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

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1 I N T E R O F F I C E M E M O R A N D UM DATE: March 26, 2013 (760) FROM: TO: Lyvia Liu-Kaushal Deputy District Attorney Victorville Division-Annex Mary Ashley Chief Deputy District Attorney Victorville Division Gary S. Roth Assistant District Attorney Criminal Operations SUBJECT: Officer Involved Non-Fatal Shooting (PUBLIC RELEASE VERSION) Involved Officers: Jason Grantham; Brian Grimm Involved Agency: Apple Valley Sheriff s Department Suspect: Mark Daniel Whittaker (DOB: 11/16/83) Apple Valley Date/Time of Incident: 4/23/12 / 0500 hrs Incident Location: Erie Rd. / Thunderbird Rd, Apple Valley IO/Agency: Detective Joseph Steers, Case Agent, SB County Sheriff s Specialized Investigation Division, Homicide San Bernardino County Sheriff s Case DR #: / H San Bernardino County District Attorney Star #: SUMMARY OF REPORTS Deputies are dispatched pursuant to a 911 call regarding a man wandering the streets with a rifle and a knife at 0500 hours in the morning. Deputies Grimm and Grantham are the first to arrive and see Mark Whittaker walking along the street with a rifle in his hands. When Whittaker sees the deputies, he runs and hides behind a tree in the front yard of a residence. Whittaker kneels and aims the rifle at the deputies, using the tree for cover. The deputies get out of their vehicle and take cover behind their vehicle doors, fearing that Whittaker would shoot at them. They yell commands at Whittaker to put the gun down, but he does not comply and continues to aim the rifle at the deputies. Deputy Grantham hears a popping sound and believes that Whittaker is 1

2 shooting at them. Both Deputies Grimm and Grantham fire their handguns at Whittaker. Whittaker runs to a second tree in the corner of the front yard and again takes cover. Deputies continue to yell commands for Whittaker to show his hands. Whittaker does not comply. Deputies fire more shots. Eventually, Sgt. MacDonald and other deputies arrive at the scene and Whittaker surrenders. Whittaker suffered a single gunshot wound to the buttocks. As he was surrendering, he made comments that he is schizophrenic and has not slept in days. A pellet gun and a hammer were found next to the first tree. A canister of pellets was found in the street. A bowie type knife was found next to the second tree. While being transported to the hospital in an ambulance, Whittaker assaults Deputy Bechtol. He kicks Deputy Bechtol several times in the face and chest resulting in multiple lacerations and contusions on his head and face. Whittaker was eventually subdued after two deployments of the Deputy s taser and with the assistance of the EMT and another deputy who arrived on scene. STATEMENT OF FACTS San Bernardino Sheriff s Deputies are dispatched to a 911 call On April 23, 2012, at 0500 hours, Sheriff s Dispatch received a 911 call from a citizen reporting that a man was walking down a residential street armed with a rifle and a knife. Deputies Brian Grimm and Jason Grantham were assigned to respond. Summary of Deputy Grantham s Interview On April 23, 2012, Deputy Grantham was assigned as a Field Training Officer ( FTO ) of the patrol division for the San Bernardino County Sherriff s Department, Apple Valley Station. He was assigned to train Deputy Brian Grimm. They were working the night shift from 1900 to 0700 hours. At approximately 0430 to 0445 hours, dispatch broadcast a call for service concerning a subject walking north on Ramona Avenue near Thunderbird Road, armed with a gun and making statements about people in his attic. Deputies Grantham and Grimm went to assist. Deputy Grimm drove the marked patrol car, and Deputy Grantham rode in the front passenger seat. Sgt. MacDonald drove in a vehicle behind them. When they approached the intersection of Ramona Avenue and Thunderbird Road, Deputies Grimm and Grantham continued east, while Sgt. MacDonald went west. Deputies Grimm and Grantham drove until they passed Navajo Road and did not see anyone walking on the streets, so they made a U-turn and drove west. As they passed Erie Road, Deputy Grantham saw a subject walking north in the middle of Erie Road. They turned onto Erie Road in an attempt to contact the subject. As they turned onto Erie 2

