I N T E R O F F I C E M E M O R A N D U M

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1 I N T E R O F F I C E M E M O R A N D U M DATE: October 10, 2017 FROM: TO: Lynette Grulke, Deputy District Attorney Rancho Cucamonga Office Terry Brown, Supervising Deputy District Attorney San Bernardino Office Simon Umscheid, Chief Deputy District Attorney Central Division Mary Ashley, Assistant District Attorney Central Division Michael A. Ramos, District Attorney SUBJECT: Officer: Involved Subject: Officer Involved Shooting (Fatal) Officer Brandon Koch San Bernardino Police Department Cody Wayne Jarrett (Deceased) Date of Birth 06/28/90 San Bernardino, CA 1

2 Date of Incident: July 16, 2016 Incident location: Highland Avenue and Mountain View Avenue San Bernardino, CA DA STAR #: Investigating Agency: Case Agent: San Bernardino Police Department Detective William Flesher DR #: PREAMBLE This was a fatal officer involved shooting by an officer from San Bernardino Police Department. The shooting was investigated by San Bernardino Police Department. This factual summary is based on a thorough review of all the investigative reports, photographs, audio and video recordings submitted by the San Bernardino Police Department, DR# PRINCIPAL INVOLVED PARTIES Cody Wayne Jarrett, DOB: 06/28/90, of San Bernardino, California was killed during the incident under review. Officer Brandon Koch of the San Bernardino Police Department was the officer involved in the shooting of Cody Jarrett. SCENE This incident occurred on July 16, 2016, at around 9:18 in the evening. Location of occurrence was Highland Avenue and Mountain View Avenue in the City of San Bernardino, California. FACTUAL SUMMARY On July 16, 2016, Officer Koch was on duty and assigned to patrol. Officer Koch was wearing a San Bernardino Police Department uniform and driving a marked patrol vehicle near the area of Mountain View Avenue and Highland Avenue. Officer Koch had just cleared a call for service and was turning onto Highland Avenue when he noticed an older model Honda. The driver of the Honda, later identified as Cody Jarrett, 2

3 quickly looked at Officer Koch and then turned away. Officer Koch ran the license plate of the Honda and learned the vehicle had been reported stolen. Officer Koch followed Jarrett as Jarrett turned north into the parking lot of MT & H Market located at *** West Highland Avenue. Jarrett pulled the stolen Honda into a parking stall on the east side of the business and came to a stop facing west. Officer Koch pulled into the parking lot and activated the emergency lights on his patrol vehicle. Officer Koch pointed his duty weapon at Jarrett and ordered Jarrett not to move. Jarrett looked at Officer Koch and then reached back into the vehicle and grabbed something from the passenger side of the vehicle. Officer Koch ordered Jarrett to show his hands and to stay in the vehicle. Jarrett did not comply. Instead, Jarrett opened the driver s side door and got out of the vehicle. Jarrett had an object, approximately two feet in length, compressed against his chest. Officer Koch believed Jarrett was holding a small aluminum baseball bat. Jarrett turned east and ran down the driver s side of the stolen Honda. Officer Koch warned Jarrett that he would be tased if he ran. Jarrett started to run north and Officer Koch deployed his Taser. Jarrett fell to the ground. Officer Koch ordered Jarrett to stop moving. Jarrett still had a hold of the object Officer Koch believed was a baseball bat. Jarrett stood up and started to run in a southeast direction towards Officer Koch. Officer Koch deployed his Taser a second time. Jarrett fell to the ground again. Jarrett still had a hold of the object in his left hand. Officer Koch kicked Jarrett in the torso but Jarrett stood back up. Officer Koch tried unsuccessfully to Taser Jarrett a third time. During the physical altercation, Jarrett dropped the weapon and Officer Koch quickly realized the object he believed was a small aluminum baseball bat was in fact a sawedoff shotgun. Officer Koch ordered Jarrett not to grab the weapon but Jarrett refused to comply. Jarrett reached down and grabbed the shotgun. Afraid that Jarrett would try to shoot him, Officer Koch fired approximately two to three gunshots at Jarrett. Jarrett turned and ran west with the shotgun. Witness #1 and his girlfriend, Witness #2, were driving home and witnessed part of the physical altercation. Witness #1 and Witness #2 did not see any object in Jarrett s hands as he ran from Officer Koch. Likewise, Witness #3, a friend of Jarrett, heard the initial gunshots and saw Jarrett running from Officer Koch. Witness #3 did not see any object in Jarrett s hands as he ran from Officer Koch. As Jarrett was running, Jarrett turned to look towards Officer Koch. Afraid that Jarrett would try to shoot him with the shotgun, Officer Koch fired approximately two to three more rounds at Jarrett. Officer Koch continued to chase after Jarrett as he ran west towards the east sidewalk of Mountain View Avenue. Jarrett turned towards Officer Koch a third time. Afraid for his physical safety, Officer Koch fired approximately two more rounds at Jarrett. Officer Koch estimated Jarrett was fifteen feet from him when those last rounds were fired. Jarrett ultimately collapsed near Mountain View Avenue. Officer Koch immediately requested medical aid for Jarrett. Officer Stacy Moreno arrived at the scene soon after the shooting. Officer Moreno saw Officer Koch had his 3

