REPORT ON THE FATAL SHOOTING OF
DEVIN GATES
oN MARCH 22,2015
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JEFFREY F. ROSEN
DISTRICT ATTORNEY
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PREAMBLE...
scENE............
FACTUAL SUMMARY ........
STATEMENT OF FACTS
LAW ENFORCEMENT OFFICER STATEMENTS ..
STATEMENT OF OFFICER JOSH CRAIG
OFFICER RANDY VAN DIEMEN.........
OFFICER JUSTIN MEAD
SERGEANT JOHANNA GREEN
OFFICER JOHN PATE........
OFFICER ERIC LAGERGREN..........
OFFICER TIMOTHY ALFORD..
OFFICER KEVIN ESTES
OFFICER JAMIE ELLIS
OFFICER PAUL GARCES......
OFFICER JASON KOEHLER.
DETECTIVE ROY GUTIERREZ...,........
SERGEANT TYSON SHEARER
DETECTIVE ALEXANDER TORKE............
OFFICER STEPHEN SELBERG
CIVILIAN STATEMENTS..........
BRITTANY SCHUYLER .............
HIEN NGUYEN
PRITAM SINGH
JACKIE BANKS
NATHAN AND SHERRY WASHINGTON....
PHrL DEWSTONE...............
JOSE ANGEL GARCIA..
ARTHUR ALVAREZ ZUNIGA
BECKY RODRIGUEZ ZUNIGA.....
MARIE INES ISLAS-RAMIREZ
EVIDENCE COLLECTION
OFFICER STEVEN ERNST
OFFICER JAMIE ELLIS
OFFICER STEPHANIE KNIGHT...............
MEDICAL EXAMINER
CRIMINAL 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 Police
Department and submitted to this office by case agents, Detective Sergeants Tony Parker
and Derek Rush. The submission included narrative reports documenting interviews of
the involved officers and civilian witnesses, electronic recordings of those interviews,
and crime scene details. This review is being conducted pursuant to the Officer-Involved
Incident Guidelines adopted by the Santa Clara County Police Chiefls Association on
October I1,2012.
SCENE
This incident took place at a 7-Eleven store which is located at2l05 Scott Boulevard, in
a residential area of Santa Clara. It is at the northeast corner of the intersection of Monroe
St. 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 glass
panels, which provide a view into the store from the parking lot and the street. There are
two driveways allowing access to the parking lot, one from the northbound lane of Scott
Blvd and the other from the westbound lane of Monroe St.
2105 ScottBlvd.
There are several parking spaces directly in front of the store's entrance, as well as a
number 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 Ford
Focus, had been backed into the third space from the left, but was pulled forward about
halfway. Ofc. Craig's police cruiser was also parked in the lot, facing westbound nearly
parallel to the storefront and about 30 feet from the doors. Ofc. Van Diemen stopped his
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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.
Suspect vehicle
Ofc. Craig vehicle
Ofc. VanDiemen
location
To the north abutting the 7-Eleven store is an apartment complex,2150 Main St. To the
east is another apartment complex, 2149 Monroe St.
2150 Main St.
2105 ScottBlvd.
2149 Monroe St.
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2149 Monroe St.
2150 Main St.
FACTUAL SUMMARY
On March 22,2015 at2:01a.m., Devin Gates entered the 7-Eleven store at 2105 Scott
Blvd. 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!"
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Simultaneously, Santa Clara Police Ofc. Josh Craig pulled into the 7-Eleven parking lot
from Monroe St, turned left, and stopped. His fully marked police vehicle was parallel to
the building, and Ofc. Craig had a direct line of sight inside through the glass windows of
the storefront. Santa ClaraPolice Ofc. Randy Van Diemen, who was also on duty atthat
time, had seen Ofc. Craig's vehicle and decided to follow him. As he was pulling in just
behind Ofc. Craig, Ofc. Van Diemen looked up and saw the confrontation at the cash
register. 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 armed
robbery 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 of
the store. Ofc. Craig gave commands for Gates to stop and show his hands, but Gates
ignored these commands. Ofc. Van Diemen also yelled to Gates to get on the ground, but
he refused to comply. Officers Craig and Van Diemen both discharged their weapons in
response, and Gates fell to the west of the building, near a red Ford Focus which had
emerged halfivay from its parking stall. He lay face down on the ground and his hands
were beneath his body, and no longer visible to the officers. The revolver was found
above 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 been
employed by the Santa Clara Police Department as a swom peace officer for
approximately 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 shift
at 8:00 p.m. on Saturday, March 21,2015. He was dressed in full police uniform. At
approximately 2:00 a.m. on Sunday, March 22,2015, he had just completed a call for
service in the area and resumed routine patrol when he decided to stop to use the
restroom at the 7-Eleven located at the intersection of Scott Blvd. and Monroe St. After
turning left into the parking lot from Monroe St., Ofc. Craignoticed two individuals on
foot headingaway from the store in a southwesterly direction. The pedestrians struck him
as unusual because they were walking briskly and looking over their shoulders, back
toward the 7-Eleven. As a result, Ofc. Craig's attention turned toward the store. Through
the glass-paneled storefront, Ofc. Craig observed a subject, Devin Gates, in a red hooded
sweatshirt and a mask pointing a silver handgun at the store clerk, who was standing
behind the counter. Gates held the gun in his right hand. Gates was pointing the gun at
the 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 parked
his vehicle, fully marked as a Santa Clara Police car, and broadcast the armed robbery
over police radio. He exited his vehicle, drew his duty weapon, a Glock 21 handgun, and
positioned himself behind the engine block. He also noticed that Ofc. Van Diemen's
vehicle had followed him and was situated behind his car.
Ofc. Craig then heard a gunshot and saw a movement in the handgun indicating to him
that 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, and
retrieved his AR-15, as he knew this weapon to be more accurate at a distance. He was
not certain whether he retrieved his AR-l5 immediately before or after the gunshot. Once
he had his AR-l5, Ofc. Craig saw Gates approaching the door to the store. Gates then
exited the store. He was carrying a brown bag in his left hand, but his right hand was
concealed inside his sweatshirt pocket. At this point, Ofc. Craig was about 30 feet away
from Gates. He shouted for Gates to show his hands. Gates was directly facing Ofc. Craig
as he exited the store. He gave multiple commands to the effect that Gates needed to stop
and show his hands. Gates did not obey and instead tumed right and began walking
westbound. Because Gates had to face the two fully marked police vehicles as he exited
the 7-Eleven and the area was well-lit by artificial lighting, Ofc. Craig was certain that
Gates 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 his
head to the left, toward the officers, and Ofc. Craig believed that Gates was going to turn
and engage him. Ofc. Craig had to evaluate several factors quickly. He considered that
they were in a predominantly residential area, surrounded by multi-unit apartment
complexes and other businesses. Further, Ofc. Craig had no idea whether the cars parked
to the west of the 7-Eleven were occupied, either by innocent bystanders or by additional
suspects. 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 easily
could have been trained on Ofc. Craig and Gates was moving slowly enough that he
would be able to shoot at Ofc. Craig. And, he had already seen Gates demonstrate a
propensity for violence. Thus, in order to protect himself and others in the area from
additional use of force by Gates and to prevent Gates' potential escape, Ofc. Craig felt he
had to take action in order to stop Gates. He was not in close enough proximity to
effectively use either a Taser or pepper spray on Gates. Therefore, he fired one round
toward Gates. He then observed Gates continue to move into the parking lot and realized
that 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 the
ground.
