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.
Exactly what is a “social justice advocate”? Are there people who are NOT for social justice??? Or just justice?? As soon as someone puts an adjective in front of the word “justice,” I get suspicious.
The 15 year old had a NONFUNCTIONING gun? Damn that cop for shooting the kid. The cop should’ve waited for the kid to start shooting at him first. I mean he’s a cop. He should know beforehand if the gun is not working. Lol. Get outta here. Y’all would’ve done the same thing. You guys are too much.
Any reason you mention the officer’s history, but hide the fact that Oliver Barcenas’ history of violence? For example, no mention that several years earlier he “pulled out a Tec-9 “assault-style” pistol loaded with 25 rounds and pointed it toward undercover officers who approached him on suspicion of holding an object in his waistband,” ( https://www.sfchronicle.com/crime/article/Richmond-man-sentenced-to-7-years-for-being-a-13672324.php )
I find it astonishing that instead of commending the police for TWICE confronting a known gang member who is armed with an illegal assault style weapon and getting him off the streets, Mission Local and “social just activists” bend the story to portray Barcenas as the victim. The fact is, we’re damn lucky that officer Cabillo and the officers in the previous case were astute enough to notice the signs that Barcenas was heavily armed, and roaming around in our community. and put their lives on the line to confront him.
In the heat of the moment, Barcenas pulled out a glock 30 with an *extended clip*.,., not so different than the other dangerous weapon he pulled on police in the earlier case (tec-9). In the 2 seconds that this took place, things could have gone very differently and in a split second the officer had to make a decision. If Bercenas had decided instead to start firing weapon with it’s many available bullets, the officer would have been the one that was shot. This incident is on Barcenas.
The “progressives” are rabid anti-gun nuts it seems, unless the person with the gun happens to be a convicted Mission District felon with prior gun violence incidents, I guess?
Thank you Pat, for that added important history and truthful statements. I grew up in the Mission and dealt with gang bullshit when I was young. There was a time where people were against that behavior. Seems like now SF is going through some kind of Stockholm Syndrome and fully supporting these criminals.
What I found interesting is that MISSION LOCAL had actually covered the earlier situation that led to the demise of the criminal Oliver Barcenas. So they know what’s up. Apparently this Norteno thug was out to hunt down rival gang bangers (and not in a super hero type of way) to supposedly avenge the death of a Jesus Solis back in 2012. Some innocent 15 year old kid was shot instead BY Barcenas. Not to be confused with the other 15 year old burglary incident. Here he is, out on the streets, still carrying dangerous illegal weaponry…but, nooooo, he is the victim, right?
Officer Cabillo may have saved unknown lives when he apprehended Barcenas this time.
The officer should get a commendation. If you watch the officer’s body cam video, you can see that he is running behind the perp and slightly to the right on a crowded, narrow sidewalk. The perp pulls a concealed handgun, with an illegal high capacity magazine, using his right hand. The officer can see this. Then the perp moves his right arm in front of his body to through the gun away under a car to the left. The officer cannot see this. It’s the right call to shoot a person whose just pulled out an illegally concealed handgun in a crowd when confronted by the police. The police shouldn’t wait to see if the perp is going to start shooting. They need to protect themselves and the other people around. The other thing that stands out is how competent the officer is, he’s chasing after a perp, calling in his situation on the radio, and still manages to bring the perp down cleanly without hurting any bystanders. Fantastic. It’s also important to note that the bad guy ran in the first place because he’s a felon on parole. He was not allowed to possess any guns, especially an illegally concealed one with an illegal magazine. He ran and tried to ditch his gun without the officer noticing. Problem is, he let his gun show, but not that he had thrown it away. As for making the stop in the first place, SFPD was rightly trying to control the public drinking and resulting problems that frequently plague North Beach. I agree with the DA and say “thank you” to the officer. He did what we want cops to do. This ain’t no Mario Woods situation.
The trigger happy cop put hundreds of people in danger. Just because he didn’t accidentally kill a bystander doesn’t take away from his terrible decision making skills. He should not be in the position to use a gun in public again.
Or maybe the cop prevented a mass shooting. You are mentally ill if you think it is NORMAL, people, for a guy to be carrying an extended clip assault pistol around in public. What are his intentions? Police are trained to notice things such as concealed weapons. The headline of this article is misleading, as it neglects to mention that Barcenas was armed.
You’re mentally ill if you think it’s ok for a cop to shoot into a crowd at a guy whose running away. This cop obviously has a ego problem as he initiated the confrontation,and he has a history of complaints that they’ve had to settle out of court. He is nuthin but a child murderer.
I don’t know what’s wrong with these people. It’s ok to kill someone because OOPS no he wasn’t trying to shoot. NO A LIFE ENDED! period ! why deadly force?? taz him, shoot his leg, BUT KILL?! EGO DRIVEN ! YYOU ARE RIGHT!
I agree with your sentiment but if the officer claims to have noticed the weapon before the guy took off running couldn’t it also be argued that he gave chase as a preventative measure? If you were on officer would you let an armed man run off into a crowd, not knowing what he might be capable of?
I do agree that this killing is unjust and definitely think the officer needs to be reprimanded, i,e. fired (especially in light of past use of excessive force).
At the same time, I do see that a jury can easily find reasonable doubt to let the officer off the hook. I don’t think there is enough evidence to ensure a conviction. Even a video cannot see what the officer sees and there are no other witnesses or proof that the officer saw the gun disposed of and fired anyway.
Gascon goes out with a perfect record!!! Which is I suppose what we get for making a cop the DA. This case, like the Perez-Lopez case does make you wonder why Gascon always argues like a defense attorney. And you also have to wonder, what police shooting Gascon could prove beyond a reasonable doubt?