INTEROFFICE MEMORANDUM

Transcription

1 INTEROFFICE MEMORANDUM DATE: October 16, 2013 PHONE: (909) FROM: Denise Trager-Dvorak Supervising Deputy District Attorney Central, San Bernardino Office TO: Gary Roth Assistant District Attorney Clark Hansen, III Chief Deputy District Attorney Central Division SUBJECT: Officers Involved: Involved Agency: Involved Subject: Fatal Officer Involved Shooting Jose Loera San Bernardino Police Department Ephraim Williams, 24, of San Bernardino (DOB: 6/3/1986) Date and Time of Incident: December 25, 2010 Investigating Agency: Location of Incident: San Bernardino Police Department North F and South E Streets, San Bernardino DR #: DA STAR #:

2 PRINCIPAL INVOLVED PARTIES Ephraim Williams (DOB: 6/3/1986) was the person shot during the incident herein under review. Officer Jose Loera, San Bernardino Police Department Officer who shot decedent Williams. SCENE Officers dispatched to an address at North F Street for a possible man with a gun; foot pursuit ensued when Officer. Loera observed a man matching the description of the person with the gun, running away from officers, Southbound on E Street, and West on Magnolia, City of San Bernardino. 2

3 BACKGROUND INFORMATION Gang Affiliation of Suspect/decedent Williams: used the moniker Nut per witnesses, and was a possible gang member from the Compton area. Identifying markings: Decedent Williams had a chipped upper tooth and a scar on his left shoulder. There were no tattoos. FACTUAL SUMMARY NOTE: This factual summary is based on a thorough review of all the investigative reports submitted by SBPD, and photographs of the scene. On December 25, 2010, at approximately 1751 hours (5:51 pm) officers were dispatched to N. F Street, in the City of San Bernardino in response to a report of a man with a gun. When Officer Loera arrived initially at the scene, he detained a man wearing a blue shirt, but was re-directed by witnesses to follow a man wearing a blue jersey. Loera drove in that direction, where he observed a subject matching the description provided by dispatch, wearing a blue jersey and he attempted to detain the subject, later identified as the decedent, Ephraim Williams. Williams ran away from the officers, and Officer Loera chased him. Williams began to reach towards his waist and Officer Loera believed that Williams was reaching for a weapon in his pants. Officer Loera pursued the decedent southbound towards Magnolia, and the suspect continued to reach into his waistband and was looking back at Officer Loera as he ran. Officer Loera thought he was going to get shot, so he fired his duty weapon, but thought he had missed Williams, because Williams continued running westbound. Soon after, it appeared as if Williams tripped and fell by a garage door. After the decedent fell to the ground, he continued to reach inside his waistband, looking towards the direction near where Loera was, as if trying to find the officer as a target. Officer Loera fired one more time at the decedent because he thought Williams was going to shoot at him. The suspect was pronounced deceased at the scene. An initial pat down of the decedent s waistband and pocket areas did not reveal a weapon, however, later that day at the S.B. County Morgue, Dep. Coroner Sutcliff found a loaded handgun between the legs of the deceased suspect near his crotch. 3

4 Williams s Injuries: Decedent was 80 inches in height and weighed 204 lbs. at time of autopsy. One penetrating and two perforating gunshot wounds were found on the decedent s body. (1) Perforating gunshot wound of left back Entrance wound: On the left upper back, centered 50 cm below the top of the head and 12 cm left of the posterior middling. There was no evidence of soot or stippling. Exit: left chest above the nipple line. No bullet recovered. Bullet track is back to front, upward and left to right. (2) Penetrating gunshot wound of left buttock Entrance: left buttock; no evidence of soot or stippling; no exit wound the bullet was recovered from skeletal muscle. The bullet track was upward, back to front, and left to right. (3) Perforating gunshot wound of left elbow Entrance: left upper arm; no evidence of soot or stippling. Exit: proximal left forearm; no bullet recovered. Bullet track was back to front, and right to left. The cause of death was gunshot wounds of torso, minutes. The lab test for drugs of abuse showed that the decedent had a presumptive positive for Cannabinoids and.04 percent blood alcohol. 4