After giving additional commands to an unresponsive Gates, Ofc. Craig's attention
tumed to the vehicles, two of which he was now able to ascertain were occupied. Since
he did not know their association to the incident, he yelled for both occupants to show
their hands. Both occupants were compliant.
Ofc. Craig then notified dispatch that shots had been fired and the suspect was down. He
also requested for fire and medical to report to the scene as he recognized Gates might be
in need of aid. He resumed a position at the front of his patrol vehicle to maintain cover
until other officers arrived. He remained on scene a few more minutes, just long enough
for his position to be relieved by another officer.
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fucochet Mark
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Red-tþped
projectile fragment
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 for
approximately 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.He
wore full a full police uniform. Just before 2:00 a.m., he was driving slowly on Monroe
St. on routine patrol in a fully marked police vehicle. As he neared Scott Blvd., Ofc. Van
Diemen noticed another black and white police vehicle coming toward him. When it
turned 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 subject
standing 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 at
the 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. Van
Diemen parked just inside the lot, with his front end facing toward the front doors of the
7-Eleven. He realized he was witnessing an armed robbery in which the suspect had just
shot at the clerk. He heard Ofc. Craig broadcast this information, and quickly exited his
vehicle. As he did so, he saw the clerk go down behind the counter, and thought he had
been hit. He drew his department-issued Glock 2l handgun from its holster. He moved
first behind his driver's side door and then to the trunk area of his police car. Gates was
pointing the gun down behind the counter. Ofc. Van Diemen decided to move once more
to the area of the passenger side door, and was standing behind the engine block when
Gates 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 or
Ofc. Craig. Ofc. Van Diemen shouted for Gates to get on the ground. Gates disobeyed
this command, glanced in the direction of Ofc. Craig, turned and began running west
toward 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. He
noticed there was one car with its headlights illuminated, which had been backed into the
space. 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 which
there were likely to be people, and knew that Gates could affect deadly force. Ofc. Van
Diemen stepped to the right, and fired at Gates. He discharged three rounds, and almost
immediately 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 not
ascertain 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. He
was finally able to see that two of the vehicles were occupied. He yelled for the drivers of
the 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 from
the scene.
OFFICER JUSTIN MEAD
On March 22,2015, Ofc. Mead was working patrol in an unmarked Santa ClaraPolice
Department vehicle, and wearing a full police uniform. At2:01a.m., he was arrivingto a
low priority call for service when he received notice from Ofc. Craig that he had onviewed an armed robbery. Ofc. Craig then updated that there were shots fired, and the
suspect had been hit, so Ofc. Mead rerouted to Ofc. Craig's location to assist. Minutes
later, he arrived at the intersection of Scott Blvd. and Monroe St. and took up a perimeter
at the northwest entry/exit driveway off of Scott Blvd. Ofc. Mead noted that there were
four vehicles parked in the parking stalls that were to the west of the 7-Eleven. From west
to east, there was a gray or silver Ford truck parked backwards with witness Phil
Dewstone inside, a light colored sedan parked nose in, a red Ford Focus parked
backwards but positioned a few feet out of the stall with the headlights on and Brittany
Schuyler in the driver's seat, and a Honda SUV parked nose in as well. On the ground in
front of the light colored sedan, just west of the Ford Focus, Devin Gates was lying on his
stomach. He was clad in dark pants and a red hooded sweatshirt, and he appeared
motionless. Gates' back was facing toward the officers.
As other officers arrived, the clerks were evacuated from 7-Eleven and met with officers
on the perimeter. After calling into the business and not receiving a response, officers
approached the 7-Eleven and cleared the inside with the assistance of K9 Ofc. Kevin
Estes' Police Service Dog.
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While officers cleared the inside of the 7-Eleven, Ofc. Mead was instructed to retrieve the
Bearcat from Santa Clara Police Department so that officers could approach the suspect
with 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 other
officers finished searching the interior of the store. He positioned the vehicle to provide
ballistic protection. Then, Brittany Schuyler was ordered out of the driver's seat of the
Ford Focus. She complied with all commands and was taken into custody. Witness Phil
Dewstone was also ordered out of his truck through the passenger side door, away from
the body of Gates. He complied with all commands and was detained by officers on Scott
Blvd.
Sgt. Tyson Shearer requested a "Sage"l qualified offrcer to deploy less lethal baton
rounds at Gates to ensure that he was not pretending to be down. Ofc. Mead informed
Sgt. 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. Mead
got 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 to
Gates, but received no response. He deployed a rubber baton projectile to Gates' lower
body from about 10 yards away. He waited 10 seconds, and,when he received no
response, he deployed a second projectile. Again, there was no response. He did this a
third time, and there was still no response.
As it was still unknown if all of the vehicles in the parking lot were completely clear of
all suspects and the firearm was still in close proximity to Gates, Ofc. Estes deployed his
Police Service Dog towards the vehicles. The Police Service Dog did not indicate there
were any other suspects in the suspect vehicle.
Officers on scene then formed an arrest team, wherein Ofc. Mead manned the walking
shield and led the arrest team toward Gates and the vehicles. Ofc. Mead stepped over
Gates, putting himself between the vehicles and Gates and the other officers. Gates was
placed in handcuffs and another search of the vehicles was conducted. At approximately
2:55 a.m., the scene was rendered safe and Santa Clara Fire Department Acting Captain
Rick Restani pronounced Gates deceased at the scene.
Ofc. Mead was then tasked with driving Phil Dewstone to Santa Clara Police
Department. Ofc. Mead stayed with him until Det. Hagg interviewed Dewstone. After
Det. Hagg completed his interview, Ofc. Mead drove Dewstone back to the scene to
retrieve 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 purpose
firearm designed and often used for riot control. It can fire a variety of ammunition, including impact
projectile 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 heard
Ofc. Craig transmit over police radio about an armed robbery with shots fired. As she
responded, Ofc. Van Diemen also broadcasted "shots fired" over police radio. Ofc. Craig
subsequently updated his location to Scott Blvd. and Monroe St. and stated the suspect
was down.
Sgt. Green arrived on scene at2:05 a.m. to find Ofc. Craig taking cover behind his patrol
vehicle, 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 involved
in an "Officer Involved Shooting," which he confirmed. Ofc. Craig related that he had
driven into the parking lot and saw a male suspect (Gates) pointing a gun at the 7-Eleven
clerk. He then heard and saw Gates shoot at the clerk. Gates then exited the store holding
the gun and refused to follow Ofc. Craig's commands. Ofc. Craig subsequently shot at
Gates. Ofc. Craig said that he believed his AR-l5 rounds hit suspect Gates and no one
else. Ofc. Craigindicated that Gates was the only suspect he saw pointing a gun at the
clerk 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 was
occupied by Schuyler. Gates was face down with both arms and hands underneath him
and out of view. Above Gates' head there was a handgun, and south of his legs there was
a 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, but
they 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 clerk
to exit. The dispatcher informed Sgt. Green that the clerk confirmed that a solos suspect
entered the store and robbed him at gunpoint. The clerk stated the suspect fired one shot
at him, but missed. The clerk stated no one was hurt inside and there were no other
suspects inside.
