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‘Justifiable Homicide’ Rulings Questioned : Law: FBI analysis shows rate in county is high. Recent events have triggered public debate on the issue. : COUNTY REPORT: Debate Over Deadly Force

SPECIAL TO THE TIMES

A 20-year-old suspected car thief from Los Angeles led an Oxnard police officer on a three-mile, high-speed chase, then jumped out of his vehicle and fled on foot.

As Officer Patrick Dolan followed Alfonso Bravo over a fence, he saw Bravo crouching in a dark corner, pointing a gun at him. Dolan fired four shots, killing Bravo.

The shooting last April, and others like it in recent years, are described in detail in Ventura County district attorney’s reports declaring them “justifiable homicides"--allowed by law because they were committed in self-defense or to prevent further bloodshed.

In Ventura County, such cases typically have been investigated quietly, with little public controversy. In recent weeks, however, the shooting death of a graffiti vandal in Los Angeles County has prompted new debate over when the use of deadly force is justified and when it is not.

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“I think that case, like the ones in Ventura County, really points out the need for a careful and meticulous examination of all the evidence,” said Ronald C. Janes, the chief deputy district attorney who supervises findings of justifiable homicide in Ventura County. “These are very, very complicated cases.”

The prosecutor’s office has declared at least 20 slayings justified in the past six years--some by shopkeepers and ordinary citizens, some by law enforcement officers.

Police and sheriff’s deputies serving in Ventura County have fatally shot eight people over the past six years--one in 1994, seven in the five previous years. Of those, six were shot by Oxnard police, one by Ventura police and one by county sheriff’s deputies.

The county’s total is low compared to the nearly 2,000 shot and killed by police nationwide between 1989 and 1993, or the more than 150 killed in those five years by the Los Angeles Police Department and county sheriff’s deputies.

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But an analysis of FBI records, adjusted for population, shows that Oxnard police shootings over the five-year period have put the department’s pace at more than four times the national average. Oxnard’s rate of justifiable homicides outstrips many large cities, such as New York, Chicago and Dallas, according to the analysis.

In the peak year, 1993, the Oxnard Police Department fatally shot citizens at more than three times the rate of the Los Angeles Police Department and at more than 12 times the national average, the study of FBI data shows. National statistics are not yet available for 1994, but the number of killings in Oxnard is down.

The higher rates are not confined to Oxnard police. Across Ventura County, private citizens, mostly storekeepers, commit “justifiable” fatal shootings at more than twice the national average rate, according to the FBI analysis.

Court and police records show four shootings by small business owners in the past five years, all of them--like the police shootings--declared justifiable.

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Police and district attorney’s officials say that in addition to being legal, these shootings, and others like them, are unavoidable.

“I can’t think of a single one of these things where there was a single alternative other than the shooting that took place,” said Janes.

In Oxnard, authorities say that despite the statistics, the shootings are well under control. “You have a sense that we’re living in the Wild West here, you know, gunslinger city. No. That’s not the case,” Assistant Police Chief Tom Cady said.

But academic experts and victims’ families disagree. They say many of these killings are preventable, and that police and storekeepers can be too quick to pull the trigger.

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“If you have justifiable homicide, it just means it wasn’t a criminal action,” said Arnold Binder, chairman of the criminology department at UC Irvine. “That doesn’t mean it was a reasonable thing to do or it was the best alternative.”

The statistics for Oxnard are surprisingly high, said Binder, who has written a book on fatal shootings by police. “It’s certainly something worth examining,” he said.

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Justifiable homicides have claimed people as young as 14 and as old as 61--a millionaire from near Malibu and an emotionally disturbed homeless man; a recently fired Oxnard farm worker and the son of a former Ventura mayor.

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Though some justifiable homicides stop cold-blooded serial murderers on the rampage, many others stop belligerent drunks waving guns.

Each case is different, though some generalizations are possible.

“The people that tend to be shot are generally people who are about to take someone else’s life,” Janes said. “They’ve either ingested alcohol or some other substance such as methamphetamine or cocaine. Many have engaged in some other criminal endeavor.”

James Graham, 38, had both alcohol and cocaine in his system on the night of Aug. 3, 1992, according to the district attorney’s report examining his death. An Oxnard resident called police that night to report that Graham was sitting with his pants pulled down in a car parked on the street.

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Graham sped away in his car shortly after police arrived to investigate. But police chased him into a dead end, where they say Graham tried to run over Oxnard Police Officer Jim O’Brien.

