San Francisco District Attorney George Gascón, pictured in 2010, when he was the city's police chief. (Justin Sullivan/Getty Images)
Updated Wednesday, 7:55 p.m.
There is insufficient evidence to criminally charge two plainclothes San Francisco police officers who fatally shot a 20-year-old Guatemalan immigrant from behind more than two years ago, the city's district attorney announced on Wednesday.
The long-awaited decision marks the end of the criminal investigation into the high-profile police killing of Amilcar Perez Lopez, one of a few such incidents that thrust the San Francisco Police Department into years of turmoil, culminating with the May 2016 resignation of former SFPD Chief Greg Suhr.
Suhr remains a defendant in a federal civil lawsuit on behalf of Perez Lopez's family, which points out an inconsistency in Suhr's initial description that officers fired as Perez Lopez charged one of them with a large knife raised over his head. That account was called into question by an independent autopsy commissioned by attorneys representing Perez Lopez's family, who live in Guatemala. Its findings, later backed up by the city's official medical examiner's report, show Perez Lopez was shot six times from behind.
Reconciling the statement of one of the officers involved -- that he fired as Perez Lopez was charging at him -- and the fact that Perez Lopez was shot from behind formed the crux of District Attorney George Gascón's decision.
"A human being is dead," Gascón said on Wednesday, announcing his decision not to charge the officers. "Amilcar was someone’s son. He was a family member, and he was a member of our community. His loved ones have suffered a loss and my heart goes out to them."
But, he added, "Can I prove beyond a reasonable doubt that the officers here did not act in self defense or the defense of others? If we cannot meet this burden, if we cannot show beyond a reasonable doubt that the officers lack a reasonable justification for their actions, then we cannot charge the case. I cannot, and I will not file charges or decline to file charges due to pressure from anyone."
The decision, though expected, inspired anger from advocates who wanted the case to go to trial.
"If ever there was a case that could be prosecuted, this is it," Mission District priest Richard Smith said on Wednesday. "This was an opportunity for justice where the DA simply failed."
Leading to the Shooting
Several rumors have circulated about what started the altercation between Perez Lopez and another man, identified by the district attorney's office as Abraham P., who is Abraham Perez. One, which Abraham Perez initially told officers, was that Perez Lopez attacked him after Abraham refused to sell his bicycle. Another involved Abraham Perez stealing Perez Lopez's cellphone, but the phone was in Perez Lopez's pocket when he was shot.
No Charges for S.F. Officers Who Shot Amilcar Perez Lopez
A third, which is backed up by the account of one witness and video captured by a passing Muni bus, was that Abraham Perez was taunting Perez Lopez and blocking him from entering his home on Folsom Street, between 24th and 25th streets. Perez Lopez may have circled around Abraham Perez to dash inside his house and grab a kitchen knife with an 8-inch blade.
Both men appear to have been drinking heavily that evening. Perez Lopez's blood alcohol level was .19 -- intoxicated to the point of "confusion or excitement, emotional instability, and loss of critical judgment and understanding," according to a toxicologist who tested Perez Lopez's blood. Abraham Perez told police he'd consumed half a 24-oz. beer before the incident, but he still smelled of alcohol several hours later, according to the district attorney's summary.
Officers Craig Tiffe and Eric Reboli, who were in plainclothes and an unmarked police car, were the first officers to respond to a 911 call about a person with a knife at about 9:45 p.m. on Feb. 26, 2015. They were nearby and arrived within minutes, where they encountered two men on opposite sides of a parked car.
Reboli approached a man on the street side of the parked car, who would later be identified as Abraham Perez, and "announced himself as a police officer and then immediately grabbed Abraham P. by both arms and pinned his arms together in case he was the man with the knife," according to the district attorney's summary of Reboli's statement. Reboli told Perez they were going to get out of the street and moved toward the sidewalk.
Meanwhile, Tiffe approached Perez Lopez, who was on the sidewalk side of the parked car.
Officer Tiffe said he thought Perez Lopez appeared to be in an "altered state" and described the look on his face as "bloodlust crazed," according to the district attorney's summary of Tiffe's statement. Tiffe said he announced himself as a police officer and asked Perez Lopez to step away from the car. "Officer Tiffe then pointed to the star on his chest, in case Perez Lopez did not speak English, but he could not tell if Perez Lopez looked at it or understood he was a police officer since he said nothing and simply appeared to 'look through' him."
Tiffe said he tried to grab Perez Lopez by the left arm and tried to take him to the ground, but Perez Lopez "suddenly lunged up at him with his right hand," according to the summary of Tiffe's statement. He said he shoved Perez Lopez away, and as the two were separating, Perez Lopez swiped at his chest with an object Tiffe then realized was a "very large knife."
Reboli had come to Tiffe's aid at this point. After he was shoved away from Tiffe, Perez Lopez turned and started to run toward Reboli, according to the district attorney's summary of Reboli's statement. He said he reached for both his gun and pepper spray, but couldn't get the pepper spray out of his pocket. Reboli said he shouted either "Police, drop the knife" or "Drop the knife," but after a momentary pause, Perez Lopez continued to approach Reboli with the knife, and the officer began to fire.
He fired five shots over about two seconds, which were recorded by a nearby gunshot detection device at 9:47 p.m. and the phone of the 911 caller, who was still speaking to police dispatchers.
Below is a 3D animation depicting the theory that Perez Lopez may have turned as the officers were deciding to shoot.
The district attorney's summary of Tiffe's statement says: "Officer Reboli explained that, once he started to discharge his firearm, Perez Lopez began turning toward the street, then took a step or two before collapsing, face-down, between the two parked cars.