3 Road, Deputy Grantham saw that the subject was carrying a rifle in his hands. At this time, they were approximately 200 feet from the subject and the subject was illuminated by the patrol vehicle s high beam headlights and spotlights. Deputy Grimm stopped the vehicle and as Deputy Grantham opened his door, he saw the subject, later identified as Mark Daniel Whittaker ( Whittaker ) carrying the rifle with both hands in front of his chest, in a port arms position. When he saw this, Deputy Grantham was scared and believed that he was in immediate danger, as Whittaker had the rifle in his hands ready to fire. Based on his training and experience, he knew that different calibers of rifle ammunition could penetrate the patrol unit, and he was unable to see exactly what kind of rifle Whittaker had in his hands. Furthermore, based on Deputy Grantham s experience patrolling this area, he knew that the residents in this part of Erie Road were elderly and he was worried about Whittaker entering one of the homes and taking someone hostage. Upon seeing them, Whittaker ran to the front yard of a residence. The deputies yelled commands to Whittaker, but Whittaker did not acknowledge any of the commands. Whittaker ran to a tree, knelt down behind it, and aimed the rifle at Deputy Grantham. Deputy Grantham recognized the movements and the use of the tree as cover as being consistent with someone trained in tactical movements and firearms. Deputy Grantham drew his firearm and stood behind the front passenger door to his vehicle. He saw Whittaker aim the rifle at him, and he aimed his duty weapon at Whittaker. Deputy Grantham was scared for himself as well as for Deputy Grimm who he knew had exited the vehicle. Deputy Grantham heard a popping noise from the rifle Whittaker was holding and believed that Whittaker was shooting at him. Deputy Grantham believed the rifle was a.22 caliber rifle based on the sound. He believed he or Deputy Grimm could be killed. Deputy Grantham fired his duty weapon at Whittaker approximately three to four times. Whittaker remained behind the tree. He fired his weapon again at Whittaker, three more times. Whittaker continued to aim the rifle at the deputies. Deputy Grantham fired again one or two times. Whittaker stood up and threw the rifle to the ground. Whittaker then ran to the north east corner of the residence and crouched behind another tree. Deputy Grantham tried to get to his radio to advise dispatch of shots fired and heard Deputy Grimm fire additional rounds at Whittaker. Deputy Grantham did not know where Deputy Grimm was positioned. Sgt. MacDonald arrived and yelled commands to Whittaker to come out of the corner with his hands up. Deputy Grantham also gave commands to Whittaker through the unit s PA system. Whittaker put his hands in the air and began to walk toward the deputies. Whittaker was yelling I m Schizo. Whittaker told Deputy Grantham that he was shot in the buttocks. Whittaker was handcuffed. Medical aid arrived. Deputy Grantham saw a stain on the back pocket of Whittaker s jeans but did not see any other injuries on Whittaker. Deputy Grantham checked the residences in the neighborhood; no one else was injured. 3

