SFDA Releases Summaries of Investigation, Legal Analyses, and Charging Decisions in Two Officer-Involved Shooting Incidents

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News from the Office of District Attorney George Gascón

 

FOR IMMEDIATE RELEASE

May 24, 2018

Twitter: @GeorgeGascon

CONTACT:     ALEX BASTIAN (415) 553-1931         |        MAX SZABO (415) 553-9089

 

SFDA RELEASES SUMMARIES OF INVESTIGATION, LEGAL ANALYSES AND CHARGING DECISIONS IN TWO OFFICER-INVOLVED SHOOTING INCIDENTS

 

SAN FRANCISCO – Today, the San Francisco District Attorney’s Office (SFDA) Independent Investigations Bureau (IIB) released the summaries of investigations, legal analyses and charging decisions related to two officer involved shooting (OIS) incidents. 

 

“Use of force cases can only be charged if we can prove that it was unreasonable for the officer to be in fear for their life or someone else’s,” said District Attorney George Gascón.  “Whether or not the officer could have used another tactic such as non-lethal force, or simply waiting, is not a factor we can even consider under current law.  With the science demonstrating that jurisdictions with more restrictive use-of-force standards are safer for the community and police alike, we can do better.  I hope the legislature and Governor will listen to the facts rather than the rhetoric, and pass AB 931 to ensure police are trained and incentivized to seek out alternatives to lethal force.  Modern policing requires lethal force be used not simply because it’s an option, but because it’s imperative.”

 

The attached documents reflect SFDA’s commitment to the community that investigations and charging decisions are conducted with transparency.  SFDA’s reviews of use of force incidents are conducted by the office’s Independent Investigations Bureau (IIB).  They focus exclusively on determining whether criminal charges relating to the officers’ conduct are warranted.  IIB’s reviews do not examine issues such as officers’ compliance with their agency’s policies and procedures, their training or tactics, or any issues related to civil liability.  These reports should not be interpreted as expressing any opinions on such non-criminal matters.

 

OFFICER-INVOLVED SHOOTING OF MARIO WOODS ON DECEMBER 2, 2015

 

The SFDA’s Independent Investigations Bureau has completed its review of the officer-involved shooting that resulted in the death of Mario Woods on December 2, 2015.  The SFDA’s Independent Investigations Bureau (IIB) reviewed all evidence previously collected by the San Francisco Police Department (SFPD) and SFDA, and also conducted its own, independent follow-up investigation. 

 

In brief, on the afternoon of December 2, 2015, SFPD officers were searching for a man who had reportedly stabbed another person with a knife.  Police dispatchers broadcasted a description of the suspect.  Dispatchers also informed officers the stabbing victim had sought emergency medical care.  Shortly afterwards, an officer broadcast a witness report that the suspect may still be in the area of the stabbing.

 

Soon thereafter, uniformed Officer Charles August (Star No. 1119) and his partner, Officer Brandon Thompson (Star No. 153), saw a man matching the suspect’s description (later identified as Mario Woods) standing on a street corner and contacted him. Woods pulled out a knife and began walking away from the officers.  At least one of the officers ordered Woods to drop the knife.

 

At least ten other officers arrived, surrounding Woods in a semi-circle with Woods’ back to a building. The officers attempted to gain control of Woods by commanding him to “drop the knife,” and by using less-than-lethal force, including striking Woods with bean bag shots and foam baton rounds, and deploying pepper spray.  At one point, Woods crouched down, but he eventually stood up -- with the knife still clutched in his right hand.  He began to walk away once more, in the direction of several civilians standing on the sidewalk.  In response, Officer August, who was the closest officer to Woods, walked backwards to block Woods from gaining access to the citizens.  Woods, still with a knife in his hand, continued to advance forward, closing the distance between Officer August and him.  Officer August and four other officers -- Winston Seto (Star No. 2370), Antonio Santos (Star No. 2474), Nicholas Cuevas (Star No. 2295), and Scott Phillips (Star No. 1707) – collectively fired 26 rounds at Woods.  Woods died on scene from his gunshot wounds. 