"Officer Tiffe recalled that, as the shots were being fired, Perez Lopez was 'kind of moving in different directions,' was at some point 'facing, at some point he was turning away,' and appeared to fixate on something in the street."
Tiffe fired a single shot as Perez Lopez moved toward the street, the summary said: "He didn't know exactly where Abraham P. was at that point but believed he was very close and thought that Perez Lopez was going after him, so he fired his weapon one time and saw Perez Lopez fall to the ground."
After the Shooting
Additionally, uniformed officers were arriving on the block of Folsom between 24th and 25th streets as the shots were being fired, according to the district attorney's summary. As one officer began CPR on Perez Lopez, who was shot through the back of the head among other wounds, another officer spoke with Abraham Perez. The officer recorded Perez saying "that the man shot by the police wanted his bike and tried to kill him with the knife, and ... that the officer saved his life."
The district attorney's summary of the investigation includes statements or information from a total of 15 independent witnesses, including neighbors who said they heard gunshots and shouting, a man who called 911, a woman waiting for the bus and other bystanders. Part of their information corroborates whether officers Tiffe and Reboli shouted commands before firing.
"Four witnesses reported hearing some version of 'Put the knife down,' prior to shots being fired; five witnesses heard some version of 'Get on the ground!' prior to shots being fired; and six witnesses heard yelling or shouting prior to shots being fired, but did not hear or remember the words said," according to the district attorney's summary.
Two additional witnesses are former roommates of Perez Lopez who initially told police they hadn't seen anything, but feared their roommate had been shot.
One of them spoke to KQED and El Tecolote last year on condition of anonymity because he said he fears retaliation from the police. Both men also told Mission Local in 2015 that they feared countering the Police Department's version of the shooting because of their undocumented immigration status.
It was nearly a year after the shooting that the men, supported by a network of activists around the shooting of Perez Lopez, gave statements to district attorney's investigators in the church of a local priest.
The district attorney's investigation notes that the men were likely outside at the time of the shooting -- they were noticed by another pair of witnesses just moments before the gunshots. They both said that, from about 90 feet away, they didn't hear the officers give any commands, never saw Abraham Perez, and that it seemed Perez Lopez was running away when the officers started shooting.
But their sight was obstructed by trees and parked vehicles, and they wouldn't have seen Abraham Perez on the other side of the cars. It would have been difficult, if not impossible, for them to see Perez Lopez at the moment he was shot, though they may have been able to see the officers.
District Attorney's Analysis
The district attorney's charging decision says that, legally, the officers' account of the shooting indicates that their use of force was justified in self-defense or defense of others. The charging decision then "turns on whether the officers' statements are consistent with the evidence," according to the summary of the investigation.
The analysis further narrows to "the moments just before the shots were fired where it was not immediately clear whether the officers' accounts could be squared with other evidence," according to the summary, which notes two crucial inconsistencies. "These two areas were subject to intense analysis, including close examination by a use of force expert."
The first apparent inconsistency involves Reboli's statement that he started to fire as Perez Lopez was coming toward him. "This statement was examined in light of the findings of the Medical Examiner that five of the six shots that struck Perez Lopez struck him in the back, and with the statement of Abraham P., who said that Perez Lopez had his back to the officers when he was shot."
Use-of-force expert Charles Key examined the case and noted that "a subject can turn one hundred eighty degrees more quickly than the fact that he/she has turned can be comprehended; thus, the shooter who has decided to fire may not recognize that the person has turned and, perhaps, no longer presents a threat and be able to stop shooting."
Key also accounts for what he calls "the mechanics of shooting," which changes a person's focus from what their target may be doing to "shooting the weapon effectively."
Key's analysis is further quoted in the district attorney's report on the shooting:
"In other words, Reboli may have accurately recalled that Perez Lopez was facing him when he made the decision to shoot and started the process of taking the first shot, but based on action versus reaction time, Perez Lopez would have been able to turn 90 to 180 degrees by the time the first bullet hit him. Further, once Reboli saw Perez Lopez coming toward him with the knife and decided to shoot, his focus would have turned to the mechanics of shooting accurately and he may have at that point lost sight of the exact position of Perez Lopez as he started firing."
"We will never know exactly what happened in those split seconds, which direction Perez Lopez was facing and to whom he posed a threat when the officers made a decision to shoot," Gascón said. "But ultimately, given the proximity of the suspect with a knife to the officers and Abraham P. of just a few feet, the law does not distinguish between whether he was shot coming toward the officers or running away. The law gives significant deference to officers in situations in which they have to make a split-second decision."
The district attorney's investigation also intensely analyzed whether Perez Lopez dropped the knife he was holding before police started firing, something Perez Lopez's roommates believed they heard moments before the shooting.
The DA found that, due to the knife's position in the street after the shooting, it's likely that Perez Lopez was still holding it when he was shot. But, according to the district attorney's report, even if he wasn't:
"The evidence is also consistent with the officers' belief that Perez Lopez was still in possession of the knife when they discharged their weapons, even if the evidence supported a finding that the knife had in fact dropped a moment before the shots were fired."
Mission Distirct priest Richard Smith and other advocates around the case are now looking forward to a civil trial, which could still be a year away.
"We have yet another case of a shooting of a young man of color in which the officers will not be held accountable," Smith said. "We hope to have another shot at this to get the details to light and some of the questions answered, but this is a big disappointment."
Read the district attorney's summary of investigation and legal analysis below:
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