Sacramento County
District Attorney?s Office

Stephen J. Grippi

Chief Deputy

ANNE MARIE SCHUBERT
District Attorney Michael A. News

Assistant District Attorney

 

 

 

 

Of?cer-Involved Shooting: Stephon Clark

Summary of Legal Review

The District Attorney?s Of?ce has completed its legal review of the Sacramento Police
Department of?cer-involved shooting of Stephon Clark that occurred on March 18,
2018. In addition to the full report, the following is a summary of the ?ndings of our
legal review.

The Role of the District Attorney

As a matter of policy, this of?ce has been asked and has agreed to review police use of
force incidents that involve death or serious injury in Sacramento County. The role of
the District Attorney?s of?ce in of?cer?involved shootings is limited to one question: Is
there suf?cient evidence to charge any involved of?cer with a crime?

The District Attorney?s Of?ce does not evaluate or provide an opinion on whether
of?cers could have taken some other action, their tactical decisions, agency procedures
or civil liability. These are valid areas of concern, but they are not part of our review.

In this case, the Attorney General has agreed to perform his own independent review of
this shooting. In our review, you will see that evidence was collected by the Sacramento
Police Department, the District Attorney?s Of?ce (including our crime laboratory), and
the Attorney General?s Of?ce (Department of Justice). While we have each agreed to
share all the evidence we discover, our of?ces have not shared the analysis of this
evidence or our conclusions.

Circumstances of the Shooting
An extensive and thorough review of the evidence in this case shows the following:

On Sunday, March 18, 2018, at 9:10 pm a citizen called 911 to report that an individual
was walking down 29th Street breaking car windows, including smashing windows on
two of the 911 caller?s own cars. This 911 caller also stated that the suspect jumped a
fence and was currently hiding at a speci?ed address on 29th Street. The evidence shows
that Stephon Clark was that individual. The subsequent investigation revealed no
evidence that Stephon Clark took any property from the cars.

 

sacdamg

901 Street, Sacramento, CA 95814 I p: 916.874.6218 I f: 916.321.2201

Sacramento Police Of?cers Mercadal and Robinet responded to this call. In addition,
the Sacramento Sheriff Department helicopter unit noti?ed the Sacramento Police
Department diSpatcher that they were available to assist. Sheriff 3 Deputy Gomez was
the observer in the helic0pter and updated dispatch on what was seen from the air.

After contacting the citizen who called 911 and observing broken windows on two
vehicles, the of?cers began searching the backyard the suspect was last seen entering.
None of the Sacramento police of?cers or Sheriff 5 deputies involved in this incident had
any knowledge that Stephon Clark was the suspect or that his grandparents lived on :29th
street.

Deputy Gomez spotted an individual (later determined to be Stephon Clark) looking into
a sliding glass door in the backyard of a neighboring 29th Street home. Deputy Gomez
saw this individual swing a large object and break the glass door. He broadcast these
observations and turned on the helicopter?s onboard video camera. An 89?year?old man
was living in this home and was watching TV when his rear sliding door was smashed
with a cinder block.

Deputy Gomez then saw Mr. Clark jump a fence into an adjoining residential backyard.
Deputy Gomez directed Of?cers Mercadal and Robinet to that location. Of?cers
Mercadal and Robinet?s body worn cameras had already been activated and were
recording.

One of the of?cers spotted Mr. Clark looking into the windows of a dark SUV parked
alongside of a home on 29? street. As the of?cers approached Mr. Clark, Of?cer
Mercadal yelled loudly, ?Stop. Stop. Show me your hands.? Mr. Clark immediately ran
along the side of the house turning into the backyard. The of?cers could not see around
the back corner of the house. While unknown to any of the of?cers, this was the home of
Stephon Clark?s grandparents.

The backyard was dark with no exterior lighting. The only lighting was from the of?cers?
?ashlights. As the of?cers rounded the corner of the house into the backyard, both
of?cers saw Mr. Clark facing them, standing in a shooting position behind a picnic table.
Both of?cers saw a ?ash of light coming from Mr. Clark?s position. Of?cer Mercadal
believed he was being ?red upon. Still frames captured from the body worn cameras
show Stephon Clark behind the picnic table. A ?ash of light can be seen consistent with
the timing and position described by the of?cers.

Of?cer Mercadal yelled, ?Show me your hands. Gun.? Both of?cers immediately took
cover behind the corner of the house.

As the of?cers peered around the corner of the house a second time, Mr. Clark was
advancing toward them in a shooting stance. The helicopter video con?rms that
Stephon Clark was advancing on the of?cers. Of?cer Mercadal yelled, ?Show me your
hands. Gun, gun, gun.? Both of?cers then ?red multiple shots, striking Stephon Clark
seven times. The total time shots were ?red was 4.5 seconds.

The body worn cameras also captured the of?cers? conduct immediately after the
shooting. The of?cers yelled, ?Show me your hands? and ?Let?s see your hands.? Of?cer
Mercadal asked Of?cer Robinet, ?You alright? You Hit?? Of?cer Robinet responded,
?Yeah, I?m good.? Mercadal said, ?Yeah, I?m alright. I don?t think I?m hit or anything.?