 

Possible criminal charges against an officer involved in a fatal shooting include murder and voluntary manslaughter.  To charge an officer, or any person, a prosecutor must be satisfied that the evidence shows beyond a reasonable doubt the officer had no legal justification for the act.  When an act is legally justified, a person is not criminally liable even though the act would otherwise constitute a crime. 

 

Here, the officers said they used lethal force because they believed they were acting in self-defense and/or in defense of others.  According to California law, self-defense or defense of others serves as a complete defense to murder and voluntary manslaughter so long as the officer (1) subjectively believed in the need to resort to force in order to avert a threat of imminent and great bodily injury, and (2) his perceptions and actions were objectively reasonable under the circumstances. 

 

The subjective prong of the self-defense standard examines the person’s belief in the need to use force.  Here, the subjective prong is met for all officers as each officer articulated their belief that Officer August and/or the civilians were in imminent danger of great bodily harm. 

 

Therefore, the question turns on whether this belief in the danger presented and the need to use force was objectively reasonable.  For charges to be brought the District Attorney’s Office accordingly has the burden of proving beyond a reasonable doubt that an officer’s claim that she perceived the need to use deadly force was objectively unreasonable.

 

That it cannot be proven beyond a reasonable doubt that the officers acted objectively unreasonably is perhaps best demonstrated by the fact that the officers acted in accordance with their SFPD training and within nationally recognized norms.  For example, Sgt. Pomatto, a supervisor in the SFPD Training Academy, reviewed the videos and concluded the officers acted in accordance with their training at the time.  IIB also consulted with Charles J. Key, a nationally recognized, court-qualified use-of-force expert who has testified on behalf of the federal government in excessive force prosecutions against law enforcement officers.  Key reviewed the videos and opined that the officers acted in accordance with nationally-recognized standards for police tactics. 

 

It therefore cannot be proven beyond a reasonable doubt that their perceptions and actions were objectively unreasonable under the circumstances.

 

Additionally, being as though Woods had previously stabbed an individual, Woods posed a credible threat to the public.  Given the serious nature of the crime the officers had probable cause to believe Woods had committed, the officers would have been derelict in their duty to protect the public had they let Woods escape.  It was therefore not objectively unreasonable for Officer August, who was closest to Woods, to prevent him from leaving in the direction of the nearby civilians.

 

The District Attorney therefore declines to pursue criminal charges against any of the SFPD officers because, as detailed in the attached report, we cannot prove beyond a reasonable doubt that their actions were not reasonably taken in defense of themselves and others.

 

OFFICER-INVOLVED SHOOTING OF LUIS GONGORA PAT ON APRIL 7, 2016

 

The SFDA’s Independent Investigations Bureau has completed its review of the officer-involved shooting that resulted in the death of Luis Gongora Pat at Shotwell Street between 18th and 19th Streets in San Francisco, California, on the morning of April 7, 2016. The SFDA’s Independent Investigations Bureau (IIB) reviewed all evidence previously collected by the San Francisco Police Department (SFPD) and SFDA, and also conducted its own, independent follow-up investigation.

 

In brief, on April 7, 2016, Officer Michael Mellone (Star No. 4249), Sergeant Nathaniel Steger (Star No. 2252), and Officer Esteban Perez (Star No. 4183) responded to a 911 call from a homeless outreach advocate about a man, later identified as Gongora, waving a large knife on Shotwell Street between 18th and 19th Streets. At approximately 10:04 a.m., the officers found Gongora sitting against a Pacific Gas and Electric Company (“PG&E”) building on Shotwell Street with a large kitchen knife.

 

The available evidence indicates the officers ordered Gongora to drop the knife. He initially let go of the knife but then quickly picked it back up. The officers repeatedly ordered Gongora to drop the knife in both English and Spanish. When Gongora refused, Officer Mellone hit Gongora with beanbag rounds in an unsuccessful attempt to get him to drop the weapon. Rather than comply, Gongora rose to his feet and moved approximately 23 feet toward Sergeant Steger with the knife in hand. Sergeant Steger and Officer Mellone fired a total of seven gunshots, fatally wounding Gongora.

 

Possible criminal charges against an officer involved in a fatal shooting include murder and voluntary manslaughter.  To charge an officer, or any person, a prosecutor must be satisfied that the evidence shows beyond a reasonable doubt the officer had no legal justification for the act.  When an act is legally justified, a person is not criminally liable even though the act would otherwise constitute a crime. 

