Witnesses Again Differ With Officer’s Account of Shooting by Police

Moments before Officer Robert T. Staley shot a gang member in the face during a routine traffic stop in August, images of the 1984 slayings of two fellow San Diego police officers flashed across his mind.

“I thought I was going to be killed,” Staley said in an interview with a district attorney’s investigator, according to a transcript obtained by The Times. “ . . . I knew he was a violent person. . . . I had my gun pointed at him. I told him, ‘Don’t move!’ and he made the deliberate movement and . . . I knew I was going to die right then and there.”

Staley, 39, who was standing at the side of the vehicle with his weapon already drawn, reacted instantly by shooting Jose Oscar Esqueda, 24, at point-blank range. The bullet passed through Esqueda’s mouth, knocking out his top and bottom front teeth.

The district attorney’s office last month cleared Staley of any criminal wrongdoing in the case, concluding that Staley recognized Esqueda as a dangerous gang member and had “a reasonable, albeit mistaken, belief that Esqueda was reaching for a gun.”

The decision has outraged Esqueda’s attorney and family, who claim that Staley’s account of the shooting is contradicted by eyewitnesses. According to police reports obtained by The Times, Staley’s version of certain details of the shooting differs from those given by two fellow police officers.

“My personal opinion is it was attempted murder,” said Dave Perry, Esqueda’s attorney and a former San Diego police officer who has filed a $5-million civil suit in Esqueda’s behalf against the city, the Police Department and Staley.

“It’s appalling to me that anybody could look at that case and say it was a justified shooting.”

The Staley case is the second controversial police shooting this year in which witnesses dispute the officer’s account of events before he pulled the trigger. Officer Stephen Williamson has not returned to duty since March, when he shot George Edward Balboa twice. Three witnesses testified in court that Williamson had no reason to shoot Balboa, who has been bound over for trial on a charge of assault on a peace officer.

In addition, police officers shot two men Monday in San Diego, where nine officers have been slain in the line of duty in the past decade. Officer Peter Mills fatally shot a Hillcrest man who allegedly came at him with a knife, and Officer Robert Van Wulven wounded a man who allegedly had robbed a car salesman.

The two cases raised to 10 the number of people San Diego police have shot this year, according to department statistics. The police have shot at people in 17 incidents. Last year, police shot 18 people; in 1984, they shot 13.

“There’s no doubt in my mind that our officers have their guns out of their holsters a lot more than they did 20 years ago,” said Assistant Police Chief Bob Burgreen. “But there’s also no doubt in my mind they are coming up against a lot more guns than they did 20 years ago.”

Burgreen acknowledges that the publicity surrounding the killings of nine police officers--giving San Diego the highest per capita officer mortality rate among major U.S. cities--may be a factor when police must decide whether to shoot in life-threatening situations.

“I don’t think there is any way you can ignore it,” Burgreen said. “If I were a beat cop out on the street again, I would certainly be cognizant of the fact that nine of my brothers and sisters were in their graves after being shot to death in this community.”

Staley told police investigators that, immediately before he pulled the trigger, he thought of all of the police officers who had been shot and killed in San Diego, including two officers who were slain in Grape Street Park.

Staley’s attorney, Dan Krinsky, said that members of the police beach enforcement team told him many of the people they routinely stop carry guns and have “a propensity to kill.”

Krinsky said: “These guys are scared out there occasionally. They are acutely aware of other guys going down (and) they are that much more vigilant.”

Concerned about violence against officers, the Police Department last year established an Officer Safety Task Force in the wake of the March 31, 1985, shooting death of Police Agent Thomas Riggs and the serious wounding of Police Agent Donovan Jacobs.

At the time, police administrators discussed the possibility that dwelling on the police slayings could exacerbate the problem, Burgreen said. But they decided their officers would be best served by learning from the mistakes made by the slain officers, providing police with safer equipment and upgrading training procedures.

“Do we want trigger-happy officers? The answer is no, we don’t,” Burgreen said. “Are we concerned that our officers may overreact because of all of these factors? Sure, we’re concerned. What can we do about it? We can buy the best equipment available, which we just did.”

