District attorney: Sheriff’s deputies justified in fatal November shooting

Monday, 16 February 2015 00:05 Lake County News Reports

(This report originally appeared at http://www.lakeconews.com/index.php?option=com_content&view=article&id=40562:district-attorney-sheriffs-deputies-justified-in-fatal-november-shooting&catid=1:latest&Itemid=197)

LAKE COUNTY, Calif. – Lake County’s district attorney has ruled that two sheriff’s deputies were justified in shooting a Lucerne man last fall after he charged them with a knife.

On Sunday District Attorney Don Anderson issued his report on the fatal shooting of Christopher Keith O’Neal, 57.

O’Neal was shot a total of seven times by Sgt. Gary Frace and Deputy Victor Rico on the night of Nov. 9, according to Anderson’s report.

Anderson’s investigation concluded that O’Neal had decided to commit “suicide by cop,” based on his actions and the statements of witnesses, including his wife.

Frace and Rico responded to the O’Neal home on 16th Avenue in Lucerne late that night on the report of a domestic dispute.

Anderson said O’Neal initiated the report – calling law enforcement under a false name from his in-laws’ home across the street – in an effort to have the deputies shoot and kill him.

After making the call, O’Neal went back to his residence and told his wife that he wanted to die and wanted the police to kill him. He subsequently obtained a large kitchen knife and went to the front porch to confront the deputies.

Despite being given multiple commands by the deputies to stop, O’Neal made threats against the deputies and then charged them, carrying a 10-inch kitchen knife, with Frace and Rico ultimately shooting him to death, Anderson said.

O’Neal’s autopsy found he had been shot three times in the leg and four times in the body cavity, where one bullet lacerated the heart and lungs and another lacerated the liver and kidney, Anderson reported.

Anderson said there were no previous domestic disturbances reported between the O’Neals.

Christopher O’Neal had one previous arrest in October 1997 for wielding a knife at deputies; Anderson said deputies used pepper spray on O’Neal before taking him into custody in that instance.

According to Anderson’s findings, O’Neal was suffering from depression.

His state of mind was impacted by his belief – which authorities have not been able to confirm – that he had cancer, as well as the death the previous month of his last living sibling, a sister.

After his sister’s death, O’Neal had begun drinking heavily, Anderson reported. On the night of the shooting, O’Neal had a very high blood alcohol level of 0.34 percent, more than four times the legal limit for driving.

O’Neal also was reported to be a survivor of the November 1978 Jonestown Massacre in Jonestown, Guyana.

The 36th anniversary of that event was nine days after his death, and Anderson reported that O’Neal was said to have had night terrors due to his memories of those events, and was depressed as the anniversary drew near.

Anderson said the deputies believed that had O’Neal reached them, he would have killed or seriously injured them.

“O’Neal’s violent conduct, threats and ability to cause violent injury, was such that a reasonable person in the same situation would be in actual fear of their life or being inflicted with great bodily harm,” Anderson wrote.

With O’Neal intending to commit suicide by cop, the deputies “were immediately confronted with an imminent threat of death to not only themselves, but their fellow officer. The deputies had no other reasonable choice but to shoot their attacker.”

Anderson concluded, “It is the findings of the Lake County District Attorney the taking of Christopher Keith O’Neal’s life was justifiable homicide pursuant Penal Code Sections 196 and 197 and relevant case law.”

Anderson’s report is published, in its entirety, below.

 

February 15, 2015

LAKE COUNTY DISTRICT ATTORNEY’S FINAL REPORT

REGARDING OFFICER INVOLVED SHOOTING OF

CHRISTOPHER KEITH O’NEAL ON NOVEMBER 9, 2014

 

SUMMARY

On November 9, 2014, Deputies Gary Frace and Victor Rico of the Lake County Sheriff’s Department responded to a report of a domestic dispute in progress at 6217 Sixteenth Street, Lucerne California. The report was initiated by Christopher Keith O’Neal in an effort to have the deputies shoot and kill him.

When the deputies arrived Christopher O’Neal charged at them with a large kitchen knife with a ten inch blade. Despite orders by the deputies to drop the knife, O’Neal continued to charge at them in a threatening manner. The deputies shot O’Neal seven times as he entered their “safety zone” while still wielding the knife. O’Neal was pronounced dead at the scene.

It is the finding of this office that the killing of Christopher Keith O’Neal was justifiable homicide pursuant to California Penal Code Section 196 and 197. The death was a direct result of Christopher Keith O’Neal attempt to “commit suicide by cop”.

