Murderer? Part 1

ROGER D. WILSON
Of Counsel
Rains Lucia Stern St. Phalle & Silver, PC

“Murderer! Murderer!” came the shouts from a group of four men and women standing nearby as Modesto Police Officer Joseph Lamantia and I walked to the entrance of the Stanislaus County Courthouse.

As we passed the group, a man moved closer to Lamantia and yelled at him, “You’re a murderer! You shoot unarmed people!” I stopped and moved in front of the man as Lamantia continued walking to the courthouse entrance.

Lamantia had served the Modesto community for over a dozen years as a police officer. He was a longtime member of the MPD SWAT team, a field training officer and an auxiliary motor officer. On this day in June 2021, Lamantia was facing a charge of voluntary manslaughter following a fatal officer-involved shooting incident that occurred on December 29, 2020. This court appearance would be one of many over the next two years, culminating on July 21, 2023, when Stanislaus County Superior Court Judge Carrie M. Stephens dismissed the case.

The OIS

Lamantia was wearing his MPD uniform and working on the Crime Reduction Team on Tuesday, December 29, 2020, at roughly 11:30 a.m., when he overheard dispatch request all available officers to assist on a call for service about an armed family member who had just bought a gun and was threatening to harm his family.

Lamantia volunteered to respond to the call, jumped into his patrol SUV and drove to the location where the suspect’s family had last seen him. As he was driving, dispatch informed Lamantia that the suspect had vandalized his family’s home, and that he was seen by his family walking near the church where they were hiding.

After responding to the call, Lamantia was advised of an officer safety bulletin involving the suspect. It stated that on December 8, 2020, MPD received information that the suspect made anti-law-enforcement comments on social media such as “A good cop is a dead cop” and “All I want for Christmas is another dead MPD officer.” Additionally, it stated that the suspect had been contacted multiple times while under the influence of alcohol; that he was violent, argumentative and uncooperative while drunk; that in one incident, he resisted arrest and kicked the right rear window of an officer’s vehicle while inside that vehicle; that he threatened to spit on officers; that he had been booked for driving under the influence of alcohol multiple times; and that he claimed to be a member of the Hells Angels. Officers were warned to exercise caution when contacting the suspect.

Lamantia located the suspect in the alcove portion of the northernmost building of the church, about three seconds after dispatch finished the update. Lamantia drove about another 50 feet past the suspect’s location, stopped, got out of his patrol vehicle with his firearm drawn, paused and realized the suspect had fled around the corner of the building. The events that occurred next were captured on Lamantia’s body-worn camera.

Lamantia followed the suspect and rounded the corner of the building. He observed the suspect running with his hands stationary in front of his waistband; his arms were not pumping as normally observed when a person runs.

Lamantia believed the suspect was running around another church building to get across the street to the church where his family was hiding, in order to shoot them. Lamantia raised his handgun and began giving the suspect commands to get on the ground. The suspect ignored the commands and Lamantia fired four rounds, one of which struck the suspect in the back. The suspect continued running, but eventually fell to the ground, then stood up and turned to face Lamantia. Lamantia shouted additional commands at the suspect to get his hands up, which he did initially. Then, he suddenly dropped his right hand to his waistband area and started to raise it, as Lamantia fired another three rounds. The suspect fell back to the ground and yelled.

Soon after the second volley of shots, three MPD officers and a sergeant arrived at the church, formed an arrest team and approached the suspect using a ballistic shield. Lamantia retrieved a trauma kit from one of the patrol vehicles and assisted in the initial first aid measures to treat the suspect’s injuries after he was secured by the arrest team. Emergency medical personnel arrived and took control of the suspect. The arrest team did not locate a firearm on or near the suspect.

 The OIS Interviews

Lamantia was interviewed by members of the MPD Internal Affairs Unit less than 24 hours following the OIS. He was represented by counsel during the interview. The interview was emotionally challenging for Lamantia, but he trudged through it. He had not reviewed his BWC recording prior to the interview.

Approximately one month after that first interview, to Lamantia and his counsel’s surprise, IA wanted to interview him a second time. Clearly, the Department’s position about the propriety of Lamantia’s OIS had changed. Immediately before the second interview, IA members provided Lamantia with a transcript of his first interview. Neither he nor his (then) counsel had sufficient time to review the transcript prior to the second interview.

