Officer cleared in shooting of teen

Officer Adam Affrunti was officially cleared Thursday of any wrongdoing in the non-fatal shooting of 16-year-old Terrell Markham in November.

The shooting had inflamed tensions in the Westside projects area, where crime and distrust of police have run high in recent months.

The District Attorney's office ruled that Affrunti used "justifiable force" in shooting Markham, in part because Markham ran, repeatedly opted not to comply with the officer's orders to show his hands and was in possession of a stolen handgun, according to the report.

Read the full eight-page report below, including interesting testimony from three eye witnesses.

REPORT:

I N T E R O F F I C E M E M O R A N D U M

DATE: Dec 28. 2007 PHONE: (909) 387-6979
FROM: Karen Bell
Chief Deputy District Attorney
Juvenile Division
TO: Michael Ramos, District Attorney
Dennis Christy, Assistant District Attorney
Jim Hackleman, Assistant District Attorney
SUBJECT: Officer Involved Shooting
San Bernardino Police Department Case Number 07 – 43027
Shooting Victim – Terrell Markham DOB 07-22-1991
Involved Officer – Adam Affrunti

OVERVIEW OF CASE

Officer A. Affrunti, a San Bernardino Police Officer, shot Terrell Markham on Saturday,
Nov 17, 2007 at approximately 3:30 P.M. after a foot chase, which ended behind the
residence at 1661 Temple Street, San Bernardino. Markham, who was 16 at the time of
the shooting, is being prosecuted as an adult. (DA case number 2007-00-0069457) He
is charged with P.C. 417© with a special allegation of P.C. 186.22(b)(1)(a), P.C. 69 with
special allegations of PC 186.22(b)(1)(a), P.C. 12022.5(a), P.C. 1203.06(a)(1) and P.C.
496(a), all felonies. Markham pled not guilty and the next court date is Jan 25, 2008 for
disposition or resetting.

Mr. Markham was released on his own recognizance on Dec 12, 2007 to his mother
pending further court hearings. The assigned DDA is Ron Webster.
The San Bernardino Police Department conducted an investigation of the shooting and
submitted the case to the District Attorney’s Office for review Dec 7. 2007. The
investigator is Det. Robert Sullivan. The investigation includes interviews with police
officers including Officer Affrunti, several civilian witnesses, aerial and ground
photographs, a video of Terrell Markham in the Westside Market minutes before the
shooting, a recording of radio dispatch during the foot pursuit and immediately after the
shooting, audiotapes of three citizen interviews, and a report from EMT’s who treated
Markham at the scene. The submitted reports, photos, CD’s and tapes have been
reviewed and I have visited the scene of the shooting with the investigating officer.

CIRCUMTANCES SURROUNDING THE SHOOTING

The following facts are from the reports submitted to the District Attorney’s Office from
the San Bernardino Police Department.

Initial Attempt at Contact

On Nov 17, 2007 at approximately 3:30 P.M. Officer Adam Affrunti and Det. James
Beach were police officers on duty in the city of San Bernardino. Officer Beach was
driving the police car and both officers were attired in SMASH uniforms. SMASH is an
acronym for San Bernardino Movement Against Street Hoodlums. (Green polo style
shirts clearly marked “SMASH” on the front and “POLICE” across the shoulders on the
back, black trousers and a police utility belt with common equipment for officers on
duty.) Both officers have gang expertise and were patrolling the west side of San
Bernardino in an area known as “The Projects”.

This is a low-income residential area with significant gang violence and the officers were
personally aware of a recent homicide in the area, valid gang injunctions in force and
current conflict between rival gangs in the area. As recently as Oct 24, 2007 SBPD had
arrested a male in the area for gun possession. Terrell Markham had been contacted
by SBPD on Oct 27, 2007 and identified as a “Projects” gang member with tattoos
“M.O.B” and “Money” which are consistent with gang membership.

