gate, two bullet holes in the gate with two corresponding bullet holes in a fence opposite the gate. Two bullets were found lodged in a truck parked directly behind the fence. There was a bullet hole in a recycling bin on the east side of the fence. Two .40 caliber shell casings were recovered from the east side of the back yard where Duckworth was shooting at Lopez before he climbed over north fence facing Richwood Court. Two more .40 caliber shell casings were found in the same location but on the east side of the fence. Seven shell casing were located in the driveway of the parking lot on Richwood Court where Sergeant Epps fired his service rife. Two .40 caliber shell casing were located in the bushes on the south side of Richwood Court where Sergeant Harnett fired his service handgun. Autopsy Dr. Michelle Jordan performed the autopsy on Sonny Lopez and concluded that he died as a result of multiple gunshot wounds. However, despite sustaining four serious gunshot wounds and multiple fragmentation wounds, only one of these wounds was clearly the cause of death considering the availability of immediate emergency medical care. The fatal wound entered his upper left back from left to right and downward, involving the rib, lung, diaphragm, pancreas, small bowel, transverse colon, adrenal gland and lodged in his right hip area. The other serious wounds involved through- and-through wounds to the left thigh, left foot and right hand. The left foot wound involved the third through fifth toes. The right hand injury nearly amputated his thumb. None of the gunshot wounds were from close range. Legal Analysis Any person, including a peace officer, is legally justified in using deadly force when the circumstances reasonably create a fear of imminent death or serious bodily injury to the person or to another person, and the use of deadly force reasonably appears necessary to resist the threat. (People v. Humphrey (1996) 13 Cal.4th 1073; People v. Hardin (2000) 85 Cal.App.4th 625; People v. Harris (1971) 20 Cal.App.3d 534; Penal Code Section 197, subds. 1-3) Officers are not required to utilize non-lethal force options before resorting to deadly force but the decision to use deadly force must be objectively reasonable based on the circumstances known to the officer. (Graham v. Connor (1989) 490 U.S. 386, Forrester v. City of San Diego (1994 9th Cir.) 25 f.3d 804.) Courts have recognized that the use of deadly force is often made under stressful circumstances with little or no time to reflect on Jeffrey F. Rosen District Attorney alternate courses of action and have generally rejected after the fact attempts at second guessing these decisions. (Brown v. Ransweiler (2009) 171 Cal. App. 4th 516.) The plans under consideration by Fremont officers to arrest Lopez all involved varying degrees of risk. Officers had probable cause to believe that Lopez had recently committed one murder and had likely committed others. He was known to be armed with a handgun and had previously expressed his intention to fight to the death any attempts to arrest him. The safest plan under consideration had the potential for creating a hostage situation by surrounding the condominium that Lopez was known to be inside after a new arrest warrant was obtained. Other scenarios involved Lopez evading a car stop or pedestrian arrest attempt and escaping into the residential neighborhood and killing or taking a civilian hostage. Lopez left the condominium in the middle of Sheriff’s Department take over of the operation from Fremont PD. When Sergeant Duckworth stopped to confirm Lopez’s identity, he was forced to confront Lopez without backup. Lopez refused to obey Duckworth’s order to surrender and quickly ran across Miller Ave. into the alley behind Richwood Court with Duckworth trailing behind. Commander Bouchet, who pulled into the alley behind Lopez and almost hit him with his SUV, did not try to hit Lopez or shoot at him when he got out of his SUV because he did not see anything in his hands that would cause him to believe he was in imminent danger of death or serious bodily injury. However, Duckworth started shooting at Lopez from behind Bouchet as he ran down the alley. The shots were close enough to Bouchet that he heard them pass over his shoulder. Duckworth did not attempt to justify shooting at Lopez based on imminent death or great bodily injury to himself or others. Instead, he expressed concern about Lopez jumping over the gate he was running toward and possibly threatening the residents or escaping the parameter. Peace officers are also justified in using deadly force under certain circumstances when attempting