Sgt. Green formulated an arrest team consisting of K-9 Ofc. Estes, Officers Alford, Ellis
and herself. They approached the 7-Eleven store and used Ofc. Estes' Police Service Dog
to 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 into
custody after Ofc. Mead returned from the Santa Clara Police Department with the
Bearcat 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 and
that'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 to
assess 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. They
pronounced Gates deceased.
Sgt. MacFarlane, who was in charge of the evidence documentation/collection at the
notified Sgt. Green that his evidence team located a spent 9 mm casing in the 7Eleven 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 common
occurrence for her to find spent casings stuck in her gun belt or holster. All the rounds in
her duty ammunition were accounted for as she had not discharged her weapon during
scene
this incident.
OFFICER JOHN PATE
On March 22,2015 at2:01a.m., Ofc. Pate was in the back parking lot of the SCPD when
he heard Ofc. Craig advise over the radio that a robbery was occurring at 2105 The
Alameda. 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. Upon
arnval, Ofc. Pate and other responding officers set up a perimeter. Ofc. Pate deployed his
rifle 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 the
suspect and suspect vehicle. He could see Gates lying on the ground near the Ford Focus
with 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 the
driver's seat of the Ford Focus with her hands in the ak, and Dewstone in his truck. Both
Schuyler and Dewstone cooperated with commands to exit their vehicles and walk
toward the officers. A police dispatcher had also contacted the two store clerks inside the
7-Eleven, and they also cooperated and walked out of the building. Once the vehicles
appeared empty, officers approached to double check them. Ofc. Pate provided lethal
cover for the officers who advanced toward Gates to place him in handcuffs. Gates was
later 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 from
Singh. Singh said he had just locked up the alcohol cabinets when the suspect entered the
store wearing a mask. Gates pointed his gun at Singh and demanded money. Singh was
very 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 of
Singh'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 of
Ofc. Craig's AR-15 rifle. Ofc. Pate noted that the rifle was a Colt AR-15 and the weapon
safety switch was on. The rifle had a Magpul brand 30 round magazine seated in the
chamber. Themagazine had a label of "Craig-3" on the side. EOTech sighting system
was on and red hologram was visible. Ofc. Pate turned it off before processing. The FlipMount 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 and
processing 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 March
22,2015 at approximately 2:01 a.m. when he heard Ofc. Craig advise over the radio that
he was witnessing an armed robbery. He then heard Ofc. Craig advise that shots were
fired. Ofc. Lagergren rode with Ofc. Pianto to the scene. Upon his arrival, Ofc. Lagergren
walked toward the fully marked Santa Clara Police vehicle in the parking lot facing
westbound and stood by with offrcers in the area of the patrol vehicle. Ofc. Lagergren
was instructed by Sgt. Shearer to escort Ofc. Van Diemen from the scene, as he wanted to
keep Ofc. Van Diemen and Ofc. Craig separated. Ofc. Lagergren transported Ofc. Van
Diemen 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 broadcast
over the radio that he had intemrpted a robbery in progress and shots were fired at Scott
Blvd. 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 situated
in the 7-Eleven parking lot approximately 35 feet in front of the main entrance to the
store and was facing westbound. Ofc. Alford noted that the main entrance to the 7-Eleven
faced 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 a
subject wearing a red sweatshirt lying on his stomach. Ofc. Alford observed a nickel
plated 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 a
female in the driver seat (Schuyler). The Ford Focus was backed into the parking spot in
a row of spots located on the west side of the 7-Eleven. The vehicle was pulled slightly
forward and out of the spot, giving it the appearance of a "getaway" vehicle. All of the
spots 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 the
red 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 the
grey Ford pick-up and the red Ford Focus. He also observed Ofc. Mead taking cover
behind his car on Scott Blvd., southwest of the suspect.
Ofc. Alford positioned his vehicle to block northbound traffic on Scott Blvd just south of
Monroe 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 at
the store clerk. When Gates exited the store still armed with the gun, he refused to
comply with Ofc. Craig's commands. Ofc. Craig also advised Ofc. Alford that the female
in 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 unsure
whether Schuyler might also be armed. In order to create a safer environment for the
arrest of Gates and Schuyler, it was decided that the 7-Eleven store would be cleared first
to give the arrest team a place of cover. Officers directed the two store clerks to exit the
store 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 insure
there were no other suspects or patrons inside. Ofc. Mead then arrived with the Santa
Clara Police armored vehicle to provide cover from the suspects when the arrests were
made. 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. She
complied with commands and was taken safely into custody.
Ofc. Alford then drove the armored vehicle to a position that allowed Ofc. Mead to get a
closer look at Gates and to give him commands to surrender. Ofc. Mead discharged less
lethal munitions. Evenfually, after not getting a response from Gates, officers advanced
on him and handcuffed him.
At approximately 3:04 a.m., Ofc. Alford transported Schuyler to the Santa Clara Police
Department. He then removed her handcuffs and placed her in interview room #5. Upon
leaming that the video in room #5 was not working, he moved her to room #3, where he
stayed with her until relinquishing custody of her to Det. Sgt. Parker.
During Ofc. Alford's time with Schuyler, she remained quiet other than answering prebooking/identification questions. He did not observe her even cryrng. She was
cooperative during his contact with her.
OFFICER KEVIN ESTES
Officer Estes worked patrol and handled a Police Service Dog. On March 22,2015he
was on duty when, at approximately 2:0I a.m. he heard Ofc. Craig advise of an armed
robbery at2105 The Alameda. Ofc. Craig updated that shots were fired, and the suspect
was 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 was
able to see Ofc. Van Diemen and Ofc. Craig positioned behind a patrol car in the center
of the 7-Eleven parking lot, south of the building. Ofc. Estes positioned his patrol car in
the southern driveway of the parking lot, on the Monroe St. side, facing the store. Within
the 7-Eleven, Office Estes observed two individuals who appeared to be clerks.
t7
Ofc. Estes removed his Police Service Dog from his vehicle and joined Ofc. Craig behind
his patrol vehicle.
Ofc. Estes observed four vehicles parked in the parking stalls that were to the west of the
7-Eleven. A Honda SUV was parked closest to the building. A red sedan was one parking
stall 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 from
the officers (north). In the farthest stall from the building, closest to Scott Blvd., he saw a
silver Ford pick-up truck back in and facing the officers (south). There was a male
subject (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, with
his 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 the
store, Ofc. Estes proceeded to the east side of the building. Ofc. Alford made a K-9
announcement inside the store through the open front door. He stated, ooSanta Clara
Police! Come out now or a police dog will be sent in to find you. When the dog finds
you, he will bite you." Ofc. Estes gave his Police Service Dog the search command, and
they entered the 7-Eleven. They did not find anything, and exited the store through the
front (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 ballistic
protection. Ofc. Estes then gave Schuyler commands to exit the driver's seat of the Ford
Focus. 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 passenger
side door, towards Scott Blvd. , away from Gates.
