Officer Involved: Shooting at suspects in cars is dangerous, LA sheriff found, so why didn't it stop?
The two biggest law enforcement agencies in Los Angeles made a significant change to their policies on when officers can shoot people in 2005, deciding shooting into moving cars was a bad idea.
But more than a decade later, while the Los Angeles Police Department seems to have eliminated the practice, Los Angeles County Sheriff’s deputies continue to fire on moving vehicles, a KPCC investigation has found.
An analysis of District Attorney summaries of police shootings found deputies shot into moving vehicles at least nine times between 2010 and 2014. In only one case did deputies say the suspect was armed, the documents show.
By contrast, the LAPD only shot into moving cars twice during that time - in both cases the suspects were armed.
"We are probably shooting at moving vehicles too much," acknowledged Assistant Sheriff Todd Rogers, who heads deputy training. But he said that doesn't mean any individual decision was wrong. "It’s very difficult to climb into a head of a deputy sheriff when they feel they are facing a life threatening situation.
"They panicked - I don’t know what they did - but they just shot at these cars," said attorney Sarah Garvey, who has filed multiple excessive force lawsuits against the L.A. County Sheriff’s Department on behalf of people shot in their cars by deputies. "I don’t think in the cases I’ve seen that there is any danger presented to [Sheriff’s deputies]."
Is a car a weapon?
KPCC based its investigation on Los Angeles District Attorney narratives, civil litigation records, deputy discipline archives, press releases, interviews with individuals shot by officers and their family members as well as law enforcement officials and policy experts. Among the shootings since 2010:
- Deputy Benjamin Alvarado shot and wounded Darren Thompson after he fled a traffic stop in 2010. Deputies suspected him in a nearby burglary.
- Detective Rudolpho Santana fired at Anthony Michael Axe in 2012 after he fled a questioning about an assault with a firearm and backed his RV into a patrol car, which was positioned to block him in. Axe died.
- Deputy Cuauhtemoc Gonzalez shot and wounded Gonzalo Martinez in 2013. He was with a friend allegedly spray painting when the deputy arrived. The driver of the car said he was trying to get away when a deputy opened fire.
"I feel the department itself was using that excuse—that I was trying to run him over—when all I was doing was trying to leave," said Michael Lobrono, a 38-year-old construction worker and delivery driver.
Lobrono was shot by Deputy Ray Huang in 2013. Huang had detained Lobrono’s girlfriend, Lisa Puente, in Walnut on suspicion of burglary and Lobrono pulled up to the scene in his truck.
"I got upset, and I flipped him off," Lobrono said. Then he tried to speed off and the deputy opened fire. Deputy Huang said he was standing in the street near his patrol car when the truck came towards him, according to D.A. records.
Lobrono said he tried to duck, but a bullet penetrated the back of his arm and continued to tear through his flesh until it came to rest in his chest, where it remains today.
Huang did not respond to KPCC's requests for comment, but told district attorney investigators he thought Lobrono was going to hit him with his truck.
Lobrono was still recovering when prosecutors charged him with "threat with a deadly weapon." The "weapon" was his truck. A jury acquitted Loborno of criminal charges and he sued, alleging excessive force. He settled for $335,000 though county officials maintained the shooting was within policy.
"No systemic issues were identified," wrote Scott Johnson, then captain of the Risk Management Bureau, to the Los Angeles County Board of Supervisors of the settlement in 2014. "Consequently no further personnel-related administrative action was taken, and no other corrective action measures are recommended nor contemplated."
Sean Van Leeuwen, vice president of the deputies’ union, declined to comment on specific cases but said there are steps the Sheriff’s department can take to prevent shooting: "Training. Training. Training."
"When was the last time you trained us on how to shoot at a moving vehicle or how to avoid shooting at a moving vehicle?" asked Van Leeuwen, who is also a field training officer. "The answer will probably be never."
A pair of ugly shootings in 2005 led to the policy changes.
LAPD officers shot and killed an unarmed black teenager, Devin Brown, after he led officers on a car chase in February 2005.
The 13-year-old’s death flamed public outrage over police brutality that had been smoldering since the 1991 beating of Rodney King.
Sheriff’s deputies, who patrol many of the county’s smaller cities and unincorporated areas, found themselves in a similar situation a few months later after a Chevy Tahoe matching the description of a vehicle tied to a suspected shooting led deputies on a chase.
They managed to block it in a residential neighborhood in Compton, where they squeezed out 120 rounds at its unarmed driver, 44-year-old Winston Hayes, who is also African American.
The shooting reportedly lasted 18 seconds and peppered several residential homes nearby. One stray bullet tore through a neighbor’s closet, blowing a hole through his hat. Investigators found another spent round lodged in the stucco wall of an elementary school two blocks away.
Somehow, Hayes survived.
Why did they shoot?
In both cases, LAPD officers and sheriff’s deputies said the car moved towards them and they feared getting hit. Public outrage led both agencies to scrutinize their policies governing use of force and each chose a precise limitation: refrain from shooting at moving vehicles.
On paper, the policies are very similar though the LAPD explicitly prohibits shooting at cars where no other weapon is present.
The Department of Justice has made similar recommendations to police departments in places such as Cleveland and Las Vegas.
