December 13,2007 Chief Louis Scanlon Coronado Police

JESUS RODRIGUEZ
ASSISTANT DISTRICT ATTORNEY
San Diego
330 West Broadway
San Dieto. CA 92101
December 13,2007
Chief Louis Scanlon
Coronado Police Department
700 Orange Avenue
Coronado, Ca. 92 118
Re: Non-Fatal Shooting of Mr. Steve Foley on September 3,2006, by Coronado Police
Officer Aaron Mansker. San Diego Sheriff's Case # 06-063323H; DA Special
Operations Case No. 06-101PS; Deputy District Attorney Assigned: Michael P.
Runyon
Dear Chief Scanlon:
We have reviewed all of the materials compiled by the San Diego County Sheriffs
Department's Homicide Detail concerning the non-fatal officer-involved shooting of Mr. Steve
Foley by off-duty Coronado Police Officer Aaron Mansker on September 3,2006. It is the
opinion of the undersigned that, after careful consideration of the evidence and the applicable
law, Officer Mansker acted in lawful self-defense during his encounter with Mr. Foley.
Materials Reviewed
Investigative efforts by the San Diego County Sheriffs Department, the San Diego County
District Attorney's Office and various forensic experts were extensive. Those efforts involved a
number of investigative disciplines, including but not limited to: the interviewing and reinterviewing of witnesses, photographing, reconstructing and diagramming the incident scene,
ballistic examinations, trajectory analyses, blood alcohol testing and forensic examinations of
Mr. Foley's cell phone and Blackberry. Investigators also obtained, reviewed and analyzed Mr.
Foley and Officer Mansker's cellular telephone records, as well as Mr. Foley's credit card
expenditures for September 2ndand 3rdof 2006. Investigators also obtained and reviewed the
recorded radio transmissions of Officer Mansker, the Coronado Police Department, the
California Highway Patrol, the San Diego Police Department and the San Diego Sheriffs
Department. They also obtained and examined and reviewed surveillance tapes from the
Stingaree nightclub, Mr. Foley's medical records, Mr. Foley's and Officer Mansker's vehicles,
and transcripts from Ms. Gaut's trial.' Finally, the undersigned and District Attorney
I
See People of the State of California v. Lisa Maree Gaut (2007) Superior Court Number SCD201350, Court of
Appeal Number DO5 1396
1
Investigator Robert Dean conducted a drive-through of the route that Officer Mansker and Mr.
Foley took on the night of the incident as well as a walk-through of their respective movements
while they were both out of their cars on Travertine Court.
Factual Summary
Background - Officer Mansker
On Saturday afternoon, September 2,2006, Coronado Police Officer Aaron Mansker was
assigned to routine patrol duties in the City of Coronado. He had been employed as a police
officer by the City of Coronado Police Department for thirteen months. On the date of the
incident, Officer Aaron Mansker was 23 years old, stood 6'6" and weighed 175 pounds. He was
operating a marked Coronado police vehicle and was attired in a standard City of Coronado
police uniform. Officer Mansker worked the "swing shift" from 2:00 p.m. to 10:OO p.m. He also
worked an overtime shift that same evening, continuing routine patrol functions in the City of
Coronado until 2:5 1 a.m., on Sunday morning, September 3,2006.
Officer Mansker's police log, computer and radio transmissions verify he completed his
overtime shift at 2:5 1 a.m. on Sunday morning. After logging off his police computer, he
checked in his equipment, changed into street clothes, left the Coronado police facility and began
driving home to Escondido in his personal vehicle. He drove a black 2006 stock Mazda, fourdoor sedan with a four cylinder engine, manual transmission and California license plates. He
was wearing a white t-shirt, jeans and black shoes. Officer Mansker was armed with a Smith and
Wesson .40 caliber semi-automatic handgun. He was also in possession of a police radio and
had his badge clipped to his belt. He drove across the Coronado Bridge, north on Interstate (1)-5
and then north on State Route (SR)- 163.
-
Background Steve Foley
On Saturday evening, September 2,2006, Mr. Foley attended an annual dinner for San
Diego Chargers rookie players at Morton's Steak House in downtown San Diego. On the date of
the incident, Mr. Foley was a professional football player for the San Diego Chargers. Mr. Foley
was 30 years old, stood 6'4" tall and weighed 250 pounds. He lived in Poway. Mr. Foley was
driving his restored, black 1971 Oldsmobile Cutlass, two-door coupe with a V-8 engine,
automatic transmission and Arkansas license plates. He was wearing a light colored ball cap,
dark t-shirt, blue jeans and tennis shoes. He had a Blackberry device attached to his belt. After
the dinner, Mr. Foley drove his car from a parking lot near Morton's and parked it at 5-Star
parking lot #36, located at sthand J Streets in the Gaslarnp Quarter District. According to his 5Star parking receipt, Mr. Foley parked his car at 11:29 p.m. on Saturday night, September 2,
2006. He then walked with Ms. Gaut to the Stingaree nightclub located a short distance away at
454 6th Avenue.
