Fatal BART shooting not captured by cameras Police either didn't wear or failed to use body cameras

BART uses specialized cameras, which officers didn't employ while entering a suspect's home this week, to capture vital evidence. BART uses specialized cameras, which officers didn't employ while entering a suspect's home this week, to capture vital evidence. Photo: Michael Macor, The Chronicle Photo: Michael Macor, The Chronicle Image 1 of / 12 Caption Close Fatal BART shooting not captured by cameras 1 / 12 Back to Gallery

The fatal shooting of a BART police officer by a colleague during a probation search in Dublin was not captured by body cameras issued to all of the transit agency's officers, because the five who entered the apartment either weren't wearing the devices or didn't activate them, The Chronicle has learned.

BART began buying the cameras - which can be clipped to a shirt lapel, a visor or glasses - in 2012 and had fully deployed them by early last year. The move came in the wake of an officer's killing of unarmed train rider Oscar Grant on Jan. 1, 2009, and is part of a nationwide trend toward police recording their interactions with suspects.

BART adopted a policy stating that officers equipped with cameras should activate them "prior to making contact with individuals" in several circumstances, including stops, arrests and probation searches. The goal is to capture an "objective, unbiased video and audio record."

Sources familiar with Tuesday's accidental shooting of Sgt. Tom "Tommy" Smith, the head of detectives at BART, said he and two other detectives who entered the apartment of a robbery suspect were not wearing cameras. Two uniformed BART officers who accompanied the detectives did wear cameras but failed to activate them, the sources said.

It's unclear, though, whether any of the officers violated agency policy by not recording how the search was conducted. Plainclothes officers, including detectives, have the option of using the cameras when they believe the footage might prove to be helpful.

Suspect in custody

As for uniformed officers, BART policy says they should activate the cameras in a variety of situations that include interacting with members of the public. But the subject of the probation search in Dublin was not home. He was already in custody, having been arrested Jan. 16 after police say he led San Leandro officers on a chase to Oakland in a car stolen from a BART lot.

BART Police Chief Kenton Rainey said at a transit agency board meeting in Oakland on Thursday that the two uniformed officers at the scene "did have video cameras, as required by policy. As far as what they actually captured, I don't know."

Later, through an agency spokeswoman, Rainey told The Chronicle that it would be "very troubling" if the two uniformed officers were at the apartment without their cameras activated. He pledged to correct any deficiencies that are uncovered by investigations by BART, the Alameda County Sheriff's Office and county prosecutors.

Cameras always running

The cameras that BART uses are Taser International's Axon Flex, and they operate much like digital video recorders. They are always running, and when activated they preserve footage from the previous 30 seconds along with anything that happens in the future.

John Burris, an attorney who secured settlements of $2.8 million from BART on behalf of Grant's family, said he would be concerned if there were no camera footage of the shooting.

"I mean, look, the cameras are there for that exact reason, for events that occur, both good and bad," Burris said. "And it will hamper an investigation that it was off. Now why was it off? Who knows?

"I don't think there's any justification for not having the cameras on just because you're going into a building, whether the door is open or not. If you're going into a situation and you don't know what's there, the camera should be on."

Officials have said five BART police detectives, including Smith, went to the Dublin apartment of 20-year-old robbery suspect John Henry Lee along with two uniformed BART officers and a sheriff's deputy. Law enforcement officers do not need search warrants for a home if a suspect is on probation.

The men - all wearing bulletproof vests - knocked on the door but got no response, said sheriff's Sgt. J.D. Nelson, a department spokesman. He said that after they found the door was unlocked, some of them pushed inside - though the door being unlocked heightened concern about their safety. Sources said three detectives and the two uniformed BART officers went in.

The detectives were hoping to recover stolen property from inside the unit at the Park Sierra Apartments at 6450 Dougherty Road. But for some reason that police have yet to explain, one of the detectives, Officer Michael Maes, shot and killed Smith during the search.

An autopsy, the results of which were released Thursday, determined that Smith died of a single gunshot wound to the chest. Experts say officers wearing vests can still be vulnerable in areas of the upper body such as under the arms.

"Sadly, as those of us in law enforcement know, ballistic vests do not afford 100 percent protection," Nelson said.

Police have yet to say whether the detective who fired could have mistaken Smith for a suspect, or if the gun could have accidentally discharged.

'A great loss'

Maes' attorney, David P. Mastagni, said Thursday that his client has "fully cooperated" with the investigations. He declined to describe the events leading up to the shooting, citing the investigations.

"It's obviously a great loss to the entire community, and he's just deeply concerned for all involved, especially Officer Smith's family and spouse," Mastagni said, adding that Maes had lost "his partner and friend."

Mastagni said that over his 40-year career of representing police officers, "This situation comes up, has come up in the past and will come up in the future. It's a situation that the public is generally unaware of and is one of the risks and perils that law enforcement personnel are subjected to along with their families."

Daniel Lawson, a retired San Francisco police captain who is director of public safety at the University of San Francisco, said possible scenarios in such a shooting include an officer who loses track of his colleagues and gets "spooked" by another officer who suddenly "pops up" somewhere.

Another scenario, he said, could be that the officer fired by accident after tripping or getting jostled by something, "and the finger inadvertently squeezed the trigger."