INTEROFFICE MEMORANDUM

Transcription

1 INTEROFFICE MEMORANDUM DATE: January 23, 2014 PHONE: (909) FROM: TO: Bobbie Mann Lead Deputy District Attorney Central Family Violence Unit Michael Ramos District Attorney Mary Ashley Chief Deputy District Attorney Central Division Gary s. Roth Assistant District Attorney Criminal Operations SUBJECT: Fatal Officer Involved Shooting Officers Involved: Officer Serbando Saenz # Involved Agency: Involved Subject: San Bernardino Police Department Lorenzo Baca (Deceased) (DOB ) (resident of San Bernardino) Date and Time of Incident: January 7, 2012 Investigating Agency: Location of Incident: San Bernardino Police Department 800 Block of West 5 th Street/I-215 Overpass DR #: DA STAR #:

2 This memo was completed after a review of the San Bernardino Police Department incident reports submitted by Detective Munoz, dispatch recordings, crime scene photos, hospital photos, autopsy photos, medical records, autopsy protocol, and a visit to the scene with Detectives Munoz and Taylor. FACTUAL SUMMARY Officer Saenz and Reserve Officer Arlene Preece were partners riding on day shift patrol. They were in police uniform and driving a marked patrol car. At approximately 7:24 a.m. Officer Saenz was driving westbound on 5 th St. when he saw Baca walking alone westbound on the north side of 5 th Street on the I-215 overpass. Officer Saenz noticed that Baca had either a screwdriver or icepick protruding from his rear pants pocket. Officer Saenz decided to conduct a pedestrian check on Baca, and pulled his patrol car over. Officer Saenz got out of his car, identified himself as a police officer, and asked Baca to come over towards the officer. Baca immediately started running westbound on 5 th Street with his hands in front of him. Officer Saenz began to pursue Baca on foot. Baca turned towards Officer Saenz and fired one time from a black 9mm semi-automatic handgun. Officer Saenz fired back at Baca multiple times. Baca continued running westbound and turned towards Officer Saenz again and fired two more shots. Officer Saenz returned fire as Baca continued to run westbound. Officer Saenz momentarily lost sight of Baca, and then found him at the bottom of a steep embankment past the freeway onramp. Baca was reaching into his front waistband, and Officer Saenz yelled, Show me your hands, at Baca. Baca did not comply and continued with his hand movements. Officer Saenz fired two more shots at Baca. Baca stopped moving and was taken into custody with the assistance of other officers. Baca was transported to Loma Linda University Medical Center and was pronounced dead at 8:19 a.m. Baca suffered from three separate through and through gunshot wounds to the center of his back, the right side of his back, and his left buttock. 2

3 Baca s 9mm handgun was found on the slope of the embankment where Baca had fallen. The gun contained one live round in the chamber and two live rounds in its magazine. A large screwdriver was found next to Baca. Seven expended 9mm cartridge casings and one live round, belonging to Baca s gun, were located at the scene. Officer Saenz fired his gun 14 times and his expended cartridge casings were also located at the scene. CIVILIAN WITNESSES Witness # 1 Witness # 1 was 16 years old at the time of the incident and lived at a residence that borders the embankment Baca came down. There is a chain link fence between the embankment and Witness # 1 s residence. The morning of the incident Witness # 1 was asleep in his bedroom when he heard a banging noise outside. Witness # 1 s brother, with whom Witness # 1 shares a room, got up and said, There s gunshots. Witness # 1 got out of bed and looked outside his bedroom window when he saw an officer coming down the embankment pointing his gun. He heard the officer say, Freeze. Don t move. Freeze, and then heard two gunshots. The officer was near the top of the embankment. Witness # 1 did not see the person the officer was shooting at. Witness # 2 Witness # 2 is the 18-year-old brother of Witness # 1. Witness # 2 was asleep when he was awoken by gunshots. He said there were approximately six or seven gunshots. He got out of bed and looked out of his bedroom window when he saw a Hispanic male in his 20 s, wearing a black jacket, possibly with a hood. Witness # 2 saw the Hispanic male stumbling down the embankment from 5 th Street. Witness # 2 did not see the officer at the time he saw the male coming down the embankment. Witness # 2 also saw an unknown, black in color, object in the male s right hand. He could not tell if it 3