The of?cers then discussed how to safely approach Mr. Clark to remove the gun. Upon
examination, it was discovered that the object Stephon Clark was holding was a
cellphone, not a gun.

Autopsy and Toxicology Results

The autopsy of Stephon Clark conducted by the Sacramento County Coroner?s Of?ce
determined that the cause of Mr. Clark?s death was multiple gunshot wounds. These
conclusions were supported by four board certi?ed pathologists employed by the
Sacramento County Coroner?s Of?ce, including the Chief Forensic Pathologist.
Toxicology results con?rmed the presence of alcohol, Xanax (alprazolam), codeine,
marijuana, hydrocodone and a metabolite of cocaine.

Sacramento Coroner Kim Gin obtained an independent review of this case by Dr.
Gregory Reiber. Dr. Reiber con?rmed the ?ndings of the Sacramento County Coroner?s
Of?ce. Additionally, the Attorney General sought an independent review of the autopsy
?ndings from the San Diego Medical Examiner. San Diego?s Chief Medical Examiner
found that the Sacramento County Coroner?s investigation ?was comprehensive,
professional, well documented, and correct in its conclusion.?

Dr. Bennet Omalu, a pathologist hired by the Clark family, conducted his own autOpsy of
Mr. Clark and presented his ?ndings at a press conference on March 30, 2018. Dr.
Omalu did not provide a written report of his ?ndings. Opinions he expressed at this
press conference are not supported by the autopsy evidence, the conclusions of the six
pathologists or the video evidence in this case.

Crime Lab Examination

The Sacramento County District Attorney?s Of?ce Laboratory of Forensic Services
conducted extensive forensic examination in this case. This includes crime scene
investigation, ?rearms, trace evidence (glass and paint), and DNA analysis.

DNA testing linked Stephon Clark to evidence collected from all three cars broken into
that evening.

Glass and paint analysis further connected Mr. Clark to the broken windows on these
vehicles. Glass comparison also con?rmed that a cinder block was used to break the
rear sliding glass door of the home on 29th Street.

Contents of Stephen Clark?s Cellphone

Both the Sacramento Police Department and the California Department of Justice
conducted a forensic analysis of Mr. Clark?s cellphone. That analysis uncovered
evidence that centered around a domestic violence incident that occurred less than 48
hours before the shooting. The contents of the cellphone showed that Mr. Clark was
very concerned about the ending of his relationship with Salena M., not being able to see
his children again, and going back to jail.

The contents of the cellphone also revealed that Mr. Clark searched the internet for
information related to suicide the day before and the day of the fatal shooting.

The cellphone evidence would be admissible in court to explain Mr. Clark?s state of mind
and his conduct before and during the shooting.

March 16. 2018. Incident

On Friday, March 16, 2018, the mother of Stephen Clark?s children, Salena M., asked a
neighbor to call the police stating her boyfriend hit her. The neighbor called 911 and the
police responded.

Salena M. told police that Stephon Clark had hit her several times in the face, punched
her with a closed ?st, choked her, and threw her head against a wall. Of?cers saw a 3?
hole in the wall with long brown strands of hair attached to it. Photographs were taken,
documenting Salena?s M.?s injuries as well as the damage to the wall.

While Mr. Clark was not there when of?cers arrived, the Sacramento Police Department
documented there was probable cause to arrest him for this incident. A law
enforcement computer check would have shown that Mr. Clark was ?arrestable? for this
offense and for violating the terms of his probation.

Mr. Clark was on three grants of misdemeanor probation at the time, including two
cases of domestic violence. Salena M. was the victim of Mr. Clark?s two prior domestic
violence convictions. He was also on felony probation for robbery.

March 17?18. 2018

In the 12-hour period following the domestic violence incident, Stephon Clark
attempted to call Salena M. 76 times. None of those calls lasted more than a few
seconds. However, several text messages were exchanged between them.

These text messages reveal that Mr. Clark was very concerned that Salena M. had
reported the domestic violence incident to the police, that he was going to be sent back
to jail and he would never see his children again. Salena M. stated she had reported the
incident to the police and that she would testify against him in court.

The following is one example of numerous text messages in these exchanges:

Salena M.: ?You scared for your life now? That you?ll be locked in a cage the rest of ur life
and never see your kids grow again??

Mr. Clark: ?You want me away from my kids? Why?

In addition to text messages with Salena M., Stephon Clark attempted to contact his
probation of?cer during this time. He also wrote a note in his phone which appears to
be a draft email to law enforcement denying this recent accusation of domestic violence,
stating, ?I?m pretty scared I?m going to be put in jail.?

Throughout the evening of March Mr. Clark searched the internet on terms related
to suicide. All of these texts and internet searches appear in the full report. An example
of one of at least two dozen internet sites visited was, ?How many Xanax will it take to
reliably kill you??

