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DA: No criminal charges in BART officer's friendly fire death

Detective's decision deemed "an objectively reasonable response to this perceived threat"

Poor planning and confusion contributed to the fatal shooting of BART police Sgt. Thomas "Tommy" Smith at the hands of another officer during a search of a robbery suspect's apartment, according to a report released by the Alameda County District Attorney's Office on Friday.

Smith, 42, was shot by a fellow BART officer, Detective Michael Maes, while they were among a group of officers conducting a probation search at the apartment of robbery suspect John Henry Lee, 20, at 6450 Dougherty Road in Dublin at about 2 p.m. on Jan. 21.

Alameda County District Attorney Nancy O'Malley said Friday that she agrees with the conclusion by deputy DA John Creighton in a 13-page report that the evidence doesn't justify criminal charges against Maes.

Creighton said neither Smith or Maes "uttered a single word inside the apartment that might have alerted either one to the presence of the other" before Maes fired.

Creighton said Smith had heard voices inside the apartment before officers entered and Maes was aware that someone had left the front door unlocked.

The prosecutor said that when Maes walked through the center hallway to the master bedroom's other doorway he saw "a shadowy figure" with an upraised firearm suddenly emerge from a dark walk-in closet area so "he concluded that he was confronting an armed suspect who posed an imminent threat of serious injury or death to himself and his fellow officer, Scott Hamilton."

Creighton said Maes' decision to fire his weapon "was an objectively reasonable response to this perceived threat."

Creighton said, "There is insufficient evidence to warrant filing any charges against Detective Maes in connection with the shooting death of Detective Thomas Smith" and prosecutors don't contemplate any further action in the case.

Seven BART police officers plus a Dublin officer came to the Lee's apartment to search for evidence against him. Lee had been charged with second-degree robbery for a robbery at BART's Fruitvale station in Oakland on Jan. 15 and was already in custody.

Creighton said an investigation into the incident shows that Smith was the supervisor for the search effort and the search team met in a restaurant parking lot near Lee's apartment to be briefed.

However, Creighton said the layout of Lee's apartment wasn't discussed during the briefing.

The officers didn't plan to forcibly enter the apartment, planned instead to gain entry either by knocking on the door or obtaining a key from the apartment manager, according to Creighton's report.

However, when the officers arrived Maes pushed the door handle down and realized the door was unlocked, Creighton said.

Smith pounced on the front door and announced "police" and later said he could hear voices inside, according to the report.

Smith, Maes, Hamilton and another officer, Pablo Chamarro, entered the apartment but wound up in different rooms, Creighton said.

When Maes entered the master bedroom he saw a shadowy figure emerge from the closer area holding a gun in an upraised position, according to the report.

Maes later told investigators that the gun wasn't pointed directly at him but it was turning toward him, Creighton said.

Maes said he knew Lee was in custody but he also knew that the front door was unlocked, that Smith had heard voices inside the apartment and he knew from experience that guns are "normally kept in master bedrooms" and criminals "tend to flock together" and stay at each other's houses, according to the report.

Maes fired one shot and heard someone shout and recognized the voice and realized he had shot Smith, Creighton said.

Smith yelled, "I'm hit, I'm hit," staggered back into the bathroom hallway and collapsed on the floor next to the laundry area, the report said.

Maes told investigators that when he fired his gun he thought Smith was either behind him near the front door or still in the laundry room area, Creighton said.

Maes said he didn't know the apartment's layout and the incident happened so quickly that he didn't shout any warnings or issue any comments before he shot Smith, according to the report.

An autopsy disclosed that Smith died from a single gunshot wound to his chest, even though he was wearing a bulletproof vest.

The BART Police Department's policy is that officers who are in uniform turn on their lapel video cameras during searches but it's optional for officers in street clothes, such as was the case with Smith and Maes, to have and use such cameras.

However, the report says Hamilton and Chamorro didn't turn on their video recording devices before the shooting even though they were in uniform.

BART Police Chief Kenton Rainey said in a statement Friday that the release of the DA's report "allows BART police to move forward with concluding its internal investigation of the tragedy."

He said that he can't discuss the details of BART's probe until it is completed.

Rainey said that following the fatal shooting, he took action to begin the process of reviewing and updating the BART Police Department's policies, procedures and training to ensure that such a shooting never happens again.

— Bay City News Service

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