4 service pistol pointed downward at Jarrett, who was laying on the ground. As she moved closer to Officer Koch s position, Officer Moreno noticed a pistol grip pump shotgun laying on the ground next to Jarrett. Officer Moreno handcuffed Jarrett. Officers administered first aid to Jarrett until medical personnel arrived at the scene. Jarrett was subsequently transported to Saint Bernardine Medical Center where he was later pronounced deceased. WITNESSES AND CORROBORATION On July 17, 2016, at around 12:22 in the morning, Witness #1 was interviewed by Detective William Flesher. On July 16, 2016, Witness #1 and his girlfriend, Witness #2, were driving on Highland Avenue towards Mountain View Avenue. Witness #1 was driving and Witness #2 was seated in the front passenger seat. The two were returning home from the pharmacy when Witness #2 heard a struggle coming from the parking lot on the north side of Highland Avenue. Witness #1 looked to his right and saw a uniformed police officer, Officer Brandon Koch, and another individual, later identified as Cody Jarrett, struggling. Witness #1 said it appeared that both Officer Koch and Jarrett had just stood up from the ground. Witness #1 heard yelling but was not able to determine what was being said. Witness #1 slowed down so he could see what was happening. Witness #1 could not see Jarrett s hand. Witness #1 said it appeared to him that an altercation was taking place between Officer Koch and Jarrett at the rear of the police vehicle. Witness #1 said Officer Koch tased Jarrett, causing Jarrett to go part of the way down to the ground. Witness #1 then saw Jarrett get up and start running. Witness #1 said Officer Koch removed his firearm from its holster. Next, Witness #1 heard a couple of gunshots and after a short pause heard two more gunshots. Witness #1 said Jarrett then went down to the ground. Witness #1 did not see the actual shooting. Witness #1 said he could not tell if Jarrett was holding anything in his hands because Witness #1 s view was obstructed by Officer Koch s police vehicle. Witness #1 continued driving westbound on Highland Avenue through the intersection of Mountain View Avenue before he stopped against the north curb. On July 16, 2016, at approximately 11:50 in the evening, Witness #2 was interviewed by Detective William Flesher. On July 16, 2016, Witness #2 and her boyfriend, Witness #1, were on their way home from the pharmacy. Witness #1 was driving and Witness #2 was seated in the front passenger seat of the vehicle. They were stopped for a red light on Highland Avenue at Mountain View Avenue just prior to the shooting. Witness #2 s attention was diverted to a disturbance in the parking lot north of Highland Avenue east of the business. 4