5 Statements of involved officers: Officer Jose Loera Officer Loera was interviewed at the San Bernardino Police station on December 25, 2010, at 2312 hours. Loera said he monitored a three-tone broadcast, meaning very high priority call, indicating that there was a man with a gun. Since he was near the location, he drove to the area where he detained a young man who had a blue shirt on. A group of people acting excited was saying you need to get the gun. There s a guy with a gun here. The mother of the young man who Loera had detained told him that was not the right person, and continued to tell Loera several times, He has a blue jersey; he s black, and he took off from here. You need to catch him. As Officer Loera began driving down Magnolia looking for the guy in the blue jersey, he saw decedent Williams about feet away on a corner. Suspect/decedent began turning around and looking at the officer acting nervous. Loera drove his marked patrol unit towards the decedent, who started walking faster, and at the intersection of E and Magnolia, Loera turned on his overhead red and blue lights so he could safely make a U-turn to contact the decedent. Before Loera had time to get out of his car to contact the decedent, he made eye contact with the decedent, who appeared to have something in his hand, put his right hand into his waistband or under his jersey. As the decedent was putting his hand in his waistband, he made a turning motion, which made Officer Loera believe he was reaching for a gun and was going to try to shoot him. Officer Loera then took out his duty weapon and started chasing the decedent, who was running Southbound on E Street. Officer Newton had also come to the area, and put out a radio call that they were involved in a foot pursuit. As Loera got within approximately 10 feet of the decedent, the decedent began moving his body, pulling his right hand out of his waistband and started slowing down. During the pursuit, Officer Loera was yelling Stop! to the suspect. Loera said that the decedent was looking at him, and Loera believed decedent was going to pull out a weapon and shoot him. Loera thought decedent was going to kill him, so he fired his weapon 2 or 3 times. The decedent continued running, and went towards a garage, where he tripped, and landing face down, but still with his hand in his waistband. Loera began moving to his right hoping to avoid being seen by the decedent. Decedent leaned over to his left side and looked toward Officer Loera, still with his hand in his waistband. At this point, Loera believed decedent was still reaching for a gun, so he fired his gun towards the decedent again to stop the threat. After Loera shot the decedent, his right hand came out of his waistband and he put it above his head. Officer Loera says there was lighting on the street, and he could see pretty good. 5

6 Officer Ronell Newton As Officer Newton was working with Officer Loera investigating a runaway juvenile, they heard a three tone broadcast that there was a man with a gun call, and they were the closest units to the location where the man was last seen. As Newton drove towards the location he saw a group of people in the area of F Street and 14th Street that separated into three smaller groups. The people were yelling and cussing at each other. Newton saw a black male wearing a blue shirt which matched the description they had been given over the radio, so he decided to detain the subject. As he did so, a woman told the two officers that they had the wrong person, and that the person who had pulled a gun on her son was wearing a blue jersey and had walked away, pointing in the direction she had seen the man walk. Officer Newton drove north on F Street then turned one street north of Magnolia, when he heard Officer Loera broadcast that he would be contacting a subject wearing a blue jersey. Newton turned onto southbound E Street and saw a taller man wearing a blue jersey standing behind a group of Hispanic males. At that point Officer Newton believed that this subject was the man with a gun for whom they were looking. Officer Newton turned on his spotlights and opened his door to contact the man, later identified as Ephraim Williams (decedent) and as he did so, he saw Williams eyes get big, and he turned around, moved his arms in front of himself, and acted as if he was going to run away. Officer Loera was already outside his patrol car, but Newton had just started getting out, so he got back in and started driving in the direction of the foot pursuit involving Officer Loera and decedent Williams. Before making his turn onto Magnolia, Officer Newton heard the first gunshot, which scared him because he didn t know if decedent Williams had turned on Officer Loera. When Newton got to Magnolia, he heard the second shot and put out the call over the radio that shots were fired. Officer Newton saw that decedent Williams was still standing in the street, but Newton didn t see Officer Loera. Newton saw that decedent Williams was keeping his hands in front of him as he looked back over his shoulder. This type of movement while running is consistent with a suspect holding or reaching for a gun in his waistband. Newton heard a third gunshot and saw the muzzle flash, which drew his attention to the north side of the street, and Newton then saw that Officer Loera was west of Officer Newton s position. Decedent Williams was still on his feet running, but had begun falling to the ground. Newton got out of his car with his gun drawn, and by that time Williams had fallen and both Officers Newton and Loera were shouting commands to Williams telling him to stop moving and show us your hands. Newton couldn t understand Officer Loera, because they were both yelling at the same time. Based on decedent Williams actions, Officer Newton believed that Williams had a gun. When Newton got out of his patrol car and pointed his gun towards Williams, Williams was still moving his upper body around and Officer Newton believed that Williams may have been reaching into his waistband again to try to get a weapon. As Officer Newton 6