At this point, Ofc. Alford had taken over control of the Bearcat and moved it closer to
Gates and the unsearched vehicles. Ofc. Estes was then able to see a silver handgun lying
on the ground just to the north of Gates' body. Ofc. Mead then provided commands to
Gates, but received no response. Ofc. Mead then deployed three rubber baton projectiles
to Gates' lower body from a distance of 10 yards. There was still no response. Ofc. Estes
then considered the severity of the crime, the impossibility of safely determining whether
Gates was still conscious, the immediate threat Gates posed to the safety of those around
him, and the chance that other suspects were hiding in the vehicles which had yet to be
cleared. He weighed these factors, and decided to deploy his Police Service Dog. He
announced, "Santa Clara Police Canine Unit, anybody still in the vehicles that have been
evacuated, come out now or a police dog will be sent to find you. When the dog finds
you, 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, which
instructs the dog to seize the suspect by means of biting and holding him. The Police
18
Service Dog approached Gates, and bit Gates in the buttocks area. When there was no
response, Ofc. Estes gave the release command. He then gave a search command for the
Police Service Dog to continue toward the vehicles. The Police Service Dog did not alert
to the presence of other people, and Ofc. Estes recalled the dog to his position behind the
Bearcat.
An arrest team was formed, and Gates was placed in handcuffs. Ofc. Mead approached
first with a shield, followed by Ofc. Ellis and Sergeants Green and Shearer. Another
search of the vehicles was conducted with negative results.
Ofc. Estes then returned his Police Service Dog to his vehicle. He did not notice any
injuries or loss of teeth to his dog. Santa Clara Police detectives and the Crime Scene
Unit responded and took over the investigation. Ofc. Estes' then concluded his
involvement with the case.
OFFICER JAMIE ELLIS
Officer Ellis was assigned to the Patrol Division with a collateral assignment as Evidence
Technician for the Santa Clara Police Department Crime Scene Investigation Unit. On
March 22,2015, at approximately 2:01a.m., she was on duty and heard Ofc. Craig
broadcast 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 patrol
vehicle 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 marked
Santa Clara Police vehicle that was partially in the southern driveway.
Ofc. Ellis focused her attention primarily on the inside of the 7-Eleven store while
maintain 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 glanced
over 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 vehicles
were visibly occupied but it was unknown whether the other two were also occupied. A
red Ford Focus stood out the most since its headlights were on and it was only partially in
the parking stall. There was a female in the driver's seat of the Ford Focus. The other
visibly occupied vehicle was a silver Ford pick-up truck, with a male sitting in the
driver's seat.
Ofc. Ellis saw Gates was on the ground near the Ford Focus. He was wearing dark
colored pants and a red hooded sweatshirt. He was facing away from the officers on
scene and his hands were not visible.
After other Santa Clara Police officers and sergeants arrived on scene, a call was made
into the 7-Eleven and the individuals inside were instructed to come out, which they did.
19
Ofc. Ellis assisted with
found.
a
protective sweep of the 7-Eleven, and no other suspects were
The Santa Clara Police Department armored vehicle was brought to the scene and an
arrest team was formed. The female occupant (Schuyler) of the Ford Focus was directed
to exit the vehicle and walk toward the armored vehicle, at which point Ofc. Ellis placed
her 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 if
anyone else was in the vehicle, Schuyler replied "my boyfriend, Devin Gates, went
inside, but I don't know what happened. I don't know where he's at." Ofc. Ellis then
walked Schuyler to a marked patrol vehicle and placed her in the back. Other officers
stood by with Schuyler.
Office Ellis returned to the arrest team near the armored vehicle. The male occupant of
the silver Ford truck was also directed to come out of his vehicle. He was detained by
Santa 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 the
officers 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 armored
vehicle when this took place.
After getting no response from Gates, Ofc. Ellis approached with Officers Mead and
Estes and Sgt. Green. Ofc. Ellis handcuffed Gates and checked his carotid pulse. She did
not feel a pulse or see Gates breathing. Shortly thereafter, Santa Clara Fire personnel
arrived on scene and pronounced Gates deceased. The handcuffs used remained on Gates
once his body was picked up by the Coroner. Ofc. N. Nguyen's initials were etched into
the cuffs, but he was not present at the scene.
Ofc. Ellis was then tasked with taking digital photographs of the scene as well as
processing Ofc. Van Diemen's and Ofc. Craig's firearms. After retuming to the Santa
ClaraPolice Department, Ofc. Ellis received Ofc. Craig's AR-15 rifle from Ofc. Pate and
secured it in the Evidence Room. She then photographed Ofc. Craig before he changed
out 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-up
handgun. She also collected the two additional Glock 2l magazines that were located on
his duty belt. She made both weapons safe prior to placing them in separate brown paper
bags. She noted that Ofc. Craigkept his Glock 30 back-up weapon in an ankle holster on
his left ankle.
Once Ofc. Ellis finished with Ofc. Craig, she and Ofc. Pate met with Ofc. Van Diemen in
the Chaplain's Office at the police department. She took digital photographs of him while
he 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 Diemen
advised that he carried his back-up handgun in his ballistic vest. She then took photos of
the back-up handgun and then collected it. The backup was a Smith & Wesson Airlite
20
.357 revolver. Ofc. Ellis made both weapons safe and placed them into separate brown
paper bags.
Ofc. Ellis and Ofc. Pate carried all of the items to the Evidence Room, where they placed
all the weapons onto a table, along with the magazines. She photographed them as they
were and then downloaded the ammunition. She took photos of all firearms, magazines
and rounds that were collected from Officers Craig and Van Diemen. Ofc. Pate verified
her count.
OFFICER PAUL GARCES
On March 22,2015, Ofc. Garces was in fulIpolice uniform and was driving a fully
marked patrol vehicle. He responded the area of Scott Blvd. and Monroe St. to assist with
the officer involved shooting. Upon arrival on scene, he assisted with an area canvass at
2150 Main St. He took statements from Cassandra Arzate and Isidro Arzate, Jr. There
were five other individuals in their unit (#17) but at the time of the incident they were
asleep and did not hear or see anything. The individuals were Isidro Arzate, Romana
Arzate, Anna Arzate, Herlinda Yanez, and a Juvenile.
OFFICER JASON KOEHLER
On March 22,2015, Ofc. Koehler responded to Scott Blvd. and Monroe St. after hearing
Ofc. Craig's radio dispatch at approximately 2:00 a.m. When he arrived, Ofc. Koehler
located officers inside the parking lot of the 7-Eleven. He exited his vehicle and
approached officers who were providing cover on a suspect lying on the ground with his
back 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. There
was another unknown subject in a silver Ford pick-up truck.
After police dispatch called the two employees in the store, they both walked out toward
the officers. Ofc. Koehler made certain that they were not injured. He instructed them to
refrain 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 police
department 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 to
provide 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 the
rear of the cooler. Due to the loud yelling, Nguyen walked toward the door to the cooler
and 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 standing
behind the counter with a very frightened expression on his face. Nguyen walked toward
2t
the front counter and heard another 2-3 gunshots outside. Nguyen noticed a police vehicle
outside the business. He was unable to provide a suspect description or where the suspect
fled.
DETECTIVE ROY GUTIERREZ
Detective Gutierrez was assigned to the Investigations Divisions as a Person Crimes
Detective. On March 22,2015 he was contacted at approximately 4:58 a.m. regarding the
incident at the 7-Eleven. He reported to the Santa Clarc Police Department and inspected
duty weapons and ammunition belonging to Sgt. Johana Green and Ofc. Jamie Ellis.
