Body-worn camera footage of officers confronting Sean Moore at his house.

A federal judge has given the San Francisco District Attorney’s office a two-month deadline to decide whether to file criminal charges against the officers involved in the 2017 shooting of a mentally disabled man on his porch.

The order sets up an early test for DA-elect Chesa Boudin, who has promised to personally review past police shooting cases. 

Judge Susan Illston of the U.S. District Court of Northern California, who is presiding over the civil case of Sean Moore, the shooting victim, ordered the DA’s office to decide whether to charge officers Colin Patino and Kenneth Cha by Jan. 10, 2020. 

Boudin’s term as DA begins in January 2020, at the latest.  

The attorneys representing Moore, who was 43 years old at the time of the incident, are hopeful Boudin breaks from his predecessor, George Gascon, also a former San Francisco Police Department chief — who filed no criminal charges against police officers for shootings during his eight-year tenure as DA. 

Police “were expecting their own to exonerate them,” said Patrick Buelna of the Law Office of John L. Burris, of Gascon. “We’ll see what Chesa Boudin … does here.” 

Boudin said he would need more information before he could comment, but he pledged repeatedly during his campaign that he would more aggressively charge officers — especially the 2015 Mario Woods case in which five officers shot Woods some 21 times in the Bayview. In the video, Woods does not appear to threaten officers, despite having a knife. 

District Attorney-elect Chesa Boudin, previously a deputy public defender, speaks at the final DA race debate. Photo by Abraham Rodriguez.

“When I look at the Mario Woods shooting, it’s hard for me to understand why no criminal charges were filed,” he said at an election-night party last week. Earlier, he promised to bring an “independent eye” to all of the cases.

The Moore case may be problematic for officers because of how the incident developed. 

On Jan. 6, 2017, Cha and Patino showed up at Moore’s home in Oceanview around 4:15 a.m., responding to neighbor’s complaint that Moore was banging on the neighbor’s walls. The neighbor had previously obtained a temporary restraining order against Moore, who has schizophrenia. 

While investigating the call, Moore and the officers got into a verbal spat, with Moore asking questions like: “What the fuck you show up out here at this time of morning about?” 

The officers asked him if he had been violating the restraining order.

“Fuck your order,” Moore replied, and told the officers to “get the fuck off my stairs” multiple times. He wasn’t violating his neighbor’s restraining order, he said. He was simply taking out his garbage. 

But the officers wanted Moore to comply with their investigation and took offense at Moore’s comments. They stayed on the property, and as Moore stepped closer to the officers and waved his hands, Cha asked: “You wanna get [pepper] sprayed?” And then he eventually sprayed in Moore’s direction. 

The officers subsequently attempted to arrest Moore. Patino approached Moore, hitting him with his baton and afterward telling investigators that Moore punched him. That’s when Cha fired at Moore twice, hitting him once in the stomach and once in the leg. Moore lived, but was hospitalized. 

Moore’s lawsuit charges that officers “ignored” their training by failing to use “time and distance” in dealing with Moore — a common tactic used to defuse tensions between police and subjects.   

An appeals court in May 2018 upheld a superior court decision that found the officers were not lawfully performing their duties during the incident that led to the shooting. Once Moore told the officers that he was not violating his order and ordered the officers to leave, the officers had no probable cause to arrest Moore, the court ruled. 

“The officers were therefore not lawfully engaged in the performance of their duties at the time the alleged crimes occurred, even if their subsequent actions in effecting the arrest were lawful,” reads the May 1, 2018 decision. 

What that means is that the officers had no legal standing to be on Moore’s property after he told them to leave, but were perhaps permitted to use force to defend themselves. 

Moore was acquitted in the case brought against him for the 2017 incident with officers. 

However, Moore in July 2018 was sentenced two years in jail for assaulting two kids and calling them racial epithets at a park near his home in August 2017, according to Alex Bastian, a spokesman with the DA’s office. Furthermore, this October, Moore was also sentenced by a jury to three years in prison for making death threats to an employee of the Taraval police station, Bastian added. 

Bastian was unable to comment on Moore’s mental health status. But, without getting into the details of Moore’s case, Bastian said: “Prior to a decision on any case, we take many factors into consideration when prosecuting a case.”  

The civil lawsuit, filed in January 2018, accuses Cha and Patino of violating Moore’s Fourth Amendment rights as well as assault, battery, negligence, and for disregarding Moore’s mental illness during the encounter. Moore is seeking general monetary damages, attorneys’ fees, and punitive damages against the officers. 