Background - Lisa Marie Gaut
Ms. Gaut and several of her friends first met Mr. Foley at a local San Diego bar on
Wednesday night, August 30,2006, three days before this incident occurred. On the date of the
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incident, Ms. Gaut was 20 years old, stood 5'7" tall and weighed 140 pounds. She was
unemployed and living in San Diego with relative^.^ Mr. Foley called Ms. Gaut during the
morning hours of Saturday, September 2,2006, and asked her if she and her friends wanted to
join him and other players after the annual rookie dinner that night. Mr. Foley told Ms. Gaut he
had a limousine available and he could have the limousine pick them up wherever they were that
evening.
Before meeting Mr. Foley that night, Ms. Gaut, along with her aunt, Ms. Joyce Grubb
and a friend drove to Pacific Beach to meet some friends at a bar. Ms. Gaut was wearing a white
blouse, blue skirt and white toeless shoes. Mr. Foley called Ms. Gaut between 10:30 and 11:00
p.m. that night and asked her where the limousine should pick them up. Since Ms. Gaut and her
fiiends already drove to Pacific Beach, Mr. Foley told Ms. Gaut to meet him at Morton's Steak
House downtown. Ms. Gaut and her friends drove to the restaurant in Ms. Grubb's car. They
met Mr. Foley and followed him in his car from the restaurant to the 5-Star parking lot at 5thand
J Streets where they parked their cars. Mr. Foley paid for their parking and they all walked to
Stingaree nightclub.
Events at Stingaree Nightclub
Mr. Foley, Ms. Gaut and her friends arrived at Stingaree at about 11:40 p.m.. They
remained there for about two hours and twenty minutes until the bar closed shortly before 2:00
a.m., on Sunday morning, September 3,2006. Surveillance video from inside the nightclub
shows Mr. Foley holding a drink, standing at the bar talking to bar employees and other patrons.
Ms. Gaut testified at her trial that Mr. Foley bought everyone a round of drinks when they
arrived at Stingaree. Later, Mr. Foley asked Ms. Gaut if she and her friends needed another
drink. Mr. Foley bought those drinks for them as well. Ms. Gaut testified she drank two Long
Island Iced Teas at Stingaree's, both of which were purchased by Mr. Foley. Ms. Gaut admitted
she was feeling the effects of the alcohol and testified she saw Mr. Foley drink, "a shot" of
unidentified alcohol.
Investigators obtained a copy of Mr. Foley's credit card invoice which detailed the time
at which he attempted to pay for his drink tab at Stingaree that night. Mr. Foley's credit card
was rejected, and the drinks were paid for in cash. The credit card invoice revealed Mr. Foley
purchased $523.00 worth of alcoholic beverages at Stingaree's, including; (2) Corona beers, (3)
Long Island Iced Teas, (15) shots of Absolut Citron Vodka, (2) shots of Grey Goose Vodka, (4)
shots of Hennessy Paradis Cognac, (4) shots of Hennessy VS Cognac, and (1) shot of Captain
Morgan rum. The receipt indicated Mr. Foley's bar tab was paid at 1:47 a.m., on September 3,
2006.
Surveillance video outside Stingaree reveal Mr. Foley exited the bar at 1 5 2 a.m.. The
video shows Mr. Foley remained outside talking to other patrons and using his cell phone until
1 5 6 a.m., when he left with a female walking towards the parking lot where his car was parked.
--
Ms. Gaut had an outstanding felony warrant for her arrest from Solano County charging her with Grand Theft
Auto, Receiving Stolen Property and Possession of Forged Checks. She was arrested for these offenses two years
earlier on July 30, 2004, and was released from custody on her promise to appear. She failed to return to court in
Solano County as ordered.
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A subsequent forensic examination of Mr. Foley's cell phone revealed he received a text
message from a friend at 2 5 9 a.m. which stated, "Police are deep.3 Are you OK to drive?"
Mr. Foley's cell phone records also revealed that he called Mr. Steve Peevler at 3:02 a.m.