The Police Department initiates formal reviews of every officer-involved shooting by assigning the cases to an internal affairs sergeant for investigation. Each shooting is evaluated by the department’s Police Shooting Board, which consists of three commanders. The results are then passed on to the officer and his supervisor, who decides whether any disciplinary action should be taken.

Such reviews are considered personnel matters and are strictly confidential, Burgreen said. Staley’s case has not yet been reviewed. On the police inquiry into the Williamson shooting, Burgreen would only remark: “I can tell you there was a lot of discussion by the board and by the ranking officers of this department.”

The San Diego County district attorney’s office ruled that Williamson was justified in shooting Balboa. Williamson claimed that Balboa came after him with a chrome bar that had fallen off his police car, but three eyewitnesses testified that the Logan Heights man had nothing in his hand.

After hearing the evidence during a May preliminary hearing, Municipal Court Judge Robert J. Cooney said a jury could just as easily acquit or convict Balboa of the assault charge.

As in the Williamson case, the district attorney’s office cleared Staley, despite conflicting statements from other witnesses.

Deputy Dist. Atty. Alan Preckel, who headed the investigation, said of Staley, “I find him in all respects to be a highly credible individual and I have no reason to question his statements concerning the circumstances (of the) shooting. . . . I’ve dealt with a lot of police officers in the course of 15 years as a prosecutor. In terms of credibility, I’d rank one Officer Tom Staley right at or near the top.”

But Preckel acknowledged that, in some ways, the shooting of Esqueda was not easy to resolve.

“This (case) called for closer evaluation and closer scrutiny than most,” Preckel said. “But upon that closer examination, the resolution of the case was quite clear-cut and we are very comfortable with the justification that was present for Officer Staley’s conduct.”

Two days after the shooting, police announced that they had found a loaded .410-gauge sawed-off shotgun and a .357-caliber revolver inside the driver’s door of Esqueda’s car. Police have been unable to trace the ownership of the shotgun, but the revolver had been reported stolen. The district attorney concedes that Esqueda could not have reached the weapons during the car stop.

Esqueda now faces criminal charges for possession of a sawed-off shotgun and a stolen handgun.

Staley, a five-year member of the Police Department, was working on the beach enforcement team on the night of Aug. 22 when he encountered Esqueda. Staley was among several officers who went to the Leisure Lagoon area of Mission Bay to check for curfew and alcohol violations at the popular gathering spot for teen-agers and youth gangs.

After police had halted traffic leaving the park, Staley and Officer Greg Hewitt walked down the single line of stopped vehicles, shining their flashlights inside each car.

“I went to the first car in line and talked to the driver and passenger,” Staley told detectives after the shooting. “They did not look like juveniles, so I let them go. The driver had complied with my request and opened the trunk and hood for me and I felt everything was OK.”

The next car in line was the dark blue Volkswagen Beetle driven by Esqueda. Staley walked up to the driver’s side and, after posing a few questions, recognized Esqueda as “Night Owl,” a prominent member of the Varrio Market Street gang.

During his patrol duties in Southeast San Diego, Staley said, he repeatedly had come in contact with Esqueda and knew of several occasions where he had used sawed-off shotguns and handguns. In July, Esqueda was named by a victim as a suspect in a gang-related shooting. Although detectives had dropped the case because of uncooperative witnesses, Staley thought that Esqueda was still wanted and planned to arrest him.

“Night Owl was sitting there with both hands on the steering wheel,” Staley told detectives. “I didn’t see any weapons in the car. I didn’t see anything in his lap. Everything appeared normal at this point. There had not been any harsh words used by him or myself. Everything was still being handled in a low-key fashion.”

According to Staley’s account, he took a step back from the driver’s door and called to Hewitt “10-35,” a police code meaning dangerous person. Staley said he drew his weapon and told Esqueda not to move. The officer then said his attention was diverted by Officer Kenney yelling out: “What do you have?”

