Judging When a Police Shooting Is Justified

SANTA ANA â€”  As word of Joseph Pulido’s death swept through his east Santa Ana neighborhood, two facts again and again accompanied the news: The shooter was a cop, and the shot was from behind.

In a neighborhood where blue uniforms often are greeted with distrust, news that the fatal slug hit the 17-year-old in the rear, right shoulder was proof enough for many that the officer acted wrongly. As the teen’s grieving father asked, “How can this be right?�

Many of the details surrounding Pulido’s Dec. 21 shooting remain undisclosed or unconfirmed, but investigations are underway to determine whether Officer Ernie Conde was justified in shooting a suspect being pursued solely because he ran from police.

The guidelines by which Conde’s decision will be judged come from a U.S. Supreme Court decision, state law and his department’s own 11-page shooting policy, all of which lay out when the trigger can be pulled: only in self-defense, to save the life of another or to prevent the escape of a violent felony suspect.

Did the Pulido shooting fall into one of those categories? One source close to the investigation says yes, alleging that the teen--described by police as a known gang member--was aiming a stolen gun at Conde just before the officer opened fire. “He had no choice, no choice at all,� the source said.

But an attorney for the Pulido family says that account doesn’t ring true.

Family and friends believe Pulido was unarmed, attorney James H. Cesena said. Cesena said even if the teen was armed, carrying the gun found in a yard near the shooting scene, how did the weapon get so far from the body?

“If he had this gun--and we’re not by any means saying that he did--he must have thrown it, because they found it 50 to 75 feet away from the body,� Cesena said. “The officer must have panicked. The officer was not in danger, no one else was in danger . . . in the best-case scenario, this is a panic shooting.�

The attorney also said tests are underway to determine whether Pulido’s fingerprints are on the stolen gun found near the shooting scene. Three witnesses have stepped forward to dispute the police account that the officer yelled a warning at Pulido before the shooting, according to Cesena.

Pulido also would not qualify as a fleeing violent felon, Cesena said. Court decisions have supported the right of officers to fire on escaping felons who pose a significant threat to the public.

In Pulido’s case, there were no outstanding warrants for the youth, who was on probation for car theft, and police have said he was being chased only because he bolted from two officers approaching a group of underage drinkers on a street corner.

“It seems to me there may be enough to consider criminal charges,� Cesena said Friday. “No one has all the facts yet, but things don’t add up.�

Orange County district attorney’s investigators are trying to piece together the conflicting information to determine whether the shooting was justifiable. That investigation will probably last several months.

The California Penal Code states that officers may use “reasonable force� to arrest suspects, prevent their escape or overcome their resistance. In application, the courts have typically ruled that deadly force should be used only in preventing the escape of felons and in self-defense. Cases of firing on fleeing felons have hinged greatly on the circumstances of the specific incident.

A 1985 U.S. Supreme Court decision sets down what police sometimes call the Fleeing Felon Doctrine. The court ruled unconstitutional a Tennessee law allowing police officers to open fire on any suspect who does not heed a command to stop. The new standard set by the court: Officers may fire only if they have cause to believe the escaping suspect poses a “significant threat� to the officer or society.

In Santa Ana, the department’s 11-page “shooting policy� states that officers may fire to defend themselves and also has a section on fleeing suspects: “A firearm may be used to prevent the escape of a violent felony suspect . . . [when] the officer reasonably believes that the escape will pose an immediate and significant threat of death or serious physical injury to that officer or other persons.�

Santa Ana Police Lt. Robert Helton, who heads the internal affairs division, said he could not discuss the particulars of the case. Police have also not released the name of the officer involved, although several department sources confirmed it was Conde.

Helton said all involved parties would remain silent until the district attorney’s office concludes its criminal inquiry, a routine procedure in officer-related shootings. Attorneys have probably counseled Conde to do the same.

“The officer involved is not in a position where he can just stand up and tell his side of the story, no matter how much he may want to,� Helton said. “I’m sure he’s reliving this event over and over constantly in his head. He has all this weight on his shoulders. It’s not an easy spot to be in.�

Conde returned to work last week after three days’ administrative leave. The man who was recently named by his peers as 1995 Officer of the Year now faces some difficult months ahead--three separate investigations, a buzz saw of public scrutiny and the looming threat of costly legal battles. He must also go before the department’s shooting review board.

Huntington Beach Police Sgt. Ed Deuel knows the type of pressures that await Conde. Deuel lectures on officer safety statewide and produced a training video used by police agencies across the country. More than that, Deuel has been involved in three on-duty shootings and has debriefed hundreds of officers who also have fired their weapons.

In 1985, Deuel exchanged fire with two armed burglars fleeing a Huntington Beach store. He was hit once in the chest--his bulletproof vest saved him--and shot one of the suspects in the head, killing him. Two other times he wounded suspects he believed were reaching for weapons--in one case it was a stolen radio, in the other it was a pellet gun.

In all three incidents, Deuel was cleared of wrongdoing.

Deuel said he and his family suffered through a barrage of negative media coverage and legal battles--except for the time he took a bullet.

“As long as you receive the first round, you’re justified,� he said. “If it’s an officer that doesn’t want to get shot--that’s where the criticism comes in.�

For Conde, there will be questions from all sides. And for the grieving Pulido family, there will be more tears and a search for answers.

‘The father is extremely emotional and upset, because there are no answers,� Cesena said. “None of it makes sense to him. . . . The family wants justice. They want the truth about why there son’s life was taken.