REPORT ON THE FATAL SHOOTING OF

DEVIN GATES

oN MARCH 22,2015

JEFFREY F. ROSENDISTRICT ATTORNEY

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PREAMBLE...scENE............FACTUAL SUMMARY ........STATEMENT OF FACTSLAW ENFORCEMENT OFFICER STATEMENTS ..

STATEMENT OF OFFICER JOSH CRAIGOFFICER RANDY VAN DIEMEN.........OFFICER JUSTIN MEADSERGEANT JOHANNA GREENOFFICER JOHN PATE........OFFICER ERIC LAGERGREN..........OFFICER TIMOTHY ALFORD..OFFICER KEVIN ESTESOFFICER JAMIE ELLISOFFICER PAUL GARCES......OFFICER JASON KOEHLER.DETECTIVE ROY GUTIERREZ...,........SERGEANT TYSON SHEARERDETECTIVE ALEXANDER TORKE............OFFICER STEPHEN SELBERG

CIVILIAN STATEMENTS..........BRITTANY SCHUYLER .............HIEN NGUYENPRITAM SINGHJACKIE BANKSNATHAN AND SHERRY WASHINGTON....PHrL DEWSTONE...............JOSE ANGEL GARCIA..ARTHUR ALVAREZ ZUNIGABECKY RODRIGUEZ ZUNIGA.....MARIE INES ISLAS-RAMIREZ

EVIDENCE COLLECTIONOFFICER STEVEN ERNSTOFFICER JAMIE ELLISOFFICER STEPHANIE KNIGHT...............

MEDICAL EXAMINERCRIMINAL RECORD OF DEVIN GATES.ADDITIONAL INFORMATION ABOUT DEVIN GATES ...

RELEVANT LEGAL PRINCIPLES .............

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PREAMBLE

The summary of this incident is drawn from reports prepared by the Santa Clara PoliceDepartment and submitted to this office by case agents, Detective Sergeants Tony Parkerand Derek Rush. The submission included narrative reports documenting interviews ofthe involved officers and civilian witnesses, electronic recordings of those interviews,and crime scene details. This review is being conducted pursuant to the Officer-InvolvedIncident Guidelines adopted by the Santa Clara County Police Chiefls Association onOctober I1,2012.

SCENE

This incident took place at a 7-Eleven store which is located at2l05 Scott Boulevard, ina residential area of Santa Clara. It is at the northeast corner of the intersection of MonroeSt. and Scott Blvd. It is a single story building, and the main entrance has two glass

double doors facing out toward Monroe St. Most of this south wall consists of glasspanels, which provide a view into the store from the parking lot and the street. There aretwo driveways allowing access to the parking lot, one from the northbound lane of ScottBlvd and the other from the westbound lane of Monroe St.

There are several parking spaces directly in front of the store's entrance, as well as anumber on the west side of the building. At the time of the incident on March 22,2015,each of the four spaces on this side was occupied. The suspect's vehicle, a red FordFocus, had been backed into the third space from the left, but was pulled forward abouthalfway. Ofc. Craig's police cruiser was also parked in the lot, facing westbound nearlyparallel to the storefront and about 30 feet from the doors. Ofc. Van Diemen stopped his

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2105 ScottBlvd.

patrol vehicle at the Monroe St. entrance facing northbound and situated behind Ofc.Craig. Both vehicles were fully marked with Santa Clara Police Department insignia.

To the north abutting the 7-Eleven store is an apartment complex,2150 Main St. To theeast is another apartment complex, 2149 Monroe St.

Suspect vehicle

Ofc. Craig vehicle

Ofc. VanDiemenlocation

2150 Main St.

2105 ScottBlvd.

2149 Monroe St.

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2150 Main St.

2149 Monroe St.

FACTUAL SUMMARY

On March 22,2015 at2:01a.m., Devin Gates entered the 7-Eleven store at 2105 ScottBlvd. with a mask covering his face and his sweatshirt hood over his head. He pointed a

handgun at the clerk, Pritam Singh, and yelled "Give me the money or I'll shoot you!"Singh handed over a $20 bill, but Gates wanted more. He demanded, "Give me more!Give me all of it!"

Simultaneously, Santa Clara Police Ofc. Josh Craig pulled into the 7-Eleven parking lotfrom Monroe St, turned left, and stopped. His fully marked police vehicle was parallel tothe building, and Ofc. Craig had a direct line of sight inside through the glass windows ofthe storefront. Santa ClaraPolice Ofc. Randy Van Diemen, who was also on duty atthattime, had seen Ofc. Craig's vehicle and decided to follow him. As he was pulling in justbehind Ofc. Craig, Ofc. Van Diemen looked up and saw the confrontation at the cashregister. The inside of the store was well-lit, the scene was further illuminated by Ofc.Van Diemen's headlights, and the surrounding area had good artificial lighting.

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At2:01a.m., Ofc. Craig advised over police dispatch he was witnessing an armedrobbery in progress. Gates had the gun pointed at Singh and fired a shot. Singh handed

over the cash in the register; he estimated it was about $300.00 to $400.00 in total.

2:01l.33 a.m.

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Gates then fled via the front doors, and proceeded toward the cars parked to the west ofthe store. Ofc. Craig gave commands for Gates to stop and show his hands, but Gatesignored these commands. Ofc. Van Diemen also yelled to Gates to get on the ground, buthe refused to comply. Officers Craig and Van Diemen both discharged their weapons inresponse, and Gates fell to the west of the building, near a red Ford Focus which hademerged halfivay from its parking stall. He lay face down on the ground and his handswere beneath his body, and no longer visible to the officers. The revolver was foundabove his head, within his reach. The brown paper bag had fallen near his legs.

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STATEMENT OF FACTS

LAW ENFORCEMENT OFFICER STATEMENTS

STATEMENT OF OFFICER JOSH CRAIG

Officer Josh Craig was interviewed by Det. Sgt. Parker and Det. Sgt. Rush. He has beenemployed by the Santa Clara Police Department as a swom peace officer forapproximately five years. Prior to that, he served in the United States Navy for fìve years.He has experience working with the Special Response Team and as a weapons instructor.

On March 22,2015, Ofc. Craig was working the graveyard shift. He had started his shiftat 8:00 p.m. on Saturday, March 21,2015. He was dressed in full police uniform. Atapproximately 2:00 a.m. on Sunday, March 22,2015, he had just completed a call forservice in the area and resumed routine patrol when he decided to stop to use therestroom at the 7-Eleven located at the intersection of Scott Blvd. and Monroe St. Afterturning left into the parking lot from Monroe St., Ofc. Craignoticed two individuals onfoot headingaway from the store in a southwesterly direction. The pedestrians struck himas unusual because they were walking briskly and looking over their shoulders, backtoward the 7-Eleven. As a result, Ofc. Craig's attention turned toward the store. Throughthe glass-paneled storefront, Ofc. Craig observed a subject, Devin Gates, in a red hoodedsweatshirt and a mask pointing a silver handgun at the store clerk, who was standingbehind the counter. Gates held the gun in his right hand. Gates was pointing the gun atthe clerk's neck and face area, and the two men appeared no more than five feet apart.Ofc. Craig recognized that he was "on-viewing" an armed robbery in progress. He parkedhis vehicle, fully marked as a Santa Clara Police car, and broadcast the armed robberyover police radio. He exited his vehicle, drew his duty weapon, a Glock 21 handgun, andpositioned himself behind the engine block. He also noticed that Ofc. Van Diemen'svehicle had followed him and was situated behind his car.

Ofc. Craig then heard a gunshot and saw a movement in the handgun indicating to himthat it had just been fired. As his focus was on Gates, Office Craig was uncertain whether

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the shot had struck the clerk or if it was a warning. Ofc. Craig returned to his vehicle, andretrieved his AR-15, as he knew this weapon to be more accurate at a distance. He wasnot certain whether he retrieved his AR-l5 immediately before or after the gunshot. Oncehe had his AR-l5, Ofc. Craig saw Gates approaching the door to the store. Gates thenexited the store. He was carrying a brown bag in his left hand, but his right hand wasconcealed inside his sweatshirt pocket. At this point, Ofc. Craig was about 30 feet awayfrom Gates. He shouted for Gates to show his hands. Gates was directly facing Ofc. Craigas he exited the store. He gave multiple commands to the effect that Gates needed to stopand show his hands. Gates did not obey and instead tumed right and began walkingwestbound. Because Gates had to face the two fully marked police vehicles as he exitedthe 7-Eleven and the area was well-lit by artificial lighting, Ofc. Craig was certain thatGates recognized him as police. Gates gave no indication that he did not hear Ofc.Craig's commands. As Gates proceeded toward the area west of the store, he turned hishead to the left, toward the officers, and Ofc. Craig believed that Gates was going to turnand engage him. Ofc. Craig had to evaluate several factors quickly. He considered thatthey were in a predominantly residential area, surrounded by multi-unit apartmentcomplexes and other businesses. Further, Ofc. Craig had no idea whether the cars parkedto the west of the 7-Eleven were occupied, either by innocent bystanders or by additionalsuspects. Moreover, Ofc. Craig could not tell the exact position of the handgun in Gates'front pocket. When he turned right, heading west, the handgun in Gates' right hand easilycould have been trained on Ofc. Craig and Gates was moving slowly enough that hewould be able to shoot at Ofc. Craig. And, he had already seen Gates demonstrate apropensity for violence. Thus, in order to protect himself and others in the area fromadditional use of force by Gates and to prevent Gates' potential escape, Ofc. Craig felt hehad to take action in order to stop Gates. He was not in close enough proximity toeffectively use either a Taser or pepper spray on Gates. Therefore, he fired one roundtoward Gates. He then observed Gates continue to move into the parking lot and realizedthat Gates continued to be a threat to both himself and the surrounding communities. Ofc.Craig then fired three or four more rounds, ceasing fire after he saw Gates fall to theground.

After giving additional commands to an unresponsive Gates, Ofc. Craig's attentiontumed to the vehicles, two of which he was now able to ascertain were occupied. Sincehe did not know their association to the incident, he yelled for both occupants to showtheir hands. Both occupants were compliant.

Ofc. Craig then notified dispatch that shots had been fired and the suspect was down. Healso requested for fire and medical to report to the scene as he recognized Gates might bein need of aid. He resumed a position at the front of his patrol vehicle to maintain coveruntil other officers arrived. He remained on scene a few more minutes, just long enoughfor his position to be relieved by another officer.