Mr. Peevler restored Mr. Foley's Oldsmobile. He testified at Ms. Gaut's trial that he'd received
a number of phones calls from Mr. Foley during the early morning hours on September 3,2006,
between 2:30 a.m. and 3: 10 a.m. Mr. Peevler didn't speak to Mr. Foley that morning as the
phone calls he received were directed to his voice mail. When Mr. Peevler later reviewed his
messages, he said he thought Mr. Foley was impaired when he left the voice messages. Mr.
Peevler believed Mr. Foley was calling him at that late hour because something was wrong with
the Oldsmobile.
After Mr. Foley, Ms. Gaut and her friends left Stingaree, Mr. Foley invited them to his
home in Poway. Mr. Foley and Ms. Gaut left in Mr. Foley's car. Mr. Foley drove and Ms. Gaut
sat in the right front passenger seat. After leaving downtown, Mr. Foley and Ms. Gaut drove
north on SR-163. Ms. Grubb and her friend followed in Ms. Grubb's car.
Both Ms. Gaut and Ms. Grubb testified at trial that while Ms. Grubb was following Mr.
Foley, he accelerated his car to a high speed. Ms. Grubb couldn't keep up with Mr. Foley's car
and lost sight of him as they drove north on SR-163. Not knowing how to get to Mr. Foley's
house, Ms. Grubb drove home.
Officer Mansker's Observations
While Officer Mansker was driving north on SR-163 near the Washington Street
overpass, he observed a black car, later determined to be Mr. Foley's Oldsmobile Cutlass,
driving erratically. Officer Mansker testified at Ms. Gaut's trial that he saw a car traveling about
30 miles per hour in a 55 mile per hour zone north bound on SR-163 and swerving from the #2
lane into the #1 lane and then back into the right hand shoulder. Officer Mansker testified the
car almost struck the center divider at Washington Street. Officer Mansker also saw another car
in the #1 lane and it appeared to him the occupants of this other car were trying to communicate
something to the occupants of the black car.
At 3: 18 a.m., twenty-seven minutes after he logged off from duty at the Coronado Police
Department, Officer Mansker used his police radio and contacted California Highway Patrol
(CHP) dispatch. Officer Mansker radioed the CHP and said, "I'm off duty. Igot a vehicle
traveling northbound 163, passing Washington. Can't seem to stay in his own lane. " The
dispatcher replied, "Don't think I'll have anybody in the area. But can you go with the vehicle
description?" Officer Mansker replied, "Looks like a black Chevy Chevelle. Unknown state of
plate, with the numbers 4-0-1-8-0." The dispatcher asked Officer Mansker if he was in a
marked or unmarked unit. Masker replied, "I'm in my ~ 0 f "l .
Officer Mansker testified it wasn't his intent to stop the car, but instead, notify CHP so
they could respond and initiate a traffic stop. He testified he wasn't able to determine which
state issued the license plate. He also testified he did not know who owned the car or where it
"Deep" is a slang term which, in this context, means that there were numerous police officers out on patrol.
P.O.V. is an acronym for Personally Owned Vehicle.
4
was going. In addition, he testified CHP dispatch never provided him with any vehicle
registration information and that he had never before heard the name Steve Foley.
The dispatcher later informed Officer Mansker, "Ihave a unit coming from northbound
5 and 2 f h . Can you advise your 10-26 now?" Mansker radioed, "Continuing
northbound 163 passing Genesee now. " The dispatcher asked Officer Mansker for the lanes
they were driving in, their speeds, and what kind of car he was driving. Officer Mansker radioed
he was driving a black Mazda four- door and the vehicle he was following was a black Chevy
Chevelle. Regarding the speed of the car he was following, Officer Mansker radioed, "It ranges
from about 30 to now 80." Dispatch told Officer Mansker to keep her updated on his location
and she would keep him informed where the CHP unit was. Officer Mansker replied they were
now passing 1-805.
Officer Mansker later updated CHP advising, "Coronado 11-706 to CHP with an update.
Still northbound 163, passing Clairemont. Speeds about 90." When dispatch advised Officer
Mansker that the CHP unit was just now north bound on SR- 163 at Washington, Officer
Mansker told dispatch he and the car he was following were now north bound SR-163 passing
SR 52 and their speed was 85 miles per hour.
At 3:25 a.m., Officer Mansker radioed, "Andjustfor an FYI. There's also, uh, looks
like a ,probably a passenger in the vehicle as well." Officer Mansker testified while he was
following the car, he saw a hand come out the passenger window and make an unidentified
gesture. Officer Mansker later advised CHP dispatch, "Coronado11-70 with an update.
Speeds at 65. Now traveling northbound on the 15." Dispatch informed Officer Mansker the
CHP unit was now north bound on SR-163 from 1-805.