4 Summary of Deputy Grimm s Interview On April 23, 2012, Deputy Grimm was assigned to the patrol division for the Apple Valley Station. He was in the last phase of his field patrol training and was partnered with FTO Deputy Grantham. Deputy Grantham and Deputy Grimm were working the night shift from 1900 to 0700 hours. At 0500 hours, Deputies Grimm and Grantham were at the Apple Valley Station when he heard the dispatch regarding a suspicious person in the area of Standing Rock Ave and Ramona Ave. Deputies Grimm and Grantham responded to the call, with Deputy Grimm driving the patrol vehicle and Deputy Grantham sitting in the front passenger seat. The call described the suspicious person as a white male adult wearing a baseball cap and armed with a rifle. As Deputy Grimm drove by Erie Road, he saw the subject who was later identified as Whittaker. Whittaker was standing in the roadway of Erie Road, holding a rifle in front of him with both hands. Whittaker ran to a tree in the front yard of the residence, knelt behind the tree and raised the rifle, pointing the barrel at Deputy Grimm s patrol unit. Deputy Grimm stopped the patrol unit and got out of the vehicle. Based his training and experience, he believed that staying inside the patrol vehicle would render him trapped and was not good protection from gun fire because different calibers of rifle ammunition could easily penetrate the vehicle as well as ballistic vests. Deputy Grimm believed that Whittaker was going to shoot him and was afraid his life was in danger. After Deputy Grimm got out of the vehicle, he moved to the back of the driver s side to get cover. He heard shots fired. He did not know if Deputy Grantham or Whittaker had fired. Whittaker was still behind the tree with the rifle pointed at him. Deputy Grimm continuously yelled Show me your hands. However, Whittaker continued to aim the rifle at him. Deputy Grimm believed that he and Deputy Grantham were in danger and fired his handgun at Whittaker two times. Deputy Grimm could hear Deputy Grantham firing his handgun as well. Deputy Grimm then saw Whittaker run from behind the first tree towards another tree in the north east corner of the yard. Deputy Grimm believed that Whittaker still had the rifle and kept yelling for Whittaker to show his hands. Whittaker did not show his hands and ran behind the second tree and again took the same stance. Deputy Grimm believed that Whittaker was aiming the rifle again at them and fired his handgun two more times. Sgt. MacDonald arrived and parked his vehicle parallel to Deputy Grimm s unit. Whittaker raised his hands in the air and began walking to the front of the yard. Sgt. MacDonald began giving commands. Whittaker began following the instructions and got 4

5 down onto the ground. Deputy Bechtol arrived. Whittaker was handcuffed. Whittaker had a blood stain on his right buttocks. Whittaker stated that he had been shot in the buttocks, that he was schizophrenic and that he had been awake for eight days. Summary of Sergeant MacDonald s Interview On April 23, 2012, Sgt. MacDonald was assigned as the watch commander for patrol at the Apple Valley Station from 1900 hours to 0700 hours. At 0500 hours, he heard dispatch broadcast a call regarding a man walking in the area of Ramona and Thunderbird carrying a rifle, large knife and possibly a handgun. Sgt. MacDonald responded in a marked patrol unit. Deputies Grimm and Grantham also responded in a marked patrol unit. Sgt. MacDonald arrived in the area and headed west on Thunderbird. Deputies Grimm and Grantham headed east. Sgt. MacDonald heard Deputy Grantham broadcast on the radio that they found the suspect on Erie Road, north of Thunderbird. He began driving in that direction and heard gun shots fired. He heard approximately 6-8 shots fired. He believed that more than one gun was being fired at the same time and believed that the deputies were engaged in a gun battle with a suspect armed with a rifle. When Sgt. MacDonald turned onto Erie Road, he saw the patrol vehicle parked on the east side of the road, turned toward the front yard of the residence. He saw Deputy Grimm behind the front driver s side door and Deputy Grantham behind the front passenger door. He parked his unit parallel, as he would in a high risk traffic stop. He tried to get the shotgun from his vehicle, but it was jammed, so he exited the vehicle and stood behind the front driver s door with his duty handgun. Sgt. MacDonald heard both Deputies Grimm and Grantham shouting show me your hands to Whittaker who was behind a tree in the north east corner of the yard. He saw Whittaker raise his hand and walk out of the corner. As Whittaker was walking, he stated that he was schizophrenic. Deputy Mitchell arrived on scene and stood behind Sgt. MacDonald. Deputy Mitchell said she saw something in Whittaker s right rear pants pocket. Deputy Bechtol arrived on scene. Whittaker was handcuffed without further incident. Whittaker was searched and the object in Whittaker s rear pocket was a gunshot wound from the incident. The paramedics arrived to transport Whittaker to the hospital for the gunshot wound to his buttocks. The scene was secured and Sheriff s Special Investigations/Homicide Detail was called. Summary of Deputy Bechtol s Interview On April 23, 2012, Deputy Bechtol was assigned to patrol at the Apple Valley 5

