Police Killing Found Within Law by D.A. : But Report Assails Police Conduct in Case

Times Staff Writer

The district attorney's office has cleared a San Diego police officer of any criminal wrongdoing in the highly publicized killing of a drug suspect earlier this year, though officers were chastised for "questionable police work" in trying to arrest the man.

In a report dated Tuesday and released Wednesday, the district attorney's office said that Police Officer Timothy Fay, who has been the subject of several brutality lawsuits during his 11 years on the Police Department, was "legally justified in his use of deadly force" against Stanley Buchanan.

The April 22 shooting occurred late at night, in Buchanan's dimly lit apartment on Logan Avenue. The 32-year-old drug suspect was being arrested when he allegedly threatened two women officers with a flashlight. Fay then shot him six times and continued firing even after Buchanan fell to the floor.

But, the district attorney said, "the manner in which Officer Fay fired his pistol was reasonable, even if one or more shots struck Buchanan after he was on the floor."

The decision not to prosecute Fay drew immediate criticism, especially from community leaders who say they are disgruntled that the district attorney routinely clears San Diego-area law enforcement officers involved in shooting and brutality cases.

Call for Special Prosecutor

"My feeling is that we can no longer count on the (district attorney) to bring any criminal charges in these kinds of cases," said Roberto Martinez, head of the Coalition for Law and Justice.

"We instead have to start looking somewhere else to get these law enforcement officers prosecuted. We have to start looking for a special prosecutor.

"Why? Because people like Fay should not only never become a police officer, but they should be fired on the spot for shooting a man like that. He's the perfect example of the kind of officer who should be charged with criminal negligence."

Richard Potack, a lawyer representing Buchanan's two young daughters, said the district attorney's failure to file criminal charges points up the need for a "truly independent" police review board.

"I guess I never really expected they were going to prosecute the guy, because the (district attorney) just doesn't do that to their own," Potack said. "I know they (police and prosecutors) are separate entities, but they're really one. There's been a number of shootings, but the (district attorney) always stretches the facts and the law in order not to indict."

Potack said he will file a lawsuit on Monday against Fay, the city and the Police Department, adding that he thinks the case is worth more than $5 million.

Cmdr. Cal Krosch, who heads the Special Enforcement Detail in which Fay worked with other officers to combat gang and drug activity, said that, even though Fay was exonerated of criminal wrongdoing, the police internal affairs unit will still review whether any departmental policies were violated during the arrest and shooting.

"The investigation is still continuing," he said.

Meanwhile, Fay will probably be reassigned soon to uniform patrol, Krosch said.

And he added that police officials will study some of the district attorney's criticisms about how Fay and the two policewomen conducted themselves during Buchanan's arrest.

The district attorney's report chided the officers for interviewing and arresting Buchanan "in an aura of levity" and for joking about the situation. The report also questioned whether the officers were legally justified in entering Buchanan's apartment in the first place.

"Projecting less than professional demeanor, decribed by Officer Fay as 'levity,' the officers went into Apartment 11 without a clearly articulable basis for probable cause," the report said.

'Dangerous Environment'

"This was a dangerous environment, in a high-crime neighborhood and in an apartment in which they expected to find street gang members. However, the officers' descriptions of their own actions and demeanor do not suggest a state of readiness required to meet the possibility of a life-threatening exigency."

The report added: "The situation in which this homicide occurred resulted from, at best, questionable police work . . . and, at worst, unlawful police conduct. This situation could and should have been avoided."

And yet the district attorney said that, when Buchanan posed a threat to the officers, Fay was justified in shooting him.

Once inside the apartment, Officer Vicki Burnham found what proved to be rock cocaine in Buchanan's pocket, the report said. As the suspect was being arrested, he grabbed Burnham's flashlight and, "coming up like an upper-cut club," began to threaten the officers. At that point, the report said, Fay opened fire.

"He pulled his pistol and fired one shot, which he saw enter Buchanan's chest area," the report said. "Perceiving that Buchanan was still coming in his direction, he pointed the pistol directly at Buchanan and fired until he was on the floor."

'Surprised and Shocked'

The report quoted a witness, Patricia Jones, as saying that many of the shots struck Buchanan after he hit the floor. "She said that Buchanan fell to the floor after the first shot," the report said. "She was particularly critical when she described Officer Fay firing multiple shots at Buchanan after he fell to the floor."

The report also quoted Burnham and Officer Maura Mekenas-Parga as saying that, although they were "surprised and shocked" that Fay fired his pistol, they still "believe the shooting was justified."

And the report discussed at length Buchanan's long criminal record, saying it was "reasonable to conclude that Buchanan violently resisted the officers in an effort to avoid his likely return to prison."

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