4 was a gun. Witness # 2 turned to tell his brother, Witness # 1, what he had seen. When he turned back around he saw a police officer pointing a gun at the male who had stumbled down the hill. He heard the police officer shout, Freeze! Freeze! Don t move. He then saw the officer fire his gun twice in the direction of where the male had stumbled down. The police officer was standing close to the top of the embankment. LAW ENFORCEMENT WITNESSES Reserve Officer Arlene Kwock-Preece Reserve Officer Kwock-Preece was interviewed on Jan. 7, 2012 by Detective Munoz. On that day Officer Kwock-Preece was assigned as a ride-along partner with Officer Saenz. They were on the day shift patrol. Officer Saenz was driving the patrol car when they saw Baca on the north sidewalk of the 5 th Street overpass. Baca was wearing a black hoodie and black pants. Officer Saenz told Officer Kwock-Preece that he was going to conduct a pedestrian check, and he called it out over the police radio. Officer Saenz had the overhead lights on. Officer Saenz got out of the police car and told Baca, Hey, can I talk to you? At that point Baca began running westbound along the north sidewalk. Officer Kwock-Preece started to get out of the car, but realized that the car was not in park, so she reached over to move the gearshift to park. Officer Saenz called out a foot pursuit. Officer Kwock-Preece went to the driver side of the patrol vehicle and began driving. She could see Officer Saenz, but lost sight of him as he went over the top of the bridge. She could hear him yelling, Police officer! Stop! She then heard two gunshots, a pause and then two more gunshots. When Officer Kwock-Preece had a visual of Officer Saenz again he was at the top of the embankment, and Baca was at the bottom of the embankment, and still moving. At that point other officers began to arrive on scene. 4

5 Officer Serbando Saenz Officer Saenz was interviewed on Jan. 7, 2012 by Detective Munoz. Officer Saenz has been a police officer for seven years and was a reserve officer for two years. On this day he was assigned to day shift patrol and was partnered with Reserve Officer Arlene Kwock-Preece. Officer Saenz was traveling south on H Street and turned west onto the 5 th Street bridge from H St., when he observed Baca walking on the north sidewalk, wearing a black hoodie and black pants. Baca had a screw driver protruding out of his back pocket. Officer Saenz told his partner he was going to conduct a pedestrian check, and advised police radio dispatchers. Officer Saenz aligned his police car so that he and his partner could use the car doors as cover if necessary. Officer Saenz got out of the driver seat and yelled towards Baca, Police, come over here. Baca looked at Officer Saenz over his left shoulder and began moving faster away from him. Baca had his hands in front of him. As Officer Saenz was getting out of his car he realized that the car was not in park and was still moving. Officer Saenz removed his gun from his holster and had it near his chest. As he started to move away from the patrol car he told his partner to put the car in park. At this point Baca started to run. Officer Saenz called out a foot pursuit on his handheld radio. Officer Saenz was running behind and to the left of Baca when Baca turned to his right and fired a gun at the officer, missing the officer. Officer Saenz pointed his gun and shot a volley of rounds towards Baca. Baca then fired two more rounds towards the officer, missing the officer. Officer Saenz shot a second volley of rounds at Baca, and lost sight of Baca at the end of the concrete wall on the bridge. He then saw Baca at the bottom of the embankment. The officer could only see half of Baca because there was some shrubbery covering him. Officer Saenz observed Baca moving his hands up from his waistband at which point the officer shot two more rounds towards Baca. At this point other officers began to arrive on scene. Officer Saenz observed as the officers turned Baca over to search for weapons, and could see the screw driver on the ground near Baca. Officer Saenz s gun was checked by Detective Munoz and 14 shots had been fired. 5