Staley said that, when he saw Esqueda move his right hand off the steering wheel and drop it out of sight, he fired his weapon once.

“I was sure he was going for a gun because he was wanted and had nothing to lose,” Staley said. “At the same time, the thought of all the other officers that had been shot crossed my mind.”

The bullet struck Esqueda in the left cheek and passed through his mouth before hitting the car’s front wheel well on the passenger side. The impact threw Esqueda onto the lap of a passenger in the front seat. Staley grabbed Esqueda with both hands, dragged him out of the car and threw him on the pavement to make sure he was unarmed, then another officer handcuffed him.

Staley was then led away by fellow officers and Esqueda was flown by Life Flight helicopter to UC San Diego Medical Center.

Eyewitnesses disagreed with Staley’s account on several points:

- Officer Hewitt told police investigators that he heard Staley ask for identification and observed Esqueda reaching for his rear pants pocket in search of his wallet. Staley said that Esqueda’s hands were on the wheel during the entire stop and that he did not ask for identification.

- No one else heard Staley order Esqueda not to move--including Officer Hewitt, who was standing on the passenger side of the vehicle, and Ruben Aguayo, the passenger in the car.

- Kenney, the patrol officer who Staley said had distracted him immediately before pulling the trigger, said he did not say anything to Staley as he approached the car.

In addition, Staley told Sgt. Carey Brooks that, immediately after he was distracted by Kenney, he looked back and saw Esqueda “bending down as if to reach under the seat” for a weapon. But in a later interview Staley said Esqueda moved only his arm, not his body.

Esqueda insists that he did not drop his hand from the steering wheel before he was shot.

“He pulled out the gun and I thought he was going to point it at me to get me out of the car, but as he pulled it out, he shot me,” Esqueda told police. “ . . . He didn’t tell me anything.”

But even if Esqueda dropped his hand, Perry said, Staley did not have to shoot. Instead, Staley could have stepped back alongside the car for cover and ordered Esqueda to put his hands in the air, Perry said.

“I think there has to be some evidence that a person is planning to hurt you before you shoot him in the head,” Perry said. “There are a million reasons a person could have dropped his arm. He had a Pepsi in his lap. He could have been going for identification.”

Esqueda’s attorney contends that, if Staley had told his client not to move, he would have done it in a forceful enough tone so that other officers and surrounding witnesses in the line of cars would have heard it.

“There were 100 people around him,” Perry said. “The only person that said he said ‘Don’t move,’ is the officer himself, and no one else heard it.”

Krinsky, Staley’s attorney, said he does not believe that the contradictions are substantial enough to “turn a justifiable shooting into a murder case.”

Indeed, Preckel said the conflicting accounts were not considered important in deciding the case.

“People see and hear things differently,” Preckel said. “Staley says he made the statement: ‘Don’t move.’ The fact it was not heard by the officer on the other side who heard ‘10-35’ may or may not be suggestive of whether the statement was in fact made.”

Preckel said he considers the dropping of Esqueda’s hand from the steering wheel “the critical movement” in the case. Only Staley and Esqueda were in a position to talk about the hand motions, Preckel said.

Dist. Atty. Edwin Miller wrote Police Chief Bill Kolender in a Sept. 16 letter that his office had resolved the conflict of the hand movement in Staley’s favor.

“We find him to be credible, and there is no reason to reject his stated observation,” Miller wrote.

Perry accused the Police Department of “trying to smear and cover over the shooting” by publicizing the discovery of the weapons in his car. He said that Esqueda claims to have no knowledge of the weapons.

“If they found guns in that door, it is a different case altogether,” Perry said. “It has nothing to do with him dropping his right hand to the seat or the officer saying, ‘Don’t move.’ We have two separate cases.”

Preckel agreed that the case would be “a lot more clear-cut” if a weapon had been found in the area where Staley said he spotted Esqueda reaching.

“But the presence of loaded weapons concealed in the driver’s door of that vehicle says something about Mr. Esqueda,” Preckel said, “just as the finding of a Bible might have said something.”