2.27.2008

‘Fatal funnel’ for law enforcement in Cheri Lyn Moore stand off

Last November, during the criminal grand jury investigation into the death of Cheri Lyn Moore, Eureka Police Department Detective and acting SWAT team commander Todd Wilcox referred to Moore’s doorway as the “fatal funnel in law enforcement.”

“We don’t know what’s inside,” he said.

EPD Officer and SWAT assistant team-leader Rodrigo Reyna-Sanchez told the grand jury that SWAT was acting as an arrest-react team when they entered Moore’s apartment.

The rules of engagement — according to EPD policy — are not to use lethal force unless necessary to protect a hostage, innocent bystanders, the police or the suspect, he said.

According to the officers who testified, Moore had threatened citizens with fire and the police by pointing her flare gun at them.

At 12:33 p.m. on April 14, 2006 — the day Moore was killed — EPD Officer Robert Mengel radioed to SWAT that Moore’s hands were empty. Sanchez breached the door, and four armed EPD officers entered.

Officer Rocky Harpham entered first with a Benelli semiautomatic 12-gauge shotgun — followed by Sgt. Mike Johnson, carrying an AR15 rifle.

Officer Tim Jones was next with a FN303 less-lethal kinetic energy projectile, and Officer Terrance Liles — also carrying a Benelli — entered fourth. After grabbing a handgun, Sanchez followed.

Humboldt County District Attorney Paul Gallegos asked why the team had maximum firepower up-front.

“It’s a credible threat and we want to go in there behind as much firepower as we can to protect ourselves,” Sanchez said.

Jones testified that a long gun — such as a rifle or shotgun — has a better chance of stopping a threat more quickly.

Gallegos asked why the less-lethal weapon wasn’t fired first.

“(Using a less-lethal weapon without lethal cover) really puts the less-lethal operator at risk of losing his-or-her life or being injured,” Jones said. “Commands had been given, but at the time when she pointed (the weapon) at us, we were kind of out-of-time at that
point, in fear for our safety.”

On Dec. 3, the grand jury handed up indictments for then-acting EPD Chief David Douglas and Lt. Antonio Zanotti, incident commander, determining that their actions may have been negligent — resulting in manslaughter. No charges have yet been filed against either.

Gallegos questioned why SWAT entered Moore’s apartment before negotiations were exhausted.

EPD Dispatcher Keziah Moss testified that Humboldt County Department of Health and Human Services - Mental Health Branch employee Craig Pasquini requested a welfare check on Moore that day.

The EPD routinely performs welfare checks on MHB patients when the public or another agency is concerned about their welfare.

Moss testified that Pasquini told her, “(Moore) was despondent over — suicidal over — the death of her son 12 years ago (and) that she had purchased a 12-gauge flare gun. ... She (Moore) was threatening to burn down the building and kill everyone inside.”

The SWAT team was not informed that EPD conducted a welfare check on Moore four days earlier, or other information about her welfare, such as threats to burn down the building down on Mothers’ Day.

Individual officers were aware of Moore’s behavior and health based on their own experiences, not information that the Crisis Negotiation Team provided.

Harpham told the grand jury that he was not aware that Moore intended to go to a court hearing at 1 p.m. that day. Nor did he know that Moore’s friend had delivered cigarettes to the EPD that she had requested.

“Did you understand that Ms. Moore had indicated that if she was provided those cigarettes she would come out peacefully?” Gallegos asked.

Harpham replied, no.

Would the information about Moore wanting cigarettes and to make a court appearance at 1 p.m. have been helpful information in formulating a plan? Gallegos asked Sanchez.

“If we had gotten that information, we would have incorporated that into our plans,” Sanchez said.

Sanchez testified that the CNT information was given to Zanotti, and he gives it to Wilcox — who informs the SWAT team.

Gallegos asked CNT supervisor Lt. Lynne Soderberg, if there were any attempts to tell Moore that her cigarettes had arrived before the SWAT team went in.

“I don’t believe we had any communication with her to be able to start that,” Soderberg said. She testified that postponing the plan until that was communicated was not an option.

In other stand-offs, when the suspect had put their handgun down, negotiations continued and SWAT did not enter, Soderberg said, according to the transcripts. This case was different because of the threat of fire, she said.

Wilcox’s testimony mirrored that statement. Even if he knew Moore planned on attending court, the plan to enter when she put the gun down would have stood, he said, according to the transcripts.

“We were trying to deal with what we felt was an emergency potential threat,” Wilcox told the grand jury.

Despite how negotiations were going, the plan was for SWAT to enter the building because Moore’s threats affected innocent citizens, and she had threatened police during the welfare check, according to several officers’ testimonies.

“We essentially were ready to go regardless of what the negotiations are,” Sanchez said, according to the transcripts.

Harpham testified that he didn’t think SWAT needed a warrant to enter Moore’s apartment, based on his understanding of Penal Code 835 (A).

“If a peace officer has a reasonable suspicion that a crime has occurred, he is allowed to use reasonable force to effect an arrest,” he said.

Under the circumstances, the EPD felt they had a hot pursuit situation, Harpham continued. A hot pursuit is an exigent circumstance where the Supreme Court has said that officers don’t need a warrant, he explained to the grand jury.

When the EPD arrived to conduct a welfare check that morning, Moore’s landlord unlocked her door for them, and according to several officers’ testimonies, she pointed the flare gun at them.

“They had a firearm brandished at them which was a serious felony,” Harpham testified.


By EMILY WILSON, The Eureka Reporter
Published: Feb 26 2008, 11:19 PM

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