Protect and Survive: Officer-Involved Shootings on the Rise

Three bullets still remain in Javier Gonzales-Guerrero’s body. One in his spine. Another in the tailbone. The third is lodged in his left leg. At least 17 bullets made their way out. Some went straight through, others were taken out in bits over the course of a dozen-plus surgeries. He has screws in his knee and a rod that fortifies his right femur. His body burns from scars and nerve damage, and for eight months he wore a colostomy bag. His doctor at Stanford, Ivan Chang, told him he’d have no choice but to live with the bullets and the pain. Surgery would risk paralysis. In addition to the aches in his hip and knee and spine that force him to sit up in the middle of the night—reminding him of that fateful morning three years ago, when police punctured his body like Swiss cheese—the mirror tells a similar story, as a scar runs across his right cheek from a bullet that grazed his face. That may have come from one of the same shots that went through his hand as he covered his head in fear.

The last moment Javier Gonzales-Guerrero remembers from that day is opening his eyes to a San Jose police officer standing over him. He blinked at the man with the gun. Four more officers stood below him—he didn’t see them. They’re the ones who shot first.

“Put your hands in the air!” one officer shouts, according to depositions. “Don’t move!” says another, contradicting his partner.

A little more than a year later, an attorney sitting in a 16th floor suite at San Jose’s downtown City Hall will ask Gonzales if he raised his arms before he got shot.

“Yes,” he says. “I was—I was putting them up, and I got shot.”

“Okay,” says the attorney. “Why did you put your hands down to the right side of your body?”

“Because I got shot,” Gonzales says. “It was so painful.”

And then officers shot him some more.

This is the toy gun San Jose police officers believed was real when they shot Javier Gonzales-Guerrero at least 20 times.

This is the toy gun San Jose police officers believed was real when they shot Javier Gonzales-Guerrero at least 20 times.

It was Oct. 22, 2011, and Gonzales, 25 at the time, did what many people his age do around Halloween. He got dressed up in a costume and had some drinks with friends. All Natural Stone was holding its annual company party and Gonzales, who had done some contract work with the tile supplier, wanted to be safe, avoid drinking and driving. He checked into a room at the Extended Stay Inn with a couple he knew, and he and his buddy each poured a cranberry and Grey Goose into plastic cups.

People got tipsy at the party, as they do. Gonzales dressed in a sombrero and OR scrubs, the latter component serving as an ominous choice for what would later transpire. Witness interviews found that he took a picture with a woman at the party, Jacqueline Bartlett, who came dressed as a “nun with a gun.” For her costume she painted a plastic toy pistol gold, apparently to make it look “more real.” The prop got passed around like drinks throughout the night. Gonzales returned to his hotel well after midnight, the toy gun tucked in his waistband. His friends had come back earlier and didn’t answer his phone calls when he was trying to remember which room they were in.

Gonzales fell asleep in the stairwell after a few unanswered calls. Other hotel guests tiptoed around him later that morning. When the hotel maid had no luck waking Gonzales, the hotel manager went to rouse him and saw that he had a gun in his waistband. She called 9-1-1, and San Jose police officers were dispatched. Gonzales was passed out on the stairwell between the third and fourth floors, and one officer, Jeffrey Banister, made a tactical decision to go up an extra floor. Four more officers approached from below the landing on which Gonzales slept.

Banister called down to his fellow officers, "Do you want me to Tase him,” but no one responded. Instead, guns drawn, the four officers below the landing shouted their presence. Gonzales didn’t respond. Rather than risk being attacked in ambush—despite knowing Gonzales had been asleep or unconscious for some time—the officers, nerves turned up, continued to thunder verbal commands on a man who was just starting to wake. Shots soon followed.

An investigation by the Santa Clara County District Attorney’s office says Gonzales reached for the weapon—a weapon all of the officers assumed was real; only the dark butt of the toy gun was visible—and police opened fire. When Gonzales recoiled in pain, they unloaded another volley of rounds. Somewhere between 24 to 26 shots total—inexplicably, that number was never precisely identified in the DA’s report.

Officers involved in the shooting appear to have given inconsistent orders, according to depositions in a civil suit that Gonzales filed. Three SJPD officers—Mark and Tim Stephens, and Gary Petrakovitz—all say Gonzales only reached for the toy gun when they opened fire on two separate occasions. But Sgt. Brian Johst, who fired three to five rounds, says Gonzales actually pulled the gun out and aimed it at the officers. All four men were standing right next to one another.

Those conflicting accounts could be why the city of San Jose settled the lawsuit out of court last year for almost $5 million, or about $250,000 per bullet wound.

