Fatal Shooting at State Prison Deemed Justified

A prison officer who fatally shot an inmate with a launcher that fires foam projectiles acted reasonably and did not violate state Department of Corrections rules on the use of force, an independent review of the incident concluded Tuesday.

While the January shooting was justified, investigators said inadequate training with the weapon, among other factors, may have caused the officer to hit Daniel Provencio in the head, rather than the leg as intended.

Provencio, a construction worker from Oxnard, died March 4 after lying comatose in a Bakersfield hospital for nearly two months. He had been serving 10 months for a parole violation, after an initial prison term for drug-related offenses.

Provencio’s case roused the attention of lawmakers and others, in part because he was guarded around the clock -- and initially shackled -- while comatose, at a cost of more than $30,000 to taxpayers. Gov. Arnold Schwarzenegger called that procedure “ludicrous,” prompting an internal review of rules governing the guarding of brain-dead and incapacitated inmates.

A spokesman for the Corrections Department said that the continuing review probably would lead to changes making the oversight of comatose prisoners more cost-effective.

Tuesday’s report came after a five-week inquiry by the Bureau of Independent Review, which oversees investigations conducted by the Department of Corrections. The bureau reports to Inspector Gen. Matthew Cate, the governor’s appointed watchdog over the correctional system.

The shooting took place during the evening meal Jan. 16 at Wasco State Prison, near Bakersfield. After one inmate dumped food on another and hit him on the head with a tray, an officer -- the only one on the floor with 38 inmates -- ordered all prisoners to lie down.

Most complied, the report said, but Provencio, who had not been involved in the fight, began moving toward the officer in what witnesses described as a threatening manner. Tests later showed he was intoxicated, with a blood-alcohol level of nearly twice the legal limit for motorists. Witnesses said he had ingested a large amount of pruno, a crude alcoholic beverage made illegally behind bars from fruit and other ingredients.

Watching from an elevated control booth and concerned about the safety of the officer on the floor, a second guard fired a projectile from a 40-millimeter launcher, a weapon designed to be nonlethal. It struck Provencio on the left side of his forehead. He collapsed but got back up, his head bleeding, and continued to resist other officers called to the scene, the report said.

While being treated at the prison infirmary, Provencio lost consciousness and was taken to a nearby hospital. There, he was declared brain-dead after slipping into a coma that lasted until his death from blunt force trauma to the head.The report called the use of the launcher reasonable. But investigators said its design -- with a longer than normal trigger pull -- inadvertently causes a shooter to raise his or her aim by as much as 5 inches.

“Those tendencies, together with Provencio’s movement toward the shooter, all contributed to the projectile striking Provencio in the head rather than in the leg,” the report said.

The prison’s weapons training was also faulted. Because ammunition for the launcher is $20 to $25 per round, the report said, “officers are rarely, if ever, given an opportunity to shoot live rounds in training, meaning that the first time they shoot a live round may be in an emergency, perhaps resulting in an inaccurate shot.”

Nancy Anaya of Moorpark, Provencio’s sister, said the report’s conclusion about ammunition was particularly distressing.

“For me, $20 to $25 a round every so often so officers can handle this weapon better is nothing compared to my brother’s life, or another inmate’s life,” Anaya said. “My brother wasn’t a murderer or a serial killer.... This should not have happened to him.”

Anaya added that Provencio, 28 when he died, had been scheduled to be released Monday. In his memory, family members planted a tree outside the house where he grew up.

Todd Slosek, a spokesman for the Corrections Department, called the shooting “very unfortunate.”