INTEROFFICE MEMORANDUM. DATE: May 18, 2009 PHONE: (909)

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1 INTEROFFICE MEMORANDUM DATE: May 18, 2009 PHONE: (909) FROM: TO: Ray Pyle Supervising Deputy District Attorney West Valley Division Dennis D. Christy Assistant District Attorney James B. Hackelman Assistant District Attorney John P. Kochis Chief Deputy District Attorney West Valley Division SUBJECT: Officer Involved Death INVOLVED OFFICERS: Deputy Sheriff Ryan Girard and Deputy Sheriff Michael Rose INVOLVED AGENCIES: Rancho Cucamonga Police Department DECEASED PARTY: Leonard Velasquez, DOB: 7/2/1972 CITY OF RESIDENCE: Diamond Bar, Calif. DATE AND TIME OF INCIDENT: January 10, 2009, 11: 53PM INVESTIGATING OFFICER: Det. Dave Johnson, Sheriff s Office, Specialized Investigations SHERIFFS DR #: SHERIFFS H #: H STAR #: INVOLVED PARTIES Leonard Velasquez---dob 7/12/ deceased Deputy Sheriff Ryan Girard----San Bernardino County Sheriff s Office Deputy Sheriff Michael Rose San Bernardino County Sheriff s Office ADDITIONAL RELEVANT INFORMATION Per his parole officer, Velasquez was on active parole at the time of the incident. He had a dirty test on 11/21/08. He said Velasquez was a cocaine user, did not know why

2 he would be in Rancho Cucamonga, that Velasquez had special conditions of drug testing and parole out patient clinic for psychiatric evaluations. Contact was made with cousin of the deceased. He last saw Velasquez two weeks ago. He indicated if Velasquez ran from the police, it was probably because he was using again. He did not know why Velasquez would be in Rancho Cucamonga as he usually purchased his drugs in Ontario in the area of Holt and Mission. Velasquez is a self-admitted El Monte Flores Gang Member. SUMMARY On January 10, 2009, Deputies Girard and Rose were assigned to uniformed patrol. Both deputies were in a marked Sheriff s patrol vehicle, Girard being the driver, Rose the passenger. At approximately 11:53 PM a traffic stop was conducted on Mr. Velasquez s vehicle for no front license plate. Velasquez yielded. As Dep. Girard put the patrol vehicle in park, Velasquez sped from the traffic stop. Deputies initiated pursuit activating lights and siren. Velasquez drove northbound on Carnelian then east on 19th at speeds between 60 and 70 mph, running stop signs and stoplights. Velasquez turned southbound on Hermosa accelerating to mph continuing to run stop signs and stop lights, running the solid red signal at Baseline at 70 mph. At one point, as he passed Foothill, Velasquez hit a dip becoming airborne. He continued trying to evade officers running additional stop signs and stoplights. Velasquez turned westbound at 8 th. At the intersection of 8 th and Archibald, a vehicle was stopped for a red signal in the westbound lane. Velasquez passed the stopped vehicle by driving into oncoming traffic. While trying to negotiate an S shaped curve on 8 th, Velasquez lost control, driving into the opposing lanes of traffic. Velasquez lost control of his vehicle, sliding onto the dirt shoulder, stopping across both lanes. Girard used his patrol vehicle to try to pin Velasquez vehicle against a pole and rock located on the south side of the roadway. Girard and Rose exited their vehicle giving Velasquez verbal commands to exit his vehicle. Velasquez responded by revving his engine trying to break free of the patrol vehicle by pulling forward. He could not do so due to a raised curb. At this time Rose was near the drivers window. Girard approached from the rear driver s side. Velasquez placed his car in reverse accelerating in a semi-circle through a dirt field on the south side of 8 th. As Velasquez did so, the front of the car swung toward Girard causing Girard to run out of the way to avoid being struck. Velasquez hit some railroad ties causing him to come to a stop. Deputies approached again. Girard was approximately 3 ft. from the front bumper giving Velasquez commands to exit the vehicle when Velasquez accelerated forward. As Girard backed away, he fired his duty weapon through the front windshield of Velasquez vehicle. He continued to fire as the Velasquez went by nearly striking Girard. Velasquez hit a chain link fence. The wheels of his vehicle continued to spin kinking up dirt.

