Officer in Durham’s Jesus Huerta shooting suspended 40 hours without pay

06/23/2014 11:20 AM

06/23/2014 6:50 PM

Police investigators have concluded an arresting officer violated two police policies the night teenager Jesus Huerta died in custody Nov. 19.

Officer Samuel Duncan was suspended without pay for 40 hours and required to take remedial training in the handling and transporting of prisoners, according to a final summary of investigations into Huerta’s death and those of two men fatally shot by Durham police officers in 2013.

Police Chief Jose L. Lopez sent the summary report to City Manager Tom Bonfield Monday morning. Bonfield said he had been aware of most of its contents and forwarded copies to City Council members and Mayor Bill Bell.

According to the report, investigators determined that officers Ronald Mbuthia and Robert Swartz acted appropriately in the deaths of Jose Ocampo on July 27 and Derek Walker on Sept. 17.

“We just decided it would be easier to release them all at once” rather than one by one, Bonfield said. Because the summaries include personnel information, City Council approval was required for their public release, he said. The council only approved releasing the summary, he said, and kept the full reports confidential.

The summaries might have been finished some time ago, said Bonfield and police spokesman Lt. Brian Reitz, except for a second State Bureau of Investigation probe of Huerta’s death, undertaken at the family’s request and only recently reviewed by District Attorney Leon Stanback.

“We wanted to make sure (Bonfield) had all the facts pertinent to the case,” Lopez said.

The summary provided some new details on the cases, including some policy changes made in response to Huerta’s death, but little else that had not been previously released.

After receiving the SBI reports, Stanback concluded there were no grounds for criminal action against any of the officers. A district attorney has the authority to make SBI reports public, but Stanback has not done so for any of the 2013 deaths.

All three cases raised immediate public controversy, the most over Huerta. Police concluded that the Riverside High School student shot himself while handcuffed in the back of Duncan’s patrol car.

Huerta’s arrest, on an outstanding trespassing warrant, and death led to three street protests, including one in which police dispersed demonstrators with tear gas.

According to a Lopez’s report, police tests found gunshot residue on gloves that Huerta was wearing at the time, but found none on Duncan’s hands.

Monday afternoon, Huerta family attorney Alex Charns issued a statement on their behalf, stating that their own investigation “is ongoing.”

“We are prohibited by court order from discussing what we may know about what is contained in the SBI investigation file,” the statement said. “We believe the DPD can better protect and serve all our citizens by learning from the errors that the DPD admits were made here and those already found in the public record.”

Police had previously said that Duncan failed to find a gun when he searched Huerta and violated police policy by failing after the arrest to restart an in-car video camera that had automatically powered off, and would have recorded the shooting had Duncan acted as he should.

In response to Huerta’s death, Lopez said, police have also updated the in-car video systems to prevent another officer’s failure to turn them on and required all officers to undergo a two-hour update class on suspect searches.

The Durham Human Relations Commission had recommended that police keep in-car videos running at all times, in the report of its six-month investigation into alleged racial profiling and other racist behavior by Durham officers delivered to the City Council in May.

During the investigation, the commission also heard public complaints about police actions in the Huerta, Ocampo and Walker deaths. That report was delivered to Mayor Bill Bell in May. Bonfield is conducting his own research for a city administration response to the commission report, which he expects to deliver to the City Council in August.

Citizens and elected officials also criticized police for being slow to release information while the Huerta, Ocampo and Walker deaths were under internal and State Bureau of Investigation review.

Lopez said Monday that, in any future cases of police-involved shooting or death in custody, the department will make a report to City Manager Tom Bonfield within five working days of the incident, and release those reports to news media.

Other cases

Ocampo, a Honduran man suspected in a stabbing, was found to be holding a knife by the handle in a threatening manner when he was shot and killed by police July 27, according to the report.

Durham attorney Scott Holmes, who has closely followed the case, has said some witnesses maintain Ocampo, who spoke little English, was holding the knife handle side out in an attempt to surrender the weapon.

None of the officers on the scene speak Spanish, Lopez told reporters Monday, but a bystander translated their orders for Ocampo to drop the knife.

Holmes said Monday he had not seen Lopez’s summary, and was disappointed that its conclusions had not been shared with him and Ocampo’s family before being made public.

“”It’s really poor handling of a tragedy from the family’s point of view,” he said.

According to the report, only one witness investigators interviewed said Ocampo held the knife blade, and firefighters who arrived at the scene immediately after shots were fired saw a knife removed from Ocampo’s hand that was held by the handle.

“There is no disputing his hand was not holding the blade,” Lopez said.

In the third case, the distraught Walker was shot during a tense standoff Sept. 17 at CCB Plaza in downtown Durham after he pointed a gun at Swartz.

According to the report, video made during the incident confirmed accounts by officers on the scene. It also says Walker made statements during the standoff about wanting to die after losing his son in a custody battle with his ex-wife and that, in March 2013, he had told an acquaintance that he had planned to force police to shoot him at CCB Plaza.

“We were not informed of that in March,” Lopez said.

“(Walker) thought it out,” said Jon Peter, the assistant police chief who oversees investigations. “It’s speculation, but ... I think the person had a game plan from the beginning.”

The summary reveals that, after his death, Walker’s gun was found to be a CO2-powered pellet pistol, though it closely resembles a real firearm.

“It was the sincere belief of everyone there that their lives were in danger,” Peter said.

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