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Stamped Out

Advocates for people killed by police maintain that the law allows cops to act with near impunity. They’re right. And that’s how it was designed to work.

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Photo-illustration: Clark Miller

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During the 776 days between Amilcar Perez-Lopez’s death and DA George Gascón’s decision not to press charges against the policemen who killed him, Hall of Justice demonstrators were heard to chant, “George Gascón, do your job!”

Photo: Jan Adams

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A neighbor snapped a photo of the aftermath of Perez-Lopez’s shooting. His body is sprawled between the parked cars.

Photo: Courtesy of the San Francisco District Attorney's Office

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On November 12, 1984, a road maintenance worker named DeThorne Graham, in the midst of a diabetic meltdown, stumbled into a Charlotte, North Carolina, service station, desperately hoping to buy a bottle of juice. Taken aback by a long line, he retreated, ran to his friend’s car, and pleaded to be driven to his girlfriend’s home. As Officer M.S. Connor observed Graham’s rapid exit from the store, his suspicions were aroused. He flagged down the car, initiated an “investigative stop,” and then watched as Graham frantically ran in circles before fainting on the roadside. Police backup arrived. Graham was cuffed and slammed headfirst into a squad car; he would suffer a broken foot, lacerations, and a bruised forehead. No charges would be filed against him.

Five years later, the United States Supreme Court unanimously rejected Graham’s claims of excessive force, ruling that Officer Connor’s actions were “objectively reasonable”—and, in doing so, established the standard against which every subsequent police use-of-force incident would be measured. “The Fourth Amendment inquiry is one of ‘objective reasonableness’ under the circumstances,” Chief Justice William Rehnquist wrote in the decision, “and subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.” In other words, no matter what thought process leads an officer to feel threatened, or what questionable steps he takes—or doesn’t take—that may escalate matters into a physical confrontation, if the officer “reasonably” feels threatened at the split second he takes action, he can “reasonably” respond with any and all measures up to and including lethal force.

In the nearly three decades since Graham v. Connor, statements made by cops who’ve meted out deadly force have become virtual plug-and-play adaptations of the Supreme Court’s ruling. And that language has also been adopted by the courts that would judge them: In California, it has been ruled that “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,” and “a police officer’s use of deadly force is reasonable if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Given the broadness of the corresponding jury instructions, “you read them and think, ‘How are they ever going to find against the officers?’” says retired state superior court judge LaDoris Cordell. “It’s almost Mission: Impossible.

And so it comes as little surprise that the statements given by San Francisco police officers Eric Reboli and Craig Tiffe—who on February 26, 2015, discharged six shots into the back, head, and side of 21-year-old Amilcar Perez-Lopez, who had pursued a man named Abraham Perez down Folsom Street with a knife—adhered, practically verbatim, to the legal standards of “reasonableness.” “Officer Tiffe said he believed at that moment that Perez-Lopez was going to kill him if given the opportunity, and kill anybody in his way,” read a report released in April by District Attorney George Gascón’s office. Similarly, “Officer Reboli said he discharged his firearm at Perez-Lopez to stop the threat to his life and to the lives of his partner and Abraham.” With a nod to “reasonableness,” Gascón chose not to file charges against the officers who killed Perez-Lopez, who died facedown in the gutter.

“We will never know exactly what happened in those split seconds, which direction Perez-Lopez was facing, and to whom he posed a threat when the officers made their decision to shoot,” Gascón said at the April 12 press conference convened after a marathon two-year-long investigation into the officers’ actions. The kitchen knife Perez-Lopez brandished on the night of his death rested on a table to Gascón’s right, while an animation that was played for the media portrayed Perez-Lopez waving it about with the ferocity of a slasher movie villain. “The law,” noted Gascón, “gives significant deference to officers.”

Indeed, when you’re a cop, the law can be a great—even magical—thing. As the DA stated in his prepared remarks, Officer Reboli was justified in shooting Perez-Lopez when he’d perceived that the suspect was moving toward the officers with a knife. But Reboli’s narrative isn’t intuitively plausible: Reboli shot Perez-Lopez five times from behind. In order to buy Reboli’s story, one must trust the use-of-force expert contracted by the DA—who postulated that Perez-Lopez rapidly swiveled in the moments between Reboli deciding to shoot him and actually pulling the trigger.

That’s not particularly easy to comprehend, let alone believe. But even if Reboli’s tale is too far-fetched, his partner, Tiffe, was also justified in shooting Perez-Lopez when he’d perceived him to be moving away from the officers and toward Perez. In short, Perez-Lopez’s life was declared forfeit if he’d been running toward the cops, running away from the cops, or, somehow, both.

This may violate the laws of physics. But it turns out it doesn’t violate the law of the land.


For those who
have clamored over the past two years for “justice” for Amilcar Perez-Lopez and other police shooting victims, Gascón’s decision in the case was dispiriting, but hardly shocking. No DA in the city’s history has ever charged a police officer in the wake of a deadly shooting. Gascón has claimed to be an agent of reform, and his office has this year been allotted an additional $1.5 million to investigate officer involved shootings—a duty that previously fell largely to the police department itself. He has hired a bevy of investigators, several of them former internal affairs officers with the Los Angeles Police Department—like Gascón himself—who have no ingrained loyalty to the SFPD. The investigation of the death of Perez-Lopez stretched more than two years and required 1,000 or more work hours. And yet in spite of all that, Gascón still reached the same decision as every prior DA faced with every prior lethal police shooting: No charges were warranted.