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OFFICER RANDY VAN DIEMEN

Officer Randy Van Diemen was interviewed by Det. Sgt. Parker and Det. Sgt. Rush.Officer Van Diemen has been employed by the Santa Claru Police Department forapproximately three years. On March 22,2015, Ofc. Van Diemen was on-duty working a

weekend graveyard shift. His shift began at 8:00 p.m. on Saturday, March 21,2015.Hewore full a full police uniform. Just before 2:00 a.m., he was driving slowly on MonroeSt. on routine patrol in a fully marked police vehicle. As he neared Scott Blvd., Ofc. VanDiemen noticed another black and white police vehicle coming toward him. When itturned in front of him into the 7-Eleven parking lot through the Monroe St. entry way,Ofc. Van Diemen decided to follow the car to talk with the officer.

As he pulled into the lot, Ofc. Van Diemen looked into the store. He saw a subjectstanding at the register with his hand extended toward the clerk behind the counter. Ofc.Van Diemen recognized the shape of a handgun in Gates' hand, and he was pointing it atthe clerk's upper body. Gates was completely covered up and outfitted in dark clothing.Ofc. Van Diemen then heard a "pop" and saw the gun recoil in Gates' hand. Ofc. VanDiemen parked just inside the lot, with his front end facing toward the front doors of the7-Eleven. He realized he was witnessing an armed robbery in which the suspect had justshot at the clerk. He heard Ofc. Craig broadcast this information, and quickly exited hisvehicle. As he did so, he saw the clerk go down behind the counter, and thought he hadbeen hit. He drew his department-issued Glock 2l handgun from its holster. He movedfirst behind his driver's side door and then to the trunk area of his police car. Gates waspointing the gun down behind the counter. Ofc. Van Diemen decided to move once moreto the area of the passenger side door, and was standing behind the engine block whenGates began walking toward the front doors. Gates exited the store and looked directly at

Ofc. Van Diemen, who raised his gun expecting Gates to open fire on either himself orOfc. Craig. Ofc. Van Diemen shouted for Gates to get on the ground. Gates disobeyedthis command, glanced in the direction of Ofc. Craig, turned and began running westtoward the parking lot. He could see the handgun swing in Gates' hand as he ran.

Ofc. Van Diemen's attention turned to the vehicles parked to the west of the building. Henoticed there was one car with its headlights illuminated, which had been backed into thespace. He had just seen Gates commit a dangerous felony, and thought he had shot and

possibly killed the clerk. He feared for the safety of any occupants in those vehicles, as

well as residents of the surrounding, high-density residential arca. He knew Gates was

armed with a handgun which would be capable of reaching the distances within whichthere were likely to be people, and knew that Gates could affect deadly force. Ofc. VanDiemen stepped to the right, and fired at Gates. He discharged three rounds, and almostimmediately saw Gates fall to the ground on his stomach near the parked cars.

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Gates' hands were not visible from his vantage point, so Ofc. Van Diemen could notascertain whether he still had the weapon. Ofc. Van Diemen moved to the trunk of Ofc.Craig's car and heard him notify over the radio of shots fired with the suspect down. Hewas finally able to see that two of the vehicles were occupied. He yelled for the drivers ofthe red Ford Focus and the Ford F-l50 to show their hands. Both drivers complied,holding their hands up outside their windows. Ofc. Van Diemen was standing there as

additional units arrived. He remained there for a few minutes before being removed fromthe scene.

OFFICER JUSTIN MEAD

On March 22,2015, Ofc. Mead was working patrol in an unmarked Santa ClaraPoliceDepartment vehicle, and wearing a full police uniform. At2:01a.m., he was arrivingto alow priority call for service when he received notice from Ofc. Craig that he had on-viewed an armed robbery. Ofc. Craig then updated that there were shots fired, and thesuspect had been hit, so Ofc. Mead rerouted to Ofc. Craig's location to assist. Minuteslater, he arrived at the intersection of Scott Blvd. and Monroe St. and took up a perimeterat the northwest entry/exit driveway off of Scott Blvd. Ofc. Mead noted that there werefour vehicles parked in the parking stalls that were to the west of the 7-Eleven. From westto east, there was a gray or silver Ford truck parked backwards with witness PhilDewstone inside, a light colored sedan parked nose in, a red Ford Focus parkedbackwards but positioned a few feet out of the stall with the headlights on and BrittanySchuyler in the driver's seat, and a Honda SUV parked nose in as well. On the ground infront of the light colored sedan, just west of the Ford Focus, Devin Gates was lying on hisstomach. He was clad in dark pants and a red hooded sweatshirt, and he appearedmotionless. Gates' back was facing toward the officers.

As other officers arrived, the clerks were evacuated from 7-Eleven and met with officerson the perimeter. After calling into the business and not receiving a response, officersapproached the 7-Eleven and cleared the inside with the assistance of K9 Ofc. KevinEstes' Police Service Dog.

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While officers cleared the inside of the 7-Eleven, Ofc. Mead was instructed to retrieve theBearcat from Santa Clara Police Department so that officers could approach the suspectwith cover from the armored vehicle. He was relieved of his position at the perimeter,and returned to Santa Clara Police Department. He arrived on scene again as otherofficers finished searching the interior of the store. He positioned the vehicle to provideballistic protection. Then, Brittany Schuyler was ordered out of the driver's seat of theFord Focus. She complied with all commands and was taken into custody. Witness PhilDewstone was also ordered out of his truck through the passenger side door, away fromthe body of Gates. He complied with all commands and was detained by officers on ScottBlvd.

Sgt. Tyson Shearer requested a "Sage"l qualified offrcer to deploy less lethal batonrounds at Gates to ensure that he was not pretending to be down. Ofc. Mead informedSgt. Shearer that he was Sage qualified, and he handed over control of the Bearcat to Ofc.Alford. Ofc. Mead had Ofc. Alford reposition the Bearcat closer to Gates. As Ofc. Meadgot into position, he noticed the silver revolver lying on the ground within Gates' reach,and advised the surrounding officers of its presence. He then gave repeated commands toGates, but received no response. He deployed a rubber baton projectile to Gates' lowerbody from about 10 yards away. He waited 10 seconds, and,when he received noresponse, he deployed a second projectile. Again, there was no response. He did this athird time, and there was still no response.

As it was still unknown if all of the vehicles in the parking lot were completely clear ofall suspects and the firearm was still in close proximity to Gates, Ofc. Estes deployed hisPolice Service Dog towards the vehicles. The Police Service Dog did not indicate therewere any other suspects in the suspect vehicle.

Officers on scene then formed an arrest team, wherein Ofc. Mead manned the walkingshield and led the arrest team toward Gates and the vehicles. Ofc. Mead stepped overGates, putting himself between the vehicles and Gates and the other officers. Gates wasplaced in handcuffs and another search of the vehicles was conducted. At approximately2:55 a.m., the scene was rendered safe and Santa Clara Fire Department Acting CaptainRick Restani pronounced Gates deceased at the scene.

Ofc. Mead was then tasked with driving Phil Dewstone to Santa Clara PoliceDepartment. Ofc. Mead stayed with him until Det. Hagg interviewed Dewstone. AfterDet. Hagg completed his interview, Ofc. Mead drove Dewstone back to the scene toretrieve items from his truck. Dewstone's items were retrieved from the truck by Ofc.Layton and given to Dewstone. Ofc. Mead then drove Dewstone to his residence.

I "Sage" refers to a type of firearm this is used to project non-lethal ammunition. It is a special purposefirearm designed and often used for riot control. It can fire a variety of ammunition, including impactprojectile rounds. One such form, known as baton rounds, are cylinders made of various materials,including rubber.

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SERGEANT JOHANNA GREEN

Sgt. Green was assigned as patrol supervisor on March 22,2015. At 2:01 a.m., she heardOfc. Craig transmit over police radio about an armed robbery with shots fired. As sheresponded, Ofc. Van Diemen also broadcasted "shots fired" over police radio. Ofc. Craigsubsequently updated his location to Scott Blvd. and Monroe St. and stated the suspectwas down.

Sgt. Green arrived on scene at2:05 a.m. to find Ofc. Craig taking cover behind his patrolvehicle, which was parked parallel to the 7-Eleven storefront facing westbound. She

approached Ofc. Craig and in the interest of public safety asked if he had been involvedin an "Officer Involved Shooting," which he confirmed. Ofc. Craig related that he haddriven into the parking lot and saw a male suspect (Gates) pointing a gun at the 7-Elevenclerk. He then heard and saw Gates shoot at the clerk. Gates then exited the store holdingthe gun and refused to follow Ofc. Craig's commands. Ofc. Craig subsequently shot atGates. Ofc. Craig said that he believed his AR-l5 rounds hit suspect Gates and no oneelse. Ofc. Craigindicated that Gates was the only suspect he saw pointing a gun at theclerk inside the store. Sgt. Green was informed that Ofc. Van Diemen also shot at Gates.

Sgl. Green could see Gates lying on the ground in front of the Ford Focus, which wasoccupied by Schuyler. Gates was face down with both arms and hands underneath himand out of view. Above Gates' head there was a handgun, and south of his legs there wasa paper bag.

Sgt. Green took a position near the driveway leading from Monroe St. From there, she

could see two people inside the 7-Eleven store. She waved to signal they should exit, butthey ignored this. She used the PA to ask them to exit, which they also ignored. Finall¡she contacted the police dispatcher and asked her to call inside the store and tell the clerkto exit. The dispatcher informed Sgt. Green that the clerk confirmed that a solos suspectentered the store and robbed him at gunpoint. The clerk stated the suspect fired one shotat him, but missed. The clerk stated no one was hurt inside and there were no othersuspects inside.

Sgt. Green formulated an arrest team consisting of K-9 Ofc. Estes, Officers Alford, Ellisand herself. They approached the 7-Eleven store and used Ofc. Estes' Police Service Dogto clear the store. They did not locate any other victims or suspects inside the store.

Sergeants Green and Shearer devised a plan to safely take Schuyler and Gates intocustody after Ofc. Mead returned from the Santa Clara Police Department with theBearcat for purposes of cover and concealment.

As Ofc. Ellis was handcuffing Schuyler, Sgt. Green asked "Do you know that guy?" She

responded, "I don't know what's going on. My boyfriend went into the 7-Eleven andthat's all I know." Schuyler was calm and was not crying.

