Judge Dismisses Most Charges Against Man Shot by S.F. Police Officers
San Francisco Public Defender Jeff Adachi shows police body-camera video at a Jan. 18 press conference. Adachi released video of an SFPD officer shooting Sean Moore hours before the Police Department. (Alex Emslie/KQED)
A San Francisco judge has dismissed most of the charges against a man shot by two city police officers on Jan. 6, ruling that the officers unlawfully continued to engage with Sean Moore after contacting him about a dispute with his neighbor.
Moore, who survived gunshot wounds to his groin and abdomen, initially faced 10 felonies including assaulting a police officer, battery with injury of a police officer, threatening an officer and resisting an officer causing serious bodily injury.
Two of those charges were dismissed previously. On Tuesday, Superior Court Judge Jeffrey Ross dismissed all remaining charges involving resisting, threatening or battering police because -- according to Moore's defense attorneys -- the officers lacked probable cause and were essentially trespassing.
"The majority of these charges, nearly all of them, were completely unfounded," San Francisco Public Defender Jeff Adachi said at a press conference on Wednesday. "Mr. Moore was within his rights when he asked the officers over 40 times to leave him alone. When the officers then approached him, they were essentially trespassing. They had no legal right to do what they did."
Officers Kenneth Cha and Colin Patino approached a locked gate at the top of Moore's stairs just before 4 a.m. on Jan. 6. Moore's neighbor had called police and complained of banging on a shared wall, an alleged violation of a temporary restraining order scheduled for a hearing the following week. The entire incident was captured on both officers' body cameras, and Adachi released footage of it in mid-January.
Moore came to the gate and was immediately agitated. He told the officers that he didn't call them and said, "get the fuck off my stair."
The officers continued to try to talk with Moore about the restraining order and his neighbor's complaint, retreating and reascending the stairs multiple times. Moore repeatedly told them to leave and ended the conversation by closing his front door, only to re-emerge and continue arguing with the police.
Editors note: The following video contains profanity and violence.
About five minutes into the encounter, Moore opened his locked gate and moved toward the officers. Cha pepper-sprayed him, also hitting Patino. Moore went back inside, and the officers ended up back at the bottom of the stairs.
When Moore came out again, both officers tried to move in and arrest him. They fought on the narrow staircase, and Moore allegedly punched Patino in the face after the officer hit him in the leg with a baton. Patino toppled to the sidewalk with a broken nose. Moore then allegedly kicked Cha, who shot him twice as he fell backward down the stairs.
Back inside his house, Moore called 911 and said he'd been shot. Police arrested him over an hour later, and Moore was taken to the hospital. He's had three major surgeries, according to his family and attorneys.
The legal reasoning for dismissing most of the criminal charges against Moore has to do with constitutional protections against unwarranted search and seizure, which are heightened in one's home.
To ignore Moore's demand that they leave, the officers needed probable cause to believe a felony had occurred, according to Moore's defense attorneys, or witnessed a misdemeanor. Moore's alleged violation of a pending restraining order may have been a misdemeanor, but the officers weren't there to see it. They also could have continued to engage Moore if they had a warrant or were responding to a citizen's arrest.
"They had none of those," Deputy Public Defender Brian Pearlman said. "Going up and ringing the bell was fine, but once Mr. Moore said to 'get off my stairs,' that was it, they needed to leave. And they refused to leave and kept escalating the situation, which led to violence, which led to Mr. Moore being shot."
Moore still faces one felony and one misdemeanor charge. The felony is for allegedly punching Officer Patino in the face.
"The DA would need to show beyond a reasonable doubt that Mr. Moore was not defending himself at that point," Pearlman said. "They're not officers at that point; they're trespassers. So it'd be just like if somebody was at your house pepper-spraying you and beating you and trying to drag you out your front door. Are you going to be entitled to hit them? I would say definitely."
The final remaining charge is a misdemeanor for allegedly violating a temporary restraining order, which Pearlman also says will be difficult for prosecutors to prove.
"This is about one bang on the wall, maybe two, at four in the morning," he said. "And this ended in Mr. Moore being shot and almost dying. This is preposterous that this happened."
A spokesman for the district attorney's office noted that a different judge ruled that there was sufficient evidence to proceed on 10 of the charges against Moore.
"Another judge that reviewed the transcripts from that hearing came to a very different conclusion," district attorney's spokesman Max Szabo said in a written statement. He said the office is evaluating how to proceed.
Sean Moore's mother, Cleo Moore, said she hopes her son's trauma will lead to changes in how police approach people in psychiatric crisis.
"Being a nurse, I know that the seriousness of his injuries could follow him over the rest of his life," she said. "But being a Christian person, I just know that he could have been dead. ... My son has suffered. The family has suffered a great deal. So hopefully something will happen so that another family won't have to go through what we've gone through."