As long ago as last July, Mission community leaders were told in a sit-down with the DA that the case was “not prosecutable.” The DA also told city elected leaders weeks before his public announcement that charges were unlikely. His cards were on the table, these meetings seemed to indicate, but the table itself was tilted. “I get it. The system is biased toward police,” says Father Richard Smith of the Episcopal Church of St. John the Evangelist, who had urged Gascón to file charges in the Perez-Lopez case. Smith had hoped that inconsistencies in officer and witness accounts could be played out before a jury: “Let us have our day in court.”

But DAs don’t throw cases they think they can’t win before juries—especially not when police are involved. Baltimore state’s attorney Marilyn Mosby was hailed as a progressive folk hero when in 2015 she charged six officers in the death of Freddie Gray. But after three consecutive acquittals, her office dropped all charges; five of the officers subsequently filed a malicious prosecution case against her. In less than two years, Mosby went from being an up-and-comer destined for higher office to being a pariah at risk of disbarment.

That’s something for Gascón to think about. As is the ambiguity of the evidence that Reboli and Tiffe committed a crime. The incomplete and at times contradictory recollections of Perez-Lopez’s horrified roommates, a 911 caller out for a jog, a pair of “women walking home eating pizza,” curious neighbors, the police who killed Perez-Lopez, and Perez, the man he pursued with a blade—as well as video from a nearby café and passing buses and even sonic data from ShotSpotters overhead—present a Rashomon of multiple, incompatible versions of the truth.

What’s known is this: On February 26, 2015, there was some yelling and posturing and more than a little drinking (Perez-Lopez had a blood alcohol level of 0.19 at the time of his death; Perez was described by an investigator as reeking of alcohol even hours later). At one point, Perez-Lopez—an undocumented Guatemalan construction worker and breadwinner for his parents and five younger siblings back home—chased Perez off while brandishing a large kitchen knife. Perez claims the smaller man demanded his bicycle; Perez-Lopez’s roommates told authorities that Perez goaded their pal into a fight. Whatever the case, within minutes, police had arrived at the scene and unholstered their pistols. It remains unclear whether the plainclothes officers identified themselves as cops—and, regardless of what they said, they said it in English, a language the inebriated Perez-Lopez was not fluent in. The officers’ six shots all struck Perez-Lopez, killing him on the spot.

Seven hundred and seventy-six days later, Gascón made his case for not making a case. Politically, he had set himself up to be the target of scorn and ridicule from either the law enforcement community and its powerful unions or the social justice community—or, likely, both. It was a no-win situation for a self-styled reformer, and Gascón, for his part, has stated that he’d rather not be in the business of investigating and prosecuting cops—an undertaking that’s inherently rife with conflicts of interest, considering how closely police and DAs rely upon one another. (Former prosecutor Paul Butler, now a professor at Georgetown Law, puts it succinctly in his book Let’s Get Free: “One of your primary functions as a prosecutor is to make the judge and jury believe the police.”)

Instead, Gascón recently told KTVU, “ideally there would be a completely independent entity, perhaps at the attorney general’s office, to do this work.” In 2015, Assembly member Kevin McCarty introduced a bill that would have created just such an entity. That bill died, though, in large part because then–attorney general Kamala Harris, who has publicly criticized taking discretion away from DAs, had little interest in doing this work at the state level. Multiple sources close to this bill—including some within the AG’s office—hint that now–U.S. senator Harris’s antipathy to it and her aspiration for higher office were not unrelated; the unpleasant duty of investigating and prosecuting cops would have no doubt been a hindrance for an upwardly mobile politician. McCarty declines to parse Harris’s motives. But in February, the month after she matriculated to Washington, D.C., he introduced a similar bill. “With a new attorney general,” he says, “it’s a new day as far as criminal justice reform issues.”

If “a new day” entails actually prosecuting cops who kill people, however, we may be in for a long wait. McCarty points to Wisconsin’s Division of Criminal Investigation as a national model, a view echoed in a study published last year by Stanford Law School’s Criminal Justice Center. And yet in the 50 completed police lethal force cases investigated by the new division since 2014, charges were filed only once. In Connecticut, which has a similar investigative setup, state prosecutors have declined to press charges in 53 of 54 police lethal force cases going back to 2001.

McCarty has an inkling of these numbers, but he claims that pressing charges against officers “isn’t always the result I’m looking for. The best result is having more confidence in the process.” If the process, however, exonerates police 98 percent of the time—without them even facing trial—it’s unclear whose confidence will really be bolstered.

No matter how diligently cities and states investigate officers’ use of lethal force, no matter how effectively they address real and salient matters such as conflicts of interest or juror bias or institutional racism, in the end they must apply the law to the facts. And the law, as it stands, allows all but the most incompetent or malicious cop to engage in deadly force.

Whether the officers who killed Perez-Lopez deserve either of those descriptors will have to be addressed in a civil trial, not a criminal one. At the tail end of Gascón’s press conference, he was asked, point-blank, whether he feels the law should be changed. “We certainly have our own concerns,” he admitted, before waving off even the premise of the question. “But that’s not what we’re doing here.”

 

Originally published in the June issue of San Francisco

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