At approximately 2:50 a.m., Santa ClaraFire Department was called to the scene toassess Gates. As they had been staged, the Fire Department arrived on scene within a

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minute. Two fire captains were directed into the crime scene and to Gates' location. Theypronounced Gates deceased.

Sgt. MacFarlane, who was in charge of the evidence documentation/collection at thescene notified Sgt. Green that his evidence team located a spent 9 mm casing in the 7-Eleven parking lot. Sgt. Green informed Sgt. MacFarlane that she does carry a Glock 17

9 mm as her duty handgun and recently went shooting at the range. It is a commonoccurrence for her to find spent casings stuck in her gun belt or holster. All the rounds inher duty ammunition were accounted for as she had not discharged her weapon duringthis incident.

OFFICER JOHN PATE

On March 22,2015 at2:01a.m., Ofc. Pate was in the back parking lot of the SCPD whenhe heard Ofc. Craig advise over the radio that a robbery was occurring at 2105 TheAlameda. Ofc. Pate returned to his vehicle, and was en route to that location when Ofc.Craignotified of shots fired and updated his location to Scott Blvd. and Monroe St. Uponarnval, Ofc. Pate and other responding officers set up a perimeter. Ofc. Pate deployed hisrifle and took up a position behind Ofc. Craig's patrol vehicle. Sgt. Shearer asked Ofc.Pate to take over for Ofc. Craig, and he was tasked with providing lethal cover on thesuspect and suspect vehicle. He could see Gates lying on the ground near the Ford Focuswith his back toward the officers. He was not moving, and Ofc. Pate was too far away,approximately 25 yards, to determine if he was breathing. He also spotted Schuyler in thedriver's seat of the Ford Focus with her hands in the ak, and Dewstone in his truck. BothSchuyler and Dewstone cooperated with commands to exit their vehicles and walktoward the officers. A police dispatcher had also contacted the two store clerks inside the7-Eleven, and they also cooperated and walked out of the building. Once the vehiclesappeared empty, officers approached to double check them. Ofc. Pate provided lethalcover for the officers who advanced toward Gates to place him in handcuffs. Gates waslater pronounced dead at the scene.

Once all involved parties had been contacted, Ofc. Pate transported victim Pritam (Tony)Singh back to the Santa Clara Police Department. He obtained a brief statement fromSingh. Singh said he had just locked up the alcohol cabinets when the suspect entered thestore wearing a mask. Gates pointed his gun at Singh and demanded money. Singh wasvery scared and feared for his safety. Singh handed over $20, but this was not enough.Gates then fired the gun once, almost hitting Singh. The round landed just to the left ofSingh's leg. Singh then gave Gates more money, but he did not know how much. Gates

then left the store, and Singh did not see what happened outside.

After speaking with victim Singh, Ofc. Pate was asked to assist with the processing ofOfc. Craig's AR-15 rifle. Ofc. Pate noted that the rifle was a Colt AR-15 and the weaponsafety switch was on. The rifle had a Magpul brand 30 round magazine seated in thechamber. Themagazine had a label of "Craig-3" on the side. EOTech sighting systemwas on and red hologram was visible. Ofc. Pate turned it off before processing. The Flip-Mount Style magnifier was not flipped over to line up with the sighting system.

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Ofc. Pate gave Ofc. Craig's AR-I5 rifle to Ofc. Ellis and assisted her in collecting andprocessing additional duty weapons for Officers Craig and Van Diernen.

OFFICER ERIC LAGERGREN

Officer Lagergren was logged off and inside the Santa Clara Police Department on March22,2015 at approximately 2:01 a.m. when he heard Ofc. Craig advise over the radio thathe was witnessing an armed robbery. He then heard Ofc. Craig advise that shots werefired. Ofc. Lagergren rode with Ofc. Pianto to the scene. Upon his arrival, Ofc. Lagergrenwalked toward the fully marked Santa Clara Police vehicle in the parking lot facingwestbound and stood by with offrcers in the area of the patrol vehicle. Ofc. Lagergrenwas instructed by Sgt. Shearer to escort Ofc. Van Diemen from the scene, as he wanted tokeep Ofc. Van Diemen and Ofc. Craig separated. Ofc. Lagergren transported Ofc. VanDiemen back to the Santa Clara Police Department in Ofc. Pianto's police vehicle, and,once there, stood by with him until Ofc. Estes relieved him.

OFFICER TIMOTHY ALFORI)

On March 22,2015 at approximately 2:01 a.m., Ofc. Alford heard Ofc. Craig broadcastover the radio that he had intemrpted a robbery in progress and shots were fired at ScottBlvd. and Monroe St. He responded to the scene and arrived at approximately 2:05 a.m.to find Ofc. Craig taking cover behind the front of his patrol vehicle, which was situatedin the 7-Eleven parking lot approximately 35 feet in front of the main entrance to thestore and was facing westbound. Ofc. Alford noted that the main entrance to the 7-Elevenfaced northbound and the parking lot was well illuminated by artificial lighting.

Ofc. Alford saw that Ofc. Craig was pointing his rifle northbound in the direction of asubject wearing a red sweatshirt lying on his stomach. Ofc. Alford observed a nickelplated revolver on the ground in front of Gates' head. Ofc. Alford was unable to see

Gates' face and his hands appeared to be concealed under his body.

Gates was near the front quarter panel area of a red Ford Focus, which was occupied by afemale in the driver seat (Schuyler). The Ford Focus was backed into the parking spot ina row of spots located on the west side of the 7-Eleven. The vehicle was pulled slightlyforward and out of the spot, giving it the appearance of a "getaway" vehicle. All of thespots directly in front of the 7-Eleven were empty and not being used.

Officer Alford also saw a grey Ford pick-up truck backed into a parking spot west of thered Ford Focus, which appeared to be occupied by a white male adult with grey hair(Dewstone). Ofc. Alford observed a grey sedan parked "nose in" in a spot between thegrey Ford pick-up and the red Ford Focus. He also observed Ofc. Mead taking coverbehind his car on Scott Blvd., southwest of the suspect.

Ofc. Alford positioned his vehicle to block northbound traffic on Scott Blvd just south ofMonroe St., and ran up to Ofc. Craig, who appeared to be calm and focused. Ofc. Craig

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advised that Gates had been inside the 7-Eleven wearing a mask and shot a handgun atthe store clerk. When Gates exited the store still armed with the gun, he refused tocomply with Ofc. Craig's commands. Ofc. Craig also advised Ofc. Alford that the femalein the red Ford Focus was possibly an involved suspect as well.

When Ofc. Alford arrived, the status of Gates was unclear and he was also unsurewhether Schuyler might also be armed. In order to create a safer environment for thearrest of Gates and Schuyler, it was decided that the 7-Eleven store would be cleared firstto give the arrest team a place of cover. Officers directed the two store clerks to exit thestore and meet with officers on the east side of the store. When the clerks exited the store,they voluntarily ran from the store and appeared scared.

Ofc. Alford, with Sgt. Green, Ofc. Ellis and Ofc. Estes, cleared the 7-Eleven to insurethere were no other suspects or patrons inside. Ofc. Mead then arrived with the SantaClara Police armored vehicle to provide cover from the suspects when the arrests weremade. Schuyler was ordered out of her vehicle and towards the arrest team (Sgt. Green,Ofc. Ellis and Ofc. Alford), near the front southwest corner of the 7-Eleven. Shecomplied with commands and was taken safely into custody.

Ofc. Alford then drove the armored vehicle to a position that allowed Ofc. Mead to get acloser look at Gates and to give him commands to surrender. Ofc. Mead discharged lesslethal munitions. Evenfually, after not getting a response from Gates, officers advancedon him and handcuffed him.

At approximately 3:04 a.m., Ofc. Alford transported Schuyler to the Santa Clara PoliceDepartment. He then removed her handcuffs and placed her in interview room #5. Uponleaming that the video in room #5 was not working, he moved her to room #3, where hestayed with her until relinquishing custody of her to Det. Sgt. Parker.

During Ofc. Alford's time with Schuyler, she remained quiet other than answering pre-booking/identification questions. He did not observe her even cryrng. She wascooperative during his contact with her.

OFFICER KEVIN ESTES

Officer Estes worked patrol and handled a Police Service Dog. On March 22,2015hewas on duty when, at approximately 2:0I a.m. he heard Ofc. Craig advise of an armedrobbery at2105 The Alameda. Ofc. Craig updated that shots were fired, and the suspectwas hit. He also indicated his location was the intersection of Scott Blvd. and Monroe St.,and Ofc. Estes proceeded to that location. Upon his arrival at2:06 a.m., Ofc. Estes wasable to see Ofc. Van Diemen and Ofc. Craig positioned behind a patrol car in the centerof the 7-Eleven parking lot, south of the building. Ofc. Estes positioned his patrol car inthe southern driveway of the parking lot, on the Monroe St. side, facing the store. Withinthe 7-Eleven, Office Estes observed two individuals who appeared to be clerks.

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Ofc. Estes removed his Police Service Dog from his vehicle and joined Ofc. Craig behindhis patrol vehicle.

Ofc. Estes observed four vehicles parked in the parking stalls that were to the west of the7-Eleven. A Honda SUV was parked closest to the building. A red sedan was one parkingstall west of the Honda SUV and was backed in and facing toward the police vehicles.The head lights of the red sedan were on and there was a female in the driver's seat(Schuyler). There was another sedan parked in the other middle stall, facing away fromthe officers (north). In the farthest stall from the building, closest to Scott Blvd., he saw asilver Ford pick-up truck back in and facing the officers (south). There was a malesubject (Dewstone) sitting in the driver's seat of the Ford pick-up.

Ofc. Estes saw Gates, who was wearing dark colored pants and a red hoodie sweatshirt,lying face down on the ground in front of the red Ford Focus. Gates was motionless, withhis back to the officers. Ofc. Craig informed him Gates was armed with a silver handgun.Ofc. Estes was unable to see Gates' hands or where the gun was located.

With other officers maintaining cover on Gates and the vehicles parked to the west of thestore, Ofc. Estes proceeded to the east side of the building. Ofc. Alford made a K-9announcement inside the store through the open front door. He stated, ooSanta ClaraPolice! Come out now or a police dog will be sent in to find you. When the dog findsyou, he will bite you." Ofc. Estes gave his Police Service Dog the search command, andthey entered the 7-Eleven. They did not find anything, and exited the store through thefront (southern) door. He waited in front of the building for the Bearcat to arrive.