3 Deputy Rose stated after Velasquez struck the railroad ties, he drove forward nearly striking Rose ultimately striking the chain link fence. Rose was now at the passenger side rear of the car. Velasquez accelerated backward at him. Rose fired 3 to 4 times while side stepping to avoid being struck by the vehicle. Velasquez drove forward again striking the chain link fence. Additional deputies arrived breaking out the windows of the car as the doors were locked. They removed Velasquez and administered first aid. Velasquez was pronounced dead at the scene due to a number of gunshot wounds to the upper torso. CAUSE OF DEATH Dr. Mark Fajardo performed an autopsy on the body of Mr. Velasquez. The cause of death was determined to be multiple gunshot wounds to the upper torso. TOXICOLOGY Blood and urine samples were taken from Mr. Velasquez body and transported to Bio- Tox Laboratories for analysis. The urine sample was found to contain 36.2 mg/l of cocaine and greater than 50 mg/l of benzoyleconine (the primary metabolite of cocaine). Vitreous blood was found to contain mg/l of cocaine and mg/l of benzoyleconine. No alcohol was detected. FACTUAL BASIS The following materials have been submitted and form the basis for the factual overview and summary: the San Bernardino County Sheriff s Department investigation and reports, photographs, recorded witness and officer interviews and radio dispatches. STATEMENT OF FACTS DEPUTY SHERIFF RYAN GIRARD---San Bernardino County Sheriffs Department Deputy Girard was interviewed by Det. Pennington of Sheriffs Specialized investigations. The interview was recorded. Deputy Girard related that, on the night in question, he was driving a two-man unit with Deputy Rose as the passenger. Deputy Girard passed the suspect vehicle driving about 10 mph below the speed limit. Deputy Rose indicated that the vehicle had no front license plate stating let s stop that guy. Deputy Girard waited for the vehicle to pass then activating his overhead lights. He hit his siren once and the vehicle yielded. As they came to a stop he put his vehicle into park. It was at that point the suspect vehicle pulled away. He activated his siren and gave pursuit. The pursuit proceeded as

4 indicated in the SUMMARY section (the distance covered was approximately 5.4 miles) ending with the suspect vehicle losing control. Both deputies exited the patrol vehicle yelling commands for Velasquez to exit the vehicle. Girard approached from the left rear driver s side and was standing approximately two feet from the driver s door when the suspect accelerated backwards, swinging the front of the car toward him almost hitting him. To avoid being hit, Girard ran backwards. The suspect vehicle again stopped with Girard now approaching from the right front fender. As he got within three feet of the right front bumper, giving commands to exit the vehicle, the driver suddenly put the car in drive and drove at him. It appeared to Girard that the driver would run over him. He fired his duty weapon several times through the windshield as he was backing away and fired again several times through the passenger side of the vehicle as it passed him nearly striking him. The vehicle struck a chain link fence located directly behind Girard. After the vehicle came to rest, the front tires were still spinning kinking up dirt. Girard and other deputies tried to remove the suspect from the vehicle finding the doors locked. Deputies broke the windows and removed the suspect. An inspection and analysis of Deputy Girard s gun revealed he fired 5 rounds. DEPUTY SHERIFF MICHAEL ROSE---San Bernardino County Sheriffs Department Det. Gaffney of Sheriff s Specialized Investigations interviewed Deputy Rose. The interview was recorded. Deputy Rose indicated he was the passenger in a Sheriffs patrol vehicle driven by Deputy Girard. As they passed a vehicle driven by Velasquez, Rose noted he had no front license plate. He told Girard to make a traffic stop. They allowed Velasquez vehicle to pass. They pulled behind Velasquez activating the overhead emergency lights. Velasquez did not immediately pull over. He eventually did so. When Girard put the car in park, Velasquez drove away. They pursued using emergency lights and siren. Deputy Laing joined the pursuit taking over the duties of calling in out over the radio. The pursuit evolved as indicated in the SUMMARY section. The chase ended when Velasquez lost control of his vehicle on 8 th west of Archibald. Girard rammed the left rear quarter panel of Velasquez vehicle attempting to pin it against a pole and a rock in an effort to terminate the pursuit. Rose exited his patrol unit. As he approached Velasquez car, Velasquez revved his engine and attempted to drive around Rose s patrol unit. He could not do so as he hit a curb. At this point Rose was staring directly into the driver s window with his gun pointed at Velasquez repeatedly ordering him to get the fuck out of the car. Velasquez stared directly at him, put his car in reverse backing in a semi circle striking a stack of railroad ties. He then sped forward, narrowly missing Rose, striking a chain link fence. Because of Velasquez driving, Rose was now on the passenger side of the

