DA find fatal shooting of man with replica gun justified in “self-defense”

The Daly City police officer who fatally shot 44-year-old San Francisco resident Roger Allen in April will not face criminal charges.

An investigation by the San Mateo County District Attorney’s Office found that the use of force was “legally justifiable self-defense and defense of others,” according to its news release on Friday.

Results of the investigation come more than four months after the April 7 shooting, when Daly City police shot Allen during a struggle over what turned out to be a replica gun. In the weeks after the shooting, advocates, community members and Allen’s family marched in protest and questioned the police account of what happened.

According to police and the District Attorney’s investigation, Officer Nicholas McCarthy first approached the truck where Allen was seated with two others, after seeing that it was pulled over with a damaged tire on Niantic Avenue.

During the encounter, three other officers – Detective Cameron Newton, Officer Rosa Brenes and Lt. Michael Brennan – arrived at the scene.

After asking the driver to exit the truck and asking Allen for identification, officers noticed that Allen held a replica gun, which they thought to be a real firearm at the time.

During a struggle to gain control of the gun, Newton fired two shots at Allen, one of which struck him in the chest. Allen later died at Zuckerberg San Francisco General Hospital.

The investigation included interviews with the officers at the scene, the two people who were in the truck with Allen, emergency responders and others.

In a letter addressed to Daly City’s then-Acting Chief of Police John Gamez, District Attorney Steve Wagstaffe wrote that at the time of the shooting, Allen’s replica gun “reasonably appeared to everyone at the time…to be a real gun: it was of the same size, design, color, material and feel as a real 9 mm Glock handgun and was only discovered to be a replica when Lt. Brennan disarmed Mr. Allen and could closely inspect it.”

Wagstaffe wrote:

“Lieutenant Brennan and Detective Newton reasonably believed they were in a struggle for their lives over control of a gun that, had it been real, could have been used to shoot both of them,” 

There appear to be no video evidence or recordings of the incident, as police were not equipped with body cameras at the time, according to Wagstaffe. But Wagstaffe noted that a neighbor’s nearby security camera picked up the sound of the gunshots.

Since then, Daly City’s City Council has approved the purchase of body and vehicle cameras for police, which will soon be in use.

In an interview on Friday, Wagstaffe said:

“In terms of criminal law, for us the case is now closed.” 

Allen’s sister Talika Fletcher said that what happened was not fair and that though the family is healing, they may move to sue Daly City.

Fletcher said:

“I’m at the point where you can forgive, but you won’t forget. … And my anger right now is towards how this system is and it’s not fair.”

She wanted people to know that everybody makes mistakes, and at the time of the shooting Allen was trying to make his life better for his family. Fletcher described Allen as the person who looked out for her since she was young.

She said:

“He always was my protector and now I have to be my protector for my son and my nephew.” 

Allen’s family is represented by civil rights attorney John Burris, who said he was not surprised at the findings of the investigation and will discuss with the family what to do next.

Burris said they did their own investigation and did not find any witnesses that contradicted the police’s statement.

However, he pointed out the difference between a criminal and civil case.

Burris said:

“Just because no criminal charges were filed does not mean there were no civil rights violations. … I’ll read what the DA has to say then go from there to see whether or not civil rights violations are still relevant and present under the facts that exist.”

Another independent investigation is also underway.

In July, Daly City hired Jordan Consulting and Investigations, a firm run by former Oakland Police Chief Howard Jordan, to investigate the shooting and determine whether the officers violated the Police Department’s use of force policies.

Though Wagstaffe believed his office had uncovered all the evidence in the case, he said they would be open to looking at new evidence if the independent investigation discovered any new facts.

A summary of District Attorney’s investigation is available here.

Those wishing to view the complete investigative report can contact Chief Inspector William Massey of the District Attorney’s Office Bureau of Investigations at bmassey@smcgov.org or (650) 363-4883.