Later that day, Det. Gutierrez was informed that there might be video surveillance
pertinent to the case from the Chevron gas station located at2090 Scott Blvd, on the
southwest 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 video
surveillance room. Det. Gutierrez noted that the time displayed on the cameras was
approximately five to six minutes fast. They obtained video depicting a sedan entering
the north side of the Chevron parking lot at about 1:59 a.m. according to the display. A
woman 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 the
display.
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 shift
team. At about 2:01 a.m., he heard Ofc. Craig broadcast that he was at an armed robbery
with shots fired, and he quickly responded to the 7-Eleven. Upon his arrival, Sgt. Shearer
noticed Officers Craig and Van Diemen taking cover behind a patrol vehicle. He saw
Gates lying on the ground in the parking lot just west of the store. Sgt. Shearer observed
four vehicles parked on the west side of the 7-Eleven. One of the vehicles was a red
sedan 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 a
full sized pick-up truck that was also backed into a parking stall. An older white male
adult was sitting in the driver's seat of the pick-up truck. There was a third gold colored
sedan parked between the pick-up truck and the red sedan. The fourth vehicle was a silver
Honda SUV parked between the red sedan and the west exterior wall of 7-Eleven. It was
unknown if there were occupants in the Honda SUV and the gold sedan. It was also
unknown if the female in the red sedan and the male subject in the pick-up truck were
associated 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 to
the police department. He next contacted Ofc. Van Diemen, who also advised that he had
discharged his firearm. Ofc. Van Diemen was transported back to the police department
22
well. Sgt. Shearer was told that Gates had a handgun, but it was not visible from his
position. He wanted to get Gates medical attention, but he was concerned that Gates
would fire if officers moved closer to him.
as
Sgt. Shearer directed Ofc. Mead to return to the Santa Clara Police Department and bring
back the Bearcat, so they could use it as cover. Doing so, they were able to reach the
front door of the 7-Eleven and search inside. From behind the ARV, Sgt. Shearer ordered
Schuyler to remove the keys from the ignition and drop them out of the driver's side
window, 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 this
point, 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 deploy
rubber batons to try to get a reaction from Gates, but there was none. Then Sgt. Shearer
directed Ofc. Estes to deploy his Police Service Dog. Once the Police Service Dog
completed his search of the four vehicles, Sgt. Shearer formed an arrest team. They used
the ballistic shield to approach Gates and place him in handcuffs. Sgt. Shearer escorted
Santa 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 video
surveillance footage from the store's system. The video showed a black male adult
wearing a red sweatshirt and a black garment over the lower half of his face enter the
store at 2:01 a.m. He was holding a silver revolver in his right hand and a paper bag in his
left. 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 door
towards 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 Clara
Police 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 the
clerk. Singh quickly turns away from the gun, and then frantically throws money into the
bag held by Gates. At2:01:33 Gates left the store through the front doors, holding the
paper 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 the
silver Ford F-150 pick-up truck in the parking lot. He was unable to determine if there
were 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 he
walked around the vehicle, the driver's door was open and he could see what appeared to
be multiple cellular phones in the vehicle.
23
After walking the scene, Det. Torke returned to the police department and wrote a search
warrant for the search of the 7-Eleven store, the red Ford Focus, the Buick sedan, and the
Ford 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 retrieved
two cellular telephones from the Ford Focus. He downloaded the contents of both phones
using a Cellebrite UFED Touch Ultimate device but did not locate any noteworthy
evidence.
OFFICER STEPIIEN SELBERG
On March 22,2015, Officer Selberg was assigned to the Santa ClaraPolice Department
Patrol Division with a collateral assignment as a Crime Scene Evidence Investigator. He
was advised of the officer involved shooting that occurred at the 7-Eleven and responded
to the scene and assisted with the forensic mapping of the scene using a Nikon Total
Station device.
Officer Selberg processed the Ford F-150 pick-up and the red Ford Focus. During
processing of the Ford F-150 he located a bullet hole on the front grill of the vehicle that
appeared by have been caused by a .45 caliber round. He also located a bullet hole above
the 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 "S
90 3". He found indicia to both Brittany Schuyler and Devin Gates. He also located a
black hat in the right front passenger floor board area and a paper bag in the trunk with
marijuana. 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 and
his family in Tracy, Califomia for the past five or six years. They had a three year old
daughter 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 hit
and run that occurred while Gates was driving.
On March 22,2015, Schuyler accompanied Gates from Tracy to Santa Clarabecause he
wanted to visit his brothers, and she did not want him driving her rental car. As they
drove, Gates snorted cocaine in the passenger seat. They arrived in Santa Clara around
10:30 p.m. When they got to Deborah St., in Santa Clara, Schuyler went inside and Gates
hung out with his brothers outside. After some time, "Jackie" said they wanted Schuyler
to go outside. Gates and his brothers, including Brandon and Kenny, were sitting on the
car and listening to music. Schuyler was sitting in the passenger seat. Just before 2:00
a.m. Gates decided it was time to leave, and said "Okay we're out, we're gonna go get
24
some gas." Gates drove the car to the Chewon down the street. He told Schuyler to pump
the 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. As
they 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 did
not pull into any of them. Instead, he continued and backed into a parking stall on the
side. Schuyler was tired and wanted to go home, but Gates said, "Hold on I'm gonna get
something." He quickly got out of the car, and told Schuyler she could drive. She claimed
she did not see anything in his hands, and he did not retrieve anything from the back seat
'When
or the trunk.
he left the car he was wearing a red hooded sweatshirt, black pants
and 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 she
noticed the tire pressure light was on, and she started driving forward thinking she would
go to the air pump. She then saw a subject wearing red run by the front of her car, but she
was not able to see clearly. She also saw two police cars. She heard someone yell "drop
the 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 thought
happened inside the store. She said, "I assume he stole something cuz (sic) he didn't even
have his wallet."
She was then informed that Gates had committed an armed robbery. When asked how
Gates could have left the car with a large gun, alarge paper bag and wearing gloves
without her noticing, Schuyler insisted that she never saw any of it. She said she may not
have been looking at his hands or that the gun may have been in his front sweatshirt
pocket. She stated that she could not see what happened when he left the car because the
corner was close.
When asked to consider likely outcomes when Gates came out of the store with a gun and
officers witnessed this, she replied, "He might have shot the police." She confirmed, "He
definitely would, like I heard him say that he would kill anyone that tried to put his life in
danger. And he's the one that starts stuff and he never thinks he's wrong. Even when he's
in 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 gun
once a couple of years before, but he said it was his brother's. She described the gun as a
black colored .45. She said he does have gardening gloves and used to use them while
growing marijuana in Clear Lake. She had never seen Gates with a mask, but did mention
that he snowboards.
Schuyler indicated that there was a brown bag in the trunk of the car with marijuana
trimmings and stems and a plastic bag of Xanax pills. She stated that Gates did have
cocaine and that it might be in the car.