O’Brien, standing in the street, fired twice at the car’s rear tire, then twice at Graham, then three more times at Graham, the district attorney’s report says. During the last volley of shots, Oxnard Police Officer John Ennis arrived at the scene. The haze from burning rubber and dirt kicked up by spinning car tires was so thick, Ennis told investigators, that he could not see the muzzle flashes from his partner’s weapon.

The district attorney’s office report on the incident says that once Graham’s car stopped, Ennis and O’Brien slowly approached the car together, guns drawn.

James Graham was dead. One of O’Brien’s seven shots had hit Graham in the heart.

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The deputy district attorney who investigated the case said at the time that it was the most difficult police shooting case he had seen in 20 years. Graham had no gun. Oxnard police policy discourages officers from firing at moving vehicles. And O’Brien exercised his constitutional right not to discuss the incident with investigators.

“I think the circumstances were extremely fishy,” said Joseph I. Graham, a Camarillo lawyer who is James Graham’s brother.

The district attorney’s office, however, ruled that O’Brien was justified in killing Graham, because Graham had assaulted him with a deadly weapon, his car.

Less than six weeks after the ruling, O’Brien himself was killed in a shootout while pursuing Alan Winterbourne, an out-of-work computer engineer who had killed three people and wounded three others during a rampage at an unemployment office.

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Police officials say the two cases demonstrate the difficulty of the decision to use deadly force.

If an officer shoots and kills, his actions are subject to what police call “Monday morning quarterbacking.”

“You’re going to be judged by the court, you’re going to be judged by your peers, you’re going to be judged by the media. You’re going to be judged by everybody,” said Sgt. Derek West, in charge of training for the Ventura County Sheriff’s Department.

That is what happened to Jim O’Brien.

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If, on the other hand, an officer waits too long to shoot, shoots and misses, or doesn’t even get a chance to fire, he may himself become a victim.

“You miss, and they’ll name a ball field after you,” Cady said.

That, too, is what happened to Jim O’Brien, who was killed before he had a chance to fire at Winterbourne. OB Field was dedicated in December, a year after his death.

Not all the shootings involve police. In another common scenario for homicides found to be justifiable, storekeepers shoot robbers.

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A district attorney’s office report says that when Timothy Morrison walked through the front door of Anacapa Liquor in Port Hueneme, store owner Shin Ung Kang took his gun from its resting place behind the counter and placed it in his pocket.

Kang, watching through security mirrors, saw Morrison slip a bottle of wine down the sleeve of his jacket. Kang asked Morrison to give the wine back, but Morrison refused and walked past the storekeeper, out the door, according to the report.

Kang followed the 23-year-old outside into the parking lot, demanding the wine’s return. Morrison turned and stabbed Kang once, grazing his neck with the five-inch blade of a wood-handled kitchen knife.

Then the store owner drew his gun from his pocket and shot Morrison once in the heart, killing him, the report states.

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Police discourage storekeepers from trying to outgun armed robbers. A better strategy, police said, is simply to cooperate and turn over the merchandise or money.

Without endorsing storekeeper shootings, though, Cady said he can certainly understand them.

“I think they have a reasonable fear,” he said. “They have a right to defend themselves.”

That is what prosecutors concluded in Los Angeles County after William A. Masters II shot two taggers and killed one of them, Cesar Rene Arce. Masters, charged with misdemeanor gun-carrying charges, said he saw the youths painting graffiti on pillars of a freeway overpass and shot them because they were advancing menacingly toward him.

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The law of self-defense, codified in California in 1872, is the basis that district attorney’s reports typically give for ruling a shooting justifiable. Such a finding has been made in at least 20 cases in Ventura county over the past six years--including, Janes said, every killing he can remember done by a police officer or a storekeeper.

The only time Ventura County Dist. Atty. Michael D. Bradbury sharply criticized an officer-involved shooting was in the case of Donald P. Scott, a 61-year-old millionaire killed in a drug search at his mansion near Malibu in 1992. In that instance, the shooters came from outside the county, the Los Angeles County Sheriff’s Department, and the death was eventually ruled justified.

Janes, who has been with the Ventura County district attorney’s office for more than 20 years and has supervised the investigation of police shooting cases for the past 10 years, said the law requires that the user of deadly force be judged based on what he knows at the time, rather than facts that later come to light. An officer cannot be blamed, for instance, if he shoots someone who is pointing an empty gun.

