Marcos Bretón

Video or no video, here’s why cops can kill and not be prosecuted

Watch Sacramento officers try to run over Joseph Mann before shooting him

"F*** this guy," an officer says as a police vehicle aims to hit a mentally ill suspect, Joseph Mann, in North Sacramento on July 11, 2016. Seconds later, the officers exited their car and shot Mann 14 times.
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"F*** this guy," an officer says as a police vehicle aims to hit a mentally ill suspect, Joseph Mann, in North Sacramento on July 11, 2016. Seconds later, the officers exited their car and shot Mann 14 times.

It shouldn’t be surprising that District Attorney Anne Marie Schubert declined to prosecute two city cops in the controversial shooting of a mentally ill man on Del Paso Boulevard last summer. Federal and state laws grant police officers wide latitude to use deadly force against suspects if the officers fear for their lives or the lives of others.

Opinion

This remains true even in this age of video, when anyone can watch the final moments of Joseph Mann, 50, who was acting belligerently and armed with a knife before he was fatally shot 14 times by Sacramento police officers John Tennis and Randy Lozoya. Several other Sacramento officers were trying to arrest Mann peacefully July 11 when Tennis and Lozoya arrived on the scene, tried to run Mann over with their police cruiser twice, and then fired 18 bullets at him.

Mann’s death has become the most high profile Sacramento police shooting in a generation. City officials made a turbulent situation worse by initially holding back video and other information related to the shooting.

It took Schubert six months to release her report, adding to a sense of suspicion that one wing of Sacramento’s law enforcement community can’t truly investigate another, a feeling that’s reverberating in other cities across the country as well.

Despite Mann’s erratic behavior and his failure to obey numerous commands to drop his knife, protesters and observers reasonably have asked if he had to die that day. You can argue he didn’t – I would – but again, that question was not in play in Schubert’s investigation.

Schubert’s office only was looking to address if there was “sufficient evidence to support the filing of a criminal action” in connection to the Mann shooting.

According to her report, released Friday, Tennis and Lozoya told investigators they were afraid for a woman Mann approached on Del Paso Boulevard with police in pursuit. Mann did approach a women – you can see it in a police video – but he blew right by her. The officers said they were afraid that Mann could hurt others in businesses near where he was shot. He could have, but didn’t.

Mann could have had a gun; one 911 caller told a dispatcher that he thought he did. But no gun was found. What he had was a knife with a 3.5-inch blade. Mann was too far away from police officers to immediately stab them – Schubert’s report says about 15.5 feet; Bee measurements put the distance at 21 feet – but he was killed anyway.

An initial police account stated that Mann lunged at the officers in the moments before he was shot, a claim that Mann’s family and others have disputed because of surveillance video footage obtained by The Bee. Schubert’s report states that Mann took an “aggressive stance” toward Tennis and Lozoya, who said they couldn’t tell if he had a gun or a knife in his hand.

But ultimately, these details don’t amount to much. On the narrow question Schubert’s office studied, the law is on the cops’ side. All police officers had to say was they were afraid for their lives or afraid for others and that’s it.

“Officers Tennis and Lozoya were justified in shooting Mann to defend themselves and each other, and to protect the public from imminent harm, and to prevent the escape of a suspected felon who posed a significant threat of death or serious bodily injury to others,” the report concludes. “Their conduct under these circumstances was lawful.”

No matter how frustrating this conclusion might be to some, there is no doubting the mountain that prosecutors have to climb to criminally convict officers in lethal force cases. Consider the recent case in North Charleston, S.C. Trial jurors had a video of a white police officer shooting a fleeing black suspect in the back. The video, captured by a bystander, contradicted what the officer initially had told his supervisors about the shooting. It showed the cop disrupting evidence after the shooting. And yet a jury couldn’t convict former officer Michael Slager for any criminal wrongdoing in the killing of Walter Scott.

Baltimore’s State’s Attorney Marilyn Mosby drew national headlines for vigorously prosecuting police officers involved in the controversial death of Freddie Gray, who suffered a broken spine and died from injuries suffered in police custody. Not only was Mosby unable to convict a single officer, but now five of the six officers she prosecuted are suing her. Earlier this month, a federal judge allowed parts of that lawsuit to proceed. This is the reality facing every prosecutor weighing a case against cops who use deadly force.

Schubert is an excellent prosecutor, and her office seems zealous in pursuit of suspects in every type of suspected crime save for one: When a law enforcement officer is investigated for illegally using lethal force.

Local prosecutors have inherent conflicts of interest in going after officers they collaborate with on a daily basis to make their cases. The 12-page report by Schubert is written with great empathy for the police officers. In some parts, it reads as if it were written by defense lawyers hired by Tennis and Lozoya, and not by prosecutors investigating if a crime was committed in the fatal shooting of Mann.

Rick Braziel, the former Sacramento police chief who is now the county inspector general, believes the more important documents related to the Mann case will be produced by an outside investigator hired by the city and by Internal Affairs officers who are conducting their own review. Most of the Internal Affairs review will remain confidential, but it will be vetted by the Sacramento Office of Public Safety Accountability. That office will make a limited public report. The city has promised to make the outside investigator’s report public. These findings are expected within the next few months.

“You had four officers who were on scene and had the best situational awareness,” Braziel said of the police response to Mann. “The two officers with the least awareness – Tennis and Lozoya – were the ones who used deadly force.”

At one point, Mann, who authorities said had methamphetamine in his system, approached the police vehicle occupied by Sgt. Michael Poroli, who rolled up his windows and locked the doors. “Sgt. Poroli shielded himself, did not use deadly force when he was actually the most at risk,” Braziel said. “In my opinion, his response was appropriate.”

Braziel wouldn’t comment when asked if he thought Tennis and Lozoya should be fired for their actions. When I asked if he was aware of other cases in which officers who were cleared of criminal actions still were fired from their jobs, he said he was.

Since he retired in 2012, Braziel has worked with federal Department of Justice investigations of police shootings and has become convinced that law enforcement needs to change with the times.

“The trend is to release everything,” Braziel said, referring to audio and video footage obtained by police. “In my opinion, it was a bad decision by (former Police Chief Sam Somers Jr.) and (former City Manager John Shirey) to not release information earlier.”

It’s a sentiment echoed by the Sacramento City Council, which in November passed a package of police measures to increase access to videos of officer-involved shootings and give more power to a civilian oversight commission. In addition, the council recently approved giving all Sacramento police officers a week of training to better deal with people with mental illness.

While a federal lawsuit moves forward on the Mann case, some legislators want to change how police-involved shootings are investigated across the state. Assemblyman Kevin McCarty, D-Sacramento, on Friday said he expects to introduce a bill that will shift police shooting investigations to the state attorney general’s office, which he believes could handle them more objectively.

“I don’t think local prosecutors can investigate police officers,” McCarty said. “They are in a bind they can’t get out of. It’s a conflict of interest.”

Reflecting on the Mann case and others, McCarty paused and asked: “How bad does a shooting have to be?”

Marcos Breton: 916-321-1096, @MarcosBreton

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