Hayward police shooting raises questions [The Daily Review, Hayward, Calif.]

May 15--HAYWARD -- Jessie Stoddard-Nunez has lots of questions for the officer who shot and killed his brother in the early morning hours of March 3.

His brother, Shawn Stoddard-Nunez, died when Hayward police Officer Manuel Troche fired into the passenger side of a car he was riding in. Two of the shots struck the young man, one of them killing him, as the officer emptied his service revolver.

"Why was he shooting in the first place?" asked the 18-year-old. "And why did he shoot that many times? And why in the passenger seat? What they did was wrong."

Police say Troche fired because he believed the driver of the car, Arthur Pakman, was going to run him down as the officer stood outside his police cruiser.

Pakman's attorney said the officer fired recklessly into the car, killing Stoddard-Nunez in the passenger seat. Some experts in police procedure also raised questions about the officer's perception of the danger he faced, although others disagreed, saying the officer was justified.

Attorney John Burris, whose law firm has filed a claim with the city of Hayward on Jessie Stoddard-Nunez's behalf, called Troche's actions "reckless cowboy-type behavior."

"It was the officer who created the danger; it's the officer who should be prosecuted," he said. "He killed a 19-year-old kid who had been struggling; he had been in foster care his whole life. He was surviving, he was going to college, he was working ... and then is shot in

a reckless manner by this cop."

But court expert Richard Weinblatt said it appears Troche's actions were reasonable, given what he knows of the case. "This person is willing to run over a uniformed officer in a marked police car," said the former police chief and dean of the School of Public and Social Services at Ivy Tech Community College, Indianapolis. "It appears the officer's perception was that he was in imminent danger of death or bodily injury."

Police have said that Shawn Stoddard-Nunez was an unintended victim of the shooting.

Pakman, who was not shot, has been charged with Stoddard-Nunez's murder under the state's "provocative act" doctrine, which applies when a suspect commits an act that provokes someone into killing a third party. He also was charged with assault with a deadly weapon and driving while intoxicated. According to court documents, Pakman had a blood-alcohol level of 0.23 percent three hours after the shooting; the legal limit is 0.08 percent. Pakman, who is scheduled to enter a plea June 7, has four previous DUI convictions in Contra Costa County.

The shooting happened about 3 a.m., as Stoddard-Nunez and Pakman were on their way to a friend's house. According to police reports, Troche began following Pakman's Honda after seeing it speed through a red light and swerve. When Pakman pulled into a parking lot stall and stopped, the officer, who had activated and then turned off his flashing lights, pulled into the parking lot driveway. He shone his spotlight at the Honda and then got out of the cruiser.

The officer yelled for Pakman, 23, of Oakley, to turn off the car's ignition. Instead, Pakman backed out of the stall and drove forward toward the police cruiser. Troche said he thought Pakman was going to hit him or his ride-along passenger, who also was standing outside the patrol car, according to court documents.

As Pakman's Honda passed the cruiser, its right front struck the patrol car's open passenger door, pushing it into the ride-along, Russell Mcleod, who was standing behind the door. Mcleod was not seriously hurt, and the patrol car was not dented.

Hayward police spokesman Sgt. Eric Krimm acknowledged there was little damage to the police car. "However, the door was closed on an individual who was standing in the door frame. While there may not be damage to the door, the door did impact Mr. Mcleod," Krimm said.

Police do not want violent confrontations, but all want to go home to their families at the end of their shifts, Weinblatt said. "Most officers are trying to do a difficult job under difficult circumstances for not enough pay. They want to do good. It sounds like he did what he had to do," he said

Troche fired nine rounds, and "strike marks on Pakman's vehicle demonstrated that rounds were fired in the direction of the driver," according to court documents. Bullets shattered the passenger's window and tore holes in the passenger side of the car.

Frederick Remer, Pakman's attorney, questioned Troche's contention that his life was threatened. He said the car was going by, not toward, the officer.

"The officer was shooting into the car on the perpendicular. There was never any clear and present danger of my client harming the officer," Remer said. "Emptying your weapon with wanton disregard for the safety of others is unbelievable."

Whether Troche was justified in shooting at the car depends on what kind of risk the officer and his passenger faced, said Franklin Zimring, UC Berkeley School of Law professor. Because there was only one way out of the parking lot, it could be argued that Pakman was trying to leave, not strike the officer, Zimring said.

"I wouldn't want to be the Police Department's liability insurer, but the question of sequence and the officer's perceptions are going to be the issue," he said.

Such violent confrontations are rarely completely "clean," Weinblatt said. "If an officer feels threatened, he is allowed to fire at a vehicle, he said. "But once the threat has passed, the officer should cease firing. At what point would the officer have reasonably perceived the vehicle is going past him, not at him? These things happen fast."

Now Jessie Stoddard-Nunez is left alone. Supported by a network of friends and a former foster mother, he mourns the brother who was always there, looking out for him as they bounced in and out of foster and groups homes, then sharing an apartment with him as the two became young men.

Shawn was working and going college with plans to become an emergency medical technician or a chef. Jessie was on track to graduate from high school this summer.

"We were talking about making a band together, or becoming tattoo artists," Jessie said. "He was my best friend."

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