6 COMPUTER AUTOMATED DISPATCH SUMMARY 7:24:51 Officer Saenz called in a pedestrian check 7:25:00 Officer Saenz called in shots fired 7:25:32 Officer Saenz called in that he had lost sight of Baca on the north side 7:26:07 Officer Saenz located Baca down on the north side of the bridge 7:26:12 Additional police units begin to arrive on scene 7:27:00 Baca down and being taken into custody, medical aid cleared in. 7:31:25 Officers looking for weapon 11:25:44 Weapon located POSTMORTEM EXAMINATION Dr. Sheridan conducted the autopsy on January 10, Baca had gunshot wounds to his chest, to the left hip on the center of his back, and on the left buttock. There were three entry wounds and three exit wounds. The bullet that entered on the center of his back struck major arteries and was the only fatal round. Cause of death was gunshot wound to the chest, and death was within minutes. Toxicology shows Baca was positive for methamphetamine,.72 mg/l. EVIDENCE COLLECTED FROM SCENE Seven expended 9mm cartridge casings and one live round, belonging to Baca s gun, were located at the scene. Officer Saenz fired his gun 14 times and his expended cartridge casings were also located at the scene. GUN SHOT RESIDUE ANALYSIS A Gun Shot Residue kit was administered to Baca on January 7, 2010 at approximately 10:30 a.m. The San Bernardino County Sheriff s Scientific Investigations division 6

7 conducted the analysis. The left and right hand adhesive discs were examined for gunshot residue. Baca was positive for gunshot residue. DECEDENT BACA S GANG MEMBERSHIP Baca is a member of the criminal street gang Westside Verdugo-Calle Siete Locos (7 th St.) APPLICABLE LAW Pedestrian Check It is well settled that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. (People v. Mickelson (1963) 59 Cal.2d 448, 450.) "We do not believe that our rule permitting temporary detention for questioning conflicts with the Fourth Amendment. It strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement. It wards off pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified." (Id. at p. 452.) In Illinois v. Wardlow (2000) 528 U.S. 119, the Court held that an officer is justified in suspecting an individual is involved in criminal activity when the suspect flees without provocation. (Id. at pp ) Headlong flight--wherever it occurs--is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. (Id. at p. 124.) When an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. (Id. at p. 125; Florida v. Royer (1983) 460 U.S. 491, 498.) And any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." (Illinois v. Wardlow, supra, 528 U.S. at p. 125, quoting Florida v. Bostick (1991) 501 U.S. 429, 7

8 437.) Unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not going about one's business ; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning. (Wardlow v. Illinois, supra, 528 U.S. at p. 125.) Use of Force In Graham v. Conner (1989) 490 U.S. 386 the Court held that any analysis of whether a law enforcement officer used excessive force, deadly or not, in the course of an arrest, investigatory stop, or other seizure should by analyzed under the Fourth Amendment and its reasonableness standard. (Id. at p. 395.) The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. (Id. at p. 396.) The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgment--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation. (Id. at pp ) Among the factors to consider in determining the reasonableness of a use of force are: 1) 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. (Id. at p. 396.) In sum, the totality of circumstances must justify the particular seizure in question. (Ibid.) Justifiable Homicide-Self Defense A person acts in lawful self-defense if he reasonably believes that he was in imminent danger of being killed or suffering great bodily injury, and reasonably believed that the use of immediate deadly force was necessary to defend against danger; and he used no more force than was reasonably necessary to defend against that danger. (CAL CRIM 505) 8

9 Where from the nature of the attack a person, as a reasonable man, 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...; 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 Cal.App.2nd 575, 588.) ANALYSIS In this case Officer Saenz stopped to conduct a pedestrian check on Baca, whom he saw walking with a large screw driver in his pocket. Upon making verbal contact with Baca, Baca began running. At that point Officer Saenz rightfully pursued Baca and was shot at. Given that he was being shot at by Baca on a public street, Officer Saenz had no other recourse but to fire back, not only for his own protection, but for the public at large. Officer Saenz was reasonably in fear for his life, his partner s life, and any citizen that may be on the road that morning. His choice to shoot at Baca was completely justified and reasonable given the circumstances he was faced with. CONCLUSION Based on the facts presented in the reports and the applicable law, Officer S. Saenz s use of deadly force, in response to a real and immediate threat of death or great bodily injury, was legally justified. Respectfully submitted on behalf of the District Attorney for the County of San Bernardino. 9

10 Bobbie Mann Lead Deputy District Attorney Date Mary Ashley Chief Deputy District Attorney Date Gary S. Roth Assistant District Attorney for Criminal Operations Date 10