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HomeMy WebLinkAbout2021-11-29City of San Luis Obispo, Police Department, 1042 Walnut Street, San Luis Obispo, CA, 93401-2729, 805.781.7317, slocity.org 1 Memorandum Date: November 23, 2021 To: Chief Scott Via: Captain Amoroso From: Lieutenant Villanti Subject: Officer Blake Etherton; Investigative File # 2020-0025 EXECUTIVE SUMMARY: On Friday, June 10th through Saturday, June 11th, 2020, officers from the SLOPD Regional Swat Team activated and deployed to the City of Paso Robles to assist with an active shooter incident. Mason Lira was the identified suspect who had shot at the Paso Robles Police Department public safety building and responding officers. Suspect Lira was suspected of killing a transient and injuring a San Luis Obispo Sherriff Officer Deputy who was shot in the face. The shooting investigation was conducted by the San Luis Obispo Sheriff’s Office, and when they concluded their investigation, they held an executive summary presentation with local Police Chiefs who had Officers involved in the incident. As part of their investigation, the Sheriff’s Office re-created the scene using maps to depict where each Officer was at the time they engaged with the suspect. This re- creation was based on each Officer’s statement and physical evidence gathered from the scene, including vehicle positioning and expended shell casings. The map created by the Sherriff’s Office placed Officer Etherton 10 to 15 feet behind other Officers and walking forward when he fired at the suspect. Given a large number of other Officers present and in front of Officer Etherton in fixed kneeling positions, it was a cause for concern regarding Officer Etherton’s decision-making when firing his weapon. On December 8th, 2020, Acting Captain Fred Mickel placed Officer Blake Etherton on paid administrative leave related to his participation in the Lira incident, during which he is alleged to have engaged in poor decision making and to have taken unnecessary risks when discharging his firearm, which placed others in peril. I was assigned this internal investigation. 2 ATTACHMENTS: 1. Notice of Investigation 2. San Luis Obispo Sheriff’s Department Final Summary 3. Officer Etherton interview recording 4. Transcript of Etherton’s interview 5. Interview questions 6. Lexipol policies 7. Etherton’s POST Training Printout 8. Etherton’s Lexipol Policy Acknowledgment Printout 9. “Shooter Positions” photos (both team and Etherton’s position) obtained from SLOSO ALLEGATIONS: Officer Etherton used poor decision-making and took unnecessary risks when discharging his rifle at suspect Mason Lira on June 11, 2020, placing others present in peril, in violation of several Department policies. POTENTIAL POLICY VIOLATIONS: 300.3 USE OF FORCE This section, combined with the following referenced sections shall constitute the approved methods and devices available for the application of force: 305 - Handcuffing and Restraints 307 - Control Devices and Techniques 308 - Conducted Energy Device 309 - Officer-Involved Shootings and Deaths 311 – Firearms Officers shall use only that amount of force that reasonably appears necessary given the facts and totality of the circumstances known to or perceived by the officer at the time of the event to accomplish a legitimate law enforcement purpose (Penal Code § 835a). The reasonableness of force will be judged from the perspective of a reasonable officer on the scene at the time of the incident. Any evaluation of reasonableness must allow for the fact that officers are often forced to make split-second decisions about the amount of force that reasonably appears necessary in a particular situation, with limited information and in circumstances that are tense, uncertain, and rapidly evolving. Given that no policy can realistically predict every possible situation an officer might encounter, officers shall use well-reasoned discretion in determining the appropriate 3 use of force in each incident. Officers shall only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance (Government Code § 7286(b)). It is also recognized that circumstances may arise in which officers reasonably believe that it would be impractical or ineffective to use any of the tools, weapons, or methods provided by the Department. Officers may find it more effective or reasonable to improvise their response to rapidly unfolding conditions that they are confronting. In such circumstances, the use of any improvised device or method must nonetheless be objectively reasonable and utilized only to the degree that reasonably appears necessary to accomplish a legitimate law enforcement purpose. While the ultimate objective of every law enforcement encounter is to avoid or minimize injury, nothing in this policy requires an officer to retreat or be exposed to possible physical injury before applying reasonable force. 