District Attorney Clears Officer Who Killed Man Wielding Baseball Bat

A San Diego police officer acted in self-defense when he fired a single, fatal gunshot at a man who police said was about to strike him with an aluminum baseball bat, the district attorney said Wednesday.

Although police had mistakenly assumed that Luis Francisco Perez, 28, was on drugs and had described him to investigators as 4 1/2 inches taller than he actually was, Perez was nevertheless “a large, enraged and irrational man,” Dist. Atty. Edwin Miller wrote in clearing Officer Bradley Phelps.

Phelps, 29, has been on the force nearly five years.

In his letter to Police Chief Bob Burgreen, Miller said Phelps “fired under a reasonable fear that Perez was attempting to cause him grievous and possibly deadly injury” in the June 16 incident. He said “experience has demonstrated beyond doubt” that a baseball bat “can easily be a deadly instrument.”

Miller, who has not filed criminal charges against a law enforcement official since 1984, stressed that an officer is justified in using deadly force “if a reasonable person under the same or similar circumstances would believe such force was necessary” to prevent his or another’s death or injury.

Miller’s letter comes one week after he cleared another San Diego police officer involved in a similarly controversial fatal shooting of a man on Interstate 5 who wielded a cement trowel. On Tuesday, police shot and killed a man armed with an inch-thick wooden garden stake.

Last Saturday, a U.S. Border Patrol agent shot and killed a Mexican teen-ager who, according to the agent, had hit him in the head with a rock. Witnesses to the shooting said no rock was thrown.

Andrea Skorepa, the chairwoman of a 14-member citizens committee that is reviewing the police shooting policy, said the public is frustrated by recent events.

“Many people think we have a ‘shoot to kill’ policy,” Skorepa said. “Actually, the policy is not ‘shoot to kill,’ but police are trained to shoot at the largest part of the body, which is the torso. And a shooting there is likely to be fatal.”

Her committee’s review includes study of whether police should be armed with rubber bullets, Tasers, tear gas or weapons other than standard guns.

In the Perez case, Miller said Phelps, officer trainee Robert Martin and Officer Norman Ernsbarger arrived at the scene that morning after a neighbor called police to report that Perez was beating his wife, who was eight months pregnant.

The three officers arrived at the front door, said they heard a man yelling, and knocked. Perez, “sweating, wide eyed and very agitated” came to the door and cursed at police, they said. Perez refused to step outside, despite their insistence, and, when Perez stepped back inside and started to close the door, Phelps held it open, and the three policemen, “concerned with the welfare of the woman,” entered, the report says.

When Perez ran to the kitchen and picked up the baseball bat, the officers grabbed their guns. Perez held the bat “at a downward angle, slightly away from his side,” the report says, which “represented a direct and violent threat.”

Martin was 10 feet from Perez, Phelps 6 to 7 feet away and Ernsbarger 8 feet away, each pointing pistols at Perez, the report says. Phelps repeatedly told Perez to drop the baseball bat, the report says, but Perez refused and continue to curse at them.

Perez’s wife stepped into the room just then, and Phelps asked her to stay out of the way.

Perez then took a step forward, about 3 to 5 feet from Phelps, and lifted the bat to swing, the report says.

Phelps fired a round from his 9-millimeter, semiautomatic service revolver, hitting Perez in the right cheek. Perez fell to the floor. Phelps told investigators that he intentionally fired at Perez’s head because he didn’t believe a shot to the body would have stopped him from swinging the bat.

Perez died at the scene.

Officers believed Perez was on drugs and was about 6-foot-4, two characteristics that led them to think he was dangerous, the report says. A toxicology report showed no drug traces. Perez actually measured 5 feet 11 1/2 inches.

Despite their mistaken impressions, Miller wrote that at 254 pounds, Perez was a “physically large individual” and displayed “a high state of emotional agitation.”

At the time he was shot, Perez had six outstanding traffic warrants, police said, and as a juvenile had been charged with assaulting someone with a knife. Miller’s report says Perez had been recently laid off and had had trouble paying bills. On the morning of the shooting, the report says, Perez was upset that he and his wife might have to live with her family. That morning, he began smashing furniture, Miller said.

In concluding that Phelps was justified in shooting Perez, Miller said those unfamiliar with police work cannot understand that “responding officers are faced with split-second decisions based on their perception of fast-moving events.