A parolee fleeing on foot through desert scrub outside a Twentynine Palms casino was shot from behind by a San Bernardino County sheriff’s deputy after the man picked up a rock and pretended to hurl it before turning and again running away.
A security camera at the casino captured the Oct. 23 foot chase and shooting on video obtained by the Southern California News Group.
Attorneys for 31-year-old Joseph McLaughlin said their client did not pose an imminent threat to Deputy Kyle Smit when Smit fired seven shots at him outside the Tortoise Rock Casino. Smit and another deputy, Adan Ochoa, were chasing McLaughlin after spotting him leaving the casino and attempting to detain him on an arrest warrant for a parole violation, authorities said.
“It certainly is excessive use of force and improper use of lethal force. This is somebody who should not be out there with a gun,” said Victorville attorney Jim Terrell, who along with attorney Sharon Brunner is representing McLaughlin in both his criminal and civil cases. The two filed a $10 million claim, a precursor to a lawsuit, with the county on Monday, Nov. 23. The county has 45 days to respond.
Video footage
The video shows the two deputies chasing McLaughlin into a swath of desert scrub, where McLaughlin stops, picks up a rock and acts like he’s throwing it at Smit before turning and again fleeing, with the rock still in his hand. Smit is then seen drawing his gun, aiming and shooting at McLaughlin several times as he runs further into the scrub. McLaughlin then falls to the ground. He survived.
From his belt audio recorder, Smit is heard yelling, “Drop the rock!” just before firing seven gunshots.
“Why’d you do that?” a groaning and panicky McLaughlin is heard asking Smit seconds after the shooting. Smit responds, “Why’d you pick up a rock?” to which McLaughlin replied, “Sorry.” Smit then told McLaughlin he was getting him medical attention and to relax.
Serious injuries inflicted
Brunner and Terrell, however, allege the deputies did not provide medical aid to McLaughlin in a timely manner and that they moved McLaughlin from where he was shot to the street, potentially causing other injuries and disrupting the shooting scene.
McLaughlin was shot three times from behind — in both shoulders and his right forearm. He underwent surgery on his left shoulder to repair nerve and tissue damage, but his right hand remains completely numb and immobile, Brunner said.
“He’s unable to move his fingers on his right hand or make a fist. The doctor reported he may have nerve damage in both arms,” Brunner said. “He may have permanent injuries.”
Parolee at large
According to the San Bernardino County Sheriff’s Department, the two deputies were conducting a business check at the casino about 4:40 p.m. when they spotted McLaughlin, a known parolee at large with a felony arrest warrant, exit the casino. The two deputies tried making contact with McLaughlin, but he fled on foot.
McLaughlin’s attorneys say the arrest warrant was for a nonviolent offense, a parole violation. McLaughlin is a convicted felon who has served time in prison and has burglary convictions in San Bernardino and Kern counties.
On Oct. 30, the District Attorney’s Office charged McLaughlin with one felony count of assault on a peace officer. He is scheduled to appear in Joshua Tree Superior Court on Wednesday, Dec. 2, for a pretrial hearing.
Assault charge questioned
Terrell and Brunner believe the assault charge is unwarranted given that McLaughlin did not actually strike Smit with the rock and was fleeing the deputies, with his back facing Smit, when he was shot.
“Mr. McLaughlin has been overcharged in an effort to cause distraction to the real failings of the deputies,” Brunner said. “Mr. McLaughlin, by all accounts, could be dead given the seven or more shots fired by Deputy Smit.”
Terrell believes the assault charge is an attempt to force a plea out of his client.
“The D.A. is a team player with the Sheriff’s Department. They work these charges to assist the deputies,” Terrell said.
Law enforcement responds
District attorney spokesman Mike Bires said in a statement that, upon taking office in 2018, District Attorney Jason Anderson “revised and improved the involvement, reviewing, and reporting of incidents involving the use of force by law enforcement officers throughout San Bernardino County.”
“Mr. Anderson has pledged full transparency to the community when it comes to officer or deputy-involved shootings,” Bires said, adding that the District Attorney’s Office posts on its website all completed investigative reports and findings of officer-involved shootings.
As to the merits of the assault charge filed against McLaughlin, however, Bires said the office does not comment on ongoing court cases.
Sheriff’s spokeswoman Cindy Bachman declined to comment on the shooting, other than to say that the department’s specialized investigations division is still investigating and has not turned the case over to the District Attorney’s Office for review.
Prior lawsuit
Smit began working for the department in April 2017. He previously worked at the West Valley Detention Center in Rancho Cucamonga before he was assigned to patrol duty in the High Desert, according to Brunner and Terrell, who said this is not their first encounter with the deputy.
Brunner and Terrell sued the county, Smit, four other named deputies and several unnamed deputies in March 2019 on behalf of former inmate Ashanta Grier, alleging excessive force and battery. The lawsuit alleged that, after Grier was booked into custody on Feb. 12, 2018, Smit and three other deputies brutally beat him, without warning and without provocation, rendering him unconscious. The injuries were so serious that Grier needed to be taken to a hospital.
The county settled the Grier case with Brunner and Terrell on July 29 for $50,000, according to the settlement agreement.
Lethal force standard
Eva Bitran, a staff attorney for the American Civil Liberties Union’s San Bernardino office, said the shooting of McLaughlin appears to fall under a higher standard for lethal use of force by police established by a new law that took effect in January.
The law, Assembly Bill 392, redefines the circumstances under which lethal force is justifiable. It mandates that the officer must reasonably believe there was an “imminent threat of death or serious bodily injury to the officer or another person” to justify lethal use of force, and that the officer must employ alternative measures and techniques to apprehend someone if they are “feasible” and “reasonably safe.”
The question, Bitran said, is whether the deputies could have taken measures other than deadly force, such as creating distance between McLaughlin and the deputies, establishing a perimeter and bringing in backup to assist in McLaughlin’s capture.
“From our perspective, it is troubling to see this use of force on someone who was shot in the back while fleeing,” Bitran said in a telephone interview. “It’s pretty hard to show that the harm is imminent when someone has turned their back and is running away.”
Source: Orange County Register
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