THE DISTRICT ATTORNEY

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					                                          OFFICE OF

                           THE DISTRICT ATTORNEY
                                   COUNTY OF SAN DIEGO

                                    BONNIE ]^f. DUMANIS                           http://www.sandiegoda.com
                                      DISTRICT ATTORNEY


                                         May 9, 2006



Sheriff William Kolender
San Diego County Sheriffs Department
9621 Ridgehaven Court
San Diego, CA 92123


Re: Non-fatal shooting of Tommy R. Giffen on June 6, 2005, by San Diego
     County Sheriffs Deputy Scott Carter; San Diego County Sheriffs
     Department Case # 05-044638-H, DA Special Operations Case No. 05-080PS,
     Deputy District Attorney assigned: David Hendren


Dear Sheriff Kolender:


We have reviewed the reports and other materials compiled by your department concerning the
non-fatal shooting of Tommy Robert Giffen by San Diego Sheriffs Department Deputy Scott
Carter on June 6, 2005. District Attorney Investigator Harold Eisenga responded to the scene
soon after the incident and was briefed by your investigators.

Persons Involved
Tommy Robert Giffen was 28 years old, unemployed and addicted to methamphetamine. He had
a suspended driver's license for excessive blood alcohol and failure to appear, had prior
convictions for reckless driving, battery and auto theft, and had served time in state prison.

Deputy Scott Carter was assigned to San Marcos Patrol Station.


Background
The reports indicate that a white 2003 Chevrolet Silverado truck (registered to South Coast
Waterproofing) was stolen from outside an Escondido home on the night of June 5 to June 6,
2005. On the morning of June 6, at about 8:30 a.m., a witness saw a man matching Tommy
Giffen's description ("thin white male, with short dark colored hair, wearing a grey hooded
sweatshirt") in a neighbor's garage at 837 Minor Drive loading two red toolboxes into the bed of
a white pickup truck. About 37 minutes later, Sheriffs Deputy Darren Dollard responded to the
residence and found a tailgate from a Chevrolet emblazoned with the name "South Coast
Waterproofing".


Several witnesses in various parts of Escondido reported seeing the stolen white pickup truck
driving in an erratic manner, speeding, almost hitting a construction worker, driving around a
wooden barricade, tailgating, and losing tools from the back of the truck bed.
Sheriff William Kolender
May 9, 2006
Page 2 of 5




At 9:52 a.m. Sheriffs helicopter, ASTREA, observed the stolen pickup truck on North
Broadway Avenue near Jesmond Dene Road. The ASTREA deputies reported their observations
to the patrol units in the Escondido area. Deputy Scott Carter drove toward North Broadway to
assist.


The Shooting Incident
Deputy Carter was on North Broadway in Escondido when he saw the white pickup truck and
turned on his overhead lights and siren. Instead of yielding, the driver of the white pickup truck
rapidly accelerated away from Deputy Carter. The driver drove through a dirt parking lot,
driving erratically and nearly hitting a parked car. With Deputy Carter still in pursuit, the truck
went westbound on to Jack Rabbit Acres for about a half a mile where the driver rammed
through a chain link gate. The stolen truck continued to an asphalt-paved driveway, through a
landscaped area, and rammed into a second chain link gate in an apparent failed attempt to drive
through it.


Deputy Carter stopped his patrol car in the paved area behind the truck. Deputy Carter then saw
the backup lights of the stolen pickup truck come on and the rear wheels of the truck spinning in
the soft dirt. Deputy Carter quickly moved his patrol car forward in an effort to shorten the
distance between him and truck. The truck gained traction and accelerated rearwards towards
Deputy Carter's patrol car. The rear of the truck struck the front of Deputy Carter's patrol car,
causing the red toolboxes to slide out of the truck bed. The driver, later identified as Tommy
Giffen, accelerated the truck forward again, causing dirt to fly on to the hood of Deputy Carter's
patrol car. At this time, Deputy Carter got his AR-15 rifle from its rack and began to get out of
his patrol car when he once again saw the truck's backup lights come on.


Deputy Carter feared he would be hurt or killed if the pickup truck hit his patrol car again while
he was standing behind his car door. Deputy Carter extended his rifle out the left side of his
patrol car with his left hand and fired six rounds at the pickup truck as Mr. Giffen was backing
towards him. One shot grazed the right side of Mr. Giffen's head. Mr. Giffen stopped the truck.
He then put his hands and feet out of the driver's side window and surrendered. Deputy Carter
ordered Mr. Giffen out of the truck. ASTREA landed nearby and Deputy Darryl Kimball helped
Deputy Carter place Mr. Giffen under arrest. As Deputy Kimball was handcuffing him, Mr.
Giffen said he was sorry and stated, "you guys did the right thing".