The DA cleared all officers of criminal charges in a report made public in November 2012, noting that the officers feared for their lives and used a proper amount of force “due to an apparent and immediate threat of great bodily injury or death to themselves and other individuals.” The DA also said no charges should be filed against Gonzales—whose blood alcohol that morning measured .10—because waking up in a haze doesn’t constitute defying an officer’s order.

But none of the four officers were ever disciplined internally by SJPD beyond the typical 10-day administrative leave imposed after anyone fires their weapon. In fact, of SJPD’s 25 officer-involved shootings from 2009 through 2013, not a single officer has ever been disciplined.

OIS-graph

Several patterns emerge from a close look at officer-involved shootings by South Bay law enforcement during the past five years. Almost all of the officer-involved shootings involved male suspects. Most had lengthy rap sheets, although Gonzales and one other person shot by SJPD did not. Most of the incidents occurred in East San Jose. Approximately 60 percent of the people shot by SJPD identified as Latino, according to the Independent Police Auditor's annual reports. Almost a third of people shot by San Jose police in those reports, 28 percent, were unarmed.

Fear and the self-preservation instinct come into play when law enforcers evaluate a situation and make split-second decisions. A moment’s hesitation can have grave consequences. Cops know that 24-year-old SJPD rookie Jeffrey Fontana was ambushed and killed 13 years ago in an Almaden Valley cul de sac, and that two veteran Santa Cruz officers were surprised and killed last year when they showed up at the doorstep of a barista suspected of sexually assaulting a co-worker.

Fear led to Gonzales’ tragic shooting, and it is what has motivated officers to escalate their responses to the most deadly of force. An officer’s fear for his or her life, the potential of a great bodily injury and/or the risk that someone could flee and commit a violent felony, has been cited in every instance in which South Bay officers have shot, and sometimes killed, members of the public. In several cases they have fired their guns in response to other shots, unaware that the only bullets were coming from other officers’ weapons.

The defense for using deadly force is rooted in case law, but even staunch supporters of SJPD, such as the late Police Chief Joseph McNamara—who liked to tell stories about working the beat in Harlem for two decades and never using his gun—have openly questioned how quick officers are to now pull the trigger.

“Yes, police work is dangerous, and the police see a lot of violence,” McNamara wrote in a 2006 op-ed for the Wall Street Journal. “On the other hand, this isn't Iraq. The need to give our officers what they require to protect themselves and us has to be balanced against the fact that the fundamental duty of the police is to protect human life and that law officers are only justified in taking a life as a last resort.”

San Jose Inside’s records requests have found that the Bay Area’s three largest law enforcement agencies—police departments for San Jose, San Francisco and Oakland—have taken part in 111 officer-involved shootings since the beginning of 2009. Forty-two people died from their injuries. While this information is open to records requests, it is not readily available and law enforcement agencies have actively sought to keep much of the details of these incidents out of the public eye.

At last count, approximately 750 law enforcement agencies across the country self-report data about officer-involved shootings (OIS) to the FBI. That number equates to just 4 percent of the total number departments nationwide. The Santa Clara County Sheriff’s Office says it reports in-custody deaths to the California Department of Justice, while SJPD says it reports “justifiable homicides." But the last report on the state DOJ's website for such incidents is nearly a decade old. And much has changed since then.

D. Brian Burghart, editor of the alt-weekly Reno News & Review, started his own crowdsourcing database in 2012 to track the number of people across the nation being killed by police. He described the site, FatalEncounters.org, and his experiences in an op-ed this summer.

“The biggest thing I've taken away from this project is something I'll never be able to prove, but I'm convinced to my core: The lack of such a database is intentional,” Burghart says. “No government—not the federal government, and not the thousands of municipalities that give their police forces license to use deadly force—wants you to know how many people it kills and why.”

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Josh Koehn is the managing editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected] or follow him on Twitter at @Josh_Koehn.

29 Comments

    • Wow, josh you and SJI have hit rock bottom with this article. If a criminal kills another person and then confronts police and points a weapon at officers what do you expect. I can give you a dozen examples when an officer is put in a deadly situation and had to act with deadly force.

      San Jose Police is moving up in shootings ( and city homicides) because they are being shot at and assualted more thanks to Chuck and Sam due to measure B. Criminals know there is no police force so they are running free to commit more crimes which result in confrontations with police which turn deadly.

      This should read : Josh Koehn is the news editor for San Jose Inside and Metro Newspaper (and a member of the Mercury News)

      Who hate the ” Who use to be one of the best police department s in the country”

      • So explain how did that guy who killed 11 people in a movie theatre and had weapons and bombs end up taken alive? No excessive or deadly force used?
        Yet a 13 year old in santa Rosa was shot multiple times and he didnt kill anyone!
        Animals aren’t even killed with as many bullets as officers put into human beings!
        Cops need to be held accountable. ..they make a choice to kill rather than save a life! Those are choices grown adults make…yet try and teach children about wise choices being positive?
        We need people who care in government positions to make changes to rebuild, restore trust and safety for all!