300.3.2 FACTORS USED TO DETERMINE THE REASONABLENESS OF FORCE When determining whether to apply force and evaluating whether an officer has used reasonable force, several factors shall be taken into consideration, as time and circumstances permit (Government Code § 7286(b)). These factors include but are not limited to: (j) The availability of other reasonable and feasible options and their possible effectiveness (Penal Code § 835a). (m) Potential for injury to officers, suspects, bystanders, and others. 339.5.10 SAFETY (a) Failure to observe or violate department safety standards or safe working practices. (d) Unsafe firearm or other dangerous weapon handling to include loading or unloading firearms in an unsafe manner, either on- or off-duty. Investigation: On December 8th, 2020, I was assigned this investigation on Officer Etherton. In late August 2021, I received the officer-involved shooting summary packet from the San Luis Obispo Sheriff’s Department. As part of my investigation, I reviewed their written summary, viewed all the pertinent video/drone footage, and still photos depicting where officers' locations were when deadly force was deployed. I reviewed department policy and interviewed Officer Blake Etherton about this incident. All 4 Officers on-scene and involved in the shooting were interviewed in the Sheriff’s investigation. Based on a review of their statements in the Sherriff’s investigation summary packet and the positioning of Officer Etherton during the Lira incident, I determined further interviews of the Officers on-scene were unnecessary, as they were determined to be in front of Officer Etherton and focused on the suspect's actions. Call Summary: During the early morning hours of June 10, 2020, the Paso Robles Police Department (PRPD) received numerous calls for service reporting “shots heard” in the downtown area of Paso Robles. Several hours later, a male suspect was observed on PRPD security cameras holding a pistol outside of the public safety building. PRPD initiated a request for assistance from other local law enforcement agencies including the Atascadero Police Department (APD), the California Highway Patrol (CHP), and the San Luis Obispo County Sheriff’s Office (SLOSO). Upon responding to the area, APD, CHP, and PRPD officers were fired upon, and patrol vehicles were struck. SLOSO Deputies then responded to the downtown area of Paso Robles and were also engaged by gunfire. One SLOSO Deputy was shot in the face and his partner returned fire. The suspect eluded capture as numerous law enforcement agencies converged on the area. Throughout the daytime hours of June 10, 2020, law enforcement tactical teams searched the downtown Paso Robles area for the shooter. These tactical teams included the Sheriff’s Office Special Enforcement Detail (SED) and the San Luis Obispo Regional Special Weapons and Tactics Team (SWAT). As search efforts were initiated, a homicide victim identified as James Watson was discovered behind the train station along the railroad tracks. Investigative personnel from several law enforcement agencies began processing numerous crime scenes in downtown Paso Robles. Later that evening the suspect emerged from an underground dwelling in the downtown area and began firing additional rounds in Paso Robles city. At this point, the suspect had been identified from Downtown Paso Robles Photograph from the morning of June 10, 2020. 5 surveillance videos as Mason James Lira. Lira fled from PRPD Officers into the Salinas Riverbed. Numerous law enforcement agencies continued looking for Lira throughout the night and into the daytime hours of June 11, 2020. Search efforts consisted of numerous law enforcement personnel including air assets, the assistance of armored vehicles, and SWAT teams from surrounding counties. During the afternoon hours of June 11, 2020, Mason Lira engaged the San Luis Obispo Regional SWAT “Blue” team with gunfire striking an Arroyo Grande Police Department Sergeant (AGPD) in the leg. SWAT team members returned gunfire as they sought cover into an armored vehicle. Approximately two hours later, Mason Lira emerged from a position of concealment along the eastern edge of the Dusi Vineyard off Ramada Drive. Lira was engaged with gunfire from another portion of the San Luis Obispo Regional SWAT “Green” Team who was south of his position. This was the team that Officer Blake Etherton was assigned to when the team fatally shot Mason Lira. Ultimately, the entire