25
Schuyler gave a list of drugs she knew Gates used (cocaine, Xanax, "bo" - promethazine
codeine, mollylthizz and marijuana), and recounted an incident the weekend before
where Gates had overdosed at a club in San Francisco after doing 20lines of cocaine. She
said he did not take the incident seriously. She also indicated Gates did not have a job or
a bank account, and she gave him money. She denied knowledge of prior robberies or
violent encounters with others. However, she described Gates as physically violent
toward her and gave an example from the month before in which he had stomped and hit
her 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 with
him 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, including
clothing.
Schuyler was shown surveillance footage from inside the 7-Eleven, but she maintained
that 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 good
person."
HIEN NGUYEN
Hien Nguyen was interviewed by Det. Hagg.Nguyen's son owned the 7-Eleven at2l05
Scott Blvd and Nguyen would help out by doing various jobs around the store. On March
22,2015, at about 1:00 a.m., he arrived at the 7-Eleven. At about 1:30 a.m., Nguyen went
to the rear cooler (located on the east end ofthe store) and began to stock the cooler
shelves. From this position, he could see the main floor of the store, but his view was
obstructed by shelves and merchandise. As he was working, he heard someone yelling
very loudly. He looked through the glass of the cooler and saw the suspect leaning
forward over the counter toward the clerk. He could not describe the suspect and was
unable to remember what the suspect was wearing. Although he heard a lot of yelling, he
did not clearly hear much of what the suspect said, but he did hear him yell "Give me the
money!" He thought the suspect might be an angry customer arguing about money. He
walked 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 it
was 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 said
he 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 he
exited the cooler. He walked toward the front counter, which is when he heard another
two to three gunshots outside. He was scared because he thought the suspect was possibly
firing more shots outside.
26
Nguyen tried to ask the clerk what had happened, but Tony was so afraid he could not
respond. After about 2-3 minutes, the clerk told him he had been robbed. Nguyen told the
clerk to call 9-l -1, but Tony said the police were already outside. Nguyen was too afraid
to go near the windows so he did not see the police outside. He asked Tony how the
police had arrived so quickly, but Tony said that he did not know. Tony told Nguyen that
the suspect had pointed a gun at him and threatened to shoot if he did not give him the
money. Tony told Nguyen that the suspect fired a shot inside the store and showed him
where the bullet had struck the floor. They soon received a call from the police
department. Once it was determined that they were uninjured, they were instructed to exit
the store and walk to the officers. As Nguyen walked to the doors to exit, he saw that
Tony was still standing behind the counter. He suspected that Tony was still too fearful to
move, so he told Tony to follow him and they both exited the store and approached the
officers.
PRITAM SINGH
Pritam "Tony" Singh was interviewed by Det. Schneider. Upon making contact with
Singh at the police department, Det. Schneider noticed that Singh was frightened. Singh
was very soft-spoken and frequently looked downwards while rubbing his hands through
his hair during the interview. Singh is originally from India. He had lived in the United
States for approximately 2.5 years. He worked at 7-Eleven for two years. Singh normally
worked the night shift at 7-Eleven as a clerk from 11:00 p.m. until 8:00 a.m. He usually
worked 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 beer
cooler, as he is prohibited from selling alcohol between 2:00 a.m. and 6:00 a.m. He
returned to the register, and at approximately 2:02 a.m., Gates entered the store through
the front doors. Singh immediately saw that Gates was carrying a revolver in his right
hand and a paper bag in his left. Singh described the suspect as a black young adult male
wearing a red shirt with some type of black cloth covering his face. Singh described the
revolver 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 was
scared because the suspect had a gun. With the gun pointed at him, Singh opened the
register. He placed a $20.00 bill in the paper bag Gates held out to him. Gates said, "Give
me more! Give me all of it!" As he made these demands, Gates fired a single round at the
floor. Singh thought if he did not put the rest of the money into the suspect's bag, he
would 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 saw
the 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 what
happened. Singh asked Nguyen if he should call 9-1-1. Nguyen looked out the front store
windows and told the victim that the police were already there. Singh remembered telling
Nguyen that he was scared.
27
After Gates left the store, Singh noticed two or three police cars enter the parking lot, but
he did not hear any more shooting. A few moments later, Singh received a call from the
police 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 that
the police "had a lot of guns". He didn't see Gates again after he fled the store with the
gun and the bag of money. Singh reiterated that he believed the suspect was going to kill
him 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. She
indicated Gates and Schuyler had showed up at her house on Deborah Dr. the night of
March 22,2015 after l0:00 p.m. Banks said she had no interaction with Gates or
Schuyler, and she was certain they left around I 1:00 p.m. She said she had never seen nor
heard of Gates having possession of a gun, gloves or a mask. She was not forthcoming
with any additional information.
NATHAN ANI)
WASHINGTON
Nathan and Sherry Washington were interviewed by Ofc. Stephens on March 22,2015 at
their home in Tracy. They are Gates' grandparents. They recently told Gates he had two
months to move out of their house. Nathan described him as a "bum" and said "he needs
to be incarcerated." They included that Gates' had a history of drug use, including
marijuana and, recently, Xanax. They indicated that he acted crazy when he was under
the influence. They also stated Gates had ahistory of abusing Schuyler. Neither of them
knew where Gates would obtain a firearm.
PHIL DEWSTONE
Phil Dewstone was interviewed by Det. Hagg. He stated that he and his wife went to see
a movie earlier in the evening. When he drove home (he lived down the street from the 7Eleven) that night around 9:00 p.m., he was unable to find a place to park. He dropped
his wife off in the area of their home and decided to get a drink at the 7-Eleven. After
purchasing the drink, he sat in his truck and decided to nap until his wife needed to wake
up for work at 5:00 a.m. He reclined in the driver's seat and tried to sleep. He was dozing
in and out of sleep for an unknown amount of time when he heard loud yelling that
awoke him. He was not sure what the person was saying, but he heard one male voice
yelling. He stated that the yelling was coming "from a distance" and the person yelling
was not very close to his vehicle. He believed he was unable to understand what the
person was saying because he was not fully conscious at the time and his level of
comprehension was diminished. However, he stated that the yelling was not only loud
enough for him to hear, but was loud enough to wake him up.
28
He raised himself and looked out the windshield. As he did so, he heard gunshots, and
then heard something hit the body of his truck. He saw an unknown piece of debris strike
his front windshield. He immediately ducked down for protection. He believed he had
heard two to three shots and that the shots were being fired by a police officer. He was
unable 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 an
ambulance!"
Dewstone then heard commands to raise his hands. He poked his head up from his
lowered position and raised his hands. An officer instructed him to throw his keys out the
window, which he did. The officers asked him if he could see a gun, but one was not
visible from his window. He saw Gates lying on the ground in the area directly in front of
the space between his driver's side and the car parked next to him. He thought Gates was
wearing a red hood, blue jeans, and a glove on one hand, while the other hand was out of
sight, 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 because
they were afraid the suspect might be "playing possum." He complied with these orders.
JOSE A¡{GEL GARCIA
by Ofc. Larsen. He lived at2149 Monroe St. #7. He
was about to go to sleep when he heard gunshots at about 2:20 a.m. He said it sounded
like there was metal being dropped in the parking lot. It wounded like someone was
scrambling around in the parking lot. He heard about five to six gunshots, and he thought
he heard two different types of guns, one a rifle and one a handgun. He indicated that he
knew this because he often goes to the shooting range.