 

According to California law, self-defense or defense of others serves as a complete defense to murder and voluntary manslaughter so long as the officer (1) subjectively believed in the need to resort to force in order to avert a threat of imminent and great bodily injury, and (2) his perceptions and actions were objectively reasonable under the circumstances. 

 

Here, Sergeant Steger told investigators that he feared for his life because Gongora was heading toward him with a large knife in spite of repeated orders to drop it and having been hit by multiple less lethal rounds. Officer Mellone said he feared for Sergeant Steger’s life and fired in defense of the sergeant. Therefore, the subjective prong is met for both officers. 

 

Accordingly, the question turns on whether this belief in the danger presented and the need to use force was objectively reasonable.  For charges to be brought the District Attorney’s Office accordingly has the burden of proving beyond a reasonable doubt that an officer’s claim that she perceived the need to use deadly force was objectively unreasonable.

 

The weight of the evidence indicates Gongora initially put down the knife, but picked it back up. This evidence includes Officer Mellone’s contemporaneous radio calls, the officers’ statements, and the recovery of the knife at the scene. The evidence also supports the officers’ statements that (1) Officer Mellone unsuccessfully attempted to gain Gongora’s compliance through less-lethal measures multiple times before deadly force was applied; and (2) Gongora got to his feet armed with the knife and moved in Sergeant Steger’s direction, even though Gongora had an unobstructed path away from the officers south down Shotwell Street. 

 

The weight of the evidence further indicates that Gongora moved toward rather than away from the officers while carrying a knife. The physical evidence establishes he moved approximately 23 feet from against the PG&E building, where he was initially seated, to the school crossing sign where he fell after being shot. All three officers and most of the civilian witnesses placed an officer (Sergeant Steger) near the school crossing sign during the incident.  The video also shows Sergeant Steger quickly backpedaling away from Gongora with his gun raised, suggesting that Gongora was indeed coming in his direction during the shooting.

 

The weight of the available evidence also suggests Gongora had the knife in his hand as he approached Sergeant Steger. The officers’ statements during the incident are corroborated by the video and suggest Gongora was holding the knife during and immediately after the incident. Approximately three to four seconds after Officer Mellone’s radio call stating Gongora had dropped the knife, both officers yelled, “Put that down,” suggesting Gongora had indeed picked the knife back up. Officer Perez shouted, “Let go of the knife,” in Spanish before the lethal gunshots, suggesting that Gongora still had the knife when the officers resorted to lethal force. Officer Perez continued yelling orders to Gongora to drop the knife immediately after the shooting, further corroborating that Gongora was holding the knife at the time the officers shot. Finally, CSI recovered the knife at the scene.

 

Aside from the video evidence, the vast majority of witnesses corroborated the officers’ statements that Gongora had a knife or unidentified object in his hand during or immediately after the shooting. These non-SFPD witnesses include advocates for the homeless, longtime PG&E employees, and residents from the neighborhood.  This incident occurred on a Thursday morning in a residential and commercial area, and at least thirteen civilians witnessed some of the incident or its aftermath.  Although there were some variances, many of these witnesses broadly corroborated the officers’ accounts insofar as: (1) the officers gave verbal commands; (2) the officers used less-than-lethal force before resorting to lethal force; and (3) Gongora, armed with a knife, moved toward Sergeant Steger. On this last point, eleven of the witnesses saw the shooting, and eight of them reported Gongora moved towards the officers. Of the remaining three witnesses, one said Gongora made an “abrupt turn” towards the officers while holding an object in his hand; the other two provided substantially different accounts which, as discussed further in the attached report, are not supported by the physical evidence.  

 

Given this evidence, we cannot meet the burden of showing beyond a reasonable doubt the officers’ belief that they needed to defend themselves was unreasonable and that they were unjustified in shooting Gongora. Accordingly, the District Attorney declines to file criminal charges against either Sergeant Steger or Officer Mellone.

 

Both officer-involved shooting reports are available on the SFDA website at: https://sfdistrictattorney.org/decision-letters-0

 

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