5 Witness #2 said the altercation was between a uniformed police officer, Officer Brandon Koch, and another individual, later identified as Cody Jarrett. It appeared that Officer Koch and Jarrett were on the ground fighting. Jarrett stood up and Witness #2 heard Officer Koch yelling, Stay down. Stay down. During the fight, Jarrett was tased by Officer Koch. Jarrett fell to the ground when he was tased. Witness #2 said that prior to Jarrett being tased, Officer Koch grabbed Jarrett several times and threw Jarrett to the ground. Witness #2 said Jarrett continued to get up and tried to run every time he was grabbed by Officer Koch and thrown back on the ground. Witness #2 said Jarrett got back up again after being tased. Witness #2 could hear Officer Koch yelling at Jarrett but was unable to make out what exactly was being said. Witness #2 was unable to see anything in Jarrett s hands because there were vehicles obstructing her view. After Jarrett got back up from the ground, Witness #2 said Jarrett started running toward the back of the business and Mountain View Avenue in a westerly direction. Witness #2 saw Officer Koch remove his firearm from his holster and point it towards Jarrett, who was out of her view. Witness #1 continued to drive westbound on Highland Avenue when the light changed to green. Witness #2 heard two gunshots. Witness #2 did not actually see Officer Koch fire his gun at Jarrett. As Witness #1 and Witness #2 drove through the intersection, Witness #2 saw Jarrett falling to the ground near the east curb of Mountain View Avenue. Witness #1 and Witness #2 exited their vehicle and walked back to the intersection where Witness #2 saw a uniformed police officer performing CPR on Jarrett. On August 24, 2016, at approximately 3:20 in the afternoon, Witness #3 was interviewed by Detective William Flesher. Witness #3 knew Cody Jarrett for approximately twelve years. Witness #3 said that Jarrett was a UFC fighter for approximately four and a half years. Witness #3 said Jarrett was a very gentle person and would not fight with anyone unless provoked or Jarrett was defending someone. Witness #3 indicated he was homeless and stayed in the area behind the beauty salon located at the northwest corner of Highland Avenue and Mountain View Avenue. The beauty salon is located directly across the street from the MT & H Market. Witness #3 indicated he did not witness the vehicle stop, Jarrett being tased, or the initial gunfire. On July 16, 2016, Witness #3 was seated on the curb of the first parking stall next to the dumpster enclosure behind the beauty salon facing east. Witness #3 heard two explosions, which he initially believed were M-80 firecrackers. Witness #3 jumped up from the curb and looked east in the direction where he heard the explosions. Witness #3 saw Jarrett running in a westerly direction around the northeast corner of MT & H Market. 5

6 Jarrett ran in a westerly direction along the north side of the business towards Mountain View Avenue. Witness #3 saw a uniformed police officer, Officer Brandon Koch, running after Jarrett. Officer Koch had his handgun out and pointed at Jarrett. Witness #3 said Officer Koch started shooting at Jarrett while they were still running. Based on Jarrett s body movements, Witness #3 believed Jarrett was struck each time Officer Koch fired his weapon. Jarrett continued to run towards Mountain View Avenue. Witness #3 did not observe Jarrett turn towards Officer Koch at any time during the foot chase or at the time of the shooting. Witness #3 never saw a weapon or any object in Jarrett s hands while Jarrett was running away from police or when the shooting occurred. Witness #3 said Officer Koch continued to shoot at Jarrett until Jarrett reached the east curb of Mountain View Avenue and collapsed face first onto the roadway. Witness #3 did not hear any yelling or commands from Officer Koch prior to the shooting. Witness #3 said he did not hear anything metallic fall to the ground during the foot pursuit or when the shooting occurred. After Jarrett collapsed on the ground, Witness #3 said Officer Koch unloaded his ammunition magazine and loaded it with another ammunition magazine. Officer Koch then pointed the handgun at Jarrett and yelled, Don t move. I m here to help you. Officer Koch remained standing on the sidewalk east of where Jarrett fell to the ground. Witness #3 saw another uniformed male officer running from the location where he first observed Officer Koch chasing Jarrett. Witness #3 left the location with his friend who had returned from the 7-Eleven just after the shooting. Witness #3 did not see anyone handcuff Jarrett nor did he see anyone administer CPR to Jarrett. On July 17, 2016, at approximately 12:50 in the morning, Officer Stacy Moreno was interviewed by Detective William Flesher. On July 16, 2016, Officer Moreno, from the San Bernardino Police Department, was assigned to patrol. Officer Moreno was wearing a San Bernardino Police Department uniform and driving a marked patrol vehicle on that date. On July 16, 2016, Officer Moreno and Officer Brandon Koch had just cleared a call for service on Mountain View Avenue near Highland Avenue. Officer Moreno and Officer Koch left the location at the same time. As Officer Moreno was driving, she heard Officer Koch call out a vehicle stop on an occupied stolen vehicle on Highland Avenue and Mountain View Avenue. Officer Moreno made a U-turn and drove eastbound on Highland Avenue looking for Officer Koch s patrol vehicle. As Officer Moreno drove through the intersection of Mountain View Avenue, she saw Officer Koch s patrol vehicle stopped in the east parking lot of the business located at the northwest corner of Highland Avenue and Mountain View Avenue. Officer Moreno did not see Officer Koch. Officer Moreno heard approximately five to six gunshots. Officer Moreno pulled into the driveway and saw a light-colored Honda with the driver s door open. The Honda was stopped in a westerly direction northwest of Officer Koch s patrol vehicle. Officer Moreno saw another vehicle 6

