DA clears San Jose police officer in 2017 shooting of man with ax

SAN JOSE — Prosecutors have concluded that a San Jose police officer was legally justified when he shot and killed an ax-wielding man inside a downtown apartment more than two years ago, according to a report released Monday by the Santa Clara County District Attorney’s Office.

Also released with the 31-page report on the fatal shooting of 35-year-old Francis De La Cruz was police body-camera video of his confrontation with San Jose police. During the deadly encounter, Officer Juan Avila fired six to seven shots at De La Cruz, who was walking toward him and other officers with an ax in hand, prosecutors wrote.

Just after midnight May 28, 2017, Avila and officers Eduardo Maldonado and Zachary Preuss went to the Donner Lofts apartments at 158 E. St. John Street after a third-floor resident told a security guard he had a bomb. The security guard went to the unit after receiving a noise complaint, and the resident reportedly told the guard “if he knew better he would stop knocking on the door,” before saying he had a bomb.

Police were called, and when officers stepped off the elevator they immediately smelled smoke in the third-floor hallway. As they approached the door of the apartment “the smell of smoke grew stronger,” according to the DA report.

Officers knocked on the door for several minutes with no response. When officers smelled smoke and saw flames underneath the door, they kicked it open and immediately took one man — the apartment’s resident — into custody.

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De La Cruz who was visiting the apartment, stood about 10 feet back from the door, with an ax in hand, prosecutors wrote, adding that he initially followed officers’ orders to drop the ax.

Officers warned De La Cruz if he did not follow their orders to leave the apartment they would use a Taser. De La Cruz did not leave and at least one officer used the stun gun on him.

At that point, De La Cruz picked up the ax and “advanced toward the officers,” the report states. De La Cruz got “within a few feet” before Avila fired four to five shots. But De La Cruz kept moving forward with the ax, and Avila fired twice more, prosecutors said.

“All three officers stated that they believed through their experience that De La Cruz’s intentions were to injure or kill the officers with the ax,” prosecutor Sumerle Davis wrote in the report. “The security guards made similar statements. They believed that their lives were in danger, and that if the officer did not shoot, they would have been hurt or killed.”

An autopsy showed that De la Cruz was shot twice and had methamphetamine in his system, prosecutors said.

According to the DA report, the resident of the apartment later told police why he set a fire after initially stalemating officers standing outside his front door.

“I built a moat of lighter fluid to keep them out,” the resident said, according to the report. “They were busting in my door. That was my only defense cause I’m an American and no one should enter my home. Defense is what I call it. I don’t call it arson.”

The shooting touched off a public debate over safety at Donner Lofts, a 102-unit affordable-housing complex that reserves 20 units for people described as chronically homeless. The community discussion got especially pronounced when in the wake of the shooting, police revealed that they responded to 153 police calls to the building in the year after its 2016 opening. But advocates for the project called the violent episode an “aberration” and reiterated its aim to help vulnerable residents transition to independent living.

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