- Eva Ruth Moravec Special to the Statesman
Robert Malone, a volunteer reserve deputy with the Potter County sheriff’s office, awoke early one morning to discover a pair of burglars breaking into the shed housing his generator, a four-wheeler and his Harley-Davidson motorcycle.
His wife dialed 911 while Malone dressed, grabbed his department-issued Springfield Armory XD pistol and headed outside his Amarillo home. He told the burglars he was an officer, then shot and injured one of the men who lunged at him.
Should such a case be investigated as an officer-involved shooting or an instance of a private homeowner defending his property?
In many counties, shootings by on-duty officers are typically presented to grand juries for review. But in the case of this Nov. 21, 2015, shooting, prosecutors treated Malone like any other Texan safeguarding his home and decided not to present his case to a grand jury.
Though he used his service weapon, Malone was off-duty and was fending off a burglar. Under state law known as the Castle Doctrine, Texans may use deadly force to protect themselves and their property.
Malone is one of at least seven officers in Texas who shot someone while off-duty, protecting themselves or their property, between September 2015 and September 2016, according to reports filed under a new law that requires Texas law enforcement to report officer-involved shootings to the state attorney general’s office.
Malone and four others shot someone believed to be burglarizing their home, shed or vehicle; two others were protecting themselves. Among the people shot by the off-duty officers, six were injured and two died. None of the officers was hurt.
Some of the cases were reviewed by grand juries. Some weren’t.
Malone’s shooting closely resembles an incident that took place at another officer’s home in Victoria. In April, Refugio County sheriff’s Deputy Tammy Gregory was off-duty when she fatally shot an intruder, Wade Austin Kloesel, 27. After the case was investigated, Victoria County Criminal District Attorney Stephen Tyler presented it to a grand jury, which declined to indict Gregory in August.
Tyler said he believes the law requires a grand jury to hear all such cases — not only shootings but matters involving any public officials accused of “any neglect or any failure in duty.”
Teen killed in controversial case
The Texas Department of Public Safety and the Federal Bureau of Investigation track incidents like these that result in deaths, which are often labeled as justifiable homicides. Reports on those homicides in Texas have more than doubled from 57 in 2006 to 122 in 2015. At the same time, the Texas population grew about 17 percent, from 23.3 million in 2006 to 27.5 million in 2015.
Members of the public and law enforcement are about equally responsible for those justifiable homicides, although the data include fatal shootings by officers who were on-duty and off-duty.
The main question for jurists and prosecutors who review all officer-involved shootings is whether the officer had an “objectively reasonable” fear that the person shot was endangering the life of the shooter or someone else, based on a U.S. Supreme Court case.
The Castle Doctrine, in contrast, allows all people in Texas to stand their ground to protect their own home or property, though it doesn’t allow shooting someone simply for trespassing or for running away.
Some cases are controversial, such as the March 13 shooting by Farmers Branch police officer Ken Johnson, who killed one Dallas teenager and injured another.
Johnson was off-duty when he reportedly saw Jose Cruz and Edgar Rodriguez, both 16, breaking into his vehicle at an apartment complex. Johnson identified himself as an officer and then chased the teens when they drove off, striking their vehicle from behind with his private car. Johnson told authorities that the crash was accidental but that he shot both teens when one made a threatening movement as he tried to arrest them, according to an account in a custodial death report.
Cruz was killed, while Rodriguez was injured in the hand and head.
A federal civil lawsuit filed by Eva Arevalo, the mother of the injured teen, challenges the officer’s account. “Photos show that Johnson was standing in the road while shooting into (the teens’) vehicle with both occupants totally contained in the vehicle,” the lawsuit says. It also says Johnson fired 17 rounds.
In a rarity for officer-involved shootings, Johnson was arrested three days after the shooting and then indicted on charges of murder and aggravated assault. He resigned from the force and faces an August criminal trial. The civil lawsuit hasn’t yet been set for trial in federal court.
No hard feelings from the burglars
Experts say it can be dangerous for officers to perform law enforcement-like duties while out of uniform and off-duty, since they are often disconnected from emergency communications and can go unrecognized as police. According to the National Law Enforcement Officers Memorial Fund, 57 officers were shot and killed performing police duties while off-duty from 2006 to 2015, representing 10 percent of the officers killed by gunfire during that time.
Malone said that when he discovered the burglars in his shed in Amarillo he ordered the men — Patrick Ramos, then 31, and Joe Manuel Garcia, then 45 — to stop and told them he was an officer. He shot Garcia once, but he didn’t pursue and continue to fire at the unarmed men after they fled, according to documents and interviews.
Malone serves as a volunteer reserve deputy for about 96 hours each year, so he has a uniform, badge and service weapon. Because the case involved a peace officer, it was reported to the state and investigated by the Amarillo Police Department’s Special Crimes Unit. Eventually, the case went to the Randall County district attorney’s office, which reviewed probable cause for criminal complaints against Garcia, Ramos and Malone.
Garcia and Ramos were charged with burglary.
Ultimately, Malone’s actions were reviewed by the prosecutor as if he were an ordinary citizen. “The way we evaluated it was, ‘If this were not a law enforcement officer, would the person have been justified in doing what they did under the circumstances?’ ” Assistant District Attorney Robert Love said in a telephone interview. The answer was yes.
Bill Helfand, a Houston attorney who represents law enforcement officers, said that even off-duty, officers are allowed to perform certain duties that citizens cannot, such as directing traffic. Malone never shifted into a policing role, he argued.
“He didn’t need the color of authority to pull a gun out, point it at somebody and, if he felt threatened, to use the gun in self-defense,” Helfand said.
Even the two burglars agree.
“We got caught red-handed, on camera, which you can’t get any more guilty than that,” Ramos said in a recent interview from prison. “He had a right to shoot.”
Garcia, who was shot in the chest, managed to escape by scrambling over fences and through yards, ignoring Malone’s shouts for him to return. He’d already spent 10 years locked up and wanted to avoid another arrest. Police picked him up a few hours later, after a neighbor reported seeing him leave a bloody smudge on a car.
Garcia and Ramos still blame each other for planning the break-in while both were high on methamphetamines. But Garcia apologized for the crime in a recent prison interview, saying he understands why Malone fired his gun.
“I would have shot me, too,” Garcia said.