The second interview was grueling and, at times, adversarial and confrontational. Lamantia once again expressed his understanding of MPD policies, and that his SWAT training and 12-plus years of experience as an officer informed his decision-making when he encountered an armed and potentially violent suspect on December 29, 2020.

Soon after the second interview, IA requested that Lamantia sign a waiver prepared by the Department in which he would agree to waive the confidentiality of the contents of the IA interviews and “release” the interviews to criminal detectives for use in their investigation. Lamantia executed the waiver on advice of his (then) counsel.

Lamantia’s Arrest and Defense

The Stanislaus County District Attorney sent Lamantia’s BWC recording and his two IA interviews to a former member of the Los Angeles Police Department for analysis and to assist with making a prosecution determination. The former LAPD officer produced still images from the BWC video and determined that Lamantia had violated MPD policies and the law. The DA’s Office then charged Lamantia with voluntary manslaughter on March 18, 2021. He was arrested and posted $100,000 bail.

Following his arrest and arraignment, Lamantia elected to change legal counsel. After calling Mike Rains and then meeting with Mike and me in Modesto, Lamantia retained RLS to represent him in the criminal proceedings.

Discovery from the DA contained crime reports from all of the MPD officers on scene and the detectives who interviewed the suspect’s family members. It also contained the analysis of Lamantia’s actions by the former LAPD officer and several reports from DA investigators.

At a pretrial hearing, the DA informed us that a new report was being prepared and would be sent to us soon. Consequently, the preliminary hearing was continued for several months. During that time, Lamantia’s team retained a private investigator to interview several of his SWAT team colleagues to inquire about MPD training and policies.

Additionally, his team retained use-of-force expert David Blake and video analyst Robert McFarlane in preparation for the preliminary hearing. Initial analysis by Blake and McFarlane of the reports and still photos prepared by the LAPD analyst showed that the LAPD report was flawed and that several crucial frames of video were omitted from his report. Those omitted video frames clearly showed that when Lamantia fired the second volley of three rounds from his weapon, the suspect’s right arm was down and his hand was near his waistband. Further, the omitted frames significantly distorted the timeline of actions by Lamantia during the OIS incident.

Finally, in July 2022, a report from the DA was provided to Lamantia’s counsel. That report was prepared by Jeffrey A. Martin, J.D., C.F.V.T., the DA’s retained expert in the areas of investigation and documentation of police force responses, evaluation of force responses by law enforcement officers, including the relevant human factors, and technical preparation, examination and interpretation of video evidence.

Martin’s report was lengthy and comprehensive, and, most importantly, favored Lamantia. Martin concluded that Lamantia’s actions were within MPD policy and the law, and the shooting of the suspect was justifiable. Experts Blake and McFarlane reviewed Martin’s report and reached the same conclusions.

After reviewing Martin’s report, Lamantia’s counsel contacted the DA, fully expecting him to drop the case since his own expert had concluded that Lamantia had not violated the law. The DA stated he would not drop the case.

 The Preliminary Examination

Lamantia’s preliminary hearing was scheduled, canceled and rescheduled several times. When the hearing started, it was spread over seven court days between November 21, 2022, and April 12, 2023. The presiding judge, Judge Stephens, requested that counsel brief her on the law related to officer-involved shootings and the evidence received during the hearing, and she would present her decision on July 21, 2023.

 The Prosecution’s Case

During the preliminary hearing, the DA presented the testimony of the suspect’s sister who had made the 9-1-1 calls, the coroner, an MPD officer and sergeant who responded to the church following the shooting, the IA sergeant and a DA investigator. The DA did not call Martin, their retained expert.

The prosecution began their case with testimony from the suspect’s sister, who attempted to minimize the fact she and her mother reported to dispatch that the suspect possessed a gun and threatened to hurt them. Nevertheless, on cross-examination, the sister admitted that she and her family were so afraid of the suspect that they left their own home to escape the potential threat he posed.¹

One of the MPD officers who responded to the OIS soon after the shots were fired was the next prosecution witness. The officer testified, in essence, that upon arrival, he took a position of cover behind a tree with his rifle because, based on the information received in the call for service, he had to protect himself from a suspect known to be violent to cops and in possession of a firearm.