Shortly thereafter, Officer Mansker updated CHP stating, "Coronado 11-70 looks like
we'll be exiting Pomerado Road." CHP dispatch confirmed that location and asked Officer
Mansker to try and contact San Diego Police Department on that radio channel since he was now
following the car into that department's jurisdiction. The CHP dispatcher radioed Officer
Mansker, "10-4, CHP is clear" and the responding CHP unit cancelled its response. Officer
Mansker continued following the car east on Pomerado Road after it exited the freeway.7 As he
did so, he saw sparks coming from the rear wheel on the driver's side. This heightened Officer
Mansker's concern for the safety of both the vehicle's occupants and any other motorists in the
area.
lSt
Contact 1 Identification
Mr. Foley exited the 1-15 and drove east on Pomerado Road to Spring Canyon Road.
Officer Mansker testified that at this intersection, he pulled up alongside the driver's side of the
car and identified himself as a police officer. Officer Mansker testified he reached over and
rolled down his passenger side window and then yelled to the driver of the black car, whose
driver's side window was already down, "Police Officer! I need you to pull over!"
"10-20" refers to location.
Coronado "1 1-70" was officer Mansker's Unit Identification Number. This is the number that he would use to
identify himself while he was on patrol in Coronado.
At this point, both Officer Mansker's and Mr. Foley's vehicles had transitioned from the SR-163 to the northbound
1-15.
'
5
Officer Mansker then radioed, "Coronado 11-70, to either Station M8 or Sun Diego PD
on Blue one9.. I have a black Chevy Chevelle,possible DUL We're in the 1100 block of
Pomerado Road. ... I've identified myself as a police officer. Uh, he became very nervous.
And now he keeps stopping in the middle of the lanes."
.
2ndContact 1Identification
According to Officer Mansker's testimony, the driver of the car he was following
continued driving east on Pomerado Road, applying his breaks and stopping in the middle of the
road. Officer Mansker testified after the driver of the car stopped in the middle of the #1 lane for
the third time, the driver exited his car and began walking back towards Officer Mansker's car.
Officer Mansker testified he opened his car door, exited, stood in the doorway and said, "Police
Officer! Stop!" Officer Mansker testified that as the man continued walking towards him,
Officer Mansker drew his weapon. He then retreated back towards the trunk of his car as the
man reached the door of Mansker's car. Officer Mansker testified the man said his gun was a
BB gun and then walked back to his car. As the man walked back to the car, Officer Mansker
saw a female passenger get out of the car and yell something to the man.
At 3:38 a.m., Officer Mansker radioed to San Diego Sheriffs dispatch, the following:
"Coronado 11-70, Station M, the vehicle stopped in about the eleven hundred block of
Pomerado. The driver approached me. I gave him numerous commands. He wouldn't listen.
Now he's getting back in his vehicle."
San Diego Sheriffs Department dispatch radioed Officer Mansker that both the San
Diego Police Department and the Sheriffs Department had units en route. He responded, "10-4.
We're at Pomerado and Creek." He then advised Sheriffs dispatch that the driver got back into
his vehicle and they were now traveling on Creek. When Sheriffs dispatch verified Officer
Mansker was following the car into Sheriffs jurisdiction, the responding San Diego Police units
were cancelled.
3rd Contact 1 Identification
Mr. Foley drove off and Officer Mansker followed. Mr. Foley pulled over again at the
intersection of Pomerado Road and Treadwell. Mr. Foley turned left and stopped his car on
Treadwell. Officer Mansker stopped his car in the intersection. Officer Mansker testified a
female passenger, which he identified in court as Ms. Gaut, got out of Mr. Foley's car and began
walking towards him. Officer Mansker testified he exited his car, drew his weapon again and
ordered the female, "Police Officer! Sit on the curb!" The female yelled something back and
got back inside the car. Mr. Foley then drove off.
4thContact
8
Station M refers to the San Diego Sheriffs Department
Blue One refers to a radio channel.
6
After driving away, Mr. Foley stopped his car in the 12100 block of Travertine Court.
Officer Mansker followed. When Officer Mansker saw the car stopped in the street, he stopped
his car behind Mr. Foley's car. Officer Mansker testified Mr. Foley exited his car and began
walking back towards him as he was still seated in the driver's seat of his car. Officer Mansker
testified he put his car in reverse, backed up and ran into the curb in front of 12123 Travertine
Court. This movement left tire impact marks on the curb.''
Officer Mansker then pulled out of the driveway of that home, drove around and in front
of Mr. Foley's Oldsmobile and drove north on Travertine Court with the intent of disengaging
and leaving the area. As he drove northbound on Travertine Court, the street sloped upwards.
