An officer who shot an armed, fleeing man in the back on a San Francisco street crowded with Warriors revelers last June has been cleared of all criminal wrongdoing.
The San Francisco District Attorney office announced on Monday that it will not be charging Officer Joshua Cabillo with any crimes related to the incident on June 6, 2018, when Cabillo shot Oliver Barcenas in the back twice on Grant Street in North Beach. Barcenas was armed with a Glock 30 handgun with an extended ammunition clip, which he tossed into the gutter seconds before Cabillo shot him.
The DA’s office justified not charging the officer using the same rationale as every prior San Francisco police shooting: It could “not prove beyond a reasonable doubt” that Cabillo did not act “reasonably” as an officer of the law.
“ … because Barcenas was running away from law enforcement; because he was drawing a firearm with an extended magazine; and because there were numerous civilians present — we cannot prove beyond a reasonable doubt that Officer Cabillo’s use of deadly force was not an objectively reasonable response.”
Cabillo approached a group of four men, including Barcenas, with open alcohol containers at the corner of Grant and Vallejo streets at just after midnight on June 6 last year — as the city was celebrating an NBA Championship sweep by the Golden State Warriors.
Cabillo’s body-camera footage shows that he initiated contact with the men and confronted them about the alcohol containers (Barcenas did not have one). The men suggested they pour out their beers and move along. “You’re not going anywhere,” Cabillo replied. (Cabillo subsequently told investigators that he noticed a “bulge” at Barcenas’s waist and believed Barcenas was armed.)
Seconds later, Barcenas ran away down Grant Street. Body-mounted camera footage of the incident shows Barcenas reaching for the handgun and throwing it away as he ran. “Milliseconds” later, the DA asserts, Cabillo shot Barcenas in the back as Barcenas ran past three people on the street (the actual time between the gun being tossed and Barcenas being shot was around two seconds).
The DA’s office says that, legally, it’s irrelevant that Barcenas was throwing the gun away and that he did so before Cabillo shot him. While the officer claims he saw Barcenas draw the gun, he says he did not see him dispose of it.
“Officer Cabillo said that he did not see Barcenas throw the gun in the street and did not know how the gun got into the street,” the DA’s report states.
Father Richard Smith, an Episcopal priest and social justice advocate who has long pushed for the DA to be more aggressive on police shooting cases, was not surprised about DA George Gascón’s decision. “It’s a shameful situation,” he said. “We should all be mortified that these guys are never held accountable.”
Last December, Barcenas pleaded guilty to being a felon in possession of a firearm and ammunition and is currently serving a seven-year sentence in federal prison.
Cabillo, too, has his own history: In 2012, he shot and killed a 15-year-old boy armed with a nonfunctioning handgun while serving as a South San Francisco Police officer. The San Mateo District Attorney declined to file charges. He was hired by the San Francisco Police Department in 2013.
Immediately following last year’s North Beach incident, Mission Local undertook a frame-by-frame analysis of the shooting, in which it became clear Barcenas threw the gun away before being shot. A veteran SFPD officer also questioned the necessity of the stop that led to this chase and shooting, calling it aggressive on Cabillo’s part, as open alcohol containers — especially during a citywide celebration — are a minor infraction.
“At no point in this video,” Carl T, the retired 32-year SFPD veteran told Mission Local, “do I see a justification for deadly force.”
Cabillo has a history of excessive force charges in his short tenure with the SFPD. The city has settled two civil lawsuits in which Cabillo was named for excessive force.
He was among a group of three officers sued for allegedly beating an unarmed 23-year-old man on McCoppin and Valencia in April 2015. The city settled the suit for $40,000 without admitting wrongdoing.
Cabillo was later named in a July 2016 suit that alleges that he and another officer threw unarmed Bryant Chappell onto the ground on Mission Street, forced his face into the sidewalk and “hogtied” him with handcuffs. The city settled the lawsuit for $23,000, again without admitting wrongdoing.
“When an officer commits an act of excessive force that results in the city having to settle a claim on their behalf, that ought to raise a red flag about a person’s future behavior,” said Che L. Hashim, the attorney who represented Chappell. “The city would be wise to ensure that the settlements paid out would be impetus for review into the person’s fitness for duty.”
Most recently, in May, Barcenas sued Cabillo and the SFPD for “unreasonable seizure, use of excessive force, interference with California Constitutional rights, negligence, and negligent hiring” among other charges. Barcenas is seeking $25,000 or more.
Mission Local has asked the police department to produce Cabillo’s records in accordance with a new statewide transparency law — meant precisely to reveal whether officers involved in these incidents have a tendency to use more force than others. The department said it could not immediately disclose the files.
Presently, Cabillo is assigned to a non-patrol function within the Field Operations Bureau, said SFPD spokesman Sgt. Michael Andraychak. And an internal investigation as to whether Cabillo violated department policy is ongoing.
The District Attorney on Monday also declined to file charges against two officers who shot and killed Damian Murray, an armed man who had allegedly in 2017 held his family hostage at their residence on Salmon Street in Nob Hill.