Next, the prosecution called the MPD sergeant who responded to the OIS after the shots were fired. The sergeant testified that he believed Lamantia should have delayed his response to allow more resources to arrive at the church. Additionally, the sergeant stated that he wanted officers to “stage” and set up a perimeter to “box in” the suspect. Interestingly, despite those opinions, the sergeant testified that he had no idea where the suspect was located, nor did he know where Lamantia was located, so the success of boxing in the suspect was unlikely.

During cross-examination, the MPD sergeant admitted that the interaction between Lamantia and the suspect lasted only 144 seconds from the time Lamantia arrived “on scene” at the church and when shots were fired. So he agreed that the encounter was rapidly evolving, Lamantia had to make split-second decisions and the nature of the call for service demanded an “immediate response.”

The MPD sergeant also admitted that he believed the suspect possessed a firearm at the church, so he ordered an officer to get a ballistic shield to protect officers as they approached the suspect. Finally, the sergeant admitted that had the suspect escaped from Lamantia, the suspect posed a serious threat of danger to the neighboring citizens.

The lead IA sergeant testified over two days, and basically tried to demonstrate that Lamantia’s explanation of why he believed it was necessary to fire his weapon at the suspect was contrary to MPD policies and training. However, during cross-examination it was learned that the IA sergeant did not possess Lamantia’s extensive training and experience, and so the IA sergeant’s opinions were uninformed and speculative. Counsel for Lamantia pointed out to the judge that the IA sergeant was not a proper “reasonable officer” under the law to give opinions about Lamantia’s actions during the OIS.

Despite defense concerns about his experience and training, the IA sergeant admitted that when an officer confronts a suspect who the officer believes has a handgun, the officer should also draw their firearm. If an officer is told by dispatch that a suspect is armed, the officer should, when addressing that suspect, consider that person to be armed. An armed suspect has the ability to inflict serious bodily injury or death. Further, the IA sergeant stated that a suspect who has a firearm in their waistband can draw the firearm quickly. An officer need not wait to have a gun actually pointed at them before they can use lethal force. A suspect who has a gun can actually fire that gun while running. Furtive movements to the waistband are very concerning to officers. Finally, the IA sergeant testified that officers are permitted to use reasonable force to prevent escape or to effect arrest. Officers are trained that they are not required to retreat in their efforts to arrest a suspect. Reasonable force is judged from the prospective of a reasonable officer on the scene at the time of the incident.

The IA sergeant used Lamantia’s two IA interviews to bolster the prosecution’s theory that Lamantia acted unlawfully by rushing into his contact with the suspect and that his decision to use lethal force was contrary to MPD policies and the law.

Generally, in cases where both IA and criminal investigations are occurring, a law enforcement officer’s compelled statements made in the IA interview cannot be used in a subsequent criminal case. However, upon advice of his previous counsel, Lamantia had “released” his IA interview statements two years prior, so the DA could lawfully use his statements in the preliminary hearing.

A senior DA investigator prepared a report using still photos from Lamantia’s BWC video of the OIS, and also took several additional photos to prepare exhibits to show distances between Lamantia and the suspect when shots were fired, and from the shooting location to the suspect’s home and the church where his family was hiding.

Despite the considerable amount of work and number of exhibits prepared by the DA investigator, he testified that no one associated with the OIS incident — not the suspect, his family, Lamantia or the other responding MPD officers — followed the paths described in the multiple photographs.

The IA sergeant also pointed out during his examination perceived inconsistencies between Lamantia’s two IA interviews. However, because Lamantia’s initial interview occurred less than 24 hours following the OIS and the second interview occurred about a month later, some inconsistencies were to be expected. Based on the judge’s decision, she gave little weight to any perceived inconsistencies between the two IA interviews.

The People rested their case following the testimony from the DA investigator.

 Lamantia’s Case

Lamantia’s first witness was Martin, the prosecution’s use-of-force expert. The DA’s Office had retained Martin in February 2022² as its expert in the areas of investigation and documentation of police force responses, evaluation of force responses by law enforcement officers, including the relevant human factors, and technical preparation, examination and interpretation of video evidence. In fact, Martin’s report and appendices were submitted to the DA’s Office in July 2022. Martin’s credentials, experience and training in his specified subject areas, and his expert opinions in those areas, were not refuted by the DA.

