3 Articles. The two from SFChron are cc/pasted to get past the paywall
Mission Local:
‘A hostage being shot, especially by us, is a failure’: Officers lament SFPD killing two men – June 3, 2022
‘A hostage being shot, especially by us, is a failure’: Officers lament SFPD killing two men – Mission Local by JOE ESKENAZI
SF Chron:
Exclusive: Chesa Boudin investigating 2016 killing by officers who S.F.’s former D.A. had cleared – June 3, 2022
The San Francisco District Attorney’s Office has issued subpoenas in an investigation of the 2016 police killing of Luis Góngora Pat in the Mission District, re-examining a case that had been closed since former DA George Gascón declined to file charges against the two officers who fired shots, according to two sources familiar with the matter.
Góngora Pat, a 45-year-old homeless man, was one of five people killed by officers between 2014 and 2017 in controversial cases that prompted the U.S. Department of Justice to recommend a slate of reforms and Police Chief Greg Suhr to resign under pressure.
The video-recorded encounter lasted about 30 seconds, sparking accusations that the officers — who said Góngora Pat ignored orders to drop a large kitchen knife and lunged at them — failed to follow de-escalation training.
A spokesperson for District Attorney Chesa Boudin declined to comment Friday on the investigation. But the sources said prosecutors issued subpoenas in recent months seeking testimony or evidence about the shooting and the officers who were involved.
The people who spoke to The Chronicle, who were not authorized to discuss the case, were granted anonymity in accordance with the newspaper’s policy on confidential sources.
The status of the investigation is unclear. If Boudin is removed from office in Tuesday’s recall election, a successor appointed by Mayor London Breed could decide how to proceed. The subpoenas were issued long before the election, but have not been previously reported.
Oakland attorney Adante Pointer, who represents the family of Góngora Pat, said he was relieved to hear the case was being re-examined. He said prosecutors under Gascón, now the district attorney in Los Angeles, overlooked key factors, including that Góngora Pat was initially sitting on the ground when he was approached by officers, one of whom who fired less-lethal “beanbag” projectile rounds at him.
“We felt and knew all along that the officers should have been severely disciplined as well as criminally prosecuted,” Pointer said of the case. “From our perspective, it never got the attention it deserved.”
Alison Berry Wilkinson, an attorney representing Officer Michael Mellone, one of two officers whom Gascón declined to charge over their role in the shooting, said a new investigation would be outlandish. She said the development, if true, suggests that Boudin pursued the case in an attempt to boost his political fortunes.
“Evidence clearly established that the officers shot in self-defense, as Góngora charged at them with a knife,” Berry Wilkinson said. “I can’t think of any other reason why (Boudin) would reopen this case that this point other than self-interest. I just find the whole thing puzzling.”
If the case were to proceed to trial, Berry Wilkinson said the defense would try to call Gascón as its “chief witness” since his office released a 35-page report that cleared the officers.
An attorney representing Sgt. Nathaniel Steger, the second officer in the shooting, declined to comment.
Gascón concluded in his report that “because the prosecution carries the legal burden to prove beyond a reasonable doubt that the officers did not shoot in self-defense or in defense of others, the available evidence cannot support the filing of criminal charges in this matter.”
The existence of the subpoenas revealed by The Chronicle’s sources indicates that a criminal grand jury was impaneled to review the killing, though the status of the grand jury is unclear.
Góngora Pat was killed on April 7, 2016, after officers responded to reports that a man was waving a large kitchen knife and acting erratically on Shotwell Street between 18th and 19th streets. Two police officers and a sergeant arrived at the scene and ordered Góngora Pat to drop an 8-inch knife, according to Gascón’s report.
Góngora Pat initially dropped the knife but picked it back up, the report said. The officers said they commanded him again to drop the weapon in English and Spanish before Mellone fired four beanbag rounds at him.
That’s when Góngora Pat jumped up, knife in hand, and charged at Steger, according to the district attorney’s report. Eight witnesses confirmed that account, prosecutors said, but other witnesses gave contradictory statements that investigators said were not supported by the physical evidence.
Steger and Mellone opened fire and hit Góngora Pat six times, including a fatal shot to the head, the report said. The medical examiner’s report found he was under the influence of methamphetamine at a level “enough to kill or hospitalize a non-habitual user.”