When Ofc. Mead arrived with the Bearcat, Office Mead positioned it to provide ballisticprotection. Ofc. Estes then gave Schuyler commands to exit the driver's seat of the FordFocus. She complied with his commands and was taken into custody without incident.

Witness Dewstone was then ordered out of his Ford pick-up truck through the passengerside door, towards Scott Blvd. , away from Gates.

At this point, Ofc. Alford had taken over control of the Bearcat and moved it closer toGates and the unsearched vehicles. Ofc. Estes was then able to see a silver handgun lyingon the ground just to the north of Gates' body. Ofc. Mead then provided commands toGates, but received no response. Ofc. Mead then deployed three rubber baton projectilesto Gates' lower body from a distance of 10 yards. There was still no response. Ofc. Estesthen considered the severity of the crime, the impossibility of safely determining whetherGates was still conscious, the immediate threat Gates posed to the safety of those aroundhim, and the chance that other suspects were hiding in the vehicles which had yet to becleared. He weighed these factors, and decided to deploy his Police Service Dog. Heannounced, "Santa Clara Police Canine Unit, anybody still in the vehicles that have beenevacuated, come out now or a police dog will be sent to find you. When the dog findsyou, you will be bit." After receiving no response, Ofc. Estes gave the search command.As the Police Service Dog approached Gates, Ofc. Estes gave the seize command, whichinstructs the dog to seize the suspect by means of biting and holding him. The Police

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Service Dog approached Gates, and bit Gates in the buttocks area. When there was noresponse, Ofc. Estes gave the release command. He then gave a search command for thePolice Service Dog to continue toward the vehicles. The Police Service Dog did not alertto the presence of other people, and Ofc. Estes recalled the dog to his position behind theBearcat.

An arrest team was formed, and Gates was placed in handcuffs. Ofc. Mead approachedfirst with a shield, followed by Ofc. Ellis and Sergeants Green and Shearer. Anothersearch of the vehicles was conducted with negative results.

Ofc. Estes then returned his Police Service Dog to his vehicle. He did not notice anyinjuries or loss of teeth to his dog. Santa Clara Police detectives and the Crime SceneUnit responded and took over the investigation. Ofc. Estes' then concluded hisinvolvement with the case.

OFFICER JAMIE ELLIS

Officer Ellis was assigned to the Patrol Division with a collateral assignment as EvidenceTechnician for the Santa Clara Police Department Crime Scene Investigation Unit. OnMarch 22,2015, at approximately 2:01a.m., she was on duty and heard Ofc. Craigbroadcast over the radio that he had intemrpted an armed robbery where shots were fired.When she arrived at the scene at approximately 2:05 a.m., Ofc. Ellis positioned her patrolvehicle on Monroe St. facing west. She then stood behind the driver's side door of Ofc.Estes' marked Santa Clara Police Patrol Tahoe. Next to his Tahoe was another markedSanta Clara Police vehicle that was partially in the southern driveway.

Ofc. Ellis focused her attention primarily on the inside of the 7-Eleven store whilemaintain a cover position near the two vehicles mentioned above. She was able to see

Ofc. Craig's marked patrol vehicle in the 7-Eleven parking lot, facing west. She glancedover and noticed Ofc. Craig and Ofc. Van Diemen using Ofc. Craig's vehicle as cover.She saw Ofc. Estes join them. She also observed two individuals inside the 7-Eleven.One appeared to be a clerk and the other was later identified as a witness.

Office Ellis saw the four vehicles parked to the west of the building. Two of the vehicleswere visibly occupied but it was unknown whether the other two were also occupied. Ared Ford Focus stood out the most since its headlights were on and it was only partially inthe parking stall. There was a female in the driver's seat of the Ford Focus. The othervisibly occupied vehicle was a silver Ford pick-up truck, with a male sitting in thedriver's seat.

Ofc. Ellis saw Gates was on the ground near the Ford Focus. He was wearing darkcolored pants and a red hooded sweatshirt. He was facing away from the officers onscene and his hands were not visible.

After other Santa Clara Police officers and sergeants arrived on scene, a call was madeinto the 7-Eleven and the individuals inside were instructed to come out, which they did.

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Ofc. Ellis assisted with a protective sweep of the 7-Eleven, and no other suspects werefound.

The Santa Clara Police Department armored vehicle was brought to the scene and anarrest team was formed. The female occupant (Schuyler) of the Ford Focus was directedto exit the vehicle and walk toward the armored vehicle, at which point Ofc. Ellis placedher in handcuffs and double-locked them. Schuyler asked what was going on and Ofc.Ellis informed her that she was being detained. When asked who she was with and ifanyone else was in the vehicle, Schuyler replied "my boyfriend, Devin Gates, wentinside, but I don't know what happened. I don't know where he's at." Ofc. Ellis thenwalked Schuyler to a marked patrol vehicle and placed her in the back. Other officersstood by with Schuyler.

Office Ellis returned to the arrest team near the armored vehicle. The male occupant ofthe silver Ford truck was also directed to come out of his vehicle. He was detained bySanta Clara Police officers near the western driveway. Once it was safe to address Gates,the armored vehicle was used to close the distance and to offer ballistic coverage for theofficers on scene. Before approaching Gates, a SAGE device was used, as well as Ofc.Estes' Police Service Dog. Ofc. Ellis was present and standing behind the armoredvehicle when this took place.

After getting no response from Gates, Ofc. Ellis approached with Officers Mead andEstes and Sgt. Green. Ofc. Ellis handcuffed Gates and checked his carotid pulse. She didnot feel a pulse or see Gates breathing. Shortly thereafter, Santa Clara Fire personnelarrived on scene and pronounced Gates deceased. The handcuffs used remained on Gatesonce his body was picked up by the Coroner. Ofc. N. Nguyen's initials were etched intothe cuffs, but he was not present at the scene.

Ofc. Ellis was then tasked with taking digital photographs of the scene as well asprocessing Ofc. Van Diemen's and Ofc. Craig's firearms. After retuming to the SantaClaraPolice Department, Ofc. Ellis received Ofc. Craig's AR-15 rifle from Ofc. Pate andsecured it in the Evidence Room. She then photographed Ofc. Craig before he changedout of his uniform, and also collected all handguns and all ammunition from his person.She collected a department issued Glock 21 handgun, as well as his Glock 30 back-uphandgun. She also collected the two additional Glock 2l magazines that were located onhis duty belt. She made both weapons safe prior to placing them in separate brown paperbags. She noted that Ofc. Craigkept his Glock 30 back-up weapon in an ankle holster onhis left ankle.

Once Ofc. Ellis finished with Ofc. Craig, she and Ofc. Pate met with Ofc. Van Diemen inthe Chaplain's Office at the police department. She took digital photographs of him whilehe was still in full uniform. She then collect his department issued Glock 21 handgun, as

well as the two additional Glock 2l magazines from his duty belt. Ofc. Van Diemenadvised that he carried his back-up handgun in his ballistic vest. She then took photos ofthe back-up handgun and then collected it. The backup was a Smith & Wesson Airlite

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.357 revolver. Ofc. Ellis made both weapons safe and placed them into separate brownpaper bags.

Ofc. Ellis and Ofc. Pate carried all of the items to the Evidence Room, where they placedall the weapons onto a table, along with the magazines. She photographed them as theywere and then downloaded the ammunition. She took photos of all firearms, magazinesand rounds that were collected from Officers Craig and Van Diemen. Ofc. Pate verifiedher count.

OFFICER PAUL GARCES

On March 22,2015, Ofc. Garces was in fulIpolice uniform and was driving a fullymarked patrol vehicle. He responded the area of Scott Blvd. and Monroe St. to assist withthe officer involved shooting. Upon arrival on scene, he assisted with an area canvass at2150 Main St. He took statements from Cassandra Arzate and Isidro Arzate, Jr. Therewere five other individuals in their unit (#17) but at the time of the incident they wereasleep and did not hear or see anything. The individuals were Isidro Arzate, RomanaArzate, Anna Arzate, Herlinda Yanez, and a Juvenile.

OFFICER JASON KOEHLER

On March 22,2015, Ofc. Koehler responded to Scott Blvd. and Monroe St. after hearingOfc. Craig's radio dispatch at approximately 2:00 a.m. When he arrived, Ofc. Koehlerlocated officers inside the parking lot of the 7-Eleven. He exited his vehicle andapproached officers who were providing cover on a suspect lying on the ground with hisback to them near a red vehicle in the parking lot. The suspect was not moving and Ofc.Koehler was too far away (about 25 yards) to see if he was breathing or not. He could see

a female suspect in the driver's seat of the red vehicle with her hands in the air. Therewas another unknown subject in a silver Ford pick-up truck.

After police dispatch called the two employees in the store, they both walked out towardthe officers. Ofc. Koehler made certain that they were not injured. He instructed them torefrain from talking about the incident with each other or answering their cell phones.Once the scene was secured, Ofc. Koehler transported Hien Long Nguyen to the policedepartment at 3:10 a.m. He obtained a preliminary statement from Nguyen as well.

Nguyen stated that his son owns the 7-Eleven. Nguyen was employed by his son toprovide maintenance and stock the refreshment drink coolers. During the incident,Nguyen was inside one of the rear coolers inside the business. While stocking the cooler,Nguyen could hear loud yelling inside the store. He was unable to see the clerk from therear of the cooler. Due to the loud yelling, Nguyen walked toward the door to the coolerand heard a loud gunshot noise come from inside the store. As he exited the cooler,Nguyen did not see the suspect or where the suspect fled.

Nguyen exited the cooler and entered the main floor area where he saw the clerk standingbehind the counter with a very frightened expression on his face. Nguyen walked toward

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the front counter and heard another 2-3 gunshots outside. Nguyen noticed a police vehicleoutside the business. He was unable to provide a suspect description or where the suspectfled.