7 began to advance towards decedent Williams, Officer Smith had arrived on scene, and all three officers (Loera, Smith and Newton) moved towards decedent Williams. Williams was not responding to the commands they were giving him, but Officer Newton could hear Williams breathing so he holstered his gun and handcuffed Williams. At this point they called medical aid. Officer Joe Aguilar Officer Aguilar heard the radio broadcast about the foot pursuit involving Officer Loera and drove to the location to assist. When he got there, he wasn t sure if the foot pursuit had ended of not, but saw Officer Smith standing near a male subject lying on the ground. Officer Aguilar confirmed that medical aid had been called, and then conducted a pat down search of the suspect s waistband and pocket areas for any weapons. Aguilar did not find any weapons at that point, but he did find an expended cartridge casing approximately feet away from the suspect in a pile of leaves near the driveway of the alley on the south side of Magnolia. Officer Chase Smith Officer Smith heard Officer Loera call out that he was in a foot pursuit chasing the suspect onto Magnolia, so he drove to the location. When he got there, he saw a subject running full speed and turn from southbound E Street onto westbound Magnolia. Because of the vehicle lights that were in the area he could only see a dark shadow and overall motion of the figure, but couldn t see well enough to identify the subject or see his hands. He then saw the silhouette of an officer with a gun belt on his waist, in foot pursuit about feet behind the suspect, running at full speed as well. Officer Smith saw the suspect fall to the ground in a forward motion, landing with the left side of his face down, and one of his hands underneath him. The other hand was up by his side. Smith observed that the suspect was still breathing, but wasn t making any large movements with his arms or legs. As Officer Smith was approaching the suspect, he saw Officer Loera kneel down next to the suspect and begin handcuffing him. Smith did not hear the suspect say anything, but heard Officer Loera giving loud commands, such as stay down. Smith was concerned for Officer Loera s safety because of the call of a man with a gun, and the suspect matched the description put out by dispatch. Civilian Witnesses: Witness #1: On December 25, 2010, Witness #1 was told by her daughter that there was an argument between Witness #1 s son and decedent Williams, whom she knew as Nut, and Witness #1 s daughter had told decedent Williams to leave. Witness #1 heard yelling in her front yard and saw Decedent Williams standing with 3 females in her front yard, telling Witness #1 s older son, Jones, to get his brother Rick, so they could get a fade on, which Witness #1 understood as slang for fighting. The 3 females with decedent Williams got in a fight with Witness #1 s daughters, and her son Rick came out and punched Williams in the face. 7

8 Witness #1 told all of them to leave, and someone said the police were coming. She saw police cars, but the police did not contact them at that time. A short time later, Witness #1 heard another argument in her front yard, and saw the three females who had been with decedent Williams before, and the mother of one of the females, yelling and wanting to start a fight. Everyone started yelling, and Witness #1 saw decedent Williams with a gun in his right hand down to his side. The gun was silver, long and skinny. She did not know the difference between a revolver and a semiautomatic handgun. She heard decedent Williams say he was going to pop everyone, which she believed meant to shoot them. Witness #1 told her family members to go inside. Decedent Williams ran away, and two police cars then pulled up and pointed guns at her son Rick, who was wearing an aqua colored shirt. She told officers that he was the wrong suspect, but they checked him for a gun anyway, then Witness #1 pointed in a northward direction telling the officers where they should go to look for decedent Williams. Witness #1 knew decedent Williams from one time prior to that when he had been at her house talking to her sons. A photographic lineup containing the picture of decedent Williams was shown to Witness #1 two days later to see if she observed the person she had seen armed with a gun who threatened to kill her son on December 25 th, Witness #1 pointed to a picture of Williams within 20 seconds, saying I want to say that s him. Witness #2: Witness #2 was the reporting party, who is the sister of the man that the decedent argued with prior to the fatal shooting. Witness #1 (Witness #1) is her mother. Witness #2 said that on 12/15/2010, at about 4:50 pm, a who was about 7 tall, and about 22 years old, wearing a blue sports jersey (later identified as the decedent) came into their yard and began arguing with the brother of Witness #2, challenging him to a fight. The male challenging her brother took off his shirt (blue jersey), and told her brother to come catch a fade. Two unidentified males with the guy wearing the blue jersey tried to get him to stop, and told him that he was drunk. There were girls in the group who began fighting, and when that ended, the group left for a short time, but came back, and the tall black male (decedent) returned with them and started to yell: I m from Compton, I m gonna shoot this mother f--ka up, come catch a fade, yaw some punk asses. The man also told Witness #2 s brother that he was a green grape, which Witness #2 said is a fake Los Angeles Grape Street Crip Gang member. Two of the brothers of Witness #2 tried to calm the decedent down, and as the he left, decedent told her brother to watch his back, that he will get his. The decedent walked up north F Street from Virginia Street. 8