to arrest a fleeing felon. (Penal Code Sections 835a, 196, 197) These sections historically have allowed officers to use deadly force when necessary to make an arrest for any felony. More recent authority has limited an officer’s right to use deadly force to violent felony arrests. (Kortum v. Alkire 69 (1977) Cal.App.3d 325) The Fremont Police Departments’ Operations Direction, Z-1, is in accord with the modern interpretation of Penal Code Sections 835a, 196 and 197 which limit the use of deadly force to violent felony arrests. The Fremont PD SWAT supervisors made it very clear to their officers that Operations Directive Z-1 could possibly come into play based on the fact that they were arresting Lopez for murder, a violent felony, and that he was armed and would likely violently resist attempts to arrest him. Jeffrey F. Rosen District Attorney The first four shots fired by Duckworth were legally justified as occurring during a violent felony arrest. Lopez had ignored orders to submit to arrest and was fleeing into the back yard of a house where the residents were likely to be home on a Sunday afternoon. It appears that none of these rounds hit Lopez as he did not slow down or react to the shots and no blood was located near the fence or in the back yard. One of the rounds was recovered from the garage door frame near the fence and two others went through the gate and the fence on the east side of the yard and struck a truck. In addition, Lopez would have been unable to jump over the fence with any of the wounds that he ultimately sustained. Once inside the backyard, Duckworth fired four more rounds at Lopez while running north on the east side of the residence as evidenced by the four shell casings from his gun found in this area. Duckworth’s stated reason for shooting at Lopez was that he was disoriented once he was inside the backyard and was fearful that Lopez would jump the north gate of the residence, escape the parameter and threaten other residents in the neighborhood. This second volley of shots by Duckworth was also legally justified in order to make a violent felony arrest as Lopez continued to be a threat to neighborhood residents generally and to other officers. It is likewise doubtful that any of these shots hit Lopez as he would have been unable to scale the gate with his eventual wounds and, additionally; there was no blood found near the gate. When Lopez landed on the north side of the gate, Sergeant Epps, Sergeant Harnett and Officer Snow saw him crouched down facing the gate with his hands near his waist. They had heard the sounds of gunfire coming from the alley and reasonably believed that a rolling gun battle was taking place between Lopez and pursuing officers. It was also reasonable for them to feel that Lopez was waiting to ambush Duckworth based on the position of his body and hands. It appears that Lopez may very well have been planning to confront Duckworth even though he had not previously fired any shots. By the time Lopez had jumped the north fence on to Richwood Court, he had undoubtedly concluded that Duckworth was trying to kill him after firing eight shots at him from two different locations. He may have been deciding whether to shoot back at Duckworth with the handgun he was carrying or to continue to run. However, Lopez did not know that Epps had seen him jump the gate and was in a good position to fire at him with his SWAT rifle. Epps fired 7 shots at Lopez from the entrance of the parking lot on north side of Richwood Court and he went down to the ground immediately and landed face down. Harnett fired at least 2 shots at Lopez with his handgun from the south side of Richwood Court at almost the same time as Epps was firing his rifle. Snow fired one round from his SWAT rifle when he saw Lopez try to get up and possibly get up and run or get into a firing position. Duckworth kicked in a board on the fence and stepped through just after Epps, Harnett and possibly Snow fired at Lopez. Jeffrey F. Rosen District Attorney It is unclear who fired the rounds which struck Lopez, particularly the fatal shot that entered his back. The Crime Laboratory was only able to eliminate the handguns fired by Duckworth and Harnett as the cause of the fragmentation wound on Lopez’s arm. As stated above, it is doubtful that any of the shots fired on the run by Duckworth hit Lopez. Epps had a rifle and the best firing position and he fired more shots than Harnett and Snow. Conclusion The plan to arrest Sonny Lopez on a Sunday afternoon in a residential neighborhood in Cupertino was extremely dangerous to the involved officers and residents. The various contingency