DETECTIVE ROY GUTIERREZ

Detective Gutierrez was assigned to the Investigations Divisions as a Person CrimesDetective. On March 22,2015 he was contacted at approximately 4:58 a.m. regarding theincident at the 7-Eleven. He reported to the Santa Clarc Police Department and inspectedduty weapons and ammunition belonging to Sgt. Johana Green and Ofc. Jamie Ellis.Later that day, Det. Gutierrez was informed that there might be video surveillancepertinent to the case from the Chevron gas station located at2090 Scott Blvd, on thesouthwest comer of the intersection and directly across from the 7-Eleven. He and Det.Hagg drove to the Chevron, and when the owner arrived, he allowed access to the videosurveillance room. Det. Gutierrez noted that the time displayed on the cameras wasapproximately five to six minutes fast. They obtained video depicting a sedan enteringthe north side of the Chevron parking lot at about 1:59 a.m. according to the display. Awoman exited the vehicle to get gas, but the driver never appeared. The sedan was seen

leaving the Chewon onto southbound Scott Blvd. at about 2:05 a.m. according to thedisplay.

At about 12:36 p.m., Det. Gutierrez, Sgt. Hill and Ofc. Stephens drove to Tracy,Califomia to conduct interviews of Gates' family.

SERGEANT TYSON SHEARER

On March 22,2015, Sgt. Shearer was on-duty as supervisor for the weekend swing shiftteam. At about 2:01 a.m., he heard Ofc. Craig broadcast that he was at an armed robberywith shots fired, and he quickly responded to the 7-Eleven. Upon his arrival, Sgt. Shearernoticed Officers Craig and Van Diemen taking cover behind a patrol vehicle. He sawGates lying on the ground in the parking lot just west of the store. Sgt. Shearer observedfour vehicles parked on the west side of the 7-Eleven. One of the vehicles was a redsedan occupied by a female subject. The female was in the driver's seat of the red sedan,

which was partially backed into a stall. Two vehicles to the left of the red sedan was afull sized pick-up truck that was also backed into a parking stall. An older white maleadult was sitting in the driver's seat of the pick-up truck. There was a third gold coloredsedan parked between the pick-up truck and the red sedan. The fourth vehicle was a silverHonda SUV parked between the red sedan and the west exterior wall of 7-Eleven. It wasunknown if there were occupants in the Honda SUV and the gold sedan. It was alsounknown if the female in the red sedan and the male subject in the pick-up truck wereassociated with the robbery.

Sgt. Shearer first approached Ofc. Craig, and learned that he had discharged his firearm.Sgt. Shearer escorted him offline, had him replaced and then had him transported back tothe police department. He next contacted Ofc. Van Diemen, who also advised that he haddischarged his firearm. Ofc. Van Diemen was transported back to the police department

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as well. Sgt. Shearer was told that Gates had a handgun, but it was not visible from hisposition. He wanted to get Gates medical attention, but he was concerned that Gateswould fire if officers moved closer to him.

Sgt. Shearer directed Ofc. Mead to return to the Santa Clara Police Department and bringback the Bearcat, so they could use it as cover. Doing so, they were able to reach thefront door of the 7-Eleven and search inside. From behind the ARV, Sgt. Shearer orderedSchuyler to remove the keys from the ignition and drop them out of the driver's sidewindow, and she complied. He did the same for Dewstone, who likewise complied. Sgt.

Schuyler was ordered out of her vehicle and was taken into custody without incident.Dewstone was ordered to exit out the passenger side of his vehicle, which he did. At thispoint, Sgt. Shearer was able to see the revolver on the ground within reach of Gates.Concerned that Gates was "playing possum," Sgt. Shearer instructed Ofc. Mead to deployrubber batons to try to get a reaction from Gates, but there was none. Then Sgt. Shearerdirected Ofc. Estes to deploy his Police Service Dog. Once the Police Service Dogcompleted his search of the four vehicles, Sgt. Shearer formed an arrest team. They usedthe ballistic shield to approach Gates and place him in handcuffs. Sgt. Shearer escortedSanta Clara Fire Department personnel to the scene to administer aid.

DETECTIVE ALEXANDER TORKE

Detective Torke responded to the scene of the robbery and shooting at the 7-Eleven store.He obtained verbal consent from Pritam Singh and Long Nguyen to access videosurveillance footage from the store's system. The video showed a black male adultwearing a red sweatshirt and a black garment over the lower half of his face enter thestore at 2:01 a.m. He was holding a silver revolver in his right hand and a paper bag in hisleft. The video shows Gates point the revolver at Singh. It includes three camera angles,including an overhead fisheye lens, a second fisheye pointing from above the front doortowards the back of the store, and a third pointing toward the front doors. Within 10

seconds of Gates' arrival a vehicle is seen pulling into the parking lot, and a Santa ClaraPolice Department logo becomes visible on the side of the vehicle. Shortly thereafter, a

second vehicle pulls into the parking lot, but stops in the area of the Monroe St. entrance.The video shows a slight movement of the muzzle as Gates is pointing the gun at theclerk. Singh quickly turns away from the gun, and then frantically throws money into thebag held by Gates. At2:01:33 Gates left the store through the front doors, holding thepaper bag in his left hand and the gun in his right hand at his side.

During his scene survey, Det. Torke noted that there appeared to be bullet impacts on thesilver Ford F-150 pick-up truck in the parking lot. He was unable to determine if therewere any bullet impacts on a Buick sedan that was immediately adjacent to the pick-up.Next to the Buick was the red Ford Focus that had been driven by Schuyler. As hewalked around the vehicle, the driver's door was open and he could see what appeared tobe multiple cellular phones in the vehicle.

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After walking the scene, Det. Torke returned to the police department and wrote a searchwarrant for the search of the 7-Eleven store, the red Ford Focus, the Buick sedan, and theFord F-150. The search warrant was granted at 8:57 a.m. on March 22,2015.

After the vehicles were towed to the Santa Clara Police Department, Det. Torke retrievedtwo cellular telephones from the Ford Focus. He downloaded the contents of both phonesusing a Cellebrite UFED Touch Ultimate device but did not locate any noteworthyevidence.

OFFICER STEPIIEN SELBERG

On March 22,2015, Officer Selberg was assigned to the Santa ClaraPolice DepartmentPatrol Division with a collateral assignment as a Crime Scene Evidence Investigator. Hewas advised of the officer involved shooting that occurred at the 7-Eleven and respondedto the scene and assisted with the forensic mapping of the scene using a Nikon TotalStation device.

Officer Selberg processed the Ford F-150 pick-up and the red Ford Focus. Duringprocessing of the Ford F-150 he located a bullet hole on the front grill of the vehicle thatappeared by have been caused by a .45 caliber round. He also located a bullet hole abovethe left front tire well that appeared to be caused by a .223 round.

During the processing of the Ford Focus, Ofc. Selberg located numerous green pills(broken and whole) from various areas within the vehicle. The pills had the markings "S90 3". He found indicia to both Brittany Schuyler and Devin Gates. He also located ablack hat in the right front passenger floor board area and a paper bag in the trunk withmarijuana. The bag and marijuana weighed 54.8 grams.

CIVILIAN STATEMENTS

BRITTANY SCHUYLER

Brittany Schuyler was the girlfriend of Devin Gates. She had been living with him andhis family in Tracy, Califomia for the past five or six years. They had a three year olddaughter together. The red Ford Focus found at the scene was a rental car in her name.She was using that car while her own vehicle was in the shop after being damaged in a hitand run that occurred while Gates was driving.

On March 22,2015, Schuyler accompanied Gates from Tracy to Santa Clarabecause hewanted to visit his brothers, and she did not want him driving her rental car. As theydrove, Gates snorted cocaine in the passenger seat. They arrived in Santa Clara around10:30 p.m. When they got to Deborah St., in Santa Clara, Schuyler went inside and Gateshung out with his brothers outside. After some time, "Jackie" said they wanted Schuylerto go outside. Gates and his brothers, including Brandon and Kenny, were sitting on thecar and listening to music. Schuyler was sitting in the passenger seat. Just before 2:00a.m. Gates decided it was time to leave, and said "Okay we're out, we're gonna go get

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some gas." Gates drove the car to the Chewon down the street. He told Schuyler to pumpthe gas, which she did. She told him she wanted to drive. Gates drove for a short time,and Schuyler did not know where they were going. They ended up at the 7-Eleven. Asthey entered the parking lot, they passed two men with a bicycle outside the store.Schuyler noticed numerous empty parking spaces just in front of the store, but Gates didnot pull into any of them. Instead, he continued and backed into a parking stall on theside. Schuyler was tired and wanted to go home, but Gates said, "Hold on I'm gonna getsomething." He quickly got out of the car, and told Schuyler she could drive. She claimedshe did not see anything in his hands, and he did not retrieve anything from the back seator the trunk. 'When

he left the car he was wearing a red hooded sweatshirt, black pantsand Adidas. She did not see gloves on his hands.

Schuyler moved from the passenger seat to the driver's seat and adjusted it. She said shenoticed the tire pressure light was on, and she started driving forward thinking she wouldgo to the air pump. She then saw a subject wearing red run by the front of her car, but shewas not able to see clearly. She also saw two police cars. She heard someone yell "dropthe gun" one time followed by gunshots. She screamed and ducked down in the car.

While speaking with the interviewing detectives, Schuyler was asked what she thoughthappened inside the store. She said, "I assume he stole something cuz (sic) he didn't evenhave his wallet."

She was then informed that Gates had committed an armed robbery. When asked howGates could have left the car with a large gun, alarge paper bag and wearing gloveswithout her noticing, Schuyler insisted that she never saw any of it. She said she may nothave been looking at his hands or that the gun may have been in his front sweatshirtpocket. She stated that she could not see what happened when he left the car because thecorner was close.

When asked to consider likely outcomes when Gates came out of the store with a gun andofficers witnessed this, she replied, "He might have shot the police." She confirmed, "Hedefinitely would, like I heard him say that he would kill anyone that tried to put his life indanger. And he's the one that starts stuff and he never thinks he's wrong. Even when he'sin the hospital on overdose, he's laughing like 'I knew I wasn't gonna die."' She added,"He hates the police."

Schuyler did not know of any weapons owned by Gates. She had seen him with a gunonce a couple of years before, but he said it was his brother's. She described the gun as ablack colored .45. She said he does have gardening gloves and used to use them whilegrowing marijuana in Clear Lake. She had never seen Gates with a mask, but did mentionthat he snowboards.

Schuyler indicated that there was a brown bag in the trunk of the car with marijuanatrimmings and stems and a plastic bag of Xanax pills. She stated that Gates did havecocaine and that it might be in the car.

