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Breaking: District Attorney Will Not Prosecute Police Who Killed Amilcar Perez-Lopez

Despite contradictory evidence, the shooting is determined to be “objectively reasonable.”

On the night of Feb. 26, 2015, 
plainclothes police officers Eric Reboli and Craig Tiffe, responding to a call of a "knife chase" in the Mission, shot 21-year-old Guatemalan immigrant Amilcar Perez-Lopez dead between two parked cars. The San Francisco Police Department claimed that the police had fired on Perez-Lopez after he turned on Officer Reboli with a knife, but a pair of autopsies determined that five of the six shots fired had struck the victim in the back. Despite inconsistencies in the cops’ narrative and differing accounts from multiple witnesses, District Attorney George Gascón announced this afternoon that no charges will be brought against the officers. In the end, it took 777 days for the DA to conclude, in the words of an expert quoted in a 27-page report released today, that the officers’ lethal actions were “objectively reasonable and consistent with accepted standards of police policies, practices and training.”

While officer-involved shootings in San Francisco doubled in the year of Perez-Lopez’s death, and police violence and impunity has become a source of local and national rancor, San Francisco has, to date, never indicted an officer for on-the-job lethal force. This reality will only add to the longtime anger felt by police accountability activists, who’ve been clamoring for charges to be brought against police in this and many other cases over the years. And yet the DA’s actions today will also come as no surprise to them.

Community members tell San Francisco that, as long ago as last July, DA Gascón sat them down and, over the course of a 90-minute meeting, methodically explained why he couldn’t win this particular case against the cops. “He came in and, basically, started off by saying this case is not prosecutable,” recalled Father Richard Smith of the Church of St. John’s the Evangelist. “He went through, point by point: ‘Here’s what happened, here’s what we turned up, here are all the Supreme Court decisions constraining me, the laws of California constraining me. Long story short: I cannot file charges against the officers; I don’t have enough evidence to hold up in court.’”

City officials affirm that, in recent months, Gascón also walked them through similar evidence. His conclusion was unstated but clear to them: Charges would not be filed.

Despite today’s decision,
just what transpired between Perez-Lopez and another man, Abraham Perez, that night two years ago remains a Rashomon situation: Everyone has his or her own version of the truth. The DA’s summary report quotes Perez, who Perez-Lopez was allegedly chasing down Folsom Street with a knife; both of the officers who shot Perez-Lopez; four more responding officers; Perez-Lopez’s two roommates; and a bevy of eyewitnesses, among them a man who called 911, a woman at a bus stop, a pair of “women walking home eating pizza”; a woman who watched the events from her home across the street. Additionally referenced are surveillance videos from Muni buses and a nearby Philz Coffee as well as 911 recordings, ShotSpotter data, 3D renderings of likely bullet trajectories, and the expert opinions of crime-scene investigators and medical examiners.

For all that, the source of the beef between the two men, and the ultimate reasons why the police resorted to deadly measures, remain unsettled. Perez claims Perez-Lopez wanted to buy his bicycle and went ballistic when this offer was refused. However, Perez-Lopez’s roommate, a man identified as Delfino V., said that Perez—whom he described as a local inebriate—was the one who picked a fight with Perez-Lopez, who then chased him off with a large knife while yelling “Aren’t you macho?” Another roommate, David D., echoed that story, stating that “Perez-Lopez came into the house to get a knife because he was going to fight someone in the street.”

The rest of the events surrounding Perez-Lopez’s death can only be pieced together by the incomplete and, at times, contradictory accounts from onlookers. Of the 15 witnesses in the case, four claimed to have heard officers Reboli and Tiffe command Perez-Lopez to drop his knife before opening fire. Five of them recall hearing Perez-Lopez ordered to the ground. Six state that some manner of yelling occurred before the lethal barrage of gunfire. Multiple witnesses saw the plainclothes officers’ car and badges and recognized them as cops. The man who called 911 described Perez-Lopez as having “a serious look, like, ‘I’m going to get him,’” as he pursued Perez with a knife. Officer Tiffe described the five-foot-tall construction worker as having “a bloodlust crazed look” in his eyes and possibly being “on something.”

Toxicology reports put Perez-Lopez’s blood-alcohol content at the time of his death at 0.19, nearly 2.5 times the legal limit. (Perez, for his part, was described as reeking of alcohol even hours after the incident.) Regarding Perez-Lopez’s state of mind at the time of his death, chief forensic toxicologist Nikolas Lemos says he could have been experiencing any or all of the following: “confusion or excitement; emotional instability; loss of critical judgment and understanding.” The DA’s report also stressed that, contrary to accounts that the knife chase had petered out, it was still active at the time of the SFPD’s arrival. What’s more, the report claims that the material evidence on-site is consistent with Perez-Lopez still clutching the blade when he was shot, not with accounts that he dropped it prior to the shooting.

Whether the plainclothes officers acted heroically (Perez, for one, believed they did—"The officer in the tan pants saved my life," he told responding officers) or recklessly—or even criminally—was the central question of Gascón’s investigation. That the DA decided not to ultimately charge the officers speaks both to the fogginess of the events precipitating the shooting and to the extraordinarily high burden of proof needed to indict officers of the law. Thousands of hours were expended by Gascón’s office in producing this report and making the decision that was announced today. But, in the end, it was the de-facto decision, the same one every DA has made in every such case in San Francisco. 