plans devised by Fremont PD SWAT officers all involved varying degrees of risk. Lopez was wanted for murder, known to be armed and had expressed his belief that he would die resisting arrest. These plans were complicated when Lopez chose to leave the residence where he was staying while the Sheriff’s Department was taking over for the Fremont PD officers who had been up all night. Sergeant Duckworth attempted to identify and lawfully arrest Lopez for a violent felony and fired several shots from his service handgun at Lopez when Lopez ran and entered the backyard of a residence. These shots caused other nearby officers to reasonably conclude that Lopez was firing at pursuing officers. When Lopez jumped over a gate into the front of the residence and turned back toward Sergeant Duckworth, these officers reasonably believed that Lopez was attempting to ambush him. Based on this belief, three Fremont PD officers fired their service firearms at Lopez. He died from multiple gunshot wounds despite receiving immediate emergency medical treatment. All of the shots fired by the officers were legally justified in self-defense, defense of others or during an arrest for a violent felony. Jeffrey F. Rosen District Attorney Jeffrey F. Rosen District Attorney To: Jeff Rosen, District Attorney From: David Tomkins, Assistant District Attorney CC: Brian Welch, Supervising Deputy District Attorney Re: Officer Involved Shooting N3 Ranch Background On July 21, 2010 at 6:00 A.M., the Santa Clara County Sheriff’s Office Marijuana Eradication Team (MET) attended a mission briefing in the parking lot of the Livermore Police Department with members of the Alameda County Sheriff’s Department Special Investigations Unit (SIU) about suspicious criminal activity at the N3 Cattle Ranch. The N3 Ranch is a large working cattle ranch located at 7000 Del Valle Road in Livermore and is situated on several thousand acres of mountainous terrain which spans portions of Santa Clara, Alameda, San Joaquin and Merced Counties. Caretakers of the N3 Ranch had observed the presence of an irrigation line in a remote canyon called Arroyo Valle, near a large stream that feeds into Lake Dell Valle. Arroyo Valle is believed to be in Santa Clara County based on the GPS coordinates (N 37 28.024/W 121 35.779). The presence of an irrigation line in a remote area near a natural water source indicates possible illegal marijuana grow operations. Both the MET and SIU teams had previously participated in numerous marijuana eradication raids and considered them to be high risk operations. Marijuana grows located in remote areas usually contained thousands of individual plants which are guarded by growers armed with firearms. MET was involved in an eradication operation in August 2005 where a Department of Fish and Game officer was shot in the leg by a person guarding a marijuana grow in unincorporated Los Gatos. MET deputies returned fire and killed the guard but another guard was able to escape. In July 2008, MET deputies shot and killed an individual guarding several marijuana gardens in the Saratoga Hills after the guard brandished a rifle at them. Based on this knowledge, both teams prepared operational plans which included protocols for the use of deadly force. MET and SIU had previously participated in joint marijuana eradication operations at the N3 Ranch in August 2008 and July 2009 where over 14,000 plants were seized. In the 2008 operation, deputies arrested an individual tending a marijuana garden who was armed with a pistol. In the 2009 operation, which was conducted in the same area as the planned operation, a suspected marijuana grow operator escaped on foot through the brush. The Shooting Jeffrey F. Rosen District Attorney On July 21, 2010, at approximately 9:00 a.m., MET and SIU deputies arrived at the entrance to the N3 Ranch located near Del Valle Regional Park. They met with N3 Ranch employees who guided them as they drove on a dirt road for 10 miles to a location near the potential grow site. Both teams hiked down a trail to Sycamore Creek, a dry creek bed, where they located the black irrigation line described by the N3 ranch employees. The irrigation line contained running water and was pressurized. Both teams followed the water line in an easterly direction along the creek bed with MET deputies taking the lead because the suspected marijuana garden was believed to be in Santa Clara County. The SIU deputies remained approximately 17 feet behind the MET deputies. MET Deputies Gregg Dibert, Devin Fontana and John Spagnola split off from the other deputies in the creek bed and followed the irrigation line up the