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Schuyler gave a list of drugs she knew Gates used (cocaine, Xanax, "bo" - promethazinecodeine, mollylthizz and marijuana), and recounted an incident the weekend beforewhere Gates had overdosed at a club in San Francisco after doing 20lines of cocaine. Shesaid he did not take the incident seriously. She also indicated Gates did not have a job ora bank account, and she gave him money. She denied knowledge of prior robberies orviolent encounters with others. However, she described Gates as physically violenttoward her and gave an example from the month before in which he had stomped and hither in the street. He had given her a black eye the week prior to the incident at 7-Eleven.She revealed that their relationship has been bad for three years, and she was only withhim because of their child. She also stated that Gates had shoplifted various items, as

recently as the previous month, and had taken things from his brothers, includingclothing.

Schuyler was shown surveillance footage from inside the 7-Eleven, but she maintainedthat she had never seen the gun, bag or gloves while in the car with Gates.

During the interview, Schuyler expressed relief that Gates had committed this crime,saying ooln a bad way, relieved and all. Like I just don't want to deal with him anymore,but like I don't want to like break up my family on purpose. I know he's not a goodperson."

HIEN NGUYEN

Hien Nguyen was interviewed by Det. Hagg.Nguyen's son owned the 7-Eleven at2l05Scott Blvd and Nguyen would help out by doing various jobs around the store. On March22,2015, at about 1:00 a.m., he arrived at the 7-Eleven. At about 1:30 a.m., Nguyen wentto the rear cooler (located on the east end ofthe store) and began to stock the coolershelves. From this position, he could see the main floor of the store, but his view wasobstructed by shelves and merchandise. As he was working, he heard someone yellingvery loudly. He looked through the glass of the cooler and saw the suspect leaningforward over the counter toward the clerk. He could not describe the suspect and wasunable to remember what the suspect was wearing. Although he heard a lot of yelling, hedid not clearly hear much of what the suspect said, but he did hear him yell "Give me themoney!" He thought the suspect might be an angry customer arguing about money. Hewalked out to the floor to see what was happening. He was near the middle of the cooler(behind the beer) when he heard a loud shot. Nguyen originally described knowing that itwas a gunshot but then later indicated that he was surprised that it was not louder and,therefore, was not sure whether it was gunfire.

When Nguyen exited the cooler and entered the main floor area, he saw "Tony" (Singh)standing behind the counter with a very frightened expression on his face. Nguyen saidhe knew a robbery had occurred because Tony's face was so white that it appeared as

though he had no blood in his face. Nguyen did not see the suspect in the store when heexited the cooler. He walked toward the front counter, which is when he heard anothertwo to three gunshots outside. He was scared because he thought the suspect was possiblyfiring more shots outside.

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Nguyen tried to ask the clerk what had happened, but Tony was so afraid he could notrespond. After about 2-3 minutes, the clerk told him he had been robbed. Nguyen told theclerk to call 9-l -1, but Tony said the police were already outside. Nguyen was too afraidto go near the windows so he did not see the police outside. He asked Tony how thepolice had arrived so quickly, but Tony said that he did not know. Tony told Nguyen thatthe suspect had pointed a gun at him and threatened to shoot if he did not give him themoney. Tony told Nguyen that the suspect fired a shot inside the store and showed himwhere the bullet had struck the floor. They soon received a call from the policedepartment. Once it was determined that they were uninjured, they were instructed to exitthe store and walk to the officers. As Nguyen walked to the doors to exit, he saw thatTony was still standing behind the counter. He suspected that Tony was still too fearful tomove, so he told Tony to follow him and they both exited the store and approached theofficers.

PRITAM SINGH

Pritam "Tony" Singh was interviewed by Det. Schneider. Upon making contact withSingh at the police department, Det. Schneider noticed that Singh was frightened. Singhwas very soft-spoken and frequently looked downwards while rubbing his hands throughhis hair during the interview. Singh is originally from India. He had lived in the UnitedStates for approximately 2.5 years. He worked at 7-Eleven for two years. Singh normallyworked the night shift at 7-Eleven as a clerk from 11:00 p.m. until 8:00 a.m. He usuallyworked alone, but on March 22,2015, his coworker, Hien "John" Nguyen, was there as

well, stocking refrigerated items behind the coolers . At 2:00 a.m., Singh locked the beercooler, as he is prohibited from selling alcohol between 2:00 a.m. and 6:00 a.m. Hereturned to the register, and at approximately 2:02 a.m., Gates entered the store throughthe front doors. Singh immediately saw that Gates was carrying a revolver in his righthand and a paper bag in his left. Singh described the suspect as a black young adult malewearing a red shirt with some type of black cloth covering his face. Singh described therevolver as black and brown. Gates pointed the revolver at Singh and said ooHands up!"He approached the register and said, "Give me the money or I'll shoot you!" Singh wasscared because the suspect had a gun. With the gun pointed at him, Singh opened theregister. He placed a $20.00 bill in the paper bag Gates held out to him. Gates said, "Giveme more! Give me all of it!" As he made these demands, Gates fired a single round at thefloor. Singh thought if he did not put the rest of the money into the suspect's bag, hewould be killed. He took the rest of the cash out, totaling approximately $300.00 to$400.00. Singh estimated the suspect was in the store about one to two minutes. He sawthe suspect run westbound.

Once Gates departed, Singh was approached by Nguyen who asked what had happened.Nguyen said that he had heard the sound of a gunshot. Singh told Nguyen whathappened. Singh asked Nguyen if he should call 9-1-1. Nguyen looked out the front storewindows and told the victim that the police were already there. Singh remembered tellingNguyen that he was scared.

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After Gates left the store, Singh noticed two or three police cars enter the parking lot, buthe did not hear any more shooting. A few moments later, Singh received a call from thepolice dispatcher, who told them to exit the store, and they did so.

After Gates ran out of the store, Singh did not hear or see any more shooting. However,he noticed there were a lot of police officers and police cars at the scene. Singh said thatthe police "had a lot of guns". He didn't see Gates again after he fled the store with thegun and the bag of money. Singh reiterated that he believed the suspect was going to killhim after Gates fired his gun inside the store.

JACKIE BA¡IKS

Jackie Banks spoke to Det. Sgf. Jeny Rodriguez on March 26,2015 over the phone. Sheindicated Gates and Schuyler had showed up at her house on Deborah Dr. the night ofMarch 22,2015 after l0:00 p.m. Banks said she had no interaction with Gates orSchuyler, and she was certain they left around I 1:00 p.m. She said she had never seen norheard of Gates having possession of a gun, gloves or a mask. She was not forthcomingwith any additional information.

NATHAN ANI) WASHINGTON

Nathan and Sherry Washington were interviewed by Ofc. Stephens on March 22,2015 attheir home in Tracy. They are Gates' grandparents. They recently told Gates he had twomonths to move out of their house. Nathan described him as a "bum" and said "he needsto be incarcerated." They included that Gates' had a history of drug use, includingmarijuana and, recently, Xanax. They indicated that he acted crazy when he was underthe influence. They also stated Gates had ahistory of abusing Schuyler. Neither of themknew where Gates would obtain a firearm.

PHIL DEWSTONE

Phil Dewstone was interviewed by Det. Hagg. He stated that he and his wife went to seea movie earlier in the evening. When he drove home (he lived down the street from the 7-Eleven) that night around 9:00 p.m., he was unable to find a place to park. He droppedhis wife off in the area of their home and decided to get a drink at the 7-Eleven. Afterpurchasing the drink, he sat in his truck and decided to nap until his wife needed to wakeup for work at 5:00 a.m. He reclined in the driver's seat and tried to sleep. He was dozingin and out of sleep for an unknown amount of time when he heard loud yelling thatawoke him. He was not sure what the person was saying, but he heard one male voiceyelling. He stated that the yelling was coming "from a distance" and the person yellingwas not very close to his vehicle. He believed he was unable to understand what theperson was saying because he was not fully conscious at the time and his level ofcomprehension was diminished. However, he stated that the yelling was not only loudenough for him to hear, but was loud enough to wake him up.

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He raised himself and looked out the windshield. As he did so, he heard gunshots, andthen heard something hit the body of his truck. He saw an unknown piece of debris strikehis front windshield. He immediately ducked down for protection. He believed he hadheard two to three shots and that the shots were being fired by a police officer. He wasunable to see any officers but he did see at least one and maybe two police vehicles.Immediately after the shots were fired, he heard a female voice scream, o'Call anambulance!"

Dewstone then heard commands to raise his hands. He poked his head up from hislowered position and raised his hands. An officer instructed him to throw his keys out thewindow, which he did. The officers asked him if he could see a gun, but one was notvisible from his window. He saw Gates lying on the ground in the area directly in front ofthe space between his driver's side and the car parked next to him. He thought Gates waswearing a red hood, blue jeans, and a glove on one hand, while the other hand was out ofsight, under Gates' body. He also saw a brown paper bag near the suspect.

Officers then instructed Dewstone to exit his vehicle through the passenger door becausethey were afraid the suspect might be "playing possum." He complied with these orders.

JOSE A¡{GEL GARCIA

Jose Angel Garcia was interviewed by Ofc. Larsen. He lived at2149 Monroe St. #7. Hewas about to go to sleep when he heard gunshots at about 2:20 a.m. He said it soundedlike there was metal being dropped in the parking lot. It wounded like someone wasscrambling around in the parking lot. He heard about five to six gunshots, and he thoughthe heard two different types of guns, one a rifle and one a handgun. He indicated that heknew this because he often goes to the shooting range.

Garcia heard yelling prior to the gunshots to the effect of "No, no, no, stop, stop!" Hethought someone was trying to give someone a "heads up," meaning not to fire shots. Helooked out the living room window and saw kids running everywhere, while officersinstructed people to get their children inside.

ARTHUR ALVAREZ ZUNIGA

Arthur AlvarezZuniga was interviewed by Ofc. Larsen. He lived at2l49 Monroe St. #7.He stated he was sleeping in the master bedroom when the gunshots woke him up. He didnot look out the window, but he heard a man's voice say, "He has a gun. Put the gundown." He then heard four to five gun shots, which were repetitive and over in aboutthree to four seconds. After that, he heard men telling someone to "get out of the car, getyour hands up, get on the ground." He heard a woman yelling for other people to gohome and male voices, possibly officers, telling people they needed to move.

