The following piece was written by Father Richard Smith, the vicar of the Episcopal Church of St. John the Evangelist on 15th and Julian Streets and a leading advocate for justice in the five police shootings that have taken place in the Mission since 2011. Max Szabo, District Attorney George Gascon’s press officer responded and we have included his response below as well as a final answer to Szabo’s response by Father Smith.

This past April, District Attorney George Gascón announced he would not file charges against the officers who killed 20-year-old Guatemalan immigrant Amilcar Perez Lopez with six bullets to the back. No trial, no day in court, no reprimand.

Think of the recent, outrageous verdict in the Philando Castile case–except Amilcar’s case was never even brought to trial.

During the two-year investigation leading to his decision, three flip-flops by Gascón offer a glimpse into how he got here –and how his ongoing investigations into the many other SFPD-involved shootings may unfold.

Flip-flop #1: The credibility of the police. On June 2, 2016, after several community leaders and I had a meeting with Gascón in his office, I asked him about Amilcar’s case. He told me he did not believe the police officers’ accounts of Amilcar’s killing.

By that time, he had examined almost all the testimony from police, the community, the bystanders, along with available video and audio recordings. Although he was still awaiting a report from an outside expert, he believed the officers had shot Amilcar when he was running for his life.

But Gascón subsequently reversed himself. In his final report exonerating the police, he said they had fired in self-defense and to protect another person.

What had changed? Certainly not the known facts, which remained substantially the same. Even the long-awaited outside expert had introduced no new evidence, but had simply interpreted what the DA’s office shared with him.

So, why Gascón’s flip-flop favoring the police version of events?

Flip-flop #2: The credibility of a key police witness. In a later meeting with community leaders on July 25, 2016, Gascón told us he believed the key witness for the police was “a liar.” Indeed, many in the neighborhood already knew this witness to be an alcoholic and a bully, and in the days after Amilcar’s killing, he had provided several conflicting accounts to police, to Gascón’s investigators, to an investigator for Amilcar’s civil attorneys, and to neighbors. Gascón’s candid assessment of this witness was not surprising.What was surprising was the full credence the DA’s final report gave this witness, without even a whiff of skepticism.

Why the 180-degree reversal presenting this witness’ testimony favoring the police as credible?

Flip-flop #3: “Serious breach” or simple “screwup”? On the night Amilcar was killed, but before the DA’s independent investigators could examine the crime scene, police directed the Medical Examiner to remove Amilcar’s body. At any homicide, the decedent’s body is critical evidence. So in a KQED interview Gascón understandably described the body’s removal as “a serious breach of protocol”. Separately to me, he said this breach had made his work “much more difficult”, requiring outside forensic experts to reconstruct the crime scene, causing significant delays.

But then, as reported in Mission Local and in the July 25, 2016 meeting with community leaders,Gascón flip-flopped, saying the removal of Amilcar’s body was not a serious breach after all, but simply “a screwup” whose impact on the investigation was unclear.

Why his reversal in favor of the police?

A disturbing bias toward police. In each of these three key areas, Gascón endorses police-serving accounts which he previously disbelieved, without so much as questioning their reliability in his report. As civil rights attorney Ben Rosenfeld correctly concludes: “[Gascon’s report on Amilcar’s killing] resolves contradictory evidence in favor of the officers, omits details that are unhelpful to them, and enlists a so-called expert to explain, in feats of mental gymnastics, how officers who first claimed Perez Lopez was lunging at one of them managed to shoot him six times in the back of his body.”

Despite Gascón’s recent calls for police reform, his three flip-flops in this investigation of an actual police shooting reveal an underlying bias in favor of the police. They provide cover for the unjustified violence by police against people of color. They portend more whitewashes to come in the SFPD shooting investigations his office has yet to complete.

Because DAGascón has some explaining to do about these and many other issues his report raises, community leaders invited him to a town hall meeting in the Mission. Although he did not respond to it, that invitation still stands.

The DA’s press spokesperson, Max Szabo responded:

We believe the public deserves an opportunity to review the evidence, legal analysis and our conclusion which is why we published a detailed account of the investigation. In relation to what Father Smith is alleging, however, please see the attached charts which show where witness statements and physical evidence either confirmed or contradicted the police officers’ statements.

We understand that Father Smith and others in the community are frustrated with the outcome in this case, especially being as though the decedent was shot in the back. Ultimately, it appears Father Smith concludes that the officers must be guilty of a crime because their statements are contradicted by some of the physical evidence, in that Officer Reboli’s statement that Mr. Perez-Lopez was coming towards him with the knife when he fired his weapon appears to contradict the physical evidence (being as though Mr. Perez-Lopez was shot in the back). I do not mean to trivialize the use of force expert’s analysis about how Mr. Perez-Lopez could have turned after Officer Reboli had already made the decision to shoot, but ultimately the shooting would still have been justified even if Perez-Lopez had been running away from Reboli him when he made the decision to shoot.

This is because, even if Mr. Perez-Lopez was running away from the officers when they fired their weapons – thereby opening the door to the possibility that they did not have a fear for their own safety – the direction Amilcar would be running would still give the officers a reasonable belief that Abraham P was in danger. Therefore, even under this scenario, pursuant to the law, the officers could have a “reasonably subjective belief that they were acting in the defense of others.” Discharging their weapons in the defense of others is a legally permitted justification for use of force.

As the DA has said, we will never know what exactly happened in those split seconds – which direction Amilcar was facing, and to whom he posed a threat when the officers made the decision to shoot. But ultimately, given the proximity of a suspect with a knife to the officers and Abraham P – of just a few feet – the law does not distinguish between whether he was shot coming towards the officers or running towards Abraham P. The law gives significant deference to officers in situations in which they have to make split second decisions. Our role is to apply the evidence to the law and to determine if we can prove beyond a reasonable doubt, to 12 objective jurors, that the officers did not have a reasonably subjective belief that they were acting in the defense of others.

To be clear, since taking office in 2011 the DA has prosecuted at least 18 law enforcement officers for crimes including assault under color of authority (excessive force), perjury, and more. So the suggestion that we chose not to charge officers in this case for some untold reason – other than that the evidence didn’t support filing charges – defies logic.

Sincerest Regards,

Max Szabo

Father Smith’s Response

The DA’s office has still not addressed our concerns. We did not allege the officers are guilty of anything. Rather, we’ve said from the beginning this tragic police killing should have been brought to trial where evidence from both sides could have been weighed and evaluated, where witnesses from both sides could be examined and cross-examined, all in the light of day. Then a jury could have decided.

We, and the officers, should have been given our day in court.

As it was, DA Gascon took it upon himself to decide in favor of the officers. The decision is questionable for many reasons, not least of which is the DA’s own apparent bias toward the police.

So the question remains: Why so much flip-flopping by the DA? Why did he end up endorsing the very police-serving accounts he previously disbelieved, without even questioning their reliability in his final report?