Both officers observed Markham on the west sidewalk of Medical Center Drive just
north of the Westside Market. Det. Beach was driving northbound on Medical Center
Drive and had just passed Westside Market. Markham was on foot, dressed in a dark,
bulky, insulated jacket with a fur-trimmed hood and in the company of another male.
His dress was inconsistent with the weather, which was 79 to 81 degrees, clear, calm,
dry and bright. Both officers noticed the heavy jacket. In addition, Officer Affrunti
recognized him as “T Money” or “T Dog”, a local gang member.

Officer Affrunti decided to contact Markham to see if he was in violation of a gang
injunction and directed Det. Beach to drive to the west side of the street so they could
speak to Markham. Det. Beach yelled to Markham to stop as he drove to the sidewalk
area, but Markham immediately ran north on Medical Center Drive while holding his
right side with his right hand. It appeared to Det. Beach that Markham was holding
something heavy on his right side. Officer Affrunti did not speak to Markham and was
not completely out of the police car when Markham ran northbound.

Foot Chase of Markham

Markham ran north on Medical Center Drive to 9th St. and then turned west on 9th
Street. Det. Beach followed him in the police car heading northbound on Medical Center

Dr. in the southbound lanes and turned west on 9th St. He drove past three or four
residences west on 9th St. and stopped to let Officer Affrunti out of the car. Officer
Affrunti followed Markham on foot between the houses heading northbound and Det.
Beach lost sight of both. Det. Beach attempted to block the flight of Markham by driving
to the next street north of 9th St. but was unsuccessful.
During the foot chase Markham continually held his right hand to his side and Officer
Affrunti was concerned that Markham might have a weapon. Markham’s left arm and
hand were swinging as he ran. Officer Affrunti continually yelled to Markham to stop but
Markham did not comply.
Officer Affrunti chased Markham on foot from 9th St. northbound to Alturas St.
Markham crossed Alturas St. and ran between houses still going northbound. He
jumped over a wrought iron gate on the north side of Alturas St. and Officer Affrunti lost
sight of him momentarily until he (Affrunti) entered the grassy courtyard area behind the
houses on Alturas St. and Temple St. It is an open area with some large trees and little
cover for Markham or Officer Affrunti. At this point the Officer pulled out his weapon for
his own safety and then spotted a shadow behind a bush on the backside of 1661
Temple St. Markham was hiding behind the five-foot bush next to the residence in a
crouching position.

Contact with Markham

Officer Affrunti quickly approached the bush with his weapon pointed and ordered
Markham to get on the ground and show his hands. This was repeated several times
but Markham’s hands remained concealed by the jacket. Markham did drop to one
knee and put his left hand on the ground at one point. Markham’s right hand was
hidden.

Officer Affrunti continued to shout commands. He came close enough to Markham to
kick his right shoulder with his right foot, attempting to knock him (Markham) to the
ground. Markham still did not comply with orders to get on the ground and show both
hands. Officer Affrunti then backed away from Markham and was momentarily
distracted by a woman in the area screaming. He shouted to her to go in her house and
returned his attention to Markham. Markham was now in a crouched position with his
right hand in his rear pants pocket. Markham is right handed.

Officer Affrunti described this as follows ”…and as I look at him, he’s got, again his left
hand’s down. He’s hunched over. I can see down his back. He’s at an angle so – he’s
- he’s more crouched and I could see down his back that he – and his right hand he’s
pulling a gun out of it – it looked like his right rear pants pocket. Um, I don’t see the
barrel at the time, but I see his hand wrapped around it like in a fist and I see the end of
the magazine on the back of his hand.”

Officer Affrunti fired five shots striking Markham three times. Markham immediately fell
to the ground, his gun was recovered from the back right pants pocket and he was
handcuffed. Officer Affrunti was alone at the time of the shooting.
Officer Affrunti radioed his location and backup officers and medical help arrived within
minutes. The weapon was a stolen .40 caliber H & K semi automatic pistol. It held a
magazine similar to the one Officer Affrunti uses in his service weapon, an H & K .45
caliber semi automatic pistol.