When he drove to the top of Travertine Court, he realized the street was a dead end cul-de-sac.
He made a U-turn and stopped facing in the opposite direction. Officer Mansker radioed,
"We're at, ah, Travernice Court? He's now got me cornered, and he just got out of his
vehicle and chased me."
...
Officer Mansker testified he then saw the man walking up the hill towards him and the
female move from the passenger's seat into the driver's seat of the car. He told the jury that she
was driving the car at a slow speed, following the man up the hill. As Mr. Foley approached on
foot and Ms. Gaut drove behind him, Officer Mansker exited his car, stood in the doorway of his
car and ordered them both to stop.
Shooting Incident
While Mr. Foley was walking up the grade, with Ms. Gaut following behind him, Officer
Mansker yelled to them he was a police officer and ordered them to stop. It is important to note
that as Mr. Foley continued up the grade, he walked past his house". As Mr. Foley and Ms.
Gaut continued to approach, Officer Mansker fired a warning shot into a dirt mound on the east
side of the road.
Officer Mansker testified the female then accelerated the car around Mr. Foley and
toward him as he was standing in between the open driver's door and the body of his car. As
Ms. Gaut drove towards Officer Mansker, he feared she was going to side swipe his car door and
crush him between the two cars. In response, Officer Mansker fired four rounds at the
Oldsmobile, hitting it twice, once each in each of the car's front tires. While shooting at the
Oldsmobile, Officer Mansker retreated to the rear of his car.
..
At 3:42 a.m., Officer Mansker radioed, "Coronado 11-70. Shotsfired. . I have one
in a vehicle trying to run me down!" Ms. Gaut drove past Mansker's car, left the roadway,
struck and ran over the curb at the east dead end cul-de-sac of Travertine Court. Ms. Gaut then
drove into the front yard of the house at 12100 Travertine Court, leaving tire impressions on the
concrete and in the grass. Mr. Foley continued walking up the grade towards Officer Mansker.
After the Oldsmobile passed him, Officer Mansker positioned himself on the right
passenger side of his car, looked to his right and saw Mr. Foley was now by the front bumper of
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San Diego Sheriffs Department Detectives and District Attorney Investigators noted the presence of the tire
impact marks in the location that Officer Mansker described.
" On the date of the incident, Mr. Foley lived at 12125 Travertine court.
7
his car about 10 to 15 feet away. About this same time, a neighbor heard a male voice yelling,
"Back off! Back off!" Several other neighbors heard the sound of a car's engine rewing.
Officer Mansker testified as Mr. Foley approached him, he saw Mr. Foley reach toward
his front waistband with his right hand and lift up his shirt. Officer Mansker testified he thought
Mr. Foley was going to draw a firearm, so with his police radio in his left hand and his gun in his
right hand, Officer Mansker fired what he believed to be three shots at Mr. Foley.
On the night of the incident, Mr. Foley was carrying his Blackberry device on his left hip.
It was attached to his belt with a clip. An examination of his Blackberry and its phone records
revealed that his Blackberry incoming-call ring volume was set to "Loud," and that he received
and missed a phone call at 3:42 a.m. from Uptown Limousine. This missed call occurred within
the same minute that Officer Mansker advised dispatch that he had fired shots at the vehicle
driven by Ms. Gaut.
Mr. Foley was struck by the gunfire and fell to the ground in front of Officer Mansker's
Mazda. Officer Mansker testified Mr. Foley got up and told him he'd just shot him in the knee.
Officer Mansker testified when Mr. Foley took a few more steps towards him and reached
towards his waistband a second time, he fired at Mr. Foley again. After Mr. Foley fell a second
time, Officer Mansker saw Ms. Gaut had backed the Oldsmobile out onto the street and was
revving the engine. Fearing she was going to try and run him down again, Officer Mansker
retreated into the driveway of the home at 12107 Travertine Court.
At 3:43 a.m., Officer Mansker radioed, "Coronado11-70. Igot at least one down. Still
female in a vehicle." Regarding the sequence of the shots fired, several neighbors testified
hearing a single shot, a pause, then three or four shots, a pause and then a final series of three or
four shots. A witness who lived on Travertine Court looked out his window after the shots had
been fired saw a man standing in front of his home armed with a gun, holding a radio and
speaking into it. That witness said it was apparent to him the man he saw with the gun and the
radio was a police officer.
When marked Sheriffs units arrived on scene, they found Mr. Foley lying in the street a
few feet from the front of Officer Mansker's Mazda. They saw Ms. Gaut seated in the driver's
seat of Mr. Foley's Oldsmobile that she drove to the middle of the street next to where Mr. Foley
was lying. They also saw Officer Mansker in fi-ont of the home at 12107 Travertine Court armed
with his hand gun and holding a police radio.