7 was stopped on Highland Avenue at the same time she got out of her patrol vehicle. The occupants of the vehicle directed Officer Moreno towards the rear of the business and said, They re over there. They re over there. Officer Moreno continued to the north side of the business. She saw Officer Koch s Taser on the ground near the northeast corner of the business. Officer Moreno then saw Officer Koch near the Mountain View Avenue entrance to the northeast corner of the business. Officer Koch had his duty weapon pointed downward towards the suspect, later identified as Cody Jarrett, who was lying on the ground. When Officer Moreno got closer to Officer Koch, she saw Jarret in a prone position with a pistol grip pump shotgun lying on the ground next to him. Officer Moreno handcuffed Jarrett and then ran back to Officer Koch s patrol vehicle to look for the trauma kit. Officer Moreno was unable to find the trauma kit. When Officer Moreno returned to Officer Koch s location, paramedics were on scene and doing cardiopulmonary resuscitation (CPR) on Jarrett. On July 17, 2016, at approximately 1:15 in the morning, Officer Brandon Koch was interviewed by Detective William Flesher. On July 16, 2016, Officer Brandon Koch, from San Bernardino Police Department, was assigned to patrol. Officer Koch was wearing a San Bernardino Police Department uniform and driving a marked patrol vehicle on that date. On July 16, 2016, Officer Koch and Officer Stacy Moreno had just cleared a call for service regarding a person standing in the roadway of Mountain View Avenue. Officer Koch was turning westbound onto Highland Avenue when he saw an older model Honda. Officer Koch saw the driver, later identified as Cody Jarrett, quickly look at him and then look away. Officer Koch made a U-turn and started to follow Jarrett. Officer Koch ran the license plate of the Honda and learned the vehicle had been reported stolen. Officer Koch put out over the radio his location and followed Jarrett into the driveway that runs along the east side of a convenience store. Jarrett pulled into a parking stall. Officer Koch activated the emergency lights on his patrol vehicle. Officer Koch exited his patrol vehicle and pointed his duty weapon at Jarrett. Officer Koch yelled at Jarret not to move. Jarrett looked at officer Koch. Officer Koch saw Jarrett grab something from his vehicle. Officer Koch yelled at Jarrett to stay in the vehicle and to show Officer Koch his hands. Jarrett opened the driver s side door of the vehicle. Officer Koch again ordered Jarrett to stay inside the vehicle but Jarrett did not obey Officer Koch s commands. Jarrett got out of the vehicle holding an object, approximately two feet in length, in his left hand up against his chest. Officer Koch believed the object was a small baseball bat. Jarrett turned east and ran along the driver s side of the stolen vehicle. Officer Koch warned Jarrett that if he ran, Officer Koch was going to tase him. Jarrett began to run north at which time, Officer Koch deployed his Taser. Jarrett was approximately ten to 7