PROCEDURES

Pursuant to the Lake County Law Enforcement Fatal Incident Protocol of 2013, the Lake County District Attorney Investigation Division conducted the investigation into the incident with the assistance and cooperation of the Lake County Sheriff’s Department. This report and findings are conducted pursuant to California State law as well as the Lake County Law Enforcement Fatal Incident Protocol.

The below facts and findings is the product of this investigation which includes the statements of the officers and numerous witnesses to the incident; Department of Justice laboratory results; and the crime scene investigation.

FACTS

On November 9, 2014, Christopher Keith O’Neal, age 57, was at his residence with his wife off and on during day. Later that evening, at about 10:00 p.m., O’Neal returned to the residence and was in a very intoxicated condition.

O’Neal told his wife that he did not have long to live because he thought he had cancer, a fact that can not be confirmed. O’Neal became argumentative with his wife and started calling her names. O’Neal then slapped his wife across the face. O’Neal left the residence when his wife told him she was calling the police. There are no prior reports of domestic violence between the O’Neal’s, and Mrs. O’Neal said that he has never been violent towards her.

O’Neal went across the street to his in-laws and called the Sheriff’s Department’s 911 dispatcher. O’Neal used a false name and reported there was a domestic disturbance at the O’Neal residence. He told the dispatcher he saw Chris O’Neal raise his hand and strike his wife. He was requesting the Sheriff’s Department send some deputies.

O’Neal returned to his residence and continued arguing with his wife. O’Neal told his wife “I’m gonna make the cops kill me!”, “I’m gonna make them shoot me” and told her the police were on their way. O’Neal then went into the kitchen and obtained large kitchen knife with a ten inch blade. His wife tried to talk him into putting the knife down. but he walked out the door onto the porch.

At approximately that time Deputies Gary Frace and Victor Rico pulled up to the residence. They heard O’Neal arguing with his wife which appeared to be escalating. The deputies entered a short distance into the fenced in yard when they saw O’Neal on the front porch holding the knife. The deputies told him several time to drop the knife, but O’Neal refused and said a couple of times “I’m coming after you guys” and that he was not going to drop the knife.

O’Neal started charging the deputies in a threatening manner with the knife still in one hand and the other hand with a clinched fist. The deputies drew their firearms while he was on the porch, told him to drop the knife and took defensive positions. As O’Neal continued charging at the deputies, deputy Rico backed up as far as he could until his back was against the fence. Despite orders to stop and drop the knife O’Neal continued to charge at them.

When O’Neal reached an area within the deputies’ safety zone, both deputies discharged their firearms, striking O’Neal seven times. Deputy Frace fired a total of six shot and deputy Rico four shots. O’Neal fell to the ground on the walkway. The deputies attempted to administer life saving first aid and called for paramedics; however, O’Neal was pronounced dead at the scene.

The above accounts of the incident have been verified by statements from Mrs. O’Neal, the deputies, four independent witnesses and the 911 telephone call. Used in the investigation is the District Attorney’s Office’s three dimensional crime scene scanner, therefore, the below measurements, diagrams and photos are accurate and to scale.

The front yard to the O’Neal residence is approximately 45 feet from the gate to the front porch. O’Neal charged at the deputies from the front porch to the point where he fell, a total of 25.287 feet.

O’Neal came 11.950 feet to Deputy Frace and 17.977 feet to Deputy Rico, where O’Neal came to rest.

The knife was found 5.480 feet from O’Neal’s body.

Two witnesses to the incident were able to clearly see the events from a distance of 134.610 feet from O’Neal’s body and 103.383 feet to the front porch.

Autopsy and medical reports indicate O’Neal’s blood alcohol level was 0.34% which is over four time the limit to drive a motor vehicle. O’Neal was shot a total of seven time. Three were in the leg and foot and four were in the body cavity. One bullet to the body cavity lacerated the heart and lungs; another lacerated the liver and kidney. The official cause of death is listed as “multiple gunshots.”

A personal history of Christopher O’Neal revealed he was suffering from depression. He had told his wife he did not have long to live and he did not want to live any longer. O’Neal believed he had colon cancer and said he had watched his father die a terrible death from colon cancer and “did not want to go out that way.”

Christopher O’Neal started drinking heavily after his sister, and last living sibling, died in October of 2014. Additionally, it appears O’Neal was a survivor of the November 18, 1978 Jonestown Massacre in Guyana, from which he suffered night terrors. At the time of the massacre he was 18 years old. He had to identify several of the Jonestown bodies and had appeared in many documentaries about the massacre. He appeared to be depressed about the incident which 36th anniversary was a week away.