5 car and several feet behind it. Velasquez then sped backward at Rose in an attempt to get away. Rose heard other deputies approaching but was unable to identify them, as he did not look. To avoid being struck, Rose side stepped out of the way to avoid being struck. Fearing for his and other deputies safety, he fired his duty weapon three or four times through the passenger side window/door. Velasquez backed past him and stopped. He then sped forward crashing into the chain link fence. The wheels continued to spin in the dirt. As the doors were locked, Deputies broke the windows to extract the driver. An inspection and analysis of Deputy Rose s gun indicated he fired 7 rounds. Deputy Rose was wearing a belt recorder. He neglected to turn it off after a previous stop resulting in the conversation between he and Deputy Girard being recorded as the pursuit of Velasquez progressed. As the pursuit commenced, Rose broadcasted the failure to yield, the general description of the occupant and the present speed. He then states to Girard, I m gonna fuck n, fuck this guy up. If this guy foot bails, he s fucking done. The remainder of the recording was consistent with the statements previously given by Girard and Rose. Det. Gaffney re-interviewed Rose regarding his comments. Rose said his meaning was, if he had to run after Velasquez, he would catch him and get him into custody. Rose said he was excited at the time, he speculated that Velasquez knew the area and was picking a spot to run. He said he was mentally preparing himself for a foot chase and knew it was his job to catch him. Since he was the passenger, he would be the runner as all he had to do was unbuckle the seat belt and open the door. He admitted it was a poor choice of words but he only meant he wasn t going to let Velasquez escape. Deputy Girard was re-interviewed by Det. Pennington regarding Rose s comments. Girard stated he did not remember the exact words, but did remember that Rose was going to be the one to go in foot pursuit of the suspect if he stopped and ran. Girard explained that since he was the driver, he would have to stop the vehicle and put it in park. By the time he was able to do that, Rose would already be out of the vehicle and in pursuit. Girard indicated he was focused on his driving and on the suspect vehicle and really didn t remember the conversation during the pursuit.

6 DEPUTY SHERIFF GERAD LAING---San Bernardino County Sheriffs Department Deputy Laing and Explorer Scout were interview by Det. Pennington of Sheriffs Specialized investigations. The interviews were recorded. Deputy Laing joined the pursuit shortly after its inception and observed the events as they unfolded after Velasquez lost control. His ride along that night was Explorer Scout. They corroborate the accounts given by Deputies Girard and Rose. Laing indicated he didn t shoot, but only because Rose and Girard would have been in his line of fire. DEPUTY SHERIFF DANIEL RENEAR---San Bernardino County Sheriffs Department Det. Minard of Sheriffs Specialized Investigation interviewed Deputy Renear. The interview was recorded. Deputy Renear joined the pursuit at Hermosa. He corroborates the accounts given above. After Velasquez lost control, he saw Girard and Rose out of their vehicle. He maneuvered his patrol unit in an attempt to keep Velasquez from escaping. He observed Velasquez attempting to escape indicating that Girard and Rose would have been struck by Velasquez if they hadn t sidestepped / run out of the way. VEHICLE PROCESSING Det. Pennington and CSI Kim Branson processed the Velasquez vehicle on 1/14/09. All damage to the suspect vehicle was photographed. Damage was noted to the front windshield of the vehicle, more specifically, a bullet hole in the upper left center and another in the left center of the windshield and a bullet hole in the right front fender. This would be consistent with Girard s account that as he approached the vehicle from the right front fender, the suspect drove at him. Additionally, there were bullet holes found in the A pillar on the passenger side, 3 bullet holes in the right front passenger window, a bullet hole in the trim on top of the right front passenger window, 2 bullet holes in the left rear passenger window. Bullet holes were found in the instrument panel, the back of the headrest. The damage would be consistent with Deputy Rose s account of the incident. It should be noted at this point that tire tracks and skid marks from the scene were photographed and diagramed. They corroborate the account of the incident given by all Deputies.