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But the district attorney’s reports that justify homicides often devote considerable space to detailed background information about those who are killed, information probably unknown to those who did the fatal shooting.

Santos Anderson Arias, for instance, a 23-year-old drunk who leveled an empty shotgun, is described in the district attorney’s office report as having been convicted four years earlier of “brandishing a firearm in a threatening manner.”

The district attorney’s report on Nicholas Partee, shot after a nine-mile high-speed chase, says that in a conversation a year earlier, his brother-in-law told him that if he ever decided to commit suicide, “he would just pull a gun on the police and force them to shoot him . . . that would be the easiest way.”

And the 30-page report on Graham’s killing includes a detailed six-page portrait of Graham as “extremely paranoid, severely mentally ill, and a heavy abuser of methamphetamine and cocaine.”

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The families of those killed said such portrayals are upsetting and sometimes irrelevant. The report on Graham, for example, noted that he read a “girlie magazine.” Graham’s brother said the district attorney’s office “used smear-type tactics in order to make my brother out to be a less than sympathetic victim.”

Janes said such information is important to include because it shows what motivated those who were fatally shot. It can support allegations of erratic behavior at the incident under investigation by showing that the person killed had a history of such behavior, he said.

Families of those killed also criticized the district attorney’s office for unnecessarily prolonging the investigations, and for not keeping the families informed of the progress.

“I think they’re doing a lousy job,” said Lamon Partee. He waited 10 months for the report detailing how Oxnard police shot 34 rounds at his son, Nicholas, hitting him 25 times.

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“They drug it on and drug it on,” he said. “They never called and voluntarily gave us any information at all.”

Police also criticized the district attorney’s office for taking more than six months to find the shootings justified.

“I would have liked the district attorney’s office to have been a little quicker with their investigation,” said Sgt. Jerry Beck of the Port Hueneme Police Department, one of the officers who shot Arias. “It was tough waiting.”

Janes said his office tries to notify interested parties before a report is publicly released, and he said it takes a long time to issue the reports because the complicated cases are carefully investigated.

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When the reports finally do come out, they often fail to satisfy the friends and family members of those killed. Rebecca Ennis, whose son was fatally shot by a Ventura man in 1993, became so frustrated when the killing was declared justifiable that she hired a private investigator. The investigator turned up evidence that prosecutors had overlooked, prompting the district attorney’s office to reopen its investigation. Still, no charges were filed in the case.

Janes said the families of those slain in justifiable homicides have their own biases.

“Most of these people have been through a very emotional time, and their closeness to the events may hinder their objectivity,” Janes said.

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Despite the best efforts of the district attorney’s office to answer all the questions about a fatal shooting and to put the matter to rest, many of the shootings stay, in one way or another, unresolved.

Although a report from the district attorney means that the killers will not face a criminal trial, civil litigation resulting from the cases can drag on for years.

Relatives of Partee and Arias have both filed lawsuits that are pending in U. S. District Court.

“To me, it’s not about money. My son is dead,” said Arias’ mother, Brenda Stephen of Camarillo. “I want to know why.”

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Years after a fatal shooting, the memory, and doubts, still haunt survivors. Eugene Kountz, a former Ventura mayor whose son, Raymond Kountz, 29, was shot by a California Highway Patrol officer in 1986 after a tussle that followed a drunk-driving stop, said he still harbors “some ill feelings.”

After his son’s shooting was ruled a justifiable homicide, Kountz filed a civil lawsuit that took six years to resolve. A jury found the officer negligent but awarded no damages.

“You try to put these things in the past,” Kountz said. “But it’s still hard to believe.”

Joseph Graham said he spent months after his brother’s shooting “dealing day in and day out with the frustration and the anger.”

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Anger also touches Cady, who has survived several near-fatal confrontations and remembers the face of the man his partner shot dead 23 years ago. “My reaction is anger at them for causing me to almost have to shoot them,” Cady said.

Police officers who are involved in fatal shootings often suffer significant emotional consequences. Janes said the shooters are as much victims as are those who end up dead.

Beck said he had trouble sleeping for weeks after shooting Arias. “I’d close my eyes and see the whole thing,” he said. “It was extremely traumatic, probably the most traumatic thing that ever happened to me.” More than a year after the shooting, Beck said it was difficult to discuss the incident. But that does not stop him from thinking about what happened, he said.

