No charges to be filed against BART detective who killed his partner

BART detective mistook his sergeant for potential assailant when he fired once, killing him

The Alameda County district attorney has concluded that no criminal charges are justified in the January slaying of a Bay Area Rapid Transit police sergeant by his partner in what was characterized as a tragic accident.

Det. Sgt. Tommy Smith, 42, was fatally shot by Det. Michael Maes as they and other officers conducted a probation search at a Dublin apartment with an unusual layout. Maes, the report said, mistook Smith for a potential assailant.

The report was completed by Alameda County sheriff's investigators and reviewed by Dist. Atty. Nancy O'Malley, who concluded that no charges were warranted.

According to the report, the officers had spread out in the apartment when Smith emerged from a darkened closet into the bedroom, his weapon raised.

"When Detective Maes saw the 'shadowy figure' with an upraised firearm suddenly emerge from the dark walk-in closet area he concluded that he was confronting an armed suspect who posed an imminent threat of serious injury or death to himself and his fellow officer, Scott Hamilton," Deputy Dist. Atty. John Creighton wrote.

After Maes fired, he "heard the individual shout, recognized the voice and then realized he had shot Detective Smith," it continued.

The layout of the apartment contributed as the closet was a "walk through" with two entrances.

The suspect was in custody on robbery charges, but officers who went to search his apartment found the door unlocked, believed someone may have been home, and entered with guns drawn.

The incident marked the first death in the line of duty in the history of the BART police force.

In a statement Friday, BART Police Chief Kenton Rainey said the report "allows BART Police to move forward with concluding its internal investigation of the tragedy. Until the internal investigation is complete, I cannot discuss details relating to our ongoing investigation."

Rainey noted that after the shooting, he "immediately put into place the requirement that no residential probation or parole searches can be conducted without the approval of a deputy chief. In addition, all sergeants and officers were retrained in the use and activation of the Axon – Flex body camera system."

Though they were on, the cameras had not been activated during the search, Rainey said earlier.

He said he was also sending officers to a class on warrants and high-risk operations.

"I’ve shared the DA’s report with all BART Police personnel and asked that each person read and consider all the information offered by the outside investigators regarding what they felt transpired before this tragedy occurred,” he added.

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