6 Station. He was dispatched to a call on Erie Road regarding a suspicious person walking around with a gun and knife. Deputy Bechtol heard over the radio as other deputies announced that they arrived on scene, and then heard shots fired over the radio. He arrived about a minute after the shots fired broadcast. He parked behind other patrol vehicles on Erie Road, just north of Thunderbird. He heard other deputies ordering the suspect to come back towards them and saw that Whittaker was behind a tree in the front yard of a residence. Deputy Bechtol grabbed a less than lethal shotgun to provide additional options if necessary. Deputy Bechtol positioned himself behind Sgt. McDonald s patrol car. Whittaker came out from behind the tree and laid on the ground. He was handcuffed without further incident and placed into Deputy Grimm s vehicle to wait for medical aid to arrive. When medical aid arrived, Deputy Bechtol escorted Whittaker to the ambulance. Whittaker was following instructions and appeared calm. Deputy Bechtol moved Whittaker s handcuffs to the front and had Whittaker sit on the transport gurney. Deputy Bechtol got into the ambulance with the paramedic ( Witness 1 ) and the ambulance left for Arrowhead Regional Medical Center. About five minutes into the transport, Witness 1 asked Whittaker to turn onto his side so that he could get a better look at the injury to Whittaker s buttocks. Whittaker said that he did not want them to fuck him in the butt. Deputy Bechtol assured Whittaker that no one was going to sodomize him. Whittaker continued to refuse. He started to take deep breaths and got a blank stare in his eyes. He then kicked Deputy Bechtol in the right side of his face and continued to kick Deputy Bechtol in the face and chest. Witness 1 struck Whittaker numerous times attempting to stop him from assaulting Deputy Bechtol. Deputy Bechtol believes he was kicked more than four times. Deputy Bechtol got his taser and aimed it at Whittaker s abdomen, but it was ineffective. Whittaker continued to kick and struggle with Witness 1. Deputy Bechtol discharged a second set of taser darts and Whittaker temporarily stopped fighting. The ambulance driver ( Witness 2 ) stopped the ambulance and assisted with pinning Whittaker down until Deputy Whitsell arrived on scene. Whittaker was handcuffed to the gurney and legs were hobbled. They arrived at Saint Mary s Medical Center without further incident. Deputy Bechtol sustained multiple injuries to his arms and head, including lacerations on his head and contusions on his head and face. Belt Recordings The belt recordings of Deputy Grantham, Deputy Grimm, and Sgt. MacDonald were all activated during the incident. They were all reviewed by Det. Steers who determined that they were all consistent with Deputy Grantham, Deputy Grimm and Sgt. MacDonald s statements. The recordings were downloaded and placed in the case file. 6

7 Crime Scene Investigation The following physical evidence was found at the scene: - A pellet gun with a wood stock and black barrel was found near the tree in the front yard of the residence on Erie Road (the first tree where Whittaker hid). - A hammer was found just to the west of the same tree (the first tree where Whittaker hid). - A large bowie type knife was found on the ground next to the tree at the northeast corner of the front yard of the residence on Erie Road (the second tree where Whittaker hid). - A tin of lead pellets were found in the street. - The patrol unit of Deputy Grimm parked on the east side of the street with both front doors open. - Fired cartridge casings were located on the street behind and in the dirt easement to the east of Grimm s and Grantham s unit. - The patrol unit of Sgt. MacDonald positioned to the west of Grimm s and Grantham s unit. Whittaker s Injury Whittaker sustained a single gunshot wound to his right butt cheek. It was a through and through wound. He was released within an hour from the hospital to the deputies. STATEMENT OF APPLICABLE LAW Arrest Detention Use of Reasonable Force Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to affect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. (Penal Code Section 835a). If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest. (Penal Code Section 834a). Self-Defense It is lawful for a person who is being assaulted to defend himself from attack if he reasonably believed that he or someone else was in imminent danger of suffering bodily injury, he reasonably believed that the immediate use of force was necessary to 7