incident lasted over 36 hours, which was investigated as four separate officer-involved shooting events with numerous crime scenes, including that of a civilian homicide. For this internal investigation, I will focus only on when Officer Etherton shot at suspect Mason Lira during the ‘scene four’ officer-involved shooting (OIS), and this investigation will focus on his actions while at this shooting scene. Body Worn Camera/Drone & Still Photo Review: In reviewing the body-worn camera (BWC) video (Video Addendum No. 8) captured by Reginal SWAT (Blue) Team Member, Officer Gonzales (PRPD), Officer Etherton is heard asking an officer to check behind him to ensure that Officer Leonard “sees” and the voice say’s “yep, they are switching”. Officer Etherton then says, “that sounds like your team” then a male voice responds by saying “yep”. Officer Etherton then Dusi Vineyard photograph from the afternoon of June 11, 2020. 6 repeats “that sounds like our team, boys. I got him”. Somebody starts yelling “show me your hands, that’s him” several times. Then a large volley of weapon fire erupts for a few seconds until the command of ceasefire is yelled out. The BWC records a rock wall for most of the time leading up to the shooting and for about a minute after. The BWC video shows that Officer Etherton initially set up on the far-left side of his team when they all initially kneeled at the concrete wall just before the shooting occurred as depicted in the ‘shooter positions’ photo obtained from SLOSO (Attachment # 11). Interview with Officer Blake Etherton: On September 15th, 2021, at approximately 1047 hours, I interviewed Officer Blake Etherton in the San Luis Obispo Human Resources Conference room at 990 Palm. Officer Etherton’s attorney, Robert Baumann, and Sgt. Schafer was present during the interview. The following is his statement in summary. I asked Officer Etherton if he remembered the SWAT callout where he was involved in the search for Mason Lira on June 10-11, 2020, in Paso Robles, CA. Officer Etherton said he recently read his report and the incident is fresh in his recollection. I informed Officer Etherton this investigation would focus only on the time frame just before and during the deployment of force on Lira where he was involved in an OIS. Officer Etherton relayed the following to me. Officer Etherton said on June 11th, 2020, around 1400 hours, he was assigned to the San Luis Obispo Reginal SWAT Green Team. The Green Team was deployed to search for Mason Lira who was wanted for shooting at and wounding a SLOSO Deputy along with possibly murdering a transient the day prior. 7 Officer Etherton said the Green Team consisted of Juan Leon, Greg Benson, Caleb Kemp, Joe Leonard, and himself. Joe Hernandez, Marcelo Magana, Josh Bywater, and a few others self-deployed and showed up at the Green Teams location. The Green Team utilized the Bearcat vehicle, which was parked on the northeast corner of the concrete yard just south of the vineyard and a few yards behind some concrete “K” rails (Refer to “shooter positions” photograph for officer/deputy locations). The team's overall mission was to search for Lira using intelligence from the other deployed teams and the command post. The most recent intelligence was from the Blue Team, at whom Lira had shot and hit Sgt. Mike Smiley in the leg. I asked Officer Etherton to describe the area they were occupying just before the shooting. Officer Etherton said it was a construction yard and it looked like they manufactured cement. Per Officer Etherton, there were lots of workers at the construction yard in the area that the Green Team was occupying. Officer Etherton said he had no idea where the workers were going, but while the Green Team was proceeding there, some people were leaving, and others were hiding in place. Officer Etherton described that there were a lot of rocks, and decomposed granite, making for elevated positions. The Green Team deployed into the most northeast corner of what he thought was the property line. At the northeast corner, there was an oak tree that was fairly open that the team could see down into, and then a little berm on the east side of the bearcat where some of the team staged. There was another portion of the team that was on the backside of the bearcat looking north into the vineyard. The vineyard had an approximate 50-foot elevation drop from his location with rolling hills. If you traveled along the northern perimeter there was more decomposed granite approximately 100 yards away from the Green Team. Officer Etherton said initially the green team and some of the officers/deputies who self-deployed staged behind the “K” rail for cover, and the