Buelna, Moore’s attorney, said it’s the first time he’s “seen” or “heard of” a judge setting a deadline for a police shooting charging decision. 

Judge Illston has set the civil trial for April 6. Meanwhile, the two officers are pleading the Fifth Amendment, meaning they won’t offer testimony, as the criminal investigation remains open. But, as has been ordered, a decision could be imminent.  

“We have a brand new DA,” Buelna said. The officers “might not be as happy with what this DA comes to, as with the one prior.”  

Julian Mark

Julian grew up in the East Bay and moved to San Francisco in 2014. Before joining Mission Local, he wrote for the East Bay Express, the SF Bay Guardian, and the San Francisco Business Times.

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7 Comments

  1. >Woods does not appear to threaten officers, despite having a knife.

    Here is another perspective. Woods was still carrying the knife that he had used to stab someone earlier in the day. He refused to drop it despite repeated requests, pepper spray AND bean bags.

    The video then shows him clearly advancing towards an officer, 2 or 3 steps, still carrying the knife. At that point the officer (who was African American) opened fire.

    So I guess that great minds can disagree about whether advancing towards an officer with a knife that you had been repeatedly asked to drop “appears to threaten officers” or not.

    Yes, a sad tragedy all around. As the woman filming the video kept pleading “Drop the knife!”

    1. Here is another perspective.

      If a group of police are not capable of disarming a man with a knife, without shooting him, then the training and accountability need to be revisited. And by revisited, I mean a complete house cleaning.

      I served in the military. The cross section is the same as people in the police force. We didn’t have this problem. Why? Because training and accountability.

      Oh, here is another perspective, institutions with a history of racism are more powerful than any single individual inside that institution. So your attempt to point out that an African American office also shot Mario is a feeble attempt at whataboutism that belies your true colors and bias.

      Keep grinnin’.

      1. Well that’s fine. So learn from the tragedy. Change the training and perhaps find new non-lethal devices. Their pepper spray and bean bags failed and they are not allowed to use stun guns. Maybe there is a net that they could train in and deploy in the future.

        But are you saying that the officers involved should be charged (“he pledged repeatedly during his campaign that he would more aggressively charge officers — especially the 2015 Mario Woods case”) because their training needed to be revisited? So you feel that the officers should go to jail for that?

        I don’t sorry.

        1. The question you are asking above is different from your original point.

          My response was to your point about Mario Woods being threatening to one’s life. Only in an institution teeming with racism, sprinkled with bullies, and cavalier about taking life, is Mario Woods considered threatening in that situation.

          Yes I think officers should have been charged.

          Police are not above the law.

          Did you know that no police officer in the history of San Francisco has ever been criminally charged due to a shooting of a citizen?

          If you think 100% of the police shootings were not criminal, then I find your predisposition to the intentions of police frightening and naive.

          This is one reason I think Chesa Boudin won. People realize that reform will not come incrementally. It requires breaking glass.

          1. OK, well I honestly do feel that a situation where someone has stabbed someone earlier in that day, refuses repeated demands to drop the weapon and instead advances towards an officer with the knife in hand…yeah, I do consider that to be a threatening situation. It doesn’t take much to slice a vital artery. I respect your feelings otherwise. We’ll just have to agree to disagree on that one, my friend.

            >”If you think 100% of the police shootings were not criminal, then I find your predisposition to the intentions of police frightening and naive.”

            Just as an FYI, you might possibly be confusing me with a different poster in a different thread. Nothing that I said here comes close to indicating that I think that 100% of police shootings are non criminal. You might want to go back through other threads to see who you were intending to respond to.

  2. Campers,

    Used to be that when one cop fired, they all fired and shared the blame or glory.

    It that was unwritten department policy then whomever made the policy is
    guilty of some form of accessory to murder.

    I wrote that in a forum like this couple years ago and they stopped doing it.

    Now, you’re likely to only have one cop shooting at you.

    Go Niners!

    h.

  3. If we had a law that limited the amount a family of a felon can receive when police act out of procedure, more people would be willing to punish the police when they are in the wrong.

    There is just something wrong about people getting money because their family member, in the act of a felony, gets shot. I’m not talking petty theft, I’m talking about felonies. Felony – “a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death.”

    Many jury members may agree the police should be punished, but by making the police guilty, they are rewarding the family of a felon. It’s a moral conundrum. The limit on the payout could allow us to have more police accountability.

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