8 defendant against that danger, and he used no more force than was reasonably necessary to defend against that danger. (CALCRIM 3470). Self-Defense Actual Danger Not Necessary When deciding whether a person s claim to self-defense was reasonable, all circumstances as they were known to and appeared to him should be considered and what a reasonable person in a similar situation with similar knowledge would have believed should be considered. If his beliefs were reasonable, the danger does not need to have actually existed. (CALCRIM 3470). Self-Defense Retreat Not Required A person is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue and assailant until the danger of death/bodily injury has passed. This is so even if safety could have been achieved by retreating. (CALCRIM 3470). ANALYSIS & CONCLUSION In the present case, Deputy Grimm and Deputy Grantham s actions on April 23, 2012, were justified under the circumstances, under the laws of self-defense. Deputies were dispatched to a call of a man wandering the streets with a rifle and a knife at 0500 hours in the morning. They are in a marked patrol car and Deputy Grimm is wearing his patrol uniform. When they see Whittaker, he is indeed holding what appears to be a rifle in his hands. However, before the deputies could even approach and contact Whittaker, Whittaker runs to a tree, kneels and aims the weapon at the deputies. The deputies are afraid that Whittaker is preparing to shoot at them, so they draw their weapons and take cover behind their respective vehicle doors. Based on the circumstances, a reasonable person in their position could come that that same conclusion. At this point, the deputies have the right to use reasonable force in self-defense. Since the deputies saw Whittaker with a rifle, the amount of force that was reasonable in self-defense is deadly force. When Deputies Grimm and Grantham heard a popping sound and believed Whittaker was firing the rifle at them, and they knew from training and experience that a rifle shot could hit and/or penetrate their cover, they were lawfully allowed to defend themselves from this imminent threat of danger. The fact that the rifle was later determined to be a pellet gun does not negate Deputies Grantham and Grimm s right to self-defense, since a reasonable person in their position would have also believed that he was in imminent danger. The pellet gun that was recovered from the tree where Whittaker first took cover and aimed had a wood stock and black barrel. 8

9 Moreover, Deputies Grantham and Grimm were not required to retreat. They had only moments to react from the time they first saw Whittaker walking with the rifle in his hands and when Whittaker positioned himself behind the tree, aiming the rifle at the deputies. Since the deputies knew that a rifle shot could penetrate the patrol vehicle, retreat was not a good option and was not required under the law. When Whittaker ran to the second tree and again took cover, Deputy Grantham saw him drop the rifle, but did not know if Whittaker had another weapon. Deputy Grimm did not see Whittaker drop the rifle and believed that Whittaker still had it. Whittaker continued to refuse to show his hands. It was not unreasonable at this point for the deputies to believe that Whittaker was still armed and that they were still in imminent danger. When Deputy Grimm fired additional shots at this point, it was still lawful for him to do so in self-defense. Again, the force was reasonable since he believed Whittaker had a gun. The fact that Whittaker no longer had a rifle and did not possess a second gun, as determined by the evidence after the fact, is irrelevant since actual danger was not necessary. A reasonable person in Deputy Grimm s position could have believed that danger was imminent at that point in time. All the physical evidence is consistent with Deputies Grantham and Grimm s account of what occurred. A pellet gun that looks like a rifle, with a wood stock and black barrel was found near the first tree, where Whittaker initially took cover and aimed. A hammer was also found next to the first tree. A bowie knife was found on the ground next to the second tree. Belt recordings for all deputies were triggered and reviewed. They were all consistent with Deputies Grimm and Grantham s account of what occurred at the time of the shooting. When Whittaker finally surrendered, he stated that he was schizophrenic. Furthermore, his assault on Deputy Bechtol in the ambulance while they were trying to treat Whittaker for his injury and Whittaker s strange belief that he was going to be sodomized by Deputy Bechtol in the ambulance, all show Whittaker s state of mind. Based on the totality of Whittaker s actions, the information that deputies were given about the call, and the circumstances that Deputies Grimm and Grantham found themselves in and the time span, the shooting was justified based on self-defense. Respectfully Submitted, MICHAEL A. RAMOS District Attorney By Lyvia Liu-Kaushal Deputy District Attorney Dated: 9

10 Approved by: Mary Ashley Chief Deputy District Attorney Dated: Dated: Gary S. Roth Assistant District Attorney-Criminal Operations 10