stacking order from left to right was: Etherton, Gonzales, Kemp, Magana, Virgil, Clayton, Leon, and Benson. Bishop was inside the bearcat and Leonard and Bywater were snipers assigned to the area, but fifty-plus yards south of the team up on a rock pile. He described the weather as clear and 105- or 106- degrees Fahrenheit outside and the heat was so intense it would have caused a little haze in the scopes at the distance they shot. Officer Etherton was utilizing a department-issued Colt M4 with an Aimpoint Red Dot system which had no magnification. Officer Etherton said he removed the “beehive” lens filter prior, which cuts the sunlight glare down on the scope. He said this allows him to have higher visibility of the red dot and a clearer sight picture from a distance. Just before the shooting, Officer Etherton said he decided to stand up and leave the cover of the “K” rail. He moved backward approximately 15 feet, away from his team. He described his new location as away from the Bearcat and nobody was in front of him. Officer Etherton recalled only seeing PRPD Officer Gonzales on the “K” rail to the east of him and he didn’t know where everyone else moved to. 8 After moving to this new location, he noticed Lira approximately 100 yards away in the vineyard. Officer Etherton said when he fired his first round it was from a standing position and then he began slowly moving forward towards the “K” rail. He recalled Lira was walking westbound through the vineyard. I asked Officer Etherton how he was feeling emotionally. He described himself as feeling “fine” and trying to protect his teammates, partners, and the public. He recalled everyone experiencing a lot of emotions that day and said he was one of the calmer individuals and he was leaning on his experience as an instructor to help his team accomplish the mission. I asked Officer Etherton to describe the backstop behind Lira and he said there was a hill directly behind Lira. He described the hill as five to six feet tall as there were rolling rows of grapes in the vineyard. Officer Etherton estimated the height of the rolling hills by comparing how much Lira was visible above the hill. Officer Etherton said Lira’s head was visible above the hill and that is why he estimated the hill to be five to six feet tall. Officer Etherton said he was shooting from an elevated position and Lira was below him due to the topography of the landscape. This allowed him to feel more confident that if rounds were to miss Lira, it would not jeopardize hitting another person and would go in the embankment. Officer Etherton said he received a picture text message from Sgt. Pfarr informing him there was no containment team on the north perimeter which meant no officers were in the backdrop area. After moving backward from the “K” rail, Officer Etherton described that he noticed Lira approximately 75 yards away in the vineyard. He recognized Lira by his clothing and hair description. All of Lira’s descriptors matched what he was provided by the Command Post. Officer Etherton said he saw a silver revolver in Lira’s right hand and he knew this from his training and experience and years of shooting revolvers. He recalled the way the sun glistened off the revolver and he knew the person walking in the vineyard was Lira based on the totality of these factors. Officer Etherton said when he fired his first round it was from a standing position shouldering the weapon on his dominant side (right) the entire time. He then followed up with 13 more rounds fired. During the time he fired his 14 rounds, he began slowly moving forward towards the “K” rail. He recalled Lira was walking westbound through the vineyard while he was shooting at him. Officer Etherton could not remember if he was shooting while moving or if he shot between steps while both feet were planted on the ground. He estimated it took him approximately 5 seconds to slowly walk the 15 feet to the “K” rail while shooting 14 rounds. Officer Etherton said it was difficult to recall these minor details due to the time elapsed since the incident. Officer Etherton said his last shot taken was a headshot and was not sure if it was from behind the “K” rail or while he was still walking towards it. After taking this last shot he called for a cease-fire to the team. Officer Etherton said all his shots were from a standing position and were taken when the rifle was in semi-automatic mode. He tracked Lira through his scope while Lira was walking westbound away from his team, who were east of both Officer Etherton and Lira. 9 I asked Officer Etherton about the after-action night photos taken by the SLOSO Detectives who were trying to capture his position