Protocol breaches at the scene of a fatal police shooting last year, a District Attorney spokesperson said, are part of an ongoing problem the District Attorney has with police investigations of shootings by officers.
The District Attorney, though he has never indicated the actions amounted to a cover-up, is taking steps to ensure that the police department is not the agency responsible for investigating police shootings.
Activists said last week that District Attorney George Gascón told them his investigation into the fatal police shooting of Amilcar Perez Lopez in February 2015 had been delayed by police handling of the scene. At the time of the police shooting, Gascón’s office was not properly notified and only arrived on scene after Perez Lopez’s body had been moved.
Both those actions — improper notification and movement of the body — are issues the District Attorney’s Office has had with the Police Department for some time, a spokesperson said.
“The officers at the scene should have recognized that our office was not there before removing the body, they should have inquired as to why our office was not there,” said Max Szabo, a spokesperson for the District Attorney. “This is a longstanding problem that we’ve raised previously.”
Szabo said the treatment of the scene “violates the spirit of the [memorandum of understanding]” between his office and the Police Department. Gascón told KQED last week that it amounted to a “serious breach of protocol.”
“There were mistakes made,” Szabo said. “When you move the body, that’s the bulk of the physical evidence and that makes our job much more difficult.”
At a Police Commission meeting on Wednesday night, Police Chief Toney Chaplin said that the district attorney’s comments on the matter had been misconstrued by activists who brought the matter to the Police Commission last week.
“In discussion with the DA’s office, the DA advised that the comments were taken out of context,” Chaplin said. “He had not expressed concerns with the moving of the body.”
Chaplin admitted that the body had been moved before an investigator could arrive but said that the Medical Examiner made that decision, not police officers. He added that several attempts had been made to reach an investigator with the District Attorney’s Office, but that they had been unsuccessful.
New policy will require that the presiding officer at the scene of a police shooting is “required to immediately contact the on-call district attorney’s investigator” at the same time as the officer arrives on scene, Chaplin said.
Szabo said his office — in talks with the mayor’s office and through the budget process — would be working to put a “new unit” in charge of such investigations rather than the police, but did not specify whether that unit would be part of the District Attorney’s Office or another agency.
“Right now, when an officer-involved shooting occurs, [the police] are the lead investigative agency, so we are working to change that,” he said.
At Wednesday’s commission meeting, activists were skeptical that no wrongdoing had occurred. David Carlos Salaverry, a local activist leading a campaign to recall the mayor, told the chief that he was “not necessarily gonna buy” his version of events and would “look into that more closely.”
Father Richard Smith, a vicar at a Mission District church and principal advocate for Perez Lopez, said that he was concerned about the conduct of both the chief and district attorney because he thought it was unequivocal that mishandling of the crime scene had delayed the investigation.
In text messages with the district attorney, Smith said Gascón told him the delay in notification and movement of the body “played a role in making our work much more difficult and in delaying outcomes.”
“It’s concerning because, to be honest, we’re already suspicious about a cover-up, and it makes me nervous that the chief is saying this stuff,” he said. “I’ve got text message threads saying all of that.”
Szabo emphasized that nobody at the District Attorney’s Office “has alleged there was a conspiracy or a cover-up.”
Perez Lopez was shot and killed on February 26, 2015, by two plainclothes police officers after an altercation between Perez Lopez and another man. Officers say that Perez Lopez was chasing the other man with a knife near 24th and Folsom streets and lunged at them, prompting them to shoot him.
But two witnesses said that as Perez Lopez was chasing the man, he was grasped by one of the officers from behind. Perez Lopez struggled to get away from the man, witnesses said, not realizing he was a police officer because of his plain clothes. As he was running from the officers, witnesses said they heard a clang when Perez Lopez dropped his knife, and that officers only fired after that.
Both witnesses gave their version of events to the district attorney late last year. Activists have said that the position of Perez Lopez’s body in the middle of the street rather than near the sidewalk where the officers confronted him bolsters their claim that he was shot while running away.
For his part, Chaplin sought to downplay the importance of the body’s position and said that following a shooting, a body is “never stationary” and often rolls around or is moved by first responders.
“It’s why we photograph these crime scenes and videotape these crime scenes,” he said, saying the position after being shot was not as useful as other forensic evidence.
On that, at least, activists agree. Perez Lopez was shot four times in the back, once to the back of the arm, and once to the back of the head, according to both city and independent autopsies. Smith has said consistently that given the autopsy results and witness testimony, the district attorney has more than enough evidence to charge the officers involved.
As to when that investigation will be complete, the district attorney has been reluctant to give a firm date. Activists thought a decision was just a week away in late April, per a conversation with Gascón, but months later are still anxiously waiting.
At the commission meeting, Chaplin said that during his conversation with Gascón, the district attorney did not say when a decision would be made.
“He said he was backed up and had some staffing issues and was trying to get back up as quickly as he can,” Chaplin said.
Szabo, the spokesperson for the district attorney, declined to say when the investigation might be completed.