It should be noted that Mr. Clark?s toxicology showed a combination of Xanax
(Alprazolam) and alcohol among other drugs. During the time frame of these internet
searches, Mr. Clark also texted various numbers looking for ?Xans,? Valium, and
oxycodone. The text messages con?rm he met someone to obtain drugs.

Stephon Clark then sent text messages to Salena M. asking her if she wanted him to kill
himself. Mr. Clark later took a photograph of a handful of Xanax pills and sent it to
Salena M. with a corresponding text message which stated, ?Let?s ?x our family or I?m
taking all of these.?

Salena M. responded in a negative manner. This exchange occurred on March 17th at
10:12 pm and is the last known contact between Salena M. and Stephon Clark.

On March 18th, Mr. Clark continued texting others seeking Xanax.

The last cellphone activity of Mr. Clark?s phone prior to the shooting occurred at 8:15
pm.

Legal Analysis

Two uniformed Sacramento Police of?cers responded to a citizen complaint of a susPect
breaking car windows and hiding in a nearby backyard. The responding of?cers spoke
to the complainant and observed the broken car windows. A Sacramento Sheriffs
helicopter assisted in that call. The observer in the helicopter saw the suspect break the
rear sliding glass door of a neighboring residential home and observed that same
suspect jump a fence into another residential backyard. At that point, the police of?cers
had suf?cient probable cause to detain and arrest the suspect.

The fact that the suspect, Stephon Clark, attempted to elude the pursuing of?cers did
not diminish the of?cer?s legal authority to detain and arrest Mr. Clark. Additionally,
their efforts to detain Mr. Clark did not place the of?cers as ?aggressors? under the law.
At the point the of?cer yelled, ?StOp. Show me your hands,? Stephon Clark had a legal
duty to comply with that of?cer?s commands.

At the time the of?cers pursued Mr. Clark, they were unaware of his identity and his
relationship to the homeowners. Based upon the facts known to the of?cers at that
time, the suspect presented a potential danger to the residents of that home. Mr. Clark
not only failed to comply with the of?cers? lawful demands, he took a shooting stance
and advanced towards the of?cers. Believing that he had a gun in his hand, the of?cers
shot Mr. Clark.

The law recognizes an inherent right to use deadly force to protect oneself or others
from death or great bodily harm. This fundamental legal principle is known as the right
of ?self-defense.? A police of?cer does not lose this fundamental right by virtue of
becoming a police of?cer. Nor do police of?cers have to stop or retreat simply because
the suspect resists.

Of?cers are entitled to the same protections of the law as every other citizen. The law of
self-defense is well established and clear: Deadly force may be used when an of?cer or
citizen honestly and reasonably believes they are in imminent danger of death or great
bodily injury.

In this case, the of?cers? conduct and statements in the time frame immediately before
and after the shooting show that both of?cers honestly and reasonably believed Stephon
Clark was pointing a gun at them and was about to shoot or had already shot at them.

This belief is supported by several facts.

Mr. Clark took a shooting stance;

Of?cers saw a ?ash of light at Mr. Clark?s location;

One of?cer believed the ?ash was light re?ecting off a gun;

The other of?cer believed the light was the muzzle ?ash from a gun;

The body worn cameras captured a ?ash of light near Mr. Clark during this time;

Of?cer Mercadal yelled ?Show me your hands. Gun? and both of?cers

immediately took cover;

. While the of?cers took cover, Mr. Clark advanced toward the of?cers;

. While looking around the corner of the house the second time, of?cers saw that
Mr. Clark was still in a shooting stance and had advanced at least 10 feet toward
them;

. Of?cer Mercadal again yelled, ?Show me your hands. Gun, gun, gun.?

This belief is also supported by the statements of the of?cers captured on body worn
cameras immediately after the shooting.

. Both of?cers asked each other if they had been hit, and both con?rmed they were
not hit by gun?re;

. Both demanded that Mr. Clark show his hands;

. Officer Robinet spontaneously stated that Mr. Clark was ?still pointing? when he
saw him again;

. Both of?cers discussed how to safely approach Mr. Clark to retrieve the gun.

Well-settled law requires that the reasonableness of a particular use of force must be
judged from the view of a reasonable of?cer on the scene and not from 20/20 hindsight.
An of?cer who honestly and reasonably believes that deadly force is necessary acts
lawfully even if it is later determined that the danger did not actually exist. The law also
requires that determinations of What is reasonable must allow for the fact that police
of?cers are often forced to make split?second decisions in circumstances that are very
tense, uncertain and rapidly evolving.

Conclusion

The evidence in this case demonstrates that both of?cers had an honest and reasonable
belief that they were in imminent danger of death or great bodily injury. Therefore, the
shooting of Mr. Clark was lawful and no criminal charges will be ?led.

Stephon Clark?s death was a tragedy that has had a devastating impact on his family and
our community. A young man lost his life and many lives have been irreversibly
changed. No decision or report will restore Stephon Clark?s life.

The fact that criminal charges are not appropriate under the law in this case in no way
diminishes the frustrations and anger that many in our community have expressed since
his death. Those who have raised their voices deserve to be heard. These are trying
times, but in moments like these we must rise together to make our community a better
place for everyone.