7 STATEMENT OF APPLICABLE LAW The legal doctrine of self-defense is codified in Penal Code Sections 197 through 199. Those sections state in pertinent part: Where from the nature of an attack a person, as a reasonable person, is justified in believing that his assailant intends to commit a felony upon him, he has a right in defense of his person to use all force necessary to repel the assault; he is not bound to retreat but may stand his ground; and he has a right in defense of his person to repel the assault upon him even to taking the life of his adversary. (People v. Collins (1961) 189 CA 2d 575, 1 Cal Reptr. 504). Justification does not depend on the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and act out of that fear (Penal Code Sec. 19; People v. Clark (1982) 130 CA 3d 371, 277, 181 Cal. Reptr. 682 CAL CRIM 507 (2005 NEW) JUSTIFIABLE HOMICIDE: BY PUBLIC OFFICER A person is not guilty of Attempted Homicide or Homicide if he/ she attempted to kill/killed someone while acting as a public officer/ or obeying a public officer s command for aid and assistance. Such an attempted killing/killing is justified, and therefore not unlawful, if: A person was a public officer/ or obeying a public officer s command for aid and assistance; The attempted killing/killing was committed while taking back into custody a convicted felon [or felons] who had escaped from prison or confinement, arresting a person or persons charged with a felony who was resisting arrest or fleeing from justice, overcoming actual resistance to some legal process, or while performing any other legal duty. The attempted killing/killing was necessary to accomplish one of those lawful purposes; AND The person had probable cause to believe that another person posed a threat of serious physical harm, either to the person or to another person [or that the person killed had committed a forcible and atrocious crime. A person has probable cause to believe that someone poses a threat of serious physical harm when facts known to the person would persuade someone of reasonable caution that the other person is going to cause serious physical harm to another. An officer of a local Police Department is a public officer.

8 CAL CRIM 3470 (REVISED JUNE 2007) RIGHT TO SELF-DEFENSE OR DEFENSE OF ANOTHER Self-defense is a defense to the unlawful killing of a Human Being. A person is not guilty of that/those crimes if he/she used force against the other person in lawful selfdefense or defense of another. A person acts in lawful self-defense or defense of another if: The person reasonably believed that he/she or someone else was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; 2. The person reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3. The person used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The person must have believed there was imminent danger of violence to himself/herself or someone else. The person s belief must have been reasonable and he/she must have acted because of that belief. A person is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the person used more force than was reasonable, the person did not act in lawful self-defense/ or defense of another. When deciding whether a person s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the person and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the person s beliefs were reasonable, the danger does not need to have actually existed. The person s belief that he/she or someone else was threatened may be reasonable even if he/she relied on information that was not true. However, the person must actually and reasonably have believed that the information was true. A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death/bodily injury has passed. This is so even if safety could have been achieved by retreating. Cal. Penal Code section 835a

9 Any peace officer that has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to affect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed the aggressor or lose his right to selfdefense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. USE OF DEADLY FORCE BY A PEACE OFFICER Authorization of the use of Deadly Force is analyzed under the Fourth Amendment's objective reasonableness standard. Brosseau v. Haugen, 543 U.S. 194, This question is governed by the principles enunciated in Tennessee v. Garner, (1985) 471 U.S. 1 and Graham v. Connor (1989) 490 U.S In these decisions, the US Supreme explained it is unreasonable for an officer to seize an unarmed, non-dangerous suspect by shooting him dead.. However, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. (Tennessee V Garner supra) Reasonableness is an objective analysis and must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. It is also highly deferential to the police officer's need to protect himself and others. The calculus of reasonableness 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 of force that is necessary. Graham, 490 U.S. at 396,. The question is whether the officer s actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at 397. The US Supreme Court in Graham set forth factors that should be considered in determining reasonableness: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. The question is whether the totality of the circumstances justifies a particular sort of... seizure. (See also Billington v. Smith, ( th Cir) 292 F.3d 1177, 1184.) The most important of these factors is the threat posed by the suspect. Smith v. City of Hemet, (9 th Cir. 2005) 394 F.3d 689. Thus, under Graham, the high court advised we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the