Martin provided a detailed report containing his methodology, investigation, findings and opinions after a thorough analysis of the circumstances surrounding the OIS incident, and with consideration of peace officer standardized training and the established law authorizing the use of force by law enforcement officers.

Martin noted that in this case, a trained and reasonable officer facing similar circumstances would likely construe the suspect’s violent history and his own statements that he possessed a gun and threatened his family as having the present ability, opportunity and apparent intent to inflict death or serious bodily injury upon the family, Lamantia or other MPD officers.

Moreover, according to Martin, there were no less-lethal alternatives that were reasonably available or feasible to defend against the perceived threats posed by the suspect.

Martin explained that there is nothing to inform California peace officers that if they fail to either “tactically reposition” or engage in “de-escalation” methods, their uses of deadly force will be dispositively deemed to be unlawful. Further, Lamantia was working under circumstances that were tense, uncertain and rapidly evolving, and he was forced to make split-second decisions.

Martin concluded that Lamantia had probable cause to believe the suspect had committed the crime of making criminal threats to his family, and that those threats were sufficient to place the suspect’s sister, mother and stepfather in sustained fear such that they left the sanctuary of their own home and called the police for help.

Other important factors explained by Martin were that Lamantia perceived that the suspect had a considerable head start, he was unaware of where the closest MPD unit was at the time, and he believed the suspect could locate and reach his family before he could attempt to apprehend the suspect via other means. Additionally, only 18 seconds had elapsed from the time Lamantia saw the suspect until he fired the first round.

Martin concluded that Lamantia’s actions were consistent with those of a trained and reasonable officer who believed that deadly force was necessary to prevent the suspect from causing death or serious bodily injury to his family.

Martin also concluded that the number of rounds Lamantia fired both times was consistent with the number of rounds fired by other officers in other shootings under similar circumstances.

Lamantia’s second and final witness was a fellow MPD SWAT detective who testified in essence that he was a colleague of Lamantia who worked very closely with him on SWAT. The SWAT detective testified about the extensive training MPD SWAT members do throughout the year. He explained that MPD SWAT members receive some form of training in the lawful use of lethal force each time they train but, that as a department, MPD provides training only sporadically. In fact, the detective testified that MPD provided its officers training on the change in the law related to the use of lethal force (AB 392) in October 2021; that new law became effective January 1, 2020.

The SWAT detective explained his understanding of the laws and MPD policies defining the lawful use of force by peace officers that was consistent with Lamantia’s explanations provided during his two IA interviews.

Further, the SWAT detective explained that his training and experience with fleeing felons and furtive movements by armed suspects was consistent with Lamantia’s explanations. The SWAT detective testified that officers at MPD are trained that a suspect can draw a firearm and shoot it in only 0.2 seconds.

The SWAT detective explained that MPD officer safety bulletins are prepared to assist officers with handling violent individuals and to be on a higher alert when confronting such subjects. The SWAT detective reviewed and explained his understanding of the suspect’s officer safety bulletin, which was consistent with Lamantia’s explanation during his two IA interviews.

The SWAT detective explained that it is not reasonable for an officer to use a baton or OC pepper spray or a Taser when confronted by a suspect using a deadly weapon.

Finally, the SWAT detective explained that when an officer uses iron sights on their firearm, the target in the sight picture is blurry and the officer can only see the top half of the target. That testimony was important because as Lamantia was aiming his firearm with iron sights on December 29, 2020, he could only see the suspect as a blurry object and could only see the upper half of the suspect.

This story will be continued in the December issue of PORAC Law Enforcement News.

About the Author

Roger D. Wilson is Of Counsel to Rains Lucia Stern St. Phalle & Silver, PC and represents peace officers in administrative, disciplinary, critical incident and criminal defense matters

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¹     The prosecution never refuted that the suspect made criminal threats to his family, in violation of Penal Code § 422.

²     For reasons unknown, Martin was retained by the DA’s Office 11 months after that office elected to prosecute Lamantia in March 2021.