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Calif. DA: Fatal OIS was self defense

The external investigation, standard procedure for the Vallejo Police Department and district attorney's office, was given priority over a string of other officer-involved shootings, at the urging of the Vallejo City Council

By Jessica A. York and Tony Burchyns
Vallejo Times-Herald

VALLEJO, Calif. — The fatal officer-involved shooting of a Vallejo man in September outside his sisters' home was a case of self-defense, the Solano County District Attorney's Office announced Wednesday.

The controversial shooting's external investigation, standard procedure for the Vallejo Police Department and district attorney's office, was given priority over a string of other officer-involved shootings, at the urging of the Vallejo City Council.

Wednesday's report to Vallejo Police Chief Joseph Kreins sheds new light on some of the details of the shooting. It notes, for instance, that Mario Romero's toxicology report indicated he was under the influence of both alcohol and methamphetamines. It also reported that one of the officers apparently handled the bloodied replica gun after the shooting without wearing gloves.

Romero, 23, was reportedly shot and killed in the early morning hours of Sept. 2, when he allegedly got out of his car and police believed he was reaching for a weapon that they said later turned out to be a pellet gun. The passenger in his car, 21-year-old Joseph Johnson, was allegedly caught in the crossfire and received a nonfatal wound to his pelvic area, police said.

The District Attorney's Office analysis has been forwarded to the U.S. Department of Justice, Civil Rights Division, and the U.S. Attorney's Office, Eastern District of California for independent review. Solano County District Attorney Don du Bain said the "unusual" move was made at the request of Vallejo Mayor Osby Davis in light of public interest in the case.

A spokeswoman for the U.S. Attorney's Office confirmed that the matter had been referred to their office, but no time frame has been set for the review or for any actions deemed appropriate.
The investigation did not address issues of civil liability, tactics or departmental policies or procedures, according to the district attorney's office. Instead, it only addressed whether the case presents a basis for criminal prosecution of the officers in the death of Romero and shooting of Johnson.

"We have nothing to hide and we stand behind (the district attorney's) review," Vallejo police Capt. Jim O'Connell told the Times-Herald on Wednesday. "Given some of the scrutiny that came with this case, the review by the U.S. attorney may give others comfort in the actions of the officers and the veracity of the investigation by both the D.A. and the combined investigation."

O'Connell added, "We've felt all along that the officers acted appropriately, given the circumstances that were presented to them."

Meanwhile, Johnson and Romero's mother, Cynthia Mitchell, already have filed a wrongful death lawsuit against the Vallejo Police Department. The lawsuit, filed May 30 in U.S. District Court in Sacramento, names officers Sean Kenney and Dustin Joseph and Police Chief Joseph Kreins.

Also, an attorney representing Romero's 4-year-old daughter and other family members told the Times-Herald on Wednesday that he is preparing to file a separate lawsuit against the department.

"It is our view that in spite of this investigation that the shooting of Mr. Romero and Mr. Johnson was completely unjustified," said Matthew Haley, an Oakland attorney representing surviving members of Romero's family. "This whole event started with these two young men doing absolutely nothing wrong, sitting in a car in front of their house, and ... we all know how it ended up."

Romero family members and supporters have contended that the killing was unlawful and have staged numerous and extensive protests in front of the Vallejo Police Department and Vallejo City Hall since the incident, one of an unprecedented six fatal officer-involved shootings last year. During several City Hall protests, local government meetings were called to a halt, delayed or canceled because of the protesters.

In a recent interview with the Times-Herald, Romero's sisters Cyndi Mitchell and Kristima Kelley explained their motivations behind the ongoing protests.

"We've got a lot of people who hate us because our brother was killed, and he was slandered. So you've got these people — they think one thing happened, and it's 'Oh, why are they fighting? He was a gang-banger, a drug dealer and he pulled out a gun. He was a parolee.' And so the first description they got in their mind was of this monster. And my brother wasn't like that," Mitchell said.

According to police reports, Romero was reportedly seated inside a car with Johnson near Pepper and Lofas streets at about 4:30 a.m. Police said they came upon the two sitting in a white Ford Thunderbird matching the description of a car reportedly associated with an earlier shooting, in the midst of investigating a reported burglary down the street, according to Chief Deputy District Attorney Jeffrey Kauffman.

Romero and Johnson were outside the home of Romero's sisters, and mother of Johnson's children.
The district attorney's findings are discussed in a 15-page letter to Vallejo Police Chief Joseph Kreins dated Wednesday. Copies were also released to the media.

Some new details revealed in the letter include:

— Romero was giving Johnson a ride home from the downtown area on the night of the shooting.

— After the shooting one of the two officers involved, Sean Kenney, entered Romero's car and handled the pellet gun without gloves. Kenney told investigators that he was going to check it for live ammunition, then realized it had blood on it and that he wasn't wearing gloves.

— Kauffman said it was "unreasonable to believe that anyone, in an attempt to fabricate evidence" would not have planted a real gun instead.

— A blood toxicology report on Romero showed that he had a blood alcohol level consistent with having had three drinks, and a methamphetamine level twice that is considered the "effective level" of the drug.

— Some 60 pills reportedly found in baggies in the car was methamphetamine, rather than Ecstasy pills as earlier reported. Family members also contend that the pills were planted, an assertion Wednesday's report disputes.

— Both Romero and Johnson were on felony probation on weapons charges at the time of the incident and subject to search and seizure by the police without cause.

— Analysis of bullet holes through the driver's side door of the vehicle align with a corresponding hole inside the car, but only when the door is open. Family members contended Romero never opened his car door.

— Analysis of bullet holes through the windshield show they were fired from the ground, not from on top of the car's hood. Although one of the officers, Sean Kenney, stood atop the car's hood to get a better view inside, family members who witnessed the incident claim he fired at Romero from that vantage point.

— Officers Kenney and Joseph were the officers involved in the shooting.

Haley declined to comment on the details of the case, including evidence that Romero was allegedly intoxicated and in possession of illegal drugs the night of the shooting, because he said authorities have denied his repeated requests for access to evidence.

"I'll just say they were sitting in a car doing nothing wrong when the Vallejo police officers approached them," Haley said. "We certainly don't see it the same way the Vallejo Police Department sees it."

Copyright 2013 Times-Herald (Vallejo, Calif.)

McClatchy-Tribune News Service

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