Jose Angel Garcia was interviewed
Garcia heard yelling prior to the gunshots to the effect of "No, no, no, stop, stop!" He
thought someone was trying to give someone a "heads up," meaning not to fire shots. He
looked out the living room window and saw kids running everywhere, while officers
instructed 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 did
not look out the window, but he heard a man's voice say, "He has a gun. Put the gun
down." He then heard four to five gun shots, which were repetitive and over in about
three to four seconds. After that, he heard men telling someone to "get out of the car, get
your hands up, get on the ground." He heard a woman yelling for other people to go
home and male voices, possibly officers, telling people they needed to move.
29
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 bedroom
window 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 the
officers were talking to because the car (suspect vehicle) was on the other side of the 7Eleven store.
She said that when she looked out the window, she saw the officers with their guns
pointed toward the suspect care. She could not see the vehicle, but he thought that's what
they were doing because they were directing their voices in that direction. The officers
began directing someone to o'get out of the car" and "put your hands up." She heard them
instruct a man to take off his seatbelt and climb out of his vehicle through the passenger
side.
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., Ramirez
was awoken to the sound of "BOOM, BOOM, BOOM." She recalled hearing
approximately 3 booms. She looked out her 2nd story bedroom window and saw a female
in a red-colored car, sitting in the vehicle with her hands out the window. She did not see
what the female looked like. She also saw a white-colored truck, with a person sitting in
the 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 to
2105 Scott Blvd. on March 22,2015 and was tasked with collecting evidence at the
scene. 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 with
unit 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 five
bullets and six casings inside;
30
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 unspent
projectiles 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 carry
out her role as Evidence Technician and process the duty weapons and ammunition of
Officers Craig and Van Diemen and take photographs.
Ofc. Ellis obtained the following from Ofc. Craig: a Colt AR-l5 rifle and one 30 round
magazine; a Glock 2l andthree 13 round magazines; and one Glock 30 and one l0 round
magazine. 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
round magazines; and a Smith & Wesson Airlite revolver with no additional
ammunition. There were (37) .45 rounds, and (5) .38 rounds.
13
OFFICER STEPHANIE KNIGHT
On March 22,2015 Ofc. Knight responded to 2105 Scott Blvd. to assist in processing the
scene 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 the
department's Nikon Pulse Laser Station and the Tripod Data Systems Ranger. She then
created a factual diagram, which was later merged with Ofc. Emst's sketch to produce the
diagram on the next page.
31
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MEDICAL EXAMINER
On Monday, March 23,2015, Medical Examiner Doctor Joseph O'Hara performed an
autopsy on the body of 24 year old Devin James Gates. The following pathological
diagnoses were noted:
A distance range gunshot wound of the right shoulder and neck without exit. The bullet
traveled from the right to the left, upward, and front to back. A slug fragment was
recovered from the back ofthe neck.
A distance range gunshot wound of the abdomen without exit. The bullet traveled from
the right to the left, downward, and slightly front to back. A fragment of orange metal
jacket 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 to
front, left to right and upward.
Puncture wounds and abrasions due to law enforcement agency canine activity were
noted. These included a puncture defect of the upper right arm, a puncture defect on the
sacral region of the back, multiple abrasions of the back and two abrasions of the right
buttock.
Toxicology: Gates tested positive for Caffeine, Levamisole (animal worming agent often
found as contaminant in cocaine), Alprazolam (benzodiazepine), Delta-9 THC (active
ingredient in marijuana), Delta-9 Carboxy THC (inactive metabolite of THC), Cocaine
and 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 a
controlled substance in violation of Health and Safety Code $ 11350(A). He was
sentenced to serve two months in jail and three years probation. This was converted into
serving 58 days in a work program. He also had two outstanding warrants from San
Joaquin Sheriff s Office and Tracy Police Department.
ADDITIONAL INFORMATION ABOUT DEVIN GATES
of this incident, Gates was linked to another armed robbery arising out of
Manteca. Manteca Police dispatched a TRAX flyer for the armed robbery of a Quick and
Easy Food Mart on March 17,2015 at6:45 p.m. The suspect was described as an Afücan
American male in his early 20s, approximately 5'08"-5'10", with a thin build and short
hair. He was armed with a large caliber silver or chrome revolver in his right hand, and
carried a brown paper bag in his left. He pointed the revolver at the store clerk and
As
a result
JJ
demanded he put all the money from the cash register into the bag. The suspect fled the
scene 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 captured
on the store's surveillance video, and there was a clear frontal view of the suspect at the
front register holding the bag with blue and black gloves on his hands. This was included
in the TRAX flyer.
RELEVANT LEGAL PRINCIPLES
This review was conducted pursuant to the joint protocol between this office and all
Santa Clara County law enforcement agencies, which calls upon the District Attorney to
conduct an independent assessment of the circumstances surrounding the use of deadly
force. This review does not examine issues such as compliance with the policies and
procedures of any law enforcement agency, ways to improve training or tactics, or any
issues 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 order
to convict an officer of any of these charges, however, it would be necessary to prove
beyond 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 any
given case and they are set forth in Penal Code sections 196 and 197. The justifications
pertinent to this case are found in Penal Code section 196: justif,rable homicide by public
officer, 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 the
threat of death or great bodily harm. Penal Code section I97 provides that the use of
deadly force by any person is justifiable when used in self-defense or in defense of
others. The relevant Criminal Jury Instruction as written by the Judicial Council of
California and set forth in CALCRIM 3470 permits a person being assaulted to defend
himself from attack if, as a reasonable person, he had grounds for believing and did
believe that great bodily injury was about to be inflicted upon him or upon another
person. In doing so, such person may immediately use all force and means which he
believes to be reasonably necessary and which would appear to a reasonable person in the
same or similar circumstances, to be necessary to defend against that danger and to
prevent the injury which appears to be imminent.
One may resort to the use of deadly force in selÊdefense where there is a reasonable need
to 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 component
of both prongs of self-defense." (People v. Humphrey (1996) 13 Cal.4th1073,1094.)
34
Response with deadly force must be predicated on a danger that portends imminent death
or great bodily injury. The person's right of self-defense is the same whether the danger
is 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 the
reasonable appearance of imminent peril of death or serious bodily injury to the party
assailed. .." (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 point
o'An imminent peril is
one
and later cited with approval by the California Supreme Court:
that, 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. The
question is whether action was instantly required to avoid death or great bodily injury. In
this regard, there is no duty to wait until an injury has been inflicted to be sure that deadly
force is indeed appropriate. In one case, a robber pointed a gun at his victim and a deputy
sheriff was called to the scene of the robbery. Before the robber could get off a shot, the
deputy fired his weapon, wounding the robber. The appellate court remarked that "[s]uch
aggressive actions required immediate reaction unless an officer is to be held to the
unreasonable 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 may
use deadly force in the course of their duties under circumstances not available to
members of the general public. Penal Code section 196 provides that use of deadly force
by 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 committed
a forcible and atrocious felony and the officer has probable cause to believe that the
suspect poses a threat of future or imminent death or great bodily injury, either to the
officer or to others. Forcible and atrocious crimes are generally those crimes whose
character 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; Kortum
v. Alkire (1977) 69 Cal.App.3d325,333.)