9 The decedent returned again, and this time someone in the crowd said He s got a gun and as she looked over, Witness #2 saw the same tall black man wearing the blue jersey standing in the middle of the street about 15 feet north of her residence. She saw that he was holding a chrome gun in his right hand and covered it with his left hand. She could see that the gun had a long skinny barrel, and he was waving the gun in his right hand. The decedent refused to listen to people who were trying to get him to leave, and he said that he did not give a f--k, he was from Compton. The decedent put the gun away in his waistband near his left hip and walked up to her older brother. As he did this, Witness #2 tried to break them up and stood in the middle of the two, and her right elbow hit the decedent s gun which was in his waistband. At this point, officers arrived and the crowd dispersed. Witness #2 did not know where the decedent went. Witness #3 stated that at approximately 6:00pm, she was in her kitchen when she heard about five rounds of gunfire coming from the south of her residence on W. Magnolia Ave. There was a short pause and then she heard four more rounds. Witness #3 went to her bedroom where she had a plain view of the decedent, approximately 170 feet (distance paced by officers) from her residence. Witness #3 said she watched for about minutes because she wanted to see how the police conducted their investigation. She said that the neighbors to her West came out of their residence and began shouting to the police officers. Witness #3 said that the neighbors comments were ugly and mean towards the officers. Some of the comments were I hope you have a brother and he dies too. That s f--ked up, and various other obscenities degrading the officers. Witness #3 said officers remained calm and told the neighbors to go back inside. Witness #4: At about 6:00pm she was watching TV in her family room when she heard noise coming from the 6 foot high fence on the north side of her property. After she heard the rattling noise from the gate, she heard what sounded like somebody trying to enter her residence through the back door, but it was locked, so the person didn t get in. About a minute after hearing the noise, Witness #4 heard about 7 gunshots coming from the south side of her residence on Magnolia Avenue. She was afraid and didn t want to look out the window. She did not have any additional information. Witness #5 said he was in his living room when he heard three gunshots. A short time later he heard approximate thee more gunshots. He said he didn t think anything of it because he regularly hears gunshots in that area. He did not see anything that occurred. 9

10 Weapons Involved: Officer Loera s weapon: Department-issued H&K USP.45 caliber handgun. Decedent Williams:.357 Magnum revolver, Sentinell model MKII, serial number H Corroborating Physical Evidence: Detective John Munoz: Later in the day on Dec. 26 th, 2010, after the decedent had been transported to the S.B. County Morgue, Det. Munoz arranged to view the decedent s body again to confirm the number of bullet wounds on his body. Dep. Coroner Sutcliff assisted with this by pulling the decedent s pants and underwear down past his crotch. As he did that, Det. Munoz observed the light brown wooden handle grips of a handgun between the legs of the suspect near his crotch where it had been concealed. The discovery of the gun in the suspect s clothing was captured on video by the surveillance system at the Coroner s Office. The gun was a chrome, high-standard,.357 Magnum revolver, Sentinell model MKII. Det. Munoz opened the cylinder and pressed the extractor rod, where he observed two expended.357 caliber bullet casings to the left of the barrel, and four live.357 Magnum bullets, all of which were placed into evidence for later analysis. Casings retrieved: Officer. Loera fired 6 rounds from a.45 caliber weapon. 6 expended.45 caliber cartridge casings were recovered near the scene at E Street and Magnolia Avenue. 3 of the rounds struck the decedent. 10