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BECI(Y RODRIGUEZ ZUNIGA

Becky Rodriguez Zunígawas interviewed by Ofc. Larsen. She lived at2I49 Monroe St.#7. She heard sounds that she thought were delivery trucks. She looked out her bedroomwindow and saw officers and a police vehicle. She heard one officer say, "He's got a gun,put down the gun." Then there were three to four gunshots. She could not see who theofficers were talking to because the car (suspect vehicle) was on the other side of the 7-Eleven store.

She said that when she looked out the window, she saw the officers with their gunspointed toward the suspect care. She could not see the vehicle, but he thought that's whatthey were doing because they were directing their voices in that direction. The officersbegan directing someone to o'get out of the car" and "put your hands up." She heard theminstruct a man to take off his seatbelt and climb out of his vehicle through the passengerside.

MARIE INES ISLAS-RAMIREZ

Marie Ines Islas-Ramirez was interviewed by Ofc. Phan. She lived at2150 Main St. #19.She, Liboro Lopez-Franco and their daughter were asleep. At about 2:00 a.m., Ramirezwas awoken to the sound of "BOOM, BOOM, BOOM." She recalled hearingapproximately 3 booms. She looked out her 2nd story bedroom window and saw a femalein a red-colored car, sitting in the vehicle with her hands out the window. She did not seewhat the female looked like. She also saw a white-colored truck, with a person sitting inthe truck with hands out the window.

Ramirez heard the police yell "Stop!" She did not know what the sounds of "Boom"were. She said her daughter was sleeping.

EVIDENCE COLLECTION

OFFICER STEVEN ERNST

In conjunction with his duties as a Crime Scene Investigator, Ofc. Ernst responded to2105 Scott Blvd. on March 22,2015 and was tasked with collecting evidence at thescene. He measured and documented the location of evidence in the crime scene sketch.He found:

Three .45 casings near the southeast portion of the parking lot, close to the sidewalk;Five .223 casings near the front of the Santa Clara County Police Vehicle marked withunit 3032 and parked in the lot;Black sage projectile near the deceased and the brown paper bag;Brown paper bag with cash inside;Cash, totaling $345, found inside the brown paper bag;Gray Colt Trooper MK III357 magnum revolver found near the deceased along with fivebullets and six casings inside;

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Bullet hole in driver side front quarter panel of Ford F-l50;Bullet hole in grill of same Ford F-150;Black sage projectile on sidewalk near Scott Blvd.;Black sage projectile (top portion) in dirt north of Ford F-l50;Black sage projectile (bottom portion) underneath Ford F-l50;Ricochet mark on floor of 7-Eleven behind cash register;Hole in base of 7-Eleven counter directly behind the mark on the floor;Red projectile fragment found on floor of 7-Eleven which looked similar to the unspentprojectiles in the Gray Colt Trooper MK III 357 magnum revolver;One 9mm casing found in front of 7-Eleven doors;2014 red Ford Focus, license plate 7FSY047;Projectile fragment underneath front of Ford F-l50;Projectile fragment inside front of Ford F-l50;2012 gray Ford F-150, license plate 42138H1.

OFFICER JAMIE ELLIS

After responding to the scene at2105 Scott Blvd., Ofc. Ellis returned to SCPD to carryout her role as Evidence Technician and process the duty weapons and ammunition ofOfficers Craig and Van Diemen and take photographs.

Ofc. Ellis obtained the following from Ofc. Craig: a Colt AR-l5 rifle and one 30 roundmagazine; a Glock 2l andthree 13 round magazines; and one Glock 30 and one l0 roundmagazine. There were (23) .233 rounds, and (51) .45 rounds total.

Ofc. Ellis then collected the following from Ofc. Van Diemen: a Glock 2l and three 13

round magazines; and a Smith & Wesson Airlite revolver with no additionalammunition. There were (37) .45 rounds, and (5) .38 rounds.

OFFICER STEPHANIE KNIGHT

On March 22,2015 Ofc. Knight responded to 2105 Scott Blvd. to assist in processing thescene pursuant to her collateral duties as a Crime Scene Investigator. Upon arrival, Ofc.Knight worked with Ofc. Selberg to take measurements of the scene using thedepartment's Nikon Pulse Laser Station and the Tripod Data Systems Ranger. She thencreated a factual diagram, which was later merged with Ofc. Emst's sketch to produce thediagram on the next page.

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MEDICAL EXAMINER

On Monday, March 23,2015, Medical Examiner Doctor Joseph O'Hara performed anautopsy on the body of 24 year old Devin James Gates. The following pathologicaldiagnoses were noted:

A distance range gunshot wound of the right shoulder and neck without exit. The bullettraveled from the right to the left, upward, and front to back. A slug fragment wasrecovered from the back ofthe neck.

A distance range gunshot wound of the abdomen without exit. The bullet traveled fromthe right to the left, downward, and slightly front to back. A fragment of orange metaljacket and gray slug was recovered from the right wing of the pelvis.

A distance range gunshot wound of the back with exit. The bullet traveled from back tofront, left to right and upward.

Puncture wounds and abrasions due to law enforcement agency canine activity werenoted. These included a puncture defect of the upper right arm, a puncture defect on thesacral region of the back, multiple abrasions of the back and two abrasions of the rightbuttock.

Toxicology: Gates tested positive for Caffeine, Levamisole (animal worming agent oftenfound as contaminant in cocaine), Alprazolam (benzodiazepine), Delta-9 THC (activeingredient in marijuana), Delta-9 Carboxy THC (inactive metabolite of THC), Cocaineand Benzoylecgonine (cocaine degradation product).

The cause of death was gunshot wounds of the neck and trunk.

CRIMINAL RECORD OF DEVIN GATES

Gates was born March 27 , 1990. In 201 0 he was convicted of a felony for possession of acontrolled substance in violation of Health and Safety Code $ 11350(A). He wassentenced to serve two months in jail and three years probation. This was converted intoserving 58 days in a work program. He also had two outstanding warrants from SanJoaquin Sheriff s Office and Tracy Police Department.

ADDITIONAL INFORMATION ABOUT DEVIN GATES

As a result of this incident, Gates was linked to another armed robbery arising out ofManteca. Manteca Police dispatched a TRAX flyer for the armed robbery of a Quick andEasy Food Mart on March 17,2015 at6:45 p.m. The suspect was described as an AfücanAmerican male in his early 20s, approximately 5'08"-5'10", with a thin build and shorthair. He was armed with a large caliber silver or chrome revolver in his right hand, andcarried a brown paper bag in his left. He pointed the revolver at the store clerk and

JJ

demanded he put all the money from the cash register into the bag. The suspect fled thescene in a newer white vehicle at a high rate of speed.

The clerk estimated about $1,000 in cash was taken. The entire interaction was capturedon the store's surveillance video, and there was a clear frontal view of the suspect at thefront register holding the bag with blue and black gloves on his hands. This was includedin the TRAX flyer.

RELEVANT LEGAL PRINCIPLES

This review was conducted pursuant to the joint protocol between this office and allSanta Clara County law enforcement agencies, which calls upon the District Attorney toconduct an independent assessment of the circumstances surrounding the use of deadlyforce. This review does not examine issues such as compliance with the policies andprocedures of any law enforcement agency, ways to improve training or tactics, or anyissues related to civil liability. Accordingly, such a review should not be interpreted as

expressing an opinion on these matters.

Possible criminal charges against an officer involved in a fatal shooting include murder(Penal Code section 187) and voluntary manslaughter (Penal Code section 192).In orderto convict an officer of any of these charges, however, it would be necessary to provebeyond a reasonable doubt that no legal justifications existed for the officer's actions.(People v. Banks (1977) 67 Cal.App .3d 379.) Several justifications may apply in anygiven case and they are set forth in Penal Code sections 196 and 197. The justificationspertinent to this case are found in Penal Code section 196: justif,rable homicide by publicofficer, and Penal Code Section 197: use of force in self-defense/defense of others.

Penal Code Section 197: eral Rishf to Self-I)efense

California law permits all persons to use deadly force to protect themselves from thethreat of death or great bodily harm. Penal Code section I97 provides that the use ofdeadly force by any person is justifiable when used in self-defense or in defense ofothers. The relevant Criminal Jury Instruction as written by the Judicial Council ofCalifornia and set forth in CALCRIM 3470 permits a person being assaulted to defendhimself from attack if, as a reasonable person, he had grounds for believing and didbelieve that great bodily injury was about to be inflicted upon him or upon anotherperson. In doing so, such person may immediately use all force and means which hebelieves to be reasonably necessary and which would appear to a reasonable person in thesame or similar circumstances, to be necessary to defend against that danger and toprevent the injury which appears to be imminent.

One may resort to the use of deadly force in selÊdefense where there is a reasonable needto protect oneself from an apparent, imminent threat of death or great bodily injury.Perfect self-defense requires both subjective honesty and objective reasonableness.(People v. Aris (1989) 215 Cal.App.3d I 178, 1186.) "Imminence is a critical componentof both prongs of self-defense." (People v. Humphrey (1996) 13 Cal.4th1073,1094.)

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Response with deadly force must be predicated on a danger that portends imminent deathor great bodily injury. The person's right of self-defense is the same whether the dangeris real or merely apparent. (People v. Jqckson (1965) 233 Cal.App.2d 639.)

Reasonableness and immediacy of threat are intertwined. Self-defense "is based on thereasonable appearance of imminent peril of death or serious bodily injury to the partyassailed. .." (People v. Turner (l 948) 86 Cal.App .2d 7 91, 7 99.)

In Aris, the trial court's clarifying instruction to the jury on the subject was to the pointand later cited with approval by the California Supreme Court: o'An imminent peril is onethat, from appearances, must be instantly dealt with." (In re Christian

^S. (1994) 7 Cal.4th

768,793).

What constitutes "reasonable" self-defense is controlled by the circumstances. Thequestion is whether action was instantly required to avoid death or great bodily injury. Inthis regard, there is no duty to wait until an injury has been inflicted to be sure that deadlyforce is indeed appropriate. In one case, a robber pointed a gun at his victim and a deputysheriff was called to the scene of the robbery. Before the robber could get off a shot, thedeputy fired his weapon, wounding the robber. The appellate court remarked that "[s]uchaggressive actions required immediate reaction unless an officer is to be held to theunreasonable requirement that an armed robber be given the courtesy of the first shot."(People v. Reed (1969) 270 Cal.App.2d37,45).