“You go over it a million times,” Beck said. “I had no choice. I did everything in my power to have that incident end peacefully.”

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Lt. Patrick Miller, who is in charge of investigating officer-involved shootings for the Ventura Police Department, said he has seen officers leave the force after the stress of being involved in a fatal shooting.

Mark among the casualties one of Cady’s first partners on the Oxnard police force. The partner left the department with high blood pressure shortly after fatally shooting a man who had an empty gun, Cady said.

Officers involved in shootings are placed on paid leave until they feel ready to return and the department agrees to have them back. They often return in a matter of weeks, long before they are officially cleared by the district attorney’s office. Most departments require officers involved in fatal shootings to meet with a psychologist before going back to work.

In Oxnard, Police Cmdr. Ken Nishihara plans to resurrect a peer-counseling program within his department that would be another way for officers to deal with job stress, including that related to fatal shootings. A police chaplain program already serves a similar purpose.

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Nishihara said there are also less formal methods of coping with stress, methods that he must try to control as a watch commander.

“I try to make sure they don’t go around and pat each other on the butt and say, ‘Good shooting, good shooting,’ ” Nishihara said. “The street cops do that to one another, when they don’t know anything about it. It’s not appropriate. Nobody that dumps somebody feels very great about it.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Law Enforcement Policies

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All major law enforcement agencies have formal shooting policies. The following are excerpts from some of them about the use of deadly force.

OXNARD POLICE DEPARTMENT (DRAFT)

“Regardless of the nature of the crime or the justification for firing at a suspect, officers must remember their basic responsibility is to protect the public. Officers should not fire under conditions that would subject bystanders or hostages to death or possible injury, except to preserve life or to prevent serious bodily injury. . . . An officer is authorized to use deadly force when it appears necessary under the following circumstances: a. To protect himself, herself or others from an immediate threat of death or serious bodily injury, or b. To prevent a crime where the suspect’s actions place persons in jeopardy of death or serious bodily injury and there is a substantial risk that the person whose arrest is sought will cause death or serious bodily injury if apprehension is delayed, or c. When an officer has probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given, or d. Officers in a specialized assignment such as the (Special Weapons Assault Team) may, in extreme circumstances be directed by a SWAT supervisor to use deadly force. The SWAT supervisor is only authorized to direct the use of deadly force in compliance with this order. . . . Deadly force shall only be exercised when all reasonable alternatives have been exhausted or appear impractical. An officer shall not fire at a person who is called upon to halt on mere suspicion and who simply runs away to avoid arrest.”

VENTURA COUNTY SHERIFF’S AND LOS ANGELES POLICE

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“A reverence for the value of human life shall guide officers in considering the use of deadly force. While officers have an affirmative duty to use that degree of force necessary to protect human life, the use of deadly force is not justified merely to protect property interest. . . . An officer is equipped with a firearm to protect himself or others against the immediate threat of death or serious bodily injury or to apprehend a fleeing felon who has committed a violent crime and whose escape presents a substantial risk of death or serious bodily injury to others. . . . An officer does not shoot with the intent to kill; he shoots when it is necessary to prevent the individual from completing what he is attempting. In the extreme stress of a shooting situation, an officer may not have the opportunity or ability to direct his shot to a nonfatal area. To require him to do so, in every instance, could increase the risk of harm to himself or others. However, in keeping with the philosophy that the minimum force that is necessary should be used, officers should be aware that, even in the rare cases where the use of firearms reasonably appears necessary, the risk of death to any person should be minimized . . . Officers shall not use deadly force to protect themselves from assaults which are not likely to have serious results.”

FBI

“Agents are not to utilize deadly force against any person except as necessary in self-defense or the defense of another, when they have reason to believe they or another are in danger of death or grievous bodily harm. Whenever feasible, verbal warnings should be given before deadly force is applied. . . . In order to effect a stop and enforce a period of brief detention, an agent may employ that degree of reasonable force found necessary under the circumstances, short of deadly force. Use of deadly force has no place in an investigative detention situation and will not be justified under any circumstances. However, this does not mean an agent cannot defend himself/herself when, in the course of attempting to make a stop, he/she is assaulted and placed in fear of death or bodily injury. The traditional law of arrest and self-defense would apply in such a case. Nor does it preclude an agent from drawing his/her weapon in self-defense when approaching a suspect for temporary detention purposes under circumstances justifying a reasonable suspicion on his/her part that his/her life may be in danger.”


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