8 fifteen feet away from Officer Koch when Officer Koch deployed his Taser. Jarrett fell to the ground. Officer Koch ordered Jarrett to stop moving. Jarrett was still holding the object up against his chest. Jarrett stood up and started running in a southeast direction towards Officer Koch who was standing near the front of his patrol vehicle. Officer Koch could still see the object he believed to be a small baseball bat in Jarrett s hand. Officer Koch deployed a charge on his Taser a second time. Jarrett fell to the ground. Jarrett was approximately five feet away from Officer Koch when Officer Koch deployed the second charge on his Taser. Officer Koch yelled at Jarrett to stay on the ground. At that time, Officer Koch could see that Jarrett was still holding the object, which now looked like a small bat or possibly a stick, in his left hand. Officer Koch was afraid that Jarrett was going to get up and use the object as a weapon. Officer Koch kicked Jarrett one time in the upper torso as Jarrett was laying on his stomach. The kick was ineffective and Jarrett stood back up. During the altercation, Officer Koch tried to Taser Jarrett a third time. Jarrett dropped the weapon and took ahold of the Taser wires and ripped them apart. Officer Koch yelled at Jarrett not to grab the weapon. Jarrett reached down to pick up the weapon. At that time, Officer Koch saw that the weapon was not a small baseball bat or stick but was in fact a sawed-off pistol grip shotgun. Officer Koch yelled at Jarrett, Don t touch it or Don t pick it up. Jarrett looked at Officer Koch and then looked at the weapon. Jarrett reached down and picked the shotgun up off the ground. Officer Koch feared Jarrett was going to shoot him and fired approximately two to three gunshots at Jarrett. Jarrett was approximately ten to fifteen feet away from Officer Koch. After the gunshots, Jarrett was still holding onto the shotgun. Jarrett turned to run west. As Jarrett turned around west, Officer Koch noticed a vehicle with its headlights on stopped partially in the driveway. Officer Koch believed the vehicle was occupied. Jarrett ran to the front of that vehicle. As Jarrett ran in front of the vehicle, Jarrett turned to look towards Officer Koch. Officer Koch was afraid Jarrett would point the shotgun at him and fired approximately two or three more rounds at Jarrett. Jarrett continued to run west. Officer Koch estimated they were approximately thirty to forty feet from the east sidewalk of Mountain View Avenue. Officer Koch knew there was a lot of pedestrian traffic near the area of Mountain View Avenue and Highland Avenue. Jarrett started running towards Mountain View Avenue. Jarrett again turned towards Officer Koch. As Jarrett turned towards him, Officer Koch fired approximately two more rounds at Jarrett. Jarrett was approximately fifteen feet away from Officer Koch. Jarrett was still holding the shotgun as he ran. Jarrett collapsed in the street near the east gutter line. As Jarrett fell onto his stomach he dropped the shotgun approximately two feet south of him. Officer Koch could not see Jarrett s hands. Officer Koch yelled, Let me see your hands. I want to get you help. Just show me your hands. I want to get you help. Several seconds later, Officer Moreno came running up from behind Officer Koch. 8

9 Officer Koch noticed two more officers arrive at the scene. Officer Koch and Officer Moreno handcuffed Jarrett. Officer Koch requested paramedics for Jarrett. Officer Koch put on gloves and check Jarrett for his pulse. Officer Koch rolled Jarrett onto his back. Officer Koch felt a pulse but noticed Jarrett was not breathing. Officer Koch began administering chest compressions. Officer Jose Loera eventually took over administering chest compressions to Jarrett. Surveillance Video Surveillance video was obtained from MT & H Market located at *** W. Highland Avenue. Part of the incident under review was captured on the video recording. The shooting was not captured on the video. There is no audio on the video recording. The quality of the video is poor. The video shows a parking lot with a few cars parked in parking stalls. A vehicle with its headlights turned on can be seen driving slowly in the parking lot. The vehicle stops and then drives in reverse for a short distance before stopping in the middle of the parking lot. The video shows Cody Jarrett running west on the north side of the business past the stopped vehicle. Jarrett appears to be holding a long metal object in his left hand as he is running. Officer Brandon Koch can also be seen running after Jarrett while pointing his handgun at Jarrett. The vehicle then pulls forward and drives out of view of the camera. Weapon Savage Arms 12-gauge pump, Model 69, Series E, shotgun, with Serial No. D The barrel of the shotgun had been modified and shortened and was fully loaded with 12-gauge shot shells containing birdshot. Death Cody Jarrett was pronounced deceased at Saint Bernardine Medical Center at 2201 hours by Witness #4. Postmortem Examinations Dr. Frank Sheridan, Chief Forensic Pathologist for the Coroner Division of the San Bernardino County Sheriff s Department, conducted the autopsy of Cody Jarrett on July 22, Dr. Sheridan noted multiple gunshot wounds to Jarrett s body. There were four gunshot wounds in the front of the chest and abdomen. The uppermost gunshot wound on the front of the torso was situated on the anterior aspect of the right shoulder. This was an entry wound. The trajectory is front to back and very 9