south bank of the canyon. While looking at the north bank of the canyon through his rifle scope, Dibert saw a man, later identified as Jose Penaloza-Soto (“Soto”), pointing a rifle in the direction of the other deputies in the creek bed. Fearing that he was preparing to shoot at the deputies, Dibert fired one round from his service rifle at him. Dibert immediately lost sight of Soto in the tree canopy covering Dibert on the south bank. Dibert attempted to relocate Soto by moving closer to where Fontana was standing nearby. Both Dibert and Fontana were able to see Soto standing on the north bank holding the rifle. Soto was apparently not hit by the round fired by Dibert. Dibert and Fontana could hear other deputies yelling verbal commands in English and Spanish for Soto to drop the rifle and put his hands up. While some of the deputies had limited Spanish speaking skills, none were fluent Spanish speakers. Some of the deputies also heard what they believed to be other unknown individuals running from the area. Soto initially responded to the deputies’ commands by lowering the barrel of the rifle, which was hanging from his shoulder on a sling and also raising his hands. However, Soto refused to drop an unknown object that he was holding in his hand despite numerous commands that he do so. Soto then lowered his hands and again pointed the barrel of the rifle in the direction of the deputies in the creek bed. Fearing that Soto was again threatening to shoot at deputies in the creek bed, Dibert and Fontana fired their service rifles at Soto from approximately 140 feet. Dibert fired 2 rounds and Fontana fired 8 rounds. They saw Soto drop to the ground behind some brush but could still see the nearby grass moving. MET Deputies Mike Damigo and Doug Amaro climbed up the north side of the canyon to locate Soto. They circled around and approached him from above and slightly east of where they observed him lying face up with his head pointing downhill. Soto appeared to be reaching for the rifle which was within his arm’s reach. Damigo identified himself as a police officer in English and Spanish and ordered him to stop reaching for the rifle. When Soto continued to reach for the rifle, Damigo, fearful that he was going to gain control of the rifle and shoot him or Amaro, fired four rounds from his service rifle from approximately 30 feet. Damigo and Amaro moved down the steep hillside toward Soto who was no longer moving. Amaro, a medic, administered emergency first aid but Soto died at 10:25 A.M. Soto’s rifle was recovered and determined to be a Jeffrey F. Rosen District Attorney pellet rifle. A folding knife with the blade locked in the open position was also located within three feet of Soto’s body. Investigators determined that Soto was 28 years old and had moved to the United States from Mexico when he was 17. His family knew little about his whereabouts other than they believed he was working on a ranch in Livermore. Deputies later discovered 6 large marijuana gardens with a total of 18,342 individual marijuana plants east of where the shooting occurred. The approximate street value of this marijuana is $55,026,000. A campsite was located near the grow operation which contained two additional pellet rifles, a .22 caliber rifle and ammunition for various caliber firearms. The pellet rifle found on Soto, along with the two pellet rifles found at the campsite were physically indistinguishable, without close examination, to the .22 caliber rifle found at the campsite. No additional suspects associated with the marijuana grow were located. Autopsy The autopsy was performed on July 23, 2010 by Dr. Glenn V. Nazareno. Soto suffered two gunshot wounds to his back right thigh and additional gunshot wounds to the left upper arm, left chest under the armpit and left abdomen. While there was no determination of which bullet inflicted the fatal injury, the most serious wound appears to have been caused by the bullet which entered his right rear thigh, exited and reentered near his groin and fragmented while traveling to and lodging in his chest cavity. Dr. Nazareno listed the cause of death as multiple gunshot wounds. Legal Analysis Officers are legally justified in using deadly force if they reasonably believe that it is necessary to respond to an immediate threat of death or great bodily injury to themselves or other officers. (Penal Code Section 197, subds. 