at the time of the shooting. Officer Etherton said it had been hours after the shooting and he had been up for an extended amount of time. He showed the detectives, to the best of his recollection, while being fatigued, where he thought he was before, during, and, after the shooting. When Lira moved into the vineyard, he was approximately 110 yards from Officer Etherton, based on the reconstruction from the Sheriff’s Office. I asked Officer Etherton if he thought the standing shooting platform was best to shoot from. He said it was the best available platform at the time because Lira was “turning the gun to fire at him”. Officer Etherton acknowledged there are more ideal shooting positions to fire from allowing more accuracy, but reiterated that because the situation was so fluid, standing was the only option. I showed Officer Etherton the drone picture, which captured both the Green and Blue Teams’ locations, and then asked him if the Blue Team was a lot closer than his team. Officer Etherton acknowledged it was by answering “yes”. I followed up the next question by asking him if the Regional SWAT Blue Team was closer and since there were team members in front of him, “do you think your shot was a safe shot to take?” He answered, “yes, I do”. I asked him if he thought it was necessary and his response was “yes, I do”. I asked Officer Etherton if he thought if he didn’t take the shot, that somebody else might have not been able to resolve the situation. Officer Etherton said “yes, I felt that my actions were necessary to stop the threat.” I followed up by asking him “do you think if you didn’t take it, that somebody else might have not been able to resolve the situation?”. Officer Etherton said “yes, I felt that my actions were necessary to stop the threat.” Mr. Baumann asked Officer Etherton “do you feel like the threat from Lira was imminent, so you took that shot?” Officer Etherton answered, “I did.” Officer Etherton justified his shot by explaining the topography of the land and the fact Lira was moving west away from both the Blue and Green Teams. Each step Lira took mitigated the chances of the other teams being exposed to crossfire. I pointed out to him that between both the Blue and Green SWAT Teams there would have been approximately 15 potential officers who could have engaged suspect Lira. Officer Etherton said, based on the topography of the land and the location of some of the SWAT officers, they wouldn’t have been able to see Lira. I asked Officer Etherton if he had anything else to add and he said no. I concluded my interview with Officer Etherton at 1151 am. Personnel File Review: A check of Officer Etherton’s personnel file did not reveal any prior identifiable issues or past policy violations related to this investigation. However, he does have another 10 open internal affairs investigation with the allegation of disproportionate and excessive use of force (FN2020-0038), unrelated to this incident. Officer Etherton has worked as a Police Officer since July 2012, starting with Riverside County Sheriff’s Department, and transferring to SLOPD in 2014. During his law enforcement tenure, he has held numerous special assignments. Officer Etherton has completed training during his seven years with SLOPD related to using force, he has been a firearms instructor and an active shooter instructor. Some of these trainings include force options training (a mandatory training every 24 months), crisis intervention training, tactical communication, arrest, control training, and has participated in force options simulators and is a Critical Incident Instructor and Field Training Officer. Officer Etherton has completed an 80-hour basic SWAT course and has completed monthly SWAT training since being appointed to the team. During the interview, Officer Etherton said all the firearms experience and training that he had leading up to this incident, especially as a firearms instructor in active shooter instructor schools and SWAT school itself, prepared him for this shooting. He went on to say, “many of -- most of the shooting scenarios that we did mirror a lot of things that happened that day while shooting as a team and trying to bring someone into custody and -- there were countless scenarios from them”. Policy and Training File Review: Officer Etherton has completed the following training classes during his career which relate specifically to this investigation: 11/12/2013 8 hour- Firearms Tactical Handgun Advanced 11/13/2013 8 hour -Force Options Simulator (Decision making and using the appropriate level of force) 01/13/2014 8 hour - Arrest and Control Techniques 05/21/2014 16 hour - Firearms/Target Rifle 09/30/2014 