Steger remains a police sergeant in San Francisco and was transferred out of a division that oversees department reforms after the shooting. Mellone is an officer in Antioch after quitting San Francisco’s police force one day before he could be disciplined; the Internal Affairs division had sought a 10-day suspension against him for allegedly escalating the situation by firing beanbag rounds at Góngora Pat rather than distancing himself, according to media reports.
The shooting became more controversial after surveillance video from a nearby building emerged and showed that only about 30 seconds had passed between the time officers exited their patrol vehicles and when they fired.
If Boudin’s revived investigation into Góngora Pat’s killing moves forward, the prosecutor’s office appears to face a steep road in pursuing in the case. More than six years after Góngora Pat’s death, the only applicable charge that could be pursued is murder. Felony assault charges have a three-year statute of limitations and manslaughter charges must be leveled in six years.
Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor, said the fact that Gascón initially declined to pursue charges would likely have little bearing on a potential case.
“It can be evidence in the court of public opinion — you certainly would argue, ‘If the case had major problems before, what makes the difference now?’” she said. “And (defense attorneys) can use it for pretrial motions if they’re alleging some type of misconduct. But it’s not relevant to evidence in the trial.”
Boudin’s office has pursued criminal prosecutions against nine other officers for alleged misconduct while on the job, including two manslaughter cases related to fatal shootings. The office has not prosecuted any officers for murder. Most of the cases are pending, with the exception of a baton-beating allegation against an officer.
In March, a jury found that officer, Terrance Stangel, not guilty of most of the assault and battery charges, and deadlocked on a final count. That charge, assault under the color of authority, was later dismissed by the District Attorney’s Office.
Dustin Gardiner and Megan Cassidy are San Francisco Chronicle staff writers. Email: dustin.gardiner@sfchronicle.com, megan.cassidy@sfchronicle.com Twitter: @dustingardiner, @meganrcassidy
SF Chron:
‘It didn’t have to happen’: Experts review video, criticize S.F. police in double fatal shooting – June 2, 2022
Policing experts who viewed footage of San Francisco police fatally shooting two homeless men said the incident raised concerning questions, including why so many officers surrounded the men with guns drawn, why so many fired their weapons and whether the supervisor on scene gave them adequate direction.
The experts said police could have used better tactics to defuse the situation and disarm one or both of the men without firing their weapons. Despite their questions, however, at least one expert said it’s unlikely authorities will criminally charge the officers.
Police shot the men May 19 under a highway overpass near Mission Bay, as the two fought on the ground and as one appeared to lunge at the other with a knife. During a standoff that lasted for about nine minutes, officers had repeatedly ordered them to drop their knives, though it was unclear whether both had weapons.
The state Attorney General’s Office will decide whether the officers’ actions were justified, and city officials will determine whether the officers violated policy.
Police and use-of-force experts who reviewed the police body-worn camera video footage for The Chronicle said the case raises complex legal issues — particularly in the killing of Rafael Mendoza, 49, who appeared to be fending off a stabbing by Michael MacFhionghain, 57, at the moment officers opened fire.
“It feels like a philosophy problem,” said Robert Weisberg, co-director of the Stanford Criminal Justice Center. “If you have reason to think that, of the two bodies fighting, one of them is clearly the aggressor and one is not the initial aggressor, what’s the mathematical chance that you’ll kill the non-aggressor? Oh, gosh. So, so tricky.”
The incident began when police responded to a report of an assault in progress at Interstate 280 and Mariposa Street and found the two men locked in a struggle on the ground. MacFhionghain held a knife over Mendoza’s head as Mendoza gripped MacFhionghain’s wrist.
Officers repeatedly ordered MacFhionghain to drop the knife, and fired less-lethal projectiles at him from close range, video footage shows.
At least 16 officers eventually gathered around the men, many with weapons drawn. Multiple officers yelled orders. Police attempted to defuse the situation; at one point an officer said there were “too many guns” drawn, and asked the other officers to step back.
After an approximately nine-minute struggle with police present, four officers opened fire after MacFhionghain “brought the knifepoint up, downward, toward Mr. Mendoza in a stabbing motion at least two times,” San Francisco police Cmdr. Paul Yep said last Friday during a town hall meeting on the shooting.
Mendoza died from a gunshot wound, and MacFhionghain died from multiple gunshot wounds, according to a preliminary report by the Office of the Chief Medical Examiner.