Independent Witness Statements

Two individuals were on their back porch immediately east of the site when the shooting
occurred and they observed Officer Affrunti and Markham in the last seconds before the
shooting. The interviews were taped.

Witness # 1 does not speak English well and was more comfortable being interviewed
with the help of a translator. He lives in the area and was on his rear porch with his
Mother when he saw Markham running from the officer on foot. He saw Markham hide
near a large bush, the officer run over to the bush and heard him yelling commands to
put his hands behind his back. He did understand these commands in English.
Markham did not obey. He saw the officer kick Markham once, back away and then saw
the officer shoot Markham four times. Witness # 1 does not know Officer Affrunti or
Markham.

Witness # 2 was also on the rear porch of the same residence (She is the mother of
witness # 1 but does not reside in the area. She speaks English). She saw Officer
Affrunti kick Markham and heard him commanding Markham to put his hands back.
Markham did not comply. She saw the officer shoot five times and then arrest
Markham. She may have been the woman who momentarily distracted Officer Affrunti
immediately prior to the shooting. She does not know either individual.

Witness # 3 was also interviewed and taped. He resides in the area west of the site and
was in his home at the time of the shooting. His observations were made through a
screen door on the north side of his house. He said he saw Markham lying on the
ground near a bush to the back of the residence at 1661 Temple Street. An officer was
pointing a gun at the individual. He heard the officer shout four times “put your hands
behind your back.” He then heard three gunshots. He did not know who fired and did
not see the officer approach the individual initially. Det. John Munoz, who interviewed
witness # 3, was not able to see the area through the screen door as claimed. Witness
# 3 does not know either party.
A neighborhood canvas produced no additional witnesses to the shooting. The male
with Markham on the sidewalk was never identified.

Computer Automated Dispatch Summary

The first entry occurred at 15:31:16 indicating the suspect was running.
The next entry occurred at 15:31:44 indicating Officer Affrunti was to the rear, south of
10th St. (This location is not accurate)
At 15:32:27 the history indicates shots fired, and medical aid requested.
The weapon was recovered at 15:34:01 with one in custody.
The incident took approximately 71 seconds from the beginning of the foot pursuit until
the shooting.

Radio Dispatch Recording Summary

The following is a partial summary of the statements made by officers in the dispatch
recording during the foot chase until the shooting:
• First statement “Male running on Medical Center Drive to 9th”…”dark heavy
jacket” (speaker unknown)
• “…he’s holding his waist band” (Affrunti)
• “pretty sure he’s got a gun” (Beach)
• “Are you Code 4, Adam?” (Beach)
• “Negative” (Affrunti)
• “Shots fired” (unknown)
• “Shots fired” (unknown)
• “yes, medical aid” (Affrunti)
• “He tried pulling a gun on me” (Affrunti)
• “…just north of Altruas in the court yard…” (Affrunti)

COLLATERAL INFORMATION

The weapon recovered from Markham was a black .40 caliber H & K semi automatic
pistol stolen in a residential burglary in Victorville on October 29. 2007. The victim is a
federal peace officer and does not know Terrell Markham.
Terrell Markham was struck in the forehead above the left eye, the left side of his chest
and his left hand. He was treated at Arrowhead Regional Medical Center and is
expected to be blind as a result of his head injury. The only medical information
submitted are the notes of the EMT’s who treated him at the scene.
Officer Affrunti is a left-handed shooter and right foot dominant.
Terrell Markham was not the subject of a San Bernardino City gang Injunction at the
time of the shooting.

