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.
“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.”