Injuries
Officer Mansker and Ms. Gaut were not injured. Mr. Foley sustained two gunshot
wounds; a through and through wound to his left thigh and a wound to his left knee. He may
have sustained a grazing gunshot wound to his right hand. Mr. Foley was treated at the scene
and then transported by ambulance to Sharp Memorial Hospital where he underwent surgery for
his wounds.
Investigation
The crime scene on Travertine Court was immediately secured. San Diego County
Sheriffs Homicide Detail conducted an investigation at the scene. A District Attorney
Investigator responded to the scene of the incident and was briefed by Sheriffs staff. District
Attorney Investigators have monitored the status of the investigation since its inception and were
also present for the trial testimony of both Officer Mansker and Ms. Gaut.
Mr. Foley's car was examined by Sheriffs detectives and forensic personnel. That
examination revealed the following:
The driver's side window was shattered. Broken automobile window glass was present
on the driver's seat as well as on the front and rear driver's side floorboards. A jacket had been
placed over the broken glass on the driver's seat. There was no broken auto window glass found
on Travertine Court. There were no bullet marks within the interior of the vehicle. These facts
indicate that the window was not shattered by a bullet fired by Officer Mansker. Rather, the
physical evidence suggests that the window was broken out at a different location prior to this
incident. It is reasonable to infer that someone placed the jacket over the broken glass allowing
one to drive the car that evening.
The 5-Star parking lot receipt from September 2nd was found on the dashboard of Mr.
An empty
Foley's Oldsmobile. Mr. Foley's cell phone was found on driver's fl~orboard.'~
Cognac bottle was found in the back seat. Both of the front tires sustained single gunshot holes.
An examination of Mr. Foley's Oldsmobile revealed there was a mechanical problem with the
rear axle.
The scene investigation and ballistic examination of the evidence revealed Officer
Mansker fired a total of nine rounds that night. Nine expended .40 caliber shell casings were
recovered at the scene. A ballistic expert determined Officer Mansker fired one warning shot,
four rounds at the Oldsmobile and four rounds at Mr. Foley.
Of the four rounds fired at the Oldsmobile, one round struck the right front tire; one
round struck the left front tire and two rounds missed. Of the four rounds fired at Mr. Foley, one
round struck him and came to rest in his left knee, one round struck and passed through his left
thigh and one round may have grazed his right hand. One or possibly two rounds missed,
depending upon whether the injury to Mr. Foley's hand is classified as a gunshot wound.
Statements
Officer Mansker supplied a voluntary and recorded statement the night the incident
occurred. Officer Mansker also testified under oath at Ms. Gaut's preliminary hearing and at her
trial as well. Ms. Gaut supplied a Mirandized and recorded statement to Sheriffs detectives the
morning of the incident. She testified under oath in her own defense during trial and also
supplied a statement to the Probation Department after her conviction. On September 5, 2006,
Sheriffs detectives attempted to interview Mr. Foley regarding this incident. Upon the advice of
his attorney, Mr. Foley declined to be interviewed. To this date, he has not provided a statement
to law enforcement regarding this incident.
" This
cellular phone was not the Blackberry device that he carried on his belt clip during the shooting.
9
Toxicological Analyses
Toxicological tests were conducted on blood samples obtained from Mr. Foley and Ms.
Gaut the morning this incident occurred. A Sheriffs criminalist, who is an expert in the field of
blood alcohol analysis, testified at Ms. Gaut's trial regarding their respective blood alcohol
levels. Although Mr. Foley's and Ms. Gaut's blood alcohol tests revealed blood alcohol levels of
.16 % and .lS0A respectively, the expert was able to conclude that at the time the incident
occurred on Travertine Court, Mr. Foley's blood alcohol level was .20 % and Ms. Gaut's blood
alcohol level was .17%. At the time of the shooting, Mr. Foley's and Ms. Gaut's blood alcohol
levels exceeded twice the legal limit for operation of a motor vehicle. l3
Legal Analysis
This review was conducted pursuant to the joint protocol between this office and all San
Diego County law enforcement agencies calling upon the District Attorney to conduct an
independent assessment of the circumstances surrounding the use of deadly force. The review
does not examine such issues as compliance with the policies and procedures of any law
enforcement agency, ways to improve training or tactics, or any issues related to civil liability.
Accordingly, such a review should not be interpreted as expressing an opinion on these matters.