    • JOSH AKA SJ MERCURY NEWS, SAD YOU EVEN POST THIS TRASH AND LET CINQUE POST THIS. I THINK YOU WANT THE VIOLENT PROTEST TO OCCUR SO YOU Have something to print.

  1. According to publicly available newspaper accounts, Castillo shot someone in a San Jose gas station, then kidnapped an old lady and shot her dead execution style. Allman took a semiautomatic weapon and killed several people at the Cupertino cement plant before getting into an armed standoff with the police. If the suggestion is that police have a pattern of engaging in foul play and using excessive force, at least two of the examples cited in this article’s picture gallery do not support that hypothesis. Those guys were known maniacs when they confronted the police. The people second-guessing the police in this article do not have to get into armed standoffs with maniacs as part of their jobs. If they did, they would s**** their pants or get killed or both.

  2. LaDoris, the faux Independent Auditor like to trumpet that she’s a retired Judge… But apparently she doesn’t grasp the chasm of difference between civil and criminal law- beyond a reasonable doubt versus preponderance of evidence. That is why civil cases are settled, regardless of Duty Manual policies or Supreme Court decisions. It’s sad that she and the local media intentionally misinform the public with articles such as this. Josh, the NBA and several others imply that police are supposed to “Protect and Serve”… Maybe you should research where that comes from. Is it a legal standard? A mission statement? Is it a policy? No, it’s a motto written on LAPD police cars and because of Hollywood, people seem to think its a justification for anything they don’t like the police doing- imagined or real. I guess the police should just be like Robocop and follow a prime directive given by whomever happens to be in their 15 minutes of media spotlight.

  3. Josh,

    While I do believe this is one of the better pieces you have written in recent times, I don’t understand the timing nor the message. Call me dense, but you went in a few complete circles here and ended with Judge Cordell’s most prized pet project, putting cameras on cops, and I can’t pinpoint what you were trying to get at.

    I do take issue with some of the previously mentioned examples (Paul Ray Castillo, Shareef Allman), but most of all I take huge issue with the addition of Jonathan Wilbanks’ photo being included with those on the first page. Wilbanks not only murdered an innocent person (after committing multiple armed robberies), he tried to murder a San Jose police officer and was very narrowly thwarted by the officer. Wilbanks should not be alive, plain and simple. To use his photo in any capacity, knowing what he did (along with Castillo) to illustrate your story is classless.

    As a follow up to this article Josh, you may consider the famed Hollywood shootout, where the officers were outgunned by the two bank robbers due to archaic policies and political assumptions governing law enforcement. Lastly, consider this fact – numerous municipal police agencies in the bay area have an AR-15 in every single patrol car, even our state level police who mostly focus on vehicle code enforcement carry them in nearly every patrol car. Yet, there is outrage when certain police departments receive AR-15’s from the government? Why is this?

  4. When society allows a limited thinker to believe she is highly intelligent, you get:

    “All of these shootings were within policy. That is a decision made by the department… For some of these shootings there have been substantial payouts to the victims and their family members. If the shootings are within policy, why is the city paying?”

    — To adjudge a shooting as within policy it is only necessary to consider the reasonableness of an action against written guidelines. This is something police departments do well. But the action taken by an officer(s) is only one-half of a shooting incident, the second half being the reaction, an element far too arbitrary and unpredictable to be governed by hard and fast rules (especially for a government cowering in fear of its ignorant and uncivilized masses). Would Ms. Cordell advise leaders in Ferguson, Missouri to announce, when it is inevitably revealed that the shooting of Michael Brown was within policy, that the city considers the matter closed for further discussion? I think not, and Ms. Cordell, it seems, doesn’t think at all.

    “Why wouldn’t you want to wear them unless you’re not following the rules?” Cordell says. “If you’re behaving, you want the cameras.”

    — It’s laughable that a former judge who spent a good deal of her time crafting “justice” within the isolated confines of her chamber — out of reach of the jurors and general public, would equate police reluctance to being constantly monitored with the intention to break the rules. Perhaps what’s needed is for her to set an example by having the conversations in her office and on her phones recorded and uploaded (for public inspection) daily? After all, if she and her staff are 100% objective and fair, and if her “clients” are telling the truth, why, to use her reasoning, wouldn’t they want to be monitored? After all, the IPA has demonstrated itself to have considerable effect (mostly negative) on the reputation of its police department, so it can’t be said that what goes on in there isn’t of interest to the public.