APPLICABLE LAW

Penal Code 834a Duty to Refrain From Resisting Arrest
If a person has knowledge, or by the exercise of reasonable care, should have
knowledge, that he is being arrested by a peace officer, it is the duty of such person to
refrain from using force or any weapon to resist such arrest.
Penal Code 835 Restraint Limited to Necessity
An arrest is made by an actual restraint of the person, or by submission to the custody
of an officer. The person arrested may be subjected to such restraint as is reasonable
for his arrest and detention.
Penal Code 835a Use of Reasonable Force to Effect Arrest
Any peace officer who has reasonable cause to believe that the person to be arrested
has committed a public offense may use reasonable force to effect the arrest, to prevent
escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or desist
from his efforts by reason of the resistance or threatened resistance of the person being
arrested; nor shall such officer be deemed an aggressor or lose his right to self defense
by the use of reasonable force to effect the arrest or to prevent escape or to overcome
resistance.

CALJIC 5.30 Self-Defense Against Assault

It is lawful for a person who is being assaulted to defend himself from attack if, as a
reasonable person, he has grounds for believing and does believe that bodily injury is
about to be inflicted upon him. In doing so, that person may use all the force and means
which he believes to be reasonably necessary and which would appear to a reasonable
person, in the same or similar circumstances, to be necessary to present the injury
which appears to be imminent.

CALJIC 16.111 Use of Excessive Force by Officer (in part)
A peace officer is not permitted to use unreasonable or excessive force in detaining or
attempting to detain a person for questioning.
CALJIC 16.103 Discharge or Performance of Duties – Defined (in part)
A peace officer is discharging or attempting to discharge his duties if he is lawfully
detaining or attempting to detain a person for questioning or investigation.

SELF DEFENSE

If a person, as a reasonable person, is justified in believing that his assailant intends to
commit a felony upon him, he has the right in defense of his person to use all force
necessary to repel the assault upon him, even to take the life of his adversary. P. V.
Collins (1961) 189 Cal. App. 2nd 575,

ANALYSIS

Officers Beach and Affrunti are specialists in gang investigation and recognition and
were working in an area of the city of San Bernardino known for gang activity, violence
and crime. They were SMASH officers conducting routine patrol in the area. Based on
their personal knowledge and training, they knew the heavy jacket worn by Markham on
a warm Saturday afternoon in this area could mean Markham was concealing a
weapon. In addition Officer Affrunti recognized Markham as a Projects gang member.
These two facts justified contact with Markham.

Markham’s immediate flight on foot confirmed their suspicions he was involved in
criminal activity. Markham ran with his right arm against his right side alerting the
officers he probably had a weapon. Based on these observations, Officer Affrunti had
the right and duty to contact Markham for further investigation. The foot chase lasted
approximately one minute eleven seconds while Markham continually ignored
commands to stop and show his hands. Officer Affrunti attempted to contact Markham
using verbal commands. This non-lethal use of “force” was clearly within the scope of
his duties. Markham responded by reaching into his pocket to pull out a pistol.
When Officer Affrunti saw the base of the magazine in the pistol, he had no choice but
to use lethal force to protect himself. He had chased a suspect over a minute, given
commands to stop and tried to knock the suspect down to no avail. He was alone and
confronted with an uncooperative person reaching for a gun. Under the law, Officer
Affrunti was not required to retreat or use some lesser force in self-defense. (Penal
Code 835a) He is permitted to use force necessary to prevent imminent injury to
himself. (CALJIC 5.30) Shooting Markham was not an excessive use of force.
Markham knew Affrunti and Beach were police officers and had an obligation to
cooperate with them and refrain from using force or any weapon to resist arrest. (Penal
Code 834a) His flight clearly shows knowledge. By running away, ignoring commands
and reaching for a gun he escalated a simple contact into a lethal one. He had many
opportunities to stop, to show his hands and submit to contact with the Officer. He did
not and forced Officer Affrunti to use equal force in self-defense.

CONCLUSION

The shooting of Terrell Markham by Officer Affrunti was a justifiable
use of force under the law.
• Information in red relates to juvenile matters, which are confidential, and must be redacted prior to release
of information about this incident.
** T. Markham‘s invocation should be redacted if this memo is released prior to the settlement of the
criminal case pending against him.