This analysis will begin with a summary of the applicable law of self-defense. Police
officers and civilians are allowed to use deadly force when resisting any attempt by another
person to cause great bodily injury or death. See Penal Code Sections 196 and 197. In order to
act in lawfid self-defense, one must honestly and reasonably believe they must use force to
protect themselves or another person from imminent harm. See California Criminal Jury
Instructions (CALCIUM) 3470. The force used cannot be excessive. Bid. However, the danger
need not have actually existed.
When deciding whether the defendant's beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider
what a reasonable person in a similar situation with similar knowledge would
have believed. If the defendant's beliefs were reasonable, the danger does not
need to have actually existed.
Ibid., italics added. When confronted with unlawful force, one need not retreat.
"A defendant is not required to retreat. He . . . is entitled to stand his . . . ground and
defend himself. . . and, if reasonably necessary, to pursue an assailant until the danger of
death or great bodily injury has passed. This is so even if safety could have been
achieved by retreating." Bid. Finally, one acting in self-defense may interpret threats or
use of force by a third party associated with the aggressor in determining the need to
defend oneself and the amount of force that may reasonably be used. See People v.
4 ~ ~ 1067.
Minifee (1996) 13 ~ a l . 1055,
Applying the legal principles stated above to the incident before us, we conclude that
Officer Mansker acted in lawful self-defense. Officer Mansker, was off-duty, dressed in street
l 3 California Vehicle Code Section 23 152(b) provides, "It is unlawful for any person who has .08 percent or more,
by weight, of alcohol is her or her blood to drive a vehicle.
10
clothes, and on his way home when he first saw Mr. Foley's vehicle being driven in an erratic
manner. The driving pattern that he observed was consistent with that of someone driving while
under the influence of either drugs or alcohol. He contacted local law enforcement by radio,
notifying first the California Highway Patrol, and then the San Diego Police and Sheriffs
Departments of his observations. He requested a marked unit stop and investigate the driver and
followed the driver anticipating the arrival of a uniformed officer. Officer Mansker notified the
law enforcement agencies of the description, speed and actions of the car he was following. He
also gave them information regarding the color, make and model of that car as well as his own.
He testified at Ms. Gaut's trial that he did not intend to stop the vehicle on the freeway. Rather,
he wanted to follow the car until on-duty law enforcement officers could respond.
It is apparent that his intentions changed after he saw sparks coming from the vehicle and
realized that the driver's conduct was endangering himself and other motorists. At that time,
Officer Mansker pulled alongside the driver and identified himself verbally as a police officer
and told him to pull over. He testified that Mr. Foley looked at him and replied, "Oh Shit!" Mr.
Foley ignored his command and continued driving.14 As the incident continued, Officer
Mansker updated law enforcement regarding their location, the fact he had identified himself
(verbally) as a police officer on three occasions, and the driver was not following directions.
Prior to the shooting, Officer Mansker had four distinct contacts with Mr. Foley and Ms. Gaut.
Every time he identified himself as a police officer and gave them commands, they ignored him.
During the fourth contact, Officer Mansker believed the situation was escalating. He decided to
disengage and leave the area.
However, Mr. Foley and Ms. Gaut pursued Officer Mansker to the cul-de-sac at the end
of Travertine Court. It is important to note that on the evening of the incident, Mr. Foley walked
approximately 270 feet past the safety and security of his home in order to confront Officer
Mansker at the end of the cul-de-sac. According to radio transmissions, Officer Mansker
interpreted Mr. Foley's and Ms. Gaut's conduct as threatening. Officer Mansker told law
enforcement dispatch that he was cornered and that Mr. Foley had exited his car and chased him.
When he realized that he was trapped in the cul-de-sac portion of the street, Officer Mansker
once again identified himself as a police officer and told them to stop. Mr. Foley and Ms. Gaut
ignored his commands and continued up the hill toward his location. Their aggressive actions
caused Officer Mansker to fear he was under attack. With that state of mind, Officer Mansker
l4 We are mindful that if any agency were to prosecute Officer Mansker based upon his conduct that evening, prior
incidents of violence committed by Mr. Foley would be relevant and likely admissible at trial as character evidence
against him, demonstrating his propensity for violence. See Evidence Code Section 1103. The jury could, in turn,
consider this evidence when evaluating Officer Mansker's claim of self-defense. An examination of Mr. Foley's
history reveals that this incident was not his first contact with law enforcement. On April 26,2006, at
approximately 2 5 3 a.m., San Diego Police Department officers responded to a call regarding a possible drunk driver
on University Lane in La Jolla. When they arrived, they saw Mr. Foley standing next to his car on University
Center Lane in La Jolla. The car was parked with the engine idling and facing the wrong direction. During the
course of their investigation, the officers determined that Mr. Foley was intoxicated. When they tried to arrest him
for being drunk in public, Mr. Foley threatened them and became combative. Mr. Foley violently resisted arrest. It
took the efforts of three police officers and the use of pepper spray to subdue him. Prior to this incident, Mr. Foley
had several contacts with law enforcement. He was arrested for battery in 1995, domestic violence in February of
2000 and discharge of a firearm in April of 2000. All of these incidents occurred in Louisiana. In the firearm
incident, witnesses saw him discharge a handgun several times in the air. When officers contacted him, he appeared
to be intoxicated. He was uncooperative and was verbally abusive toward them. The officers believed he was trying
to provoke them into a physical confrontation.