4 hours - Force Options Simulator 03/09/2015 8 hours - Arrest and Control Techniques 05/22/2015 40 hours- Field Training Officer 08/19/2015 24 hours - Officer Safety/Force Encounters Analysis 01/17/2016 2 hours - Communication: Keeping Your Edge 05/03/2016 4 hours - Force Options Simulator 03/04/2017 80 hours - Basic SWAT (Special Weapons & Tactics) 03/09/2018 40 hours - Critical Incident Instructor 03/16/2018 41 hours - Firearms Instructor course 05/15/2018 8 hours - Arrest and Control Technique Update 06/28/2018 4 hours - Force Options Simulator 01/18/2019 40 hours - Crisis Intervention (How to identify and communicate with individuals experiencing a crisis) 10/11/2019 40 hours- Field Training Officer 11 02/06/2020 2 hours- Tactical Communication 10/29/2020 8 hours - Arrest and Control Technique Update 11/23/2020 4 hours - Force Options Simulator Policy Acknowledgments: A Lexipol printout showed Officer Etherton electronically acknowledged 122 of 158 departmental policies as of April 27, 2021. A list of the policies and whether they were acknowledged is attached. He was placed on administrative leave on December 8, 2020. Findings: Officer Etherton’s extensive training as listed above, and nine years of experience as a Police Officer should have caused him to recognize his shooting location and position were less advantageous than the location and positions of the rest of the Green Team, who was positioned in front of him (closer) and in a better shooting platform (using the “K” rail for support), and also less advantageous than the location and the positions of the Blue Team, which was much closer to the suspect. Officer Etherton left a kneeling position where he had a supported shooting platform and could have used the “K” rail as support. Instead, he opted to stand up and move further away from the cover and the suspect (Mason Lira), placing officers of two other teams in front of him while firing. Officer Etherton knew snipers were deployed behind him on the high ground and they had a tactically superior location safely above the Green and Blue Teams and would be using far superior equipment allowing them to take a 100 plus yard shot with a better vantage point, a much higher probability of success and less risk. Officer Etherton did not exercise good decision-making when he decided to shoot at suspect Mason Lira. Officer Etherton was standing approximately 10-15 feet behind his Green team when Lira appeared in the vineyard approximately 100 yards away. In front of Officer Etherton was most of his SWAT team, who were in a kneeling position. All of Officer Etherton’s shots were from a standing position and he admitted in his interview with SLOSO Detectives and me that he shot while moving. Not only was he shooting from a standing platform which is less stable than his teammate's kneeling position, but he also shot from behind their location and possibly over their heads depending on exactly where they were when rounds were fired. During the entire interview, Officer Etherton asserted his shooting platform was more than adequate. He never conceded to the fact the seven operators in front of him who was in a kneeling position would have been adequate and it was safer to allow them, or the snipers situated on higher ground to take the shot on suspect Lira. Officer Etherton’s failure to recognize and acknowledge his poor tactical judgement and mistakes raises serious concerns regarding his judgement and decision making in the use and deployment of his firearm in fluid and high-risk situations. Even with 12 prompting, Officer Etherton was unable to recognize his shooting location and platform were not safe, nor did they constitute an appropriate place to engage the suspect, given the totality of the circumstances. Officer Etherton didn’t take into consideration the availability of other reasonable and feasible options and their possible effectiveness and his failure to apprehend and appropriately assess the safety of deploying his weapon were contrary to Department policy. There were numerous other SWAT officers closer to and in a better location to engage Lira and there were two snipers positioned on higher ground and with safer and more likely successful vantage points and equipment available. Officer Etherton should have taken into consideration the potential for injury to officers in front of him when he fired 14 rounds at Mason Lira and he failed to do so in violation of Department policies. Policy Violations Lexipol 300.3 - Use of Force - Sustained Lexipol 339.5.11- Safety - Sustained Recommendations: I recommend this case be forwarded to Captain Amoroso for review. Respectfully Submitted, Lieutenant John Villanti