1-3.) Appellate courts have recognized that officers must make split second decisions concerning the use of deadly force in the course of their duties. (Brown v. Ransweiler (209) 171 Cal.App.4th 516.) However, the ultimate question is whether the use of deadly force was objectively reasonable under the circumstances. (Graham v. Connor (1989) 490 U.S. 386, Forrester v. City of San Diego (1994, 9th Cir.) 25 F.3d 804.) Soto could hear the deputies’ approaching from his vantage point near the top of the north bank of the canyon, but it is unclear whether he saw any of them. MET deputies Dibert, Fontana and Spagnola were shielded by a thick tree canopy while positioned on the south bank across from Soto. The remaining deputies may not have moved into Soto’s field of vision when Dibert fired and apparently missed with his first shot. In addition, the north side of the creek bed below Soto’s position was a straight wall approximately 6-8 feet high that possibly shielded Soto’s view of portions of the creek bed. However, this first shot by Dibert was legally justified based on his prior knowledge of violent confrontations with armed individuals guarding marijuana grow operations Jeffrey F. Rosen District Attorney and his reasonable belief that Soto was pointing a firearm in the general direction of the officers who were in a vulnerable position in the creek bed. After the near miss by Dibert’s first shot, Soto appeared to acknowledge the commands by the deputies to drop his rifle and put his hands up. At first, Soto lowered the barrel of the rifle and raised his hands. However, he did not drop the rifle to the ground and he refused repeated commands by the deputies to drop what looked like a folding knife. Dibert and Fontana were watching Soto through their rifle scopes from the south bank and had reason to be concerned about Soto’s lack of complete cooperation and the fact that he still had possession of the rifle. They reasonably believed that Soto was still in a position to threaten them and the deputies in the creek bed. When Soto dropped his hands and raised the barrel of his rifle, they were legally justified in shooting at him in defense of themselves and the deputies in the creek bed. Some of the shots fired by Dibert and Fontana appear to have hit Soto as he immediately fell to the ground. Also, some of the deputies in the creek bed reported hearing moaning sounds coming from Soto’s location. However, Soto continued to be a threat as Dibert and Fontana could see movement in the area where he fell and he still had access to the rifle. Damigo and Amaro were tasked with taking Soto into custody and treating any gunshot wounds that he may have sustained. They took a circuitous route up the north bank that allowed them to look down at Soto. Damigo could see that Soto was obviously wounded and lying with his head downhill at a steep angle. Despite his wounds, Soto appeared to be trying to gain control of the rifle that was within his arms reach despite repeated warnings from Damigo and Amaro in English and Spanish to stop reaching for the rifle. Due to the steepness of the hillside, Damigo and Amaro were not in a position to immediately rush down and physically prevent Soto from grabbing the rifle. Damigo’s decision to fire 4 shots at Soto from his service rifle was legally justified after Soto failed to heed their warnings and continued attempting to gain control of the rifle. There was no further movement from Soto and he died shortly. Deputies were able to recover Soto’s rifle and determined that it was a pellet gun. The pellet rifle was very similar to a real firearm. In fact, Soto’s pellet rifle and the two additional pellet rifles recovered in the campsite were physically indistinguishable, without close examination, from the .22 caliber rifle also found at the campsite. Conclusion On July 21, 2010, MET and SIU deputies conducted reconnaissance of a marijuana grow operation at the N3 Ranch after receiving information about an irrigation line in a remote area of the ranch. Based on previous marijuana eradication operations, including recent operations at the N3 Ranch in 2008 and 2009, the deputies were aware that large marijuana grows in remote locations are usually tended by armed guards. Recent Jeffrey F. Rosen District Attorney eradication operations resulted in violent confrontations where individuals guarding marijuana gardens had been killed. In one instance, an armed guard shot and wounded a law enforcement officer. Jose Penaloza-Soto, and probably others, were guarding six large marijuana grows when MET and SIU deputies approached the grows. Deputy Dibert was legally justified in shooting at Soto when he saw him standing on a hillside armed with a rifle pointed at deputies in the creek bed and reasonably believed Soto was going to shoot at the deputies. Deputy Dibert fired one shot from this service rifle