The officers who shot and killed a homeless man in the Mission should be suspended for firing a bean bag gun at the suspect instead of de-escalating the situation, San Francisco’s police watchdog agency has found.
Records released Tuesday show the Department of Police Accountability has recommended that the Police Commission suspend Officer Michael Mellone for 45 days in connection with the fatal shooting of Luis Gongora-Pat at a homeless encampment near 18th and Shotwell streets on April 7, 2016.
DPA Director Paul Henderson recommended the discipline in a June 14 letter to Police Chief Bill Scott after his investigators found that Mellone “failed to follow almost every directive before deploying and while firing the” bean bag gun, which is called an Extended Range Impact Weapon.
“Officer Mellone unilaterally and immediately escalated to greater force in this situation, which involved an individual that was experiencing a mental health crisis,” Henderson wrote in the letter. “His escalated force appears to have aggravated the individual, forcing Officer Melone and another officer to use lethal force that resulted in death.”
Henderson also recommended that the Police Commission impose a 30-day suspension against Sgt. Nathaniel Steger for failing to “properly supervise” Mellone’s use of the bean bag gun against Gongora-Pat.
The officers shot Gongora-Pat within 30 seconds of responding to a 911 call of a man waiving around a large knife. DPA investigators found that police “had no evidence whatsoever that Gongora was a danger to anyone but himself.”
“Although he was in possession of a large knife, there was no indication that he used it on anyone or threatened anyone with it,” DPA investigators wrote in a June 14 report on the case. “He had been seen waving it around, but not at anyone in particular, and by the time the officers arrived, he was subdued, sitting on the ground with the knife in his hand by his side.”
The police shooting was the fourth in a string of controversial police shootings that prompted activists to stage a hunger strike outside Mission Police Station, calling for the firing or resignation of then-Police Chief Greg Suhr.
Suhr resigned a month later amid outrage over officers shooting and killing a woman named Jessica Williams on May 19, 2016 in the Bayview.
Despite the protests, District Attorney George Gascon declined to charge the officers who shot Gongora-Pat in May 2018. Gascon found that no crime had been committed because the evidence showed it was not unreasonable for the Mellone and Steger to shoot Gongora in defense of themselves or others.
Tony Montoya, president of the San Francisco Police Officers Association, said Gascon’s report on the decision “validated the duress and danger our officers were under.”
“It is unfortunate that the Department of Police Accountability disagrees with the District Attorney and does not have the courage to do what is right,” Montoya said. “Their efforts to continuously Monday morning quarterback dangerous encounters with armed subjects will lead to police officers or innocent bystanders getting killed.”
Montoya said officers “must be allowed to defend themselves” when attacked by an armed subject.
“In this particular incident, our officers used de-escalation tactics and deployed less-lethal force, tragically, the subject chose to continue to advance on our officers with a knife,” Montoya said.
DPA investigators found that Gongora-Pat was sitting down with the large knife when Steger and Mallone arrived. Gongora-Pat initially dropped the blade in compliance with the officers’ commands before picking it back up while remaining seated, prompting Mallone to fire the bean bag gun, according to the DPA report.
The officers then shot Gongora-Pat with their pistols when he stood up and charged at Steger with the knife in a slashing position, according to the DPA.
While the DPA sustained “Neglect of Duty” complaints against Steger and Malone for their conduct around the bean bag gun, the police watchdog did not sustain allegations of unnecessary force against the officers.
The DPA released the records Tuesday afternoon in response to a public records request the San Francisco Examiner filed under Senate Bill 1421, a new state transparency law requiring the release of police records in cases where officers lied, committed sexual assault or used serious force.
Last Wednesday, the Examiner obtained records from the DPA showing that the agency did not sustain allegations of wrongdoing against the officers who shot and killed Alex Nieto in 2014 or Amilcar Perez-Lopez in 2015.
The DPA released more than 1,800 pages of documents on the Gongora-Pat shooting, including crime scene photos, a summary internal investigations into the case and a report on the shooting from an independent police expert.
The files show that the Internal Affairs Division also found that Mallone did not use the bean bag gun in compliance with SFPD policy.
However, IAD found that the use of firearms by Steger and Mellone was within department policy.
IAD recommended that the officers receive crisis-intervention training and that Mellone be retrained on using a bean bag gun.
The SFPD’s Firearms Discharge Review Board, which investigates police shootings, discussed the recommended findings from IAD in March but did not reach a decision, according to a report from Scott to the Police Commission earlier this month.
The case was returned to IAD “for further investigation and clarification of the findings pertaining to the Department Bulletin regarding how to respond to mental health calls with an armed suspect.”
Whether the FDRB has since voted is not clear.
The Examiner could not confirm whether Steger or Mellone have faced discipline from the Police Commission or Chief Scott.
David Stevenson, an SFPD spokesperson, declined to comment.
Earlier this year, the family of Gongora-Pat settled a wrongful death lawsuit with The City for $140,000.
Update 6/26/19: This story has been corrected to reflect that the FDRB does not appear to have made a decision on whether Steger and Mellone violated department policy.