Penal Code Section 196: Justifiable Homicide bv Public Officer

In addition to using deadly force in selÊdefense or defense of others, police offices mayuse deadly force in the course of their duties under circumstances not available tomembers of the general public. Penal Code section 196 provides that use of deadly forceby a public officer is justifiable when necessarily used in arresting persons who are

"charged with a felony and who are fleeing from justice or resisting arrest. Section 196

applies where the officer has "reasonable cause" to believe that the person has committeda forcible and atrocious felony and the officer has probable cause to believe that thesuspect poses a threat of future or imminent death or great bodily injury, either to theofficer or to others. Forcible and atrocious crimes are generally those crimes whosecharacter and manner reasonably create a fear of death or serious bodily harm, such as

murder, mayhem, rape and robbery. (People v. Kilvíngton Q89\ 104 Ca1.86,89; Kortumv. Alkire (1977) 69 Cal.App.3d325,333.)

When a police officer has probable cause to believe that the suspect poses a threat ofserious physical harm, either to the officer or to others, it is not constitutionallyunreasonable to prevent escape by using deadly force. (Tennessee v. Garner (1985) 471

U.S. 1, 11.) This limitation was subsequently clarified by the United States SupremeCourt inGrahamv. Conner (1989) 490 U.S. 386, wherein the Supreme Court explainedthat an officer's right to use deadly force is tobe analyzed under the FourthAmendment's "objective reasonableness" standard. The test of reasonableness in thiscontext is an objective one, viewed from the vantage of a reasonable officer at the scene,

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rather than with the 20120 vision of hindsight . (Graham, supra,490 U.S. at 396.) It is alsohighly deferential to the police officer's need to protect himself and others. The calculusof reasonableness must embody allowance for the fact that "police officers are oftenforced to make split-second judgments-in circumstances that are tense, uncertain, andrapidly evolving-about the amount of force that is necessary in a particular situation.(Ibid.) The "reasonableness" inquiry in an excessive force case is an objective one: thequestion is whether the officers' actions are "objectively reasonable" in light of the factsand circumstances confronting them, without regard to their underlying intent ormotivation (Ibid.)

As one court noted, "[U]nder Graham we must avoid substituting our personal notions ofproper police procedure for the instantaneous decision of the officer at the scene. Wemust never allow the theoretical, sanitized world of our imagination to replace thedangerous and complex world that policemen face every day. What constitutes'reasonable' action may seem quite different to someone facing a possible assailant thanto someone analyzingthe question at leisure .' (Smith v. Freland (6th Cir. 1992) 954 F.2d343,347 .)

The Supreme Court's definition of reasonableness is, therefore, oocomparatively generousto the police in cases where potential danger, emergency conditions or other exigentcircumstances are present." (Roy v. Inhabitants of Cíty of Lewiston (1't Cir. 1994) 42F.3d691,695.) In effect, the Supreme Court intends to surround the police who make theseon-the-spot choices in dangerous situations with a fairly wide zone of protection in closecases. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th334,343-344.) Whenjustified in using force to stop a threat, the Supreme Court has held that officers maycontinue to use force until that threat has ended. (Plumhoffv. Rickard (2014) 134 S.Ct.20t2,2012.)

The test for determining whether a homicide was justifiable under Penal Code section196 is whether the circumstances reasonably created afear of death or serious bodilyharm to the officer or to another. (Martinez v. County of Los Angeles (1996) 47Cal.App.4th 334,349). Officers may reasonably use deadly force when they confront an

armed suspect in close proximity whose actions indicate intent to attack. (Id. at 345). Insuch circumstances, the courts cannot ask an officer to hold fire in order to ascertainwhether the suspect will, in fact, injure or murder the officer. Qbid.) A peace officer doesnot have to wait until a gun is pointed at the officer before the officer is entitled to takeaction. An officer is entitled to use deadly force when the officer has reason to believe thesuspect is armed, even if the officer cannot confirm that the suspect is actually armed.(Anderson v. Russell (2001 ) 247 F .3d 125, 129, I3l .)

ANALYSIS

This report is limited to the behavior of the "involved" officers: Officer Josh Craig andOfficer Randy Van Diemen. We carefully examined their recorded statements outliningthe events that culminated in the shooting of Devin Gates as well as the statements ofevery law enforcement and civilian witness to the event, all video recordings of the

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incident, prior police reports involving Gates, and the physical evidence collected fromthe scene and during the autopsy.

Penal Code Section 1.97: General Risht to Self-Defense

Determining whether Officers Craig and Van Diemen were legally justified underprinciples of self-defense and defense of others to discharge their firearms involves atwo-part analysis: (1) whether their belief in the need to protect themselves and anunknown number of civilians in the nearby vehicles and surrounding residential area

from an apparent, imminent threat of death or great bodily injury was objectivelyreasonable, and (2) whether they did subjectively and honestly believe they needed toprotect themselves and others from an apparent, imminent threat of death or gteat bodilyinjury.

The following facts support concluding that Officer Craig's and Officer Van Diemen'sfear of imminent danger was objectively reasonable.

Officer Craig and Offrcer Van Diemen were working patrol in a high density residentialarea. The 7-Eleven building abutted multi-unit apartment complexes. To the north was2150 Main St, approximately 50 to 100 feet from the back of the store. To the east,perhaps 100 to 150 feet from the doors of the 7-Eleven was 2149 Monroe St. Both ofthese are multi-story apartment buildings. To the south, across the street was a strip mallwith various businesses and a parking lot. To the southwest of the 7-Eleven was aChevron gas station open for business.

The 7-Eleven had bright lighting, and the clear glass paneling of the storefront permitteda view of the interior. The officers had seen and heard Gates' gun go off as he shot at theclerk. Moreover, the area in front of the store was well-lit, and this was furthersupplemented by their vehicle headlights. When Gates exited the store, he looked directlyat the officers. Both of them were wearing full police uniforms and were standing next tofully marked, black and white police vehicles with the Santa Clara Police Departmentemblem. Even if, somehow, this escaped Gates' attention, both officers yelled for Gates

to stop. He ignored them, tumed right, and made his way toward the west side of thebuilding. In this area, the lot was considerably darker. The officers knew Gates wasarmed with a deadly weapon. He had already demonstrated his proclivity for violence. Heshowed no sign of complying with their commands. They had no way of knowingwhether innocent civilians or additional suspects were inside the cars or were hiding outof sight. Gates posed a significant threat to their lives and the lives of others.Recognizing this immediate safety risk and intending to impede Gates from causing moreharm or escaping, the officers had no other means by which they could neutralize thethreat than to discharge their weapons.

Though each officer was equipped with a Taser and pepper spray, neither of these wouldhave been suitable to confront Gates. They estimated their distance from Gates to rangefrom 30 to 75 feet during the encounter, but Tasers and pepper spray are designed formuch closer contact. Even at that distance, both officers were certain that Gates saw

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them. Officer Van Diemen remarked that Gates stared directly at him, and he expectedGates to begin firing. Officer Craig noted that Gates had no choice but to face the officersupon exiting the store, and there was no indication that he did not hear their commands.Additionally, the officers were unsure of the involvement of others nearby, whether Gateshad accomplices or whether he would subject innocent victims to carjacking, or worse.The gravity of the rapidly-evolving situation involving an armed and noncompliantsuspect demanded the use of force. Thus, no other action by the officers would haverendered the situation safe.

The first, single gunshot Officer Craígfired was not sufficient to stop Gates in his tracks.In fact, Gates showed no reaction at all and continued fleeing the scene, therebyjustifying additional rounds. Both officers reported they stopped firing as soon as theysaw Gates fall, because this effectively neutralized the threat. Concerned that Gates mightbe in need of medical attention, Officer Craigrequested that paramedics respond to thescene in his dispatch.

As for part two of the analysis, the facts described above all corroborate Officer Craig'sand Officer Van Diemen's statements that they fired their weapons out of fear for thedanger Gates posed to their lives and the lives of those around them.

This investigation revealed nothing that undermines the credibility of either Officer Craigor Officer Van Diemen. In their statements, both officers attest to the fact that had theynot engaged their weapons when they did, Gates might have taken a number of differentactions endangering their own lives as well as those of unsuspecting civilians. Theopinion of Brittany Schuyler that had the officers not shot Gates, he definitely wouldhave shot them, "he would kill anyone that tried to put his life in danger . . . he hates thepolice", confirms the necessity of the actions taken by Officers Craig and Van Diemen onMarch 22,2015.

As summarized in the previous section, California law permits any person to use deadlyforce where there is a reasonable need to protect oneself, or another, from an apparent,imminent threat of death or great bodily injury. Furthermore, it specifically permits policeofficers to use deadly force when arresting a person who has committed a violent felony(such as armed robbery) and the officer has probable cause to believe the person poses athreat of future or imminent death or great bodily injury, either to the officer or to others.Courts do not require officers to wait until they are physically attacked before they areentitled to take action.

Penal Code Section 196: Justifiable Homicide bv Public Officer

Determining whether Officers Craig and Van Diemen were legally justified underprinciples ofjustifiable homicide by public officer also involves a two-part analysis: (1)whether the officer has "reasonable cause" to believe that the person has committed a

forcible and atrocious felony and (2) whether the officer has probable cause to believethat the suspect poses a threat of future or imminent death or great bodily injury, either tothe officer or to others.

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Prong two (whether the officer has probable cause to believe that the suspect poses athreat of future or imminent death or great bodily injury, either to the officer or to others)has been discussed in full in the section above dealing with the general right to self-defense. It is clear that both officers did have reason to believe that Gates posed a threatto both themselves and to others in the vicinity.

Both Officers Craig and Van Diemen also had "reasonable cause" to believe that theperson has committed a forcible and atrocious felony. They had both personallywitnessed Gates engaging in an armed robbery. They had also both seen him dischargehis gun at the store clerk. Based upon their own personal observations, Gates hadcertainly committed an armed robbery and an assault with a firearm, but had alsopotentially committed a murder or attempted murder.

CONCLUSION

Under the facts, circumstances and applicable law in this matter, Officer Craig's andOfficer Van Diemen's use of force was in response to an immediate threat of great bodilyinjury or death. Additionally, they were confronted with a fleeing felon who had justcommitted an armed robbery and discharged a firearm. Therefore, their conduct is legallyjustifiable and no criminal liability attaches.

Dated: March 17 , ZOtø

Respectfully submitted by,

,Yøryí%-CAROLYN POV/ELLDeputy District Attorney

JEFFREY F. ROSENDistrict Attorney

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