10 slightly downward. There was another gunshot wound in the upper right pectoral area, approximately 3 ½ inches downward and medially from the above wound. This was an entry wound. The trajectory of the wound was front to back, right to left, and slightly downward. There was another gunshot wound in the axillary fold of the upper left chest. That wound appeared to be a re-entry wound from a through and through wound of the left arm. There was another gunshot wound on the left side of the abdomen. Dr. Sheridan noted a gunshot wound in the left lower posterolateral abdominal wall. This wound was an entry wound. The trajectory of the wound was back to front and slightly upward through the abdominal wall muscles. Dr. Sheridan also observed some superficial blunt force injuries on the right side of Jarrett s chest and abdomen. Dr. Sheridan noted a gunshot wound on the posterolateral aspect of the distal left upper arm just above the elbow. This wound was consistent with an entry wound. There was an exit wound on the anteromedial aspect of the left upper arm. The bullet path from the wound above the elbow goes through the soft tissues of the arm, exiting the upper arm and re-entering in the left anterior axillary fold at the re-entry wound in the upper left chest. Dr. Sheridan noted the trajectory of the wound indicated that Jarrett s left arm was raised at the time of the gunshot wound. Dr. Sheridan determined the cause of death was gunshot wound of the chest and death was within minutes. Toxicology Left Femoral Blood, Urine, and Vitreous samples were collected from Jarrett. Toxicology results for the left femoral blood sample: 0.15% alcohol (ethanol), presumptive positive for amphetamines, 0.24 mg/l methamphetamine, 0.03 mg/l amphetamine, and presumptive positive for cannabinoids, 3.0 ng/ml Delta 9-THC, 11 ng/ml Delta 9-Carboxy THC. Toxicology results for the vitreous sample: 0.17% alcohol (ethanol). California Penal Code section 834a APPLICABLE LEGAL STANDARDS Laws of Arrest If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest. 10

11 California Penal Code section 835 An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subject to such restraint as is reasonable for his arrest and detention. California Penal Code section 835a Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to selfdefense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. Laws of Self-Defense The legal doctrine of self-defense is codified in Penal Code Sections 197 through 199. Those sections state in pertinent part: Where from the nature of an attack a person, as a reasonable person, is justified in believing that his assailant intends to commit a felony upon him, he has a right in defense of his person to use all force necessary to repel the assault; he is not bound to retreat but may stand his ground; and he has a right in defense of his person to repel the assault upon him even to taking the life of his adversary. (People v. Collins (***1) 189 CA 2d 575, 1 Cal Reptr. 504). Justification does not depend on the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and the defendant act out of that fear (Penal Code Sec. 19; People v. Clark (1982) 130 CA 3d 371, 277, 181 Cal. Reptr. 682 California Penal Code section 197 (Summarized in pertinent part) Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. 11

12 CAL CRIM 3470 (REVISED JUNE 2007) RIGHT TO SELF-DEFENSE OR DEFENSE OF ANOTHER Self-defense is a defense to the unlawful killing of a Human Being. A person is not guilty of that/those crimes if he/she used force against the other person in lawful self-defense or defense of another. A person acts in lawful self-defense or defense of another if: 1. The person reasonably believed that he/she or someone else was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; 2. The person reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3. The person used no more force than was reasonably necessary to defend against that danger. When deciding whether a person s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the person and consider what a reasonable person in a similar situation with similar knowledge would have believed. If The person s beliefs were reasonable, the danger does not need to have actually existed. The person s belief that he/she or someone else was threatened may be reasonable even if he/she relied on information that was not true. However, the person must actually and reasonably have believed that the information was true. A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death/bodily injury has passed. This is so even if safety could have been achieved by retreating. USE OF DEADLY FORCE BY A PEACE OFFICER Authorization of the use of Deadly Force is analyzed under the Fourth Amendment's objective reasonableness standard. Brosseau v. Haugen, 543 U.S. 194, This question is governed by the principles enunciated in Tennessee v. Garner, (1985) 471 U.S. 1 and Graham v. Connor (1989) 490 U.S In these decisions, the US Supreme explained it is unreasonable for an officer to seize an unarmed, non-dangerous suspect by shooting him dead.. However, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. (Tennessee v. Garner supra) 12