  5. I don’t know why SJPD shoots to kill. I know they have to protect themselves and take many risks in their job. Not every individual needs to be shot, in some cases where the person is shooting at them, I can see them shooting. My son is in the above pictures. Thank God he survived. My son wasn’t the driver he was the passenger. When the cops shot they shot through the passengers window, if he didn’t duck down in time they probably would have killed him. The bullets grazed his thumb. What I don’t understand is why do SJPD shoot to kill and always get away with it.

    • Patricia,

      In Law Enforcement, officers are not trained to “shoot to kill”. That is a misnomer perpetuated by film and the media. Regarding incidents involving deadly force, officers are trained to eliminate/stop and overcome whatever deadly threat they are being presented with. What level of force that entails is based upon the facts & circumstances surrounding the incident and these facts and circumstances are largely based upon the officer’s level of training and experience.

      • If thats true…then how could someone be a threat when there back is turned?
        To act in fear is DANGEROUS for Society and our Children.
        Killing is about Power and Control!
        Yet people are blind or just have no compassion these are human beings and assume they deserved it…before getting the facts!
        Just the same for officer who gets killed…it was a job they chose and knew the danger, so when they die its just part of their job?
        WRONG! EVERY Life Matters…and the ones Left Behind like Children have to suffer these consequences!
        People need to Respect Lives Stolen and have Compassion for the families grieving. Badge or No Badge!

        • Laurie,

          I understand your emotions and while I agree with some of your sentiments, our perspectives are very different.

          Someone can be a threat when their back is turned in many different instances. Most law enforcement agencies have policies which permit deadly force when the facts and circumstances would lead an officer to believe the person poses an ongoing threat to the lives of not only the officer, but other officers and any member of the public.

          Here are a few examples of a person who would continue to pose a threat when their back is turned –

          Someone who just shot at you and has now turned away to take cover or retreat to a position of advantage.

          Someone holding an edged weapon (knife, saw, hatchet, etc) who turns their back to an officer and advances on another officer or member of the public in a threatening manner with that edged weapon.

          Someone holding a deadly weapon who intentionally turns their back (while disobeying lawful commands) and attempts to advance on an officer.

          Someone who has been part of an ongoing violent crime (or spree of crimes), is armed or believed to be armed (based on real facts), and makes a threatening movement toward an officer or member of the public while attempting to flee from capture.

          Unfortunately, Laurie, all of these situations are hypothetical. When force is used, deadly or otherwise, it is often during a rather chaotic event where everything is not black and white. The dynamics of the chaos are not predictable and human instincts become a strong determining factor when people are presented with the possibility of being gravely injured or possibly even killed.

    • Patricia, Steve is correct.

      Cops shoot for the largest part of the target…. the torso. They shoot to STOP. But in many cases they shoot too much.

      This is a problem cause by a lack of training.

  6. Jack Slade Here!

    SJPD is overloaded with people who lack skill and common sense. Poor education, poor training, poor supervision and leadership has resulted in everyone doing what they want with DA Rosen who rubber stamps the killings. He is afraid of them after the rigged drunk driving arrest of the San Jose city councilman. His office is loaded up with Retired SJPD people. It’s so toxic that the DA’s office tried to cover up one of their substance abusers let go by SJPD after she seriously injured a person in a drunk driving accident where she was spirited away and the two investigating officers fired. They were later rehired and one of them later resigned and was charged with child molestation. The Drunk ex SJPD then DA Investigator’s father was a LT. on SJPD and later in charge of the DA’s SJPD’s Investigators. The poor injured girl and mother in the aforementioned accident had to move into seclusion and the California Attorney General had to step in and prosecute the Drunk Driving. Now I know it sounds unbelievable but there are 72 such incidents of morally bankrupt criminal behavior by these thugs.

    Thank God for all the measures that have taken away their control over their outrageous Pensions. For that kind of money you should get top notch stable people.

  7. Looks like someone didn’t get all the facts straight before posting accusations.

    “Cupertino suspect died of self-inflicted gunshot, Santa Clara County coroner finds

    PeninsulaPress.com

    October 6, 2011

    UPDATE, Oct. 11, 3:45 p.m.: The Santa Clara County coroner’s office has concluded that Shareef Allman died of a self-inflicted gunshot to the temple, not from bullets fired by county sheriff’s deputies, the San Jose Mercury News reports.”

  8. Jack Slade Here FOOLS
    Now you have a revealed thug on SJPD who has broken bones using three from the ring style. One expose after another. Don’t you understand hiring psychologically ill people who want POWER OVER PEOPLE is an error in judgment. These people are sick and you can’t just look at them to determine it. You have hired child molesters, homosexuals and criminally inclined people just to fill squad cars. You will pay big judgments for these people who you have accumulated for 30 years. Drown Sam “The Licking v. San Jose scammer. Have you unloaded your Baseball Stadium parcel yet, scum.