at Soto, which apparently missed. Deputy Dibert and Deputy Fontana were legally justified in shooting Soto when he refused to obey repeated commands to drop a knife he was carrying and pointed his rifle at deputies in the creek bed for the second time after initially lowering the rifle barrel and raising his hands. Soto also ignored commands from Deputy Damigo and Deputy Amaro to stop reaching for his rifle as lay wounded on the hillside. Damigo and Amaro were not in a position to physically prevent Soto from reaching for his rifle due to the steep terrain. Damigo was legally justified in shooting Soto to prevent him from regaining control of the rifle. It remains unclear why Soto would repeatedly brandish a pellet rifle at armed deputies and attempt to grab the pellet rifle while seriously wounded. However, Soto’s pellet rifle looked exactly like a firearm and the involved deputies had no reason to suspect otherwise. They were legally justified in shooting Soto in self-defense and in defense of other deputies. Jeffrey F. Rosen District Attorney To: Jeff Rosen, District Attorney CC: Brian Welch, Supervising Deputy District Attorney From: David Tomkins, Assistant District Attorney Re: Officer Involved Fatal Shooting of Brian Casey on August 29, 2010 Background Heidi and Brian Casey separated in June of 2010 after 19 years of marriage due to Brian’s alcoholism. Brian moved out of their residence and rented an apartment at 5363 Wong Court #19 in San Jose. Brian continued to work as a butcher and they shared custody of their two small children. Brian voluntarily submitted to a 72 hour psychiatric evaluation in July of 2010 at the request of his stepfather after he became depressed and locked himself inside his apartment. The stepfather had taken Brian’s shotgun and knife during the psychiatric evaluation, but had returned them after Brian had attended substance abuse classes and out-patient counseling. On August 28, 2010, Brian told Heidi that he was depressed and complained of severe stomach pain. Brian had previously told Heidi that he had been diagnosed with stomach cancer but refused treatment. Heidi persuaded Brian’s best friend, Nicholas Lefteroff, to get Brian to seek medical treatment. Nicholas removed Brian’s shotgun from the apartment and Heidi took Brian to the hospital for treatment of his cancer. Brian fled the hospital on foot before seeing a doctor, but later returned after Heidi called SJPD to look for him. The doctor told Brian that he did not have stomach cancer and Brian admitted to Heidi that he had lied about the diagnosis. Shooting On August 29, 2010, at 9:16 A.M., San Jose PD Communications received a call from Heidi Casey stating that her estranged husband, Brian Casey, had just called and told her that he had just shot himself in the head and chest with a nail gun in a suicide attempt. Brian told Heidi that he just wanted to die and complained about botching his suicide attempt. At 9:18 A.M., San Jose Police Officers Raul Corral and Matthew Blackerby were dispatched to Brian’s apartment for a welfare check. The officers knocked on the front door, but Brian did not answer. They later determined that all of the doors and windows to the apartment were locked. Jeffrey F. Rosen District Attorney Other officers arrived at the apartment, including Lt. James Werkema, a Crisis Intervention Trained supervisor, and Sgt. Mark Clough. Lt. Werkema tried to call Brian’s cell phone, but did not get an answer. Sgt. Clough tried speaking to Brian through the front door and expressed concern about his welfare. Officers felt that Brian was inside the apartment because his truck was parked in a nearby carport. Lt. Werkema and Sgt. Clough determined that Brian was inside the apartment and was incapacitated due to self-inflicted injuries. They decided that an immediate forced entry into the apartment was required to check on his welfare. Officer Coral kicked in the front door and entered along with Officers Blackerby, James Mason, and Mark Palfalvi. There were no lights on inside the apartment, but the officers saw a large hunting knife on the floor and drew their service handguns. The officers began moving from the living room down the hallway and cleared a laundry room to the left and a bedroom on the right. As Officer Mason came out of the laundry room, Brian came out of the bathroom, which was the next room down the hall. He was shirtless, bleeding, and holding a knife with the blade pointing downward. The officers pointed their guns at Brian and ordered him to drop the knife, but he refused to do so. Officer Mason heard Brian make growling sounds. Officer Blackerby heard