13 Reasonableness is an objective analysis and must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. It is also highly deferential to the police officer's need to protect himself and others. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary. Graham, 490 U.S. at 396,. The question is whether the officer s actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at 397. The US Supreme Court in Graham set forth factors that should be considered in determining reasonableness: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. The question is whether the totality of the circumstances justifies a particular sort of... seizure. (See also Billington v. Smith, ( th Cir) 292 F.3d 1177, 1184.) The most important of these factors is the threat posed by the suspect. Smith v. City of Hemet, (9 th Cir. 2005) 394 F.3d 689. Thus, under Graham, the high court advised we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. (Smith v. Freland (6th Cir.1992) 954 F.2d 343, 347. Reasonableness: The Two Prongs Section 197(3) requires that one who employs lethal force have a reasonable ground to apprehend great bodily injury. Further, section 198 requires that such fear be sufficient to excite the fears of a reasonable man, clearly an objective standard. In shorthand, perfect self-defense requires both subjective honesty and objective reasonableness. When specific conduct is examined under the analytical standard of reasonableness the concepts of apparent necessity and mistake are invariably, and necessarily, discussed, for they are part of the same equation. Reasonableness, after all, implies potential human fallibility. The law recognizes, as to self defense, that what is being put to the test is human reaction to emotionally charged, highly stressful events, not mathematical axioms, scientifically provable and capable of exact duplication. Justification does not depend upon the existence of actual anger but rather depends on appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant act out of that fear. [Citation.] He may act upon such appearances with safety; and if without fault or 13

14 carelessness he is misled concerning them, and defends himself correctly according to what he supposes the facts to be, his act is justifiable, though the facts were in truth otherwise, and though he was mistaken in his judgment as to such actual necessity at such time and really had no occasion for the use of extreme measures. People v. Clark (1982) 130 Cal.App.3d 371, 377,181 Cal.Rptr While the test, as mandated by section 198, is objective, reasonableness is determined from the point of view of a reasonable person in the defendant s position. [A] defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind.... What is reasonable under the circumstances is judged from the point of view of a reasonable person in the position of defendant. Reasonableness is judged by how the situation appeared to the defendant, not the victim. Imminence of Perceived Danger Imminence is a critical component of both prongs of self-defense. Response with deadly force must be predicated on a danger that portends imminent death or great bodily injury. Reasonableness and immediacy of threat are intertwined. Self-defense is based on the reasonable appearance of imminent peril of death of, or serious bodily injury to the party assailed.... In Aris, trial court s clarifying instruction to the jury on the subject was to the point and later cited with approval by the California Supreme Court: An imminent peril is one that, from appearances, must be instantly dealt with. [People v. In re Christian S. (1994) 7 Cal. 4 th 768,783] The question is whether action was instantly required to avoid death or great bodily injury. In this regard, there is no duty to wait until an injury has been inflicted to be sure that deadly force is indeed appropriate. Retreat and Avoidance Under California law one who is faced with an assault that conveys death or great bodily injury may stand his ground and employ lethal force in self-defense. There is no duty to retreat even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene. Indeed, in California the retreat rule has been expanded to encompass a reasonably perceived necessity to pursue an assailant to secure oneself from danger. [See People v. Holt (1944) 25 Cal.2d 59, 63 and People v. Collins (***1) 189 Cal. App.2d 575, 588] Nature and Level of Force [A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances. [See People v. Gleghorn (1987) 193 Cal.App.3d ***, 200, People v. 14

15 Minifie (1996)13 Cal.4 th 1055,1065, People v. Moody (1943) 62 Cal.App.2d 476, 482 and People v. Moody(1943) 62 Cal.App.2d 18,22] Case law does not impose a duty to use less lethal options. Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh into nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety. [People v. Collins (***1) 189 Cal. App.2d 575, 589] The rationale for vesting the police officer with such discretion was explained: Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment. [Scott v. Henrich (1994) 39 F.3d 912, 915] In summary, an honest and objectively reasonable belief that lethal force is necessary to avoid what appears to be an imminent threat of death or great bodily injury will justify the use of deadly force. This is true even if the person acting in self-defense could have safely withdrawn or had available to him a less lethal means of defense. ANALYSIS On July 16, 2016, Officer Koch was assigned to patrol. Officer Koch was wearing a San Bernardino Police Department uniform and driving a marked patrol vehicle near the area of Mountain View Avenue and Highland Avenue. Officer Koch had just cleared a call for service and was turning onto Highland Avenue when he noticed an older model Honda. The driver of the Honda, later identified as Cody Jarrett, quickly looked at Officer Koch and then turned away. Officer Koch ran the license plate of the Honda and learned the vehicle had been reported stolen. Officer Koch followed Jarrett as Jarrett turned north into the parking lot of MT & H Market located at *** West Highland Avenue. Jarrett pulled the stolen Honda into a parking stall on the east side of the business and came to a stop facing west. Officer 15