When a police officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others, it is not constitutionally
unreasonable 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 Supreme
Court inGrahamv. Conner (1989) 490 U.S. 386, wherein the Supreme Court explained
that an officer's right to use deadly force is tobe analyzed under the Fourth
Amendment's "objective reasonableness" standard. The test of reasonableness in this
context is an objective one, viewed from the vantage of a reasonable officer at the scene,
35
rather than with the 20120 vision of hindsight . (Graham, supra,490 U.S. at 396.) It is also
highly deferential to the police officer's need to protect himself and others. The calculus
of reasonableness must embody allowance for the fact that "police officers are often
forced to make split-second judgments-in circumstances that are tense, uncertain, and
rapidly 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: the
question is whether the officers' actions are "objectively reasonable" in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation (Ibid.)
As one court noted, "[U]nder Graham we must avoid substituting our personal notions of
proper police procedure for the instantaneous decision of the officer at the scene. We
must never allow the theoretical, sanitized world of our imagination to replace the
dangerous and complex world that policemen face every day. What constitutes
'reasonable' action may seem quite different to someone facing a possible assailant than
to someone analyzingthe question at leisure .' (Smith v. Freland (6th Cir. 1992) 954 F.2d
343,347 .)
The Supreme Court's definition of reasonableness is, therefore, oocomparatively generous
to the police in cases where potential danger, emergency conditions or other exigent
circumstances are present." (Roy v. Inhabitants of Cíty of Lewiston (1't Cir. 1994) 42F.3d
691,695.) In effect, the Supreme Court intends to surround the police who make these
on-the-spot choices in dangerous situations with a fairly wide zone of protection in close
cases. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th334,343-344.) When
justified in using force to stop a threat, the Supreme Court has held that officers may
continue 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 section
196 is whether the circumstances reasonably created afear of death or serious bodily
harm to the officer or to another. (Martinez v. County of Los Angeles (1996) 47
Cal.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). In
such circumstances, the courts cannot ask an officer to hold fire in order to ascertain
whether the suspect will, in fact, injure or murder the officer. Qbid.) A peace officer does
not have to wait until a gun is pointed at the officer before the officer is entitled to take
action. An officer is entitled to use deadly force when the officer has reason to believe the
suspect 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 and
Officer Randy Van Diemen. We carefully examined their recorded statements outlining
the events that culminated in the shooting of Devin Gates as well as the statements of
every law enforcement and civilian witness to the event, all video recordings of the
36
incident, prior police reports involving Gates, and the physical evidence collected from
the 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 under
principles of self-defense and defense of others to discharge their firearms involves a
two-part analysis: (1) whether their belief in the need to protect themselves and an
unknown number of civilians in the nearby vehicles and surrounding residential area
from an apparent, imminent threat of death or great bodily injury was objectively
reasonable, and (2) whether they did subjectively and honestly believe they needed to
protect themselves and others from an apparent, imminent threat of death or gteat bodily
injury.
The following facts support concluding that Officer Craig's and Officer Van Diemen's
fear of imminent danger was objectively reasonable.
Officer Craig and Offrcer Van Diemen were working patrol in a high density residential
area. The 7-Eleven building abutted multi-unit apartment complexes. To the north was
2150 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 of
these are multi-story apartment buildings. To the south, across the street was a strip mall
with various businesses and a parking lot. To the southwest of the 7-Eleven was a
Chevron gas station open for business.
The 7-Eleven had bright lighting, and the clear glass paneling of the storefront permitted
a view of the interior. The officers had seen and heard Gates' gun go off as he shot at the
clerk. Moreover, the area in front of the store was well-lit, and this was further
supplemented by their vehicle headlights. When Gates exited the store, he looked directly
at the officers. Both of them were wearing full police uniforms and were standing next to
fully marked, black and white police vehicles with the Santa Clara Police Department
emblem. 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 the
building. In this area, the lot was considerably darker. The officers knew Gates was
armed with a deadly weapon. He had already demonstrated his proclivity for violence. He
showed no sign of complying with their commands. They had no way of knowing
whether innocent civilians or additional suspects were inside the cars or were hiding out
of 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 more
harm or escaping, the officers had no other means by which they could neutralize the
threat than to discharge their weapons.
Though each officer was equipped with a Taser and pepper spray, neither of these would
have been suitable to confront Gates. They estimated their distance from Gates to range
from 30 to 75 feet during the encounter, but Tasers and pepper spray are designed for
much closer contact. Even at that distance, both officers were certain that Gates saw
37
them. Officer Van Diemen remarked that Gates stared directly at him, and he expected
Gates to begin firing. Officer Craig noted that Gates had no choice but to face the officers
upon 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 Gates
had accomplices or whether he would subject innocent victims to carjacking, or worse.
The gravity of the rapidly-evolving situation involving an armed and noncompliant
suspect demanded the use of force. Thus, no other action by the officers would have
rendered 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, thereby
justifying additional rounds. Both officers reported they stopped firing as soon as they
saw Gates fall, because this effectively neutralized the threat. Concerned that Gates might
be in need of medical attention, Officer Craigrequested that paramedics respond to the
scene in his dispatch.
As for part two of the analysis, the facts described above all corroborate Officer Craig's
and Officer Van Diemen's statements that they fired their weapons out of fear for the
danger Gates posed to their lives and the lives of those around them.
This investigation revealed nothing that undermines the credibility of either Officer Craig
or Officer Van Diemen. In their statements, both officers attest to the fact that had they
not engaged their weapons when they did, Gates might have taken a number of different
actions endangering their own lives as well as those of unsuspecting civilians. The
opinion of Brittany Schuyler that had the officers not shot Gates, he definitely would
have shot them, "he would kill anyone that tried to put his life in danger . . . he hates the
police", confirms the necessity of the actions taken by Officers Craig and Van Diemen on
March 22,2015.
As summarized in the previous section, California law permits any person to use deadly
force 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 police
officers 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 a
threat 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 are
entitled to take action.
Penal Code Section 196: Justifiable Homicide bv Public Officer
Determining whether Officers Craig and Van Diemen were legally justified under
principles 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 believe
that the suspect poses a threat of future or imminent death or great bodily injury, either to
the officer or to others.
38
Prong two (whether the officer has probable cause to believe that the suspect poses a
threat 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 selfdefense. It is clear that both officers did have reason to believe that Gates posed a threat
to both themselves and to others in the vicinity.
Both Officers Craig and Van Diemen also had "reasonable cause" to believe that the
person has committed a forcible and atrocious felony. They had both personally
witnessed Gates engaging in an armed robbery. They had also both seen him discharge
his gun at the store clerk. Based upon their own personal observations, Gates had
certainly committed an armed robbery and an assault with a firearm, but had also
potentially committed a murder or attempted murder.
CONCLUSION
Under the facts, circumstances and applicable law in this matter, Officer Craig's and
Officer Van Diemen's use of force was in response to an immediate threat of great bodily
injury or death. Additionally, they were confronted with a fleeing felon who had just
committed an armed robbery and discharged a firearm. Therefore, their conduct is legally
justifiable and no criminal liability attaches.
Dated: March 17 , ZOtø
Respectfully submitted by,
,Yøryí%CAROLYN POV/ELL
Deputy District Attorney
JEFFREY F. ROSEN
District Attorney
39