him say, “You better kill me.” The other officers did not hear him say anything. Brian was standing between 3-5 feet from the nearest officer at this point and took two steps toward the officers and raised the knife above his head. Fearing for their safety due to their close proximity to Brian and their belief that he intended to stab them, Officer Mason fired three rounds, Officer Blackerby fired three rounds and Officer Palfalvi fired one round as they retreated backwards out of the hallway. Officer Corral retreated and attempted to draw his Taser. Brian was struck by five rounds in the torso and one round in the head and was pronounced dead shortly thereafter. Officers found a blood stained pillow and bedspread in the bathtub where Brian was lying down when the officers entered the apartment. Autopsy Dr. Jorden performed the autopsy on Brian and discovered two nails in his brain and one nail in his chest that perforated his aorta. She also located a laceration on his left wrist and two puncture wounds to his chest and one to his abdomen. She found six gunshot wounds belonging to six bullets. She concluded that Brian’s death was a homicide and that he died from multiple gunshot Jeffrey F. Rosen District Attorney wounds. She did, however, observe that the nail gun wounds could have been fatal in the absence of immediate medical intervention. Legal Analysis The officers were legally justified in shooting Brian if they reasonably believed that his actions posed an immediate threat of death or great bodily injury to themselves or their fellow officers. (Penal Code Section 197, subds. 1-3.) The law recognizes that officers are often called upon to make split-second decisions in life and death situations in the course of their duties. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516.) Officers, as individuals, often react differently when confronted with stressful situations and have little or no time to consider all of the available options. Therefore, the question is not whether there were other non-lethal options available to the shooting officers, but whether their actions were objectively reasonable under the circumstances. (Graham v. Connor (1989) 490 U.S. 386; Forrester v. City of San Diego ( 1994, 9th Cir.) 25 F.3d 804.) Before entering the apartment, the officers knew that Brian had attempted suicide with a nail gun, had a history of mental instability, and there were weapons in the house. Once they were inside, the officers saw a large knife on the floor that heightened their fear that Brian was armed, causing them to draw their guns. The officers were also at a tactical disadvantage as soon as they started down the hallway as their ability to maneuver was significantly restricted. When Brian suddenly stepped out of the bathroom with knife in his hand, he was already close enough to stab any of the officers in the hallway. Brian’s intent in walking toward the officers with the knife raised above his head was unclear in light of his previous attempts at suicide. The statement heard by Officer Blackerby, “You better kill me,” suggests that he was trying to get the officers to kill him after believing that he had been unsuccessful in his previous suicide attempt. One of the officers felt that the best course of action was to withdraw and use a Taser, a non-lethal force option. Nevertheless, the officers exercised restraint and did not immediately use deadly force because he was holding the knife down at his side. Instead, they used verbal commands in order to attempt to get him to drop the knife. It was only after he disregarded these commands and walked towards the officers with the knife raised above his head in a stabbing position did three of the officers shoot him. It was reasonable under these circumstances for the shooting officers to respond with deadly force rather than risk being stabbed by Brian in order to determine whether he actually intended to assault them or was merely trying to provoke them into finishing the suicide that he had started earlier. Conclusion Jeffrey F. Rosen District Attorney It was a tragic irony that officers who entered Brian Casey’s apartment in an attempt to prevent his death were ultimately forced to kill him. Sadly, Brian was intent on causing his own death even if he had to threaten the officers with a knife to accomplish this end. Had the officers not forced entry into his apartment he would have died from the nail gun wounds. Under these circumstances, the decision by Officers Mason, Blackerby, and Palvalvi to shoot and kill Brian Casey while on duty was legally justified.
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