The Lingering Question of a Tragedy : Officer cleared, but could the death of trowel-wielding man have been avoided?

As he has in every case of its kind since 1984, Dist. Atty. Edwin Miller last week cleared a San Diego police officer in the May 21 shooting death of a confused man aggressively swinging a cement trowel on southbound Interstate 5.

But his decision does little to answer the main question in this tragedy: could the victim have been subdued another way? Miller offers a strict legal justification of the officer’s actions, parts of which are difficult to swallow. Unfortunately, the Citizens Review Board on Police Practices, which also will look at the case, is precluded by state law from issuing a public statement. Unless that law is changed, or some other government agency considers this case, that question will linger.

The incident involves the death of Jose Eleazar Lopez-Ballardo, an apparently mentally disturbed man stopped by a California Highway Patrol officer as he stood in a northbound lane of I-5 in La Jolla.

Lopez escaped CHP Officer Carlos Gutierrez’s efforts to remove him from the freeway, cutting Gutierrez’s hand with the trowel. Lopez ran across traffic, onto the southbound side of I-5. Gutierrez and arriving backup CHP officer William Shipley approached, batons drawn. San Diego Police Officer Thomas O’Connell, arriving later, shot Lopez after the victim advanced on him waving the trowel in a fencing motion.

According to Miller’s letter to Police Chief Bob Burgreen, O’Connell said of Lopez: “If I wasn’t in his way, he was going to hurt somebody in one of the cars. I feared for my life and for the lives of the people in the cars behind me.” Miller agreed.

The idea that Lopez was endangering motorists stopped on the freeway seems far-fetched. Lopez had a trowel, not a gun or a knife. And the D.A.’s report notes that Lopez had already walked among the cars without harming motorists as the two CHP officers circled him. Then he pounded on “at least one car,” and focused his attention on O’Connell.

Which raises the key issues in this matter: Was O’Connell’s safety jeopardized? Could the officers have stopped Lopez without killing him? Miller’s report provides no clue.

We do know that Lopez had already used violence to escape Gutierrez and refused to drop the trowel. O’Connell was facing a menacing man only 10 feet away, confronting the toughest decision a cop must make: whether to use deadly force.

It is instructive to note that, before his confrontation with O’Connell, Lopez had advanced on Gutierrez and Shipley. They backed off, with batons, not guns, drawn.

San Diego police are taught to “take out” anyone approaching within 21 feet with an “edged weapon,” using the force they judge necessary. O’Connell fired his gun. The CHP won’t reveal its policy for such situations. We may never know if this standoff could have ended without Lopez’s death. That lack of knowledge is a disservice to the public as well O’Connell.