11 APPLICABLE LEGAL STANDARDS Laws of Arrest Cal. Penal Code section 834 (summarized in pertinent part) An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer. Cal. Penal Code section 834a If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest. Cal. Penal Code section 835 An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subject to such restraint as is reasonable for his arrest and detention. Cal. Penal Code section 835a Any peace officer who 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. Cal. Penal Code section 836 (summarized in pertinent part) A peace officer may arrest a person in obedience to a warrant or without a warrant whenever the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer s presence or that he has committed a felony. Applicable crimes PC 148 (Resisting or delaying, interfering with arrest (Calcrim #2656) A person is guilty of resisting, obstructing, or delaying a peace officer in the performance or attempted performance of his duties in violation of Penal Code section 148(a) if: 1. Officer Loera was a San Bernardino Police Officer lawfully performing or attempting to perform his duties as a peace officer; 2. The defendant willfully resisted, obstructed, or delayed Officer Loera in the performance or attempted performance of those duties; AND 11

12 3. When the defendant acted, he knew, or reasonably should have known, that Officer Loera was a peace officer performing or attempting to perform his duties. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. A person who is employed as a police officer by San Bernardino Police Department is a peace officer. The duties of a police officer include investigating, pursuing and arresting persons suspected of committing crimes. The defendant resisted, obstructed, or delayed Officer Loera by running away from Officer Loera who was investigating the shots fired call. PC 245 (Assault with a Deadly Weapon (Calcrim #875) A person is guilty of assault with a deadly weapon if: 1. The defendant did an act with a firearm or a semi-automatic firearm, that by its nature would directly and probably result in the application of force to a person; 2. The defendant did that act willfully; 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; AND 4. When the defendant acted, he had the present ability to apply force with a firearm. PC 417(a)(1) & (2) (Calcrim #983) A person is guilty of brandishing a firearm if: AND 1. The defendant drew or exhibited a firearm in the presence of someone else; 2. The defendant did so in a rude, angry, or threatening manner, or the defendant unlawfully used the firearm in a fight or quarrel, AND 3. The defendant did not act in self-defense or in defense of someone else. A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. 12

13 Laws of Self-Defense CALJIC 5.30 (see also CALCRIM 3470) Self-defense against assault (in pertinent part) It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent. CALJIC 5.50 (see also CALCRIM 3470) Self-defense, assailed person need not retreat (in pertinent part) A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene. CALJIC 5.51 (CALCRIM 3470) Self-defense, actual danger not necessary (in pertinent part) Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person s right of self-defense is the same whether the danger is real or merely apparent. 13

14 ANALYSIS A report of a man with a gun had been made to the police dispatch, who broadcast the physical description of the person matching Decedent Williams to SBPD Officers, including Officer Loera. In addition, upon going to the location of where the 911 call had originated, people at that scene further described the suspect with the gun (later identified as the decedent) and pointed in the direction where he had run, telling Officer Loera that he needed to get him. Victims of the ADW (PC 245) and/or brandishing of the firearm by decedent Williams, describe the decedent having brandished the gun in a threatening manner (PC 417) towards people at the North F Street location where the first altercations occurred, within minutes of Officer Loera s arrival. There were also reports by neighbors of shots fired in the area. When Officer Loera observed decedent Williams and attempted to detain him, decedent Williams refused to comply with the officer s orders, and ran away, in an effort to evade capture. This conduct is also consistent with consciousness of guilt on the decedent s part for his earlier brandishing and/or ADW. During the foot pursuit, Officer Loera thought the decedent was going to kill him based on the decedent s actions and conduct, since the decedent continually reached into his waistband and looked towards Officer Loera, at the same time continuing to ignore commands to stop. Even after decedent Williams had been shot and dropped to the ground, he continued to reach in his waistband and twist around to see Officer Loera, in spite of Officer Loera yelling at him several times to put his hands where he could see them. Based on the information known to the officers and the subsequent actions of decedent Williams, it was reasonable for Officer Loera to believe the decedent was a threat to him. This was a dangerous situation for the officer, and the use of deadly force on decedent Williams by Officer Loera was legally justified to defend himself and/or others. 14

15 CONCLUSION Under the facts and circumstances presented in this case, the shooting of Decedent Williams was a lawful exercise of the right of self-defense and defense of others, and therefore was legally justified. October 16, 2013 DENISE TRAGER DVORAK Supervising Deputy District Attorney GARY ROTH Assistant District Attorney Date: CLARK HANSEN, III Chief Deputy District Attorney Date: 15