10 scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. (Smith v. Freland (6th Cir.1992) 954 F.2d 343, 347. The US Supreme Court's definition of reasonableness is therefore comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. Roy v. Inhabitants of City of Lewiston (1st Cir.1994) 42 F.3d 691, 695, In effect, the Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases... (Ibid.) Thus, an officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate an intent to attack. In these circumstances, the Courts cannot ask an officer to hold fire in order to ascertain whether the suspect will, in fact, injure or murder the officer. Based on the above stated principles, where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. However where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. (Tennessee v Garner; Graham V Conner supra.) ANALYSIS AND CONCLUSION When officers attempted to make contact with Mr. Velasquez via a routine traffic stop, Velasquez, responded by making a very poor decision in a long line of poor decisions, he decided to flee from Sheriffs deputies. This report cites a variety of United States Supreme Court decisions addressing the standard to be used in evaluating the use of deadly force in situations such as this one. Graham tells us the analysis must be made from the perspective of the reasonable police officer on the scene rather than with the 20/20 vision of hindsight. The court was highly deferential to the police officer s needs to protect themselves and others. The Supreme Court allowed for the fact that officers must make split second judgments in circumstances that are tense, uncertain and rapidly evolving about the amount of force that is necessary in a particular situation. The feeling of the court was summed up with the following quote: We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. When Mr. Velasquez fled the scene of the traffic stop, he drove in an extremely reckless manner. He drove at a high rate of speed running stop signs and stop lights, some at major intersections, he drove into oncoming traffic, all of which posed a serious threat

11 to members of the community and to the Deputies in pursuit. He eventually lost control of the vehicle. Rather than surrender, he continued to try to escape by attempting to assault deputies with his vehicle. The facts regarding the pursuit are not in dispute and are corroborated by transcripts of radio recordings of the pursuit and by fellow officers involved in the pursuit. Nor is there any dispute regarding the facts leading up to Mr. Velasquez death. The accounts of Deputies Girard and Rose are corroborated by the observations of fellow deputies on scene, by and examination of the skid marks on the roadway and in the field and by damage to the suspect vehicle. It is at this point that is seems appropriate to address Deputy Rose s remarks as recorded on his belt recorder. Deputy Rose s explanation for his comments is logical and reasonable. They were made near the inception of the pursuit at a time when neither he nor Deputy Girard could predict the future. As previously mentioned, the facts of the pursuit, its termination and the facts leading up to the firing of the fatal shots are not in dispute. Mr. Velasquez conduct posed a risk of death or serious bodily harm to all deputies on scene. His conduct additionally posed a risk of death or serious bodily harm to the general public. Velasquez driving during the pursuit demonstrated a total disregard for the public in general. He certainly could not be allowed to leave the scene. In such circumstances, the courts do not ask an officer to hold fire in order to ascertain whether the suspect will, in fact, injure or kill the officer or another. Had they hesitated in this situation, death or great bodily injury could have come to Deputies Girard, Rose or other deputies arriving on scene. Had he escaped, his demonstrated disregard for the safety of members of the community gave Deputies just cause to feel he may seriously injure or kill someone. The totality of circumstances gave officers every reasonable reason to believe that Mr. Velasquez was a danger to officers on scene and to the public. These officers had to make an instantaneous decision and their options were limited. Three experienced officers formed the opinion, independently, that the use of deadly force was necessary. They had to make a quick decision and the totality of the circumstances dictates that their decision was correct. When confronted with a dangerous and combative subject such as Mr. Velasquez, the amount and type of force used in dealing with Mr. Velasquez cannot be said to be unnecessary, unreasonable or excessive. Deadly force was in response to an apparent and immediate threat of death or great bodily injury to the person of officers on scene and to the public in general requiring that these officers justifiably act in self-defense and in defense of others. Consequently, there are no legally supportable criminal charges that can be filed against these officers.