Christine Cole, executive director of the Crime and Justice Institute in Boston, said she was surprised by the number of officers present for the type of incident, and by the demeanor of many of the officers, who were screaming and using loud voices.
“Large numbers of police officers not only have the potential to impact the behavior of the two men on the ground, but certainly have the potential to impact the behavior of other police officers,” she said. “It did not feel, from this observer of multiple angles of different body-worn (cameras), that it was a scene that was orderly, controlled and strategic.”
Thomas Nolan, a former Boston police lieutenant and associate professor of sociology at Emmanuel College in Boston, said the number of officers on scene may have exacerbated the situation.
Nolan said the apparent sergeant in charge should have assumed command and taken control of the incident as it unfolded and not allowed nearly as many officers to surround the men.
That supervisor “seemed to be more concerned with closing highway ramps and playing on the radio than directing the activities of his subordinates,” Nolan said. “So it seemed as though individual officers are taking it upon themselves to make use-of-force decisions without any kind of guidance or direction.”
Nolan said police should have designated one officer to continue negotiations and dialogue with the two men and to have given them more space.
“They certainly could have stepped back, literally and metaphorically, holstered the weapons and try and engage in a conversation with the two combatants on the ground,” he said.
Still, Nolan said, he expects authorities to determine the shooting was justified and not file criminal charges against the officers.
“I think the more appropriate question is whether it was necessary,” Nolan said. “In my view, it didn’t have to happen. These guys didn’t have to get killed.”
Separate from the criminal investigation, SFPD’s Internal Affairs Division and the city’s Department of Police Accountability will conduct administrative reviews to determine whether any policies were violated, and potentially recommend discipline. Disciplinary measures can be imposed by the police chief or the Police Commission, but only the commission can order discipline of more than 10 days of suspension or termination.
California law allows police to use deadly force when the officer “reasonably believes” that it’s necessary “to defend against an imminent threat of death or serious bodily injury to the officer or to another person.”
While footage shows MacFhionghain apparently attempting to plunge a knife into Mendoza just before officers fired their weapons, Mendoza did not appear to pose an immediate threat to MacFhionghain or the officers. However, it’s unclear whether Mendoza was carrying a knife himself or police believed he was.
At one point in the video an officer said, “Guy in the blue has a knife, guy in yellow has a knife.” Mendoza was wearing blue, and MacFhionghain was wearing yellow. Three knives were recovered at the scene.
When San Francisco Police Chief Bill Scott was asked by a resident at the town hall whether both men had knives, he directed them to Yep’s initial report and the comment that suggested they did.
The Attorney General’s Office has taken over the investigation from the San Francisco District Attorney’s Office, suggesting that there is still some uncertainty about whether Mendoza was armed. California law requires that the department investigate and make charging decisions on any fatal shooting that involves an unarmed civilian.
In a statement, officials with Attorney General Rob Bonta’s office said they would review the case given its uncertainty.
Police in California and around the nation have rarely been charged with crimes in cases that bear some resemblance to the San Francisco incident.
In 2014, a BART officer shot and killed his supervisor after mistaking him for an armed suspect while searching an apartment in Dublin. The shooter, Officer Michael Maes, was not charged in the death of Sgt. Tom Smith after Alameda County District Attorney Nancy O’Malley’s office found that the evidence did not justify criminal charges.
David Klinger, a former police officer and a professor of criminology and criminal justice at the University of Missouri-St. Louis, said there are important distinctions between the legal standard and successful policing.
“When something like this happens, it’s a failure,” he said. “It’s something that shouldn’t have happened, so we need to understand why.”
Klinger said that while criminal charges are possible, policy violations may be more likely. For one, he said, no more than two officers should have been designated to potentially shoot.
“If I’m those cops who did the shooting, and I’m the commander on scene, I’m going to be having some worries,” he said. “If you end up killing someone who doesn’t need to be killed — and when I say ‘need’ I’m talking about that legal notion of necessity — there should be some discipline.”
The Attorney General’s Office is investigating 15 other cases from police agencies across California and has not yet made charging decisions in any of them, according to the office’s website.
Megan Cassidy is a San Francisco Chronicle staff writer. Email: megan.cassidy@sfchronicle.com Twitter: @meganrcassidy