16 Koch pulled into the parking lot and activated the emergency lights on his patrol vehicle. Officer Koch pointed his duty weapon at Jarrett and ordered Jarrett not to move. Jarrett looked at Officer Koch and then reached back into the vehicle and grabbed something from the passenger side of the vehicle. Officer Koch ordered Jarrett to show his hands and to stay in the vehicle. Jarrett did not comply. Instead, Jarrett opened the driver s side door and got out of the vehicle. Jarrett had an object, approximately two feet in length compressed against his chest. Officer Koch believed Jarrett was holding a small aluminum baseball bat. Jarrett turned east and ran down the driver s side of the stolen Honda. Officer Koch warned Jarrett that he would be tased if he ran. Jarrett started to run north and Officer Koch deployed his Taser. Jarrett fell to the ground. Officer Koch ordered Jarrett to stop moving. Jarrett still had a hold of the object Officer Koch believed was a baseball bat. Jarrett stood up and started to run in a southeast direction towards Officer Koch. Officer Koch deployed his Taser a second time. Jarrett fell to the ground again. Jarrett still had a hold of the object in his left hand. Officer Koch kicked Jarrett in the torso but Jarrett stood back up. Officer Koch tried unsuccessfully to Taser Jarrett a third time. During the physical altercation, Jarrett dropped the weapon and Officer Koch quickly realized the object he believed was a small aluminum baseball bat was in fact a sawedoff shotgun. Officer Koch ordered Jarrett not to grab the weapon but Jarrett refused to comply. Jarrett reached down and grabbed the shotgun. Afraid that Jarrett would try to shoot him, Officer Koch fired approximately two to three gunshots at Jarrett. Jarrett turned and ran west with the shotgun. As Jarrett was running, Jarrett turned to look towards Officer Koch. Afraid that Jarrett would try to shoot him with the shotgun, Officer Koch fired approximately two to three more rounds at Jarrett. Officer Koch continued to chase after Jarrett as Jarrett ran west towards the east sidewalk of Mountain View Avenue. Jarrett turned towards Officer Koch a third time. Afraid for his physical safety, Officer Koch fired approximately two more rounds at Jarrett. Officer Koch estimated Jarrett was fifteen feet away when he fired the last round of gunshots. Jarrett ultimately collapsed near Mountain View Avenue and was later transported to the hospital where he was pronounced deceased. In this case, Officer Koch had an honest and objectively reasonable belief that the use of lethal force was necessary to prevent Jarrett from seriously injuring or killing him. Officer Koch reasonably believed Jarrett posed an imminent threat to his physical safety. Jarrett was driving a stolen vehicle when he was contacted by Officer Koch. Jarrett then armed himself with a sawed-off shotgun and attempted to flee the scene. Jarrett was completely uncooperative with Officer Koch throughout the incident under review. Officer Koch ordered Jarrett not to touch or grab the sawed-off shotgun which had fallen to the ground during their physical altercation. Jarrett refused to comply with Officer Koch s commands and picked up the sawed-off shotgun from the ground. The civilian 16

17 witnesses, Witness #1, Witness #3, and Witness #2 indicated in their respective interviews that they did not see any weapon in Jarrett s hands when he was running from Officer Koch. However, surveillance video was obtained from MT & H Market located at *** W. Highland Avenue. Although of poor quality, the surveillance video clearly showed a long metallic object in Jarrett s left hand as he ran from Officer Koch. Officer Koch knew it would only take Jarrett seconds to quickly turn and fire the shotgun at him. If there was any type of buckshot rounds in the shotgun, Officer Koch knew he could easily be struck and killed. It was reasonable for Officer Koch to believe Jarrett would shoot him given the fact that Jarrett armed himself with a weapon prior to exiting the stolen vehicle, Jarrett physically struggled with Officer Koch attempting to flee, Jarrett was determined to keep possession of the shotgun, and Jarrett refused to comply with Officer Koch s orders. Any officer under those circumstances would have made the same reasonable decision to fire their weapon. Thus, Officer Koch s decision to use deadly force was justified. CONCLUSION Based on the facts presented in the reports and the applicable law, Officer Koch s use of deadly force was a proper exercise of Officer Koch s right of self-defense and therefore his actions were legally justified. Lynette Grulke Deputy District Attorney Rancho Cucamonga Office Date Terry Brown Supervising Deputy District Attorney San Bernardino Office Date Simon Umscheid Chief Deputy District Attorney Central Division Date Mary Ashley Assistant Deputy District Attorney Central Division Date 17