LA Police Commission: Officer broke policy with final two shots in fatal encounter
Officer Toni McBride's first four shots were justified but the final two were not, the commission ruled
By Kevin Rector, Richard Winton
Los Angeles Times
LOS ANGELES — The Los Angeles Police Commission ruled Tuesday that LAPD Officer Toni McBride broke department policy when she continued shooting Daniel Hernandez during a fatal encounter in April — deciding McBride's first four shots were justified, but her fifth and sixth shots were not.
Hernandez had been involved in a vehicle collision on San Pedro Street near East 32nd Street on April 22 when McBride and her partner arrived on the scene. Video showed McBride repeatedly advised Hernandez to drop a box cutter that he was holding as he approached her, then shot him six times in a matter of seconds.
Hernandez went down to the asphalt after the first two shots, but quickly pushed himself up and forward again. McBride then fired four more rounds — the final two coming as Hernandez was on the ground.
The commission's decision in the controversial case — which it made in a rare 4-1 split vote — matched the recommendation of staff in the LAPD inspector general's office who reviewed the shooting, but broke with that of LAPD Chief Michel Moore, who had recommended that all six shots be found justified.
It also followed emotional testimony from Hernandez's mother, his daughter and five of his siblings during the commission's virtual meeting Tuesday, who denounced the shooting, called for McBride to be prosecuted for murder and remembered Hernandez as a doting father and son who helped his parents with their carpeting business.
"When my father died, a part of me died with him," said Melanie Hernandez, 15. "I will never understand Toni McBride's actions."
What punishment McBride will face, if any, falls to Moore, who said Tuesday afternoon that he had not made any decisions.
"I will reflect on this and look back on this investigation again before I make a final decision," Moore said.
McBride could not be reached for comment Tuesday.
The case had drawn widespread attention in part due to McBride's controversial persona as a dolled-up sharp-shooting influencer on social media — where her critics say she glorifies police violence — and because of the influence in policing circles of her father, Jamie McBride, who is one of nine directors of the powerful Los Angeles Police Protective League, the union that represents rank-and-file officers in labor and discipline issues.
[READ: The rarity of deadly force]
Former Los Angles County Dist. Atty. Jackie Lacey, who received millions of dollars from the police union for her failed reelection campaign, recused herself from investigating the shooting this summer, with the California attorney general's office agreeing to take over the case in August.
The Police Commission's administrative decision Tuesday has no bearing on the attorney general's review, which is ongoing.
Arnoldo Casillas, an attorney for the Hernandez family, said he was happy the commission found McBride at fault, but that Moore's stance smacked of favoritism.
"There is a very significant appearance of impropriety for the chief to be so lenient with the daughter of a very powerful member of the police protective league," he said. "He hasn't spoken just yet in terms of the discipline, but the fact that he found no fault in any of the shooting is incredibly disappointing."
The commission also voted unanimously, and in line with recommendations from the inspector general and Moore, that the tactics used by McBride's partner — who did not engage Hernandez — broke department policy. Moore, who will also decide if that officer is punished, said the officer had not met department standards requiring officers to "work together as a team, and work in that team toward resolving risk to themselves and others."
McBride had asked her partner about the availability of less-lethal weapons to halt Hernandez's advancing toward her but never obtained them prior to the shooting. McBride fired six times, striking Hernandez each time. According to a report released in the case Tuesday, McBride told investigators she was concerned about the safety of bystanders in the area, and felt Hernandez was determined to harm someone.
Experts in police shootings have largely defended McBride's first shots but have been split on the latter ones. Activists, meanwhile, have denounced the shooting for months, joining the Hernandez family in calling for McBride to be prosecuted for murder. They've focused in part on a finding by the coroner that it was the final shots that killed Hernandez, and have argued that McBride should have sought to deescalate the situation from the start.
It is rare for the commission to find an officer broke policy in a fatal shooting, and even more so when the police chief recommends clearing the officer.
Their split ruling delineating the final two shots from the first four reflected a parsing of the incident that mirrored the broader public debate in the case and considerations that members of Hernandez's family had made as well.
During the commission meeting, Hernandez's oldest sister, Luz, argued that all of the shots were unjustified, as she felt the distance between Hernandez and McBride should have provided "ample time for her to deescalate the situation" or utilize less-lethal weapons prior to opening fire.
However, Luz Hernandez said the latter shots "were even more unjustifiable," and that her brother would still be alive if they hadn't occurred.
"Once on the ground my brother Danny did not pose any imminent threat to her or any other officers on scene," she said. "These shots cannot be justified given that he was immobilized, on the ground and no longer a threat. This was an unjustified murder and it should be prosecuted."
Hernandez's mother, Maria, told the commission in Spanish that she demanded justice and wanted to see McBride prosecuted.
"What right do you have to take his life? Why does LAPD work within this system of corruption? Why?" she asked.
Retired LAPD Sgt. Cheryl Dorsey agreed that McBride's latter shots were unjustified. Dorsey said LAPD officers are trained to fire two shots, and then to reassess. She said McBride did that but made the wrong decision when she decided to continue firing — with the last two shots the most troubling.
"He was down on the ground," she said.
McBride deserves to be punished, she said, but with Moore having recommended she be cleared, she was skeptical a sufficient punishment would come.
Other experts said McBride did everything right.
Ed Obayashi, a Plumas County deputy and police shooting expert who investigates use of deadly force, said McBride "demonstrated professionalism and solid tactics" as Hernandez posed an immediate threat not only to her but to the many bystanders in the area.
"She does what every officer would do and shoots an immediate deadly threat. He could have gone right and left and been in that crowd of onlookers," Obayashi said. "She didn't panic."
Obayashi called the commission's decision "a completely uninformed and unrealistic assessment" of the situation McBride found herself in, and said it seemed to be punishing McBride for keeping her cool and pausing between shots instead of immediately unloading her entire magazine.
Staff writer James Queally contributed to this report.
This story originally appeared in Los Angeles Times.
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