A dditional Information
There was a fine layer of dirt on the front end, hood and windshield of Deputy Carter's patrol
car. The front of the patrol car sustained damage to the front bumper and hood. The rear portion
of the white pickup sustained major damage from the collision. There were red paint transfers
and scratches on the left front area of the hood of Deputy Carter's patrol car, apparently caused
when the red toolboxes were propelled from the bed of the truck, onto the patrol car, and then on
to the asphalt were they were found just to the side of and behind Deputy Carter's car. The
tailgate of the white pickup truck was missing (but found at the scene of the earlier burglary of
the toolboxes). The rear window of the truck was nearly completely shattered. Deputy David
Sheriff William Kolender
May 9, 2006
Page 3 of 5
Cheever, an accident reconstruction expert, confirmed that the physical evidence was consistent
with Deputy Carter's patrol car being stopped on the driveway before accelerating forward and

then braking, locking the wheels on the dirt covered driveway and skidding to a stop. The
pickup truck then struck the Deputy's patrol vehicle, moving it slightly. Deputy Cheever also
stated that the minor damage to the front of the white pickup was consistent with the damage to
the chain-link fence pole.


There were deep parallel furrows in the soft dirt in front of the stolen pickup truck, consistent
with acceleration of the truck backwards from where it struck the fence towards Deputy Carter's
patrol car.


SDSD Firearms Examiner, Lance Martini, found that six or seven shots were fired by Deputy
Carter as he was exiting his vehicle and probably while the stolen truck was backing towards
him. All shots were traveling in a rear to front direction to the truck. Six expended shell casings
were recovered during the crime scene investigation.


Palomar Medical Center Dr. Dick Smith examined Mr. Giffen after the incident and noted a
gunshot entrance wound near his right temple and an exit wound in the right occipital area.

Mr. Giffen admitted to being addicted to methamphetamine, using a gram and a half per day on
average, and using "well over a gram" on the day of the incident. Mr. Giffen told a paramedic he
had been under the influence of methamphetamine for the past five days and had smoked a gram
of methamphetamine at 6:00 a.m.


Legal Analysis
This review was conducted pursuant to the joint protocol between this office and all San Diego
law enforcement agencies calling upon the District Attorney to conduct an independent
assessment of the circumstances surrounding the use of deadly force. The review does not
examine such issues as compliance with the policies and procedures of any law enforcement
agency, ways to improve training, or any issues related to civil liability. Accordingly, such a
review should not be interpreted as expressing an opinion on these matters.


Under California law, peace officers may use deadly force to protect themselves from the threat
of death or great bodily harm and to use reasonable force in making an arrest. California Penal
Code section 835a allows an officer to use reasonable force to make an arrest and to overcome
resistance by a person for whom he has reasonable cause to believe has committed a public
offense. That section states the officer need not retreat or desist his effort to affect an arrest
because of that person's resistance.


In accordance with Penal Code section 196, peace officers may use deadly force in the course of
their duties under circumstances not available to members of the general public. We are
mindful, however, that certain limits on the use of deadly force apply to peace officers. The U.S.
Ninth Circuit Court of Appeals, in the case of Scott v. Henrich (9th Cir. 1994) 39 F.3d 912,
delineated those circumstances under which deadly force may be used:
Sheriff William Kolender
May 9, 2006
Page 4 of 5




           "[P]olice may use only such force as is objectively reasonable under the
           circumstances. An officer's use of deadly force is reasonable only if 'the officer
           has probable cause to believe that the suspect poses a significant threat of death
           or serious physical injury to the officer or others.' All determinations of
           unreasonable force 'must embody allowance for the fact that police officers are
           often forced to make split-second judgments - in circumstances that are tense,
           uncertain, and rapidly evolving - about the amount offeree that is necessary in
           a particular situation.'" [Citations omitted.]


Irrespective of any laws applicable to situations where peace officers use deadly force in
accomplishing their duties, the law of self defense is available to any person. Homicide is
justifiable in accordance with Penal Code 197 when resisting any attempt by a person to commit
great bodily injury on or kill any person.


Conclusions
While under the influence of methamphetamine, Mr. Giffen drove a stolen pickup truck in a
dangerous and reckless manner almost hitting a construction worker. He fled from a pursuing
deputy who had his lights and siren activated, rammed through one chain link fence and
unsuccessfully attempted to ram through another. Mr. Giffen then accelerated backwards into
the front of Deputy Carter's vehicle and started to do so a second time while Deputy Carter was
trying to get out of his patrol car. Fearing for his life, Deputy Carter fired his rifle at Mr. Giffen
causing him to immediately stop the truck and surrender. Mr. Giffen's actions demonstrated he
was a serious danger to Deputy Carter and members of the community. Deputy Carter's use of
deadly force under these circumstances was justified, and he bears no criminal liability for his
actions.


On August 16, 2005, Mr. Giffen pleaded guilty to assault with a deadly weapon upon a peace
officer, and burglary. He was sentenced to four years in state prison.

A copy of this letter, along with the materials submitted for our review, will be retained in our
files.


                                                  Sincerely,


                                                  BONNIE M. DUMANIS
                                                  District Attorney



                                          By:
                                                  JULIE KORSMEYER
                                                  Deputy District Attorney
                                                  Chief, Special Operations Division
Sheriff William Kolender
May 9, 2006
Page 5 of 5
JK:jh
Cc: Captain Clay F. Reynard

				
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