fired a warning shot with the hope that it would deter them from their course of conduct. His
effort was unsuccessful.
When Ms. Gaut drove toward Officer Mansker, he feared that she was going to use the
car to crush him between his driver's side door and the body of his car. With that frame of mind,
he fired multiple shots at the car. It was l a h l for him to do so, because he reasonably believed
that the vehicle was going to strike him resulting in his suffering great bodily injury or death.
Despite the fact that Officer Mansker fired several rounds at the car, Mr. Foley continued
his approach on foot. Although he was not legally obligated to do so, Officer Mansker retreated
to the passenger's side of his car and saw that Mr. Foley was now standing at the front left fender
portion of Officer Mansker's car. Officer Mansker testified that he again identified himself as a
police officer and yelled at Mr. Foley to stop. He also testified that he saw Mr. Foley reach
toward his waistband. Fearing Mr. Foley was about to draw a firearm, Officer Mansker fired
two rounds at him, one striking him in the knee. Mr. Foley fell to the ground. According to
Officer Mansker, as Mr. Foley got back up, he reached for his waistband again and Officer
Mansker fired an additional two rounds, one striking Mr. Foley in the abdomen.
Subsequent investigation revealed that Mr. Foley was unarmed. However, he was
carrying his Blackberry attached to his belt at the waist. The Blackberry received an incoming
call during the same time frame the shooting occurred. It is reasonable to conclude that Mr.
Foley reached for his Blackberry to answer the incoming call and this action was interpreted by
Officer Mansker as an attempt to draw a firearm. The fact that Officer Mansker had a mistaken
belief that Mr. Foley was reaching for a weapon does not negate his claim of self defense. As
stated above, if a person honestly, but mistakenly, believes they must use force to defend
themselves and that belief is reasonable under the circumstances, they bear no criminal liability
for their actions.
Given the totality of the circumstances that evening, we cannot say that Officer
Mansker's belief that he had to use deadly force was unreasonable. In accordance with Penal
Code section 196, peace officers may use deadly force in the course of their duties under
circumstances not available to members of the general public. We are mindful, however, that
certain limits on the use of deadly force ap ly to peace officers. The U.S. Ninth Circuit Court of
Appeals, in the case of Scott v. Henrich (9'!Cir. 1994) 39 F.3d 912, delineated those
circumstances under which deadly force may be used:
"[P]olice may use only such force as is objectively reasonable under the
circumstances. An officer's use of deadly force is reasonable only if 'the officer
has probable cause to believe that the suspect poses a significant threat of death or
serious injury to the officer or others.' All determinations of unreasonable force
'must embody allowance for the fact that police officers are often forced to make
split-second judgments - in circumstances that are tense, uncertain, and rapidly
evolving - about the amount of force that is necessary in a particular situation."
[Citations omitted.]
During the course of the incident, Officer Mansker saw Mr. Foley drive in a negligent
and dangerous manner on the freeway. Mr. Foley repeatedly ignored his commands to stop,
12
even though Officer Mansker repeatedly identified himself as a police officer. Even when
Officer Mansker decided to drive home and end the encounter, Mr. Foley and Ms. Gaut pursued
him to the end of the cul-de-sac. He fired a warning shot in an attempt to deter them, but it had
no effect.
Fearing that he was under attack from Ms. Gaut and Mr. Foley, Officer Mansker had the
right to defend himself. The use of deadly force was reasonable under these circumstances
because he actually and reasonably believed that Mr. Foley and Ms. Gaut were trying to inflict
great bodily injury upon him or kill him. Although Officer Mansker relied upon his training and
experience as a police officer, had he been acting as an ordinary citizen under these
circumstances our conclusion would not change. As a result, Officer Mansker bears no criminal
liability for his actions taken during this incident. A copy of this letter, along with the materials
submitted for our review will be retained in our files.
Sincerely,
BONNIE M. DUMANIS
District Attorney