Not only is shooting at a car dangerous, said Rogers with the sheriff's department, "in most cases it really doesn’t make a lot of sense." Disabling the driver means leaving a 3,000-pound vehicle hurtling down the streets of Los Angeles County with no one at the wheel.
"It’s going to be very difficult to make effective shots and you're probably not going to stop the vehicle itself – despite what they show in movies," he added.
And yet, in all but one of the nine deputy involved shootings into cars KPCC found in five years, deputies justified the shooting to investigators by explaining they feared getting hit by the car, according to documents from the Los Angeles District Attorney's office.
Rodgers said he didn't know why deputies continue to shoot despite a policy against it.
The sheriff’s department is currently reviewing its moving vehicle policy, and Rogers said changes may be on the way.
"It's very restrictive," Rogers said of the proposed changes. "In almost every circumstance, you shall not shoot at a moving vehicle. But their may be circumstances—where someone is shooting at you or you have no other alternative—you may shoot at that vehicle."
Last summer, deputies shot and killed John Berry in front of his family’s home in Lakewood. His brother Chris Berry called deputies when John, in the middle of a schizophrenic episode, refused to get out of his car.
Berry said his brother, a 31-year-old restaurant manager, wasn’t dangerous and wasn’t armed. He thought the deputies could help, maybe send John to a psychiatric hospital.
Instead, deputies boxed in John’s BMW with their patrol cars: one car in front, another behind, two on the side.
"I knew that it was going to go out of control, because they were way too aggressive for someone who doesn’t necessarily understand what’s going on," Berry said.
Video taken by a neighbor shows seven deputies clustering around the car, inches from the BMW’s open driver’s side door, wheels and bumpers. To try to extract John from the car, the video shows deputies pulling at him, using pepper spray and a Taser on John and hitting him with a baton.
"That is not right. He didn’t do nothing wrong," the neighbor can be heard shouting.
When John’s car lurches slightly forward and then reverses, a hail of gunfire follows.
The deputies did not return request for comment, but the Sheriff’s department later told the media a deputy had become trapped between the vehicle and a patrol car when John reversed. Afraid the deputy would be injured, assisting deputies drew their weapons and fired.
Note: this video contains violent content that may not be suitable for everyone.
Officer Involved: John Berry shooting
Berry said his brother was never a threat. His family is suing the county, claiming wrongful death.
"I’ve known my brother long enough he didn’t mean to hurt anybody," Berry said. "He was terrified."
After he died, John Berry's family found a stack of papers in the BMW, among them his goals.
"I want to be more functional and have a better life," he'd written.
Berry's shooting is still under internal review, but in every other closed internal investigation, the Los Angeles Sheriff's Department found deputies were right to shoot at moving cars.
In two of those cases, deputies were disciplined for undisclosed reasons. Decisions are pending in three cases in addition to Berry's shooting.
"It’s another example of how there is no internal accountability within the LASD," Garvey, the civil rights attorney said.
The "fleeing felon" rule
In at least some cases, Garvey said, drivers are trying to flee, not hit law enforcement, when they take off in their cars.
"If they are just trying to get away, that doesn’t justify shooting them," she said.
Up until the 1980s, it was legal in the United States to shoot a "fleeing felon" simply for the purpose of stopping the person from getting away.
That changed after an officer in Tennessee shot an unarmed teenager. Edward Garner was stopped by a chain link fence in a yard after a prowler call. Fearing Garner would evade capture, the officer shot. The bullet struck him in the back of the head, killing him.
On his body, officers found $10 and a purse.
The teen’s father filed a civil rights lawsuit, which made its way up to the U.S. Supreme Court.
The high court ruled "such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."
Los Angeles County prosecutors said former LAPD officer Ronald Orosco did not meet this standard when he shot into the vehicle of a man fleeing a traffic stop in 2000.
Orosco said he fired in self-defense, fearing he was going to be pulled into oncoming traffic, but a forensic expert testified Orosco fired as the car sped away. Bullets struck the car at two feet, eight feet, 39 feet, then nearly 50 feet away.
"It was very clear to us that an unarmed 66-year-old motorist was shot in the back for no good reason—and we determined that charges would be filed," said Deputy District Attorney John Gilligan, a lead prosecutor in the case.
Orosco was the last officer in Los Angeles County to be criminally convicted for an on-duty shooting.
No deputies involved in car shootings have been charged with a crime since then. The district attorney has yet to make a decision in Berry’s case.
Policy changes nationwide
When deciding whether a use of force is legal, prosecutors across the country are supposed to use the same standards: an officer may shoot if he or she reasonably believes she or another person could be killed or seriously injured by the suspect, even if the threat turns out to be misperceived.
But the think tank Police Executive Research Forum said police commissioners, city and county governments and sheriffs need to adopt standards that are stricter than that.
The group gathered about 200 law enforcement leaders, academics and mental health experts in Washington, D.C. earlier this year to discuss new strategies for cutting back on lethal force.
PERF suggested policing policies should state: "The sanctity of human life should be at the heart of everything an agency does." Other recommendations include banning officers from using force on anyone who is only a danger to himself or herself, adopting de-escalation policies and giving officers a "duty to intervene" when they see colleagues using excessive force.
Among the stricter recommendations: a prohibition against shooting at vehicles "unless someone in the vehicle is using or threatening deadly force by means other than the vehicle itself."
This story is part of a KPCC investigation into officer-involved shootings in Los Angeles County.