In a standard homicide case,
the major focus of prosecutors is often whether the accused shooter actually pulled the trigger. But that’s not the case when police are involved; that they pulled the trigger isn’t a matter of conjecture. Police are legally entitled to apply deadly force in a broad array of circumstances. All they have to do is perceive that their life or that of another citizen's is in danger. Post-facto, judges and juries are asked to determine whether a “reasonable officer” would have perceived a threat to life; a determination of guilt would require all 12 jurors to agree that that perception was not justified.

And this, in Gascón’s view, appears to nullify what appeared to be the most damning elements for the police in this case. The official SFPD narrative in the shooting has not been consistent and does not, intuitively, jibe with the multiple autopsy reports. Officer Reboli, who fired five of the six shots that struck Perez-Lopez, claimed that the 21-year-old was advancing toward him with the knife—but five of those six shots went through Perez-Lopez from back to front. And yet, a use-of-force expert named Charles J. Key retained by Gascón’s office didn’t see inconsistencies with the officer testimony.

“A subject can turn 180 degrees more quickly than the fact that he/she has turned can be comprehended,” Key wrote. In other words, Perez-Lopez could have been facing Reboli when the officer made his fateful decision to fire, but could have turned by the time the shots were fired, and could have been struck in the back five times over the next two seconds. “Given the necessity for the shooter to focus on the mechanics of shooting,” Key continued, “the shooter’s recollection of the event will, also, be more specific as to what caused him/her to shoot rather than what the subject was specifically doing after the time the decision to shoot was made and during the time the shots are being fired.”

But this narrative also doesn’t neatly sync with Officer Tiffe’s account, in which he claims he heard his partner start shooting, at which time “he saw Perez-Lopez raise the knife” and feared for the safety of Perez. Tiffe then fired off a shot. These accounts, intuitively, seem to clash. But a defense attorney could use either (or both) of them to sway a jury: If Perez-Lopez was facing the cops even momentarily they could perceive their lives were in danger. If Perez-Lopez was facing away from them, they could perceive that Perez’s life was in danger. No matter which way he was facing, the perception of an imminent threat to life was present. 

It’s a catch-22 of sorts. A DA cannot, ethically, morally, or politically, take a case to trial in which he believes there isn’t evidence beyond reasonable doubt of a person’s guilt. That goes doubly when district attorneys are weighing whether to press charges against cops—a politically difficult scenario even in the best of circumstances. But that logic won’t make police accountability advocates one iota less upset about today’s results. At rallies commemorating the lives of the men and women killed by police over the last several years, demonstrators have taken to toting around “D.A. George Gascón’s Scorecard.” “The prosecutor that protects the police, not the people,” it reads. A spectacularly lengthy and costly investigation is now complete. But it will do little to lessen that sentiment.

Update, 4:40 p.m.: Following today's announcement by George Gascón, Mission activists accused the DA of holding a long-running investigation to seek reasons he could avoid filing charges against the cops as opposed to searching for ways to prosecute them. "We got the feeling that he was basically running with the police narrative," said Father Richard Smith. "And when evidence came in, if it didn't explicitly support the police narrative, he saw that it didn't undermine it." Smith expressed surprise that the word of Abraham Perez, the man a multitude of witnesses observed being chased through the Mission by Amilcar Perez-Lopez with a knife, was being taken at face value. Gascón described Perez today as being "very drunk" during the time of the 2015 incident; Smith calls him "a neighborhood bully" known for "hanging out, drinking beer, and getting rowdy." Smith claims the DA has described Perez to him as "a liar." 

Regardless, it was far more than the word of a neighborhood roustabout that led to the DA's announcement. The investigation required years; 777 days passed between Perez-Lopez's death and today's decision. A use-of-force expert's opinion and the 3-D animation of the police narrative of the shooting—both of which figured prominently in today's press announcement—required a vast amount of time to complete. 

That video—which you can view here in its nine-minute entirety—went to great lengths to describe what witness testimony informed each moment of action, and was interspersed with near-constant repetitions of the phrase "No physical evidence contradicts this statement." 

The animation was meant to hammer home the DA's two major contentions: That the evidence is consistent with an officer interpreting Perez-Lopez moving toward him, but firing off shots even after Perez-Lopez turned away; and that whether Perez-Lopez moved toward the officers or whether he ran away in proximity to Perez, the officers were justified in shooting him dead regardless. 

"We will never know exactly what happened in that split second, what direction Perez-Lopez was facing, and to whom he posed a threat when the officers made their decision to shoot," said Gascón. "Ultimately, given the proximity of the suspect with the knife to officers and Abraham just a few feet away, the law does not distinguish whether he was shot coming toward the officers or running away. The law gives significant deference to officers in a situation where they have to make a split-second decision."

The law, Gascón went on to claim, is on the officers' side even if they didn't identify themselves as police or barked orders at an inebriated man who did not speak English. The former SFPD police chief said it was not his place as DA to judge whether the police acted properly or if SFPD policy is up to snuff; he is now only concerned with matters of criminal law. "You may or may not like the law. Certainly there are concerns [regarding] the current law. But we are not here to discuss that." 

Smith said he understood "the system is biased toward police, the system is rigged." But he'd hoped some of these ambiguities could be argued before a jury: "Let us have our day in court." But Gascón made it clear that DAs are not in the position of trying cases they don't believe meet the burden of proof or putting cases they don't believe they can win before a jury. That day in court will have to be for a civil trial, not a criminal one. 

Marty Halloran, the president of the Police Officers Association, offered a measured statement following the DA's announcement: "While the DA's decision makes it clear that the responding officers are not guilty of any crime, there is no doubt that this incident was tragic for everyone involved. It left a family to grieve for a loved one, and it forever changed the lives of the officers involved."  

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