LEGAL ANALYSIS

The relevant California statutory and case law regarding this matter is set forth below.

California Penal Code Section 197 states in 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; or,…
  1. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,…”

The test for determining justifiable homicide is apparent necessity, i.e., an honest and reasonable belief in the apparent peril and the need for self defense is enough. The means used, whether deadly or nondeadly force, must be reasonable under the circumstances. In People v. Sonier (1952) 113 Cal.App.2d 277, 278 the court held “The justification of self defense requires a double showing: that defendant was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.”

In People v. Escobar (1992), 3 Cal. 4th 740, 750 the court held that “It is well settled that the determination of great bodily injury is essentially a question of fact, not of law.” ‘Whether the harm resulting to the victim … constitutes great bodily injury is a question of fact for the jury.  [20]  If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.’ “citing People v. Wolcott (1983) 34 Cal.3d 92, 107 quoting People v. Salas (1976) 77 Cal.App.3d 600, 606

California Penal Code Section 196 (Justifiable homicide by public officers) states:

“Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either—

  1. In obedience to any judgment of a competent court; or,
  2. When necessarily committed in overcoming actual resistance to the execution of some legal process,     or in the discharge of any other legal duty; or,
  3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.”

In Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102, the court held that an officer “may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.” “Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties, because “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Munoz, supra, 120 Cal.App.4th at p. 1109. “‘[Police officers] are, in short, not similarly situated to the ordinary battery defendant and need not be treated the  [17] same. In these cases, then, “… the defendant police officer is in the exercise of the privilege of protecting the public peace and order [and] he is entitled to the even greater use of force than might be in the same circumstances required for self-defense.

In Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 349, the court held “The test for determining whether a homicide was justifiable under Penal Code section 196 is whether the circumstances ‘reasonably create[d] a fear of death or serious bodily harm to the officer or to another.” citing Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, and Brown v. Ransweiler, 171 Cal. App. 4th 516, 533

In this matter, Deputies Frace and Rico were dispatched to a report of a domestic disturbance between Christopher O’Neal and his wife. The actual 911 call was made by Christopher O’Neal. This call and Mr. O’Neal’s subsequent actions may have been only a cry for help; however, from the statements of Mr. O’Neal and all of the evidence of the case, the evidence points to a conclusion he intended to have the deputies kill him.

After calling the Sheriff’s Department, Mr. O’Neal went back to his residence and made statements to his wife that he wanted to die and wanted the police to kill him. He obtained a large kitchen knife and went to the front porch to confront the deputies.

When Deputies Frace and Rico entered the fenced in yard they were confronted by O’Neal from a distance of 35-40 feet. The deputies observed O’Neal with the large knife and ordered him to drop the knife. At about the same time the deputies drew their service weapons. O’Neal made a few threatening comments toward the deputies then charged toward them with the knife.

Commonly law enforcement officers are taught a “21 foot rule”. Simply stated, within 21 feet, an attacker wielding a knife can quickly cause immediate harm or death to a person. This theory creates a 21 foot safety zone for the officers.

In this matter, Deputies Frace and Rico, while ordering the charging O’Neal to drop the knife, had allowed him to get within less than 12 feet of them before firing their weapons. At what was described as the “charge” at the deputies, O’Neal would have been within range of causing great bodily injury or death to the deputies within one to two seconds.

The deputies did not appear to have less lethal alternatives than the use of their firearms. Deputy Frace did not carry a taser, and even if he did, he would have not had the time to holster his weapon, draw the taser and engage it before O’Neal reached him with the knife.

FINDINGS

Deputies Frace and Rico’s belief was that had Christopher Keith O’Neal reached them, he would have killed them or cause great bodily injury to them. O’Neal’s violent conduct, threats and ability to cause violent injury, was such that a reasonable person in the same situation would be in actual fear of their life or being inflicted with great bodily harm.

The evidence shows that Christopher Keith O’Neal intended to commit what is commonly called “suicide by cop”. In doing so, he charged at the offices with the large knife with the specific intent that they would kill him. The deputies, not knowing the intent of O’Neal, were immediately confronted with an imminent threat of death to not only themselves, but their fellow officer. The deputies had no other reasonable choice but to shoot their attacker.

It is the findings of the Lake County District Attorney the taking of Christopher Keith O’Neal’s life was justifiable homicide pursuant Penal Code Sections 196 and 197 and relevant case law.

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