Deposition undermines justification in shooting by city police
When Allegheny County District Attorney Stephen Zappala issued his conclusion that the 2018 fatal police shooting of Mark Daniels was a “justified use of force,” his written analysis repeatedly cited a ShotSpotter report he said had “determined that Daniels fired the initial two shots” at the officers.
But a recently filed exhibit in a federal civil lawsuit brought by Daniels’ family shows the report did not include that information.
Paul C. Greene, a senior forensic engineer with ShotSpotter — an acoustic gunshot detection and location system — testified during a deposition that none of the company’s analyses in the case contain information on who fired which shot or who fired first because that’s something the company does not determine.
A spokesman for Mr. Zappala said the office stands by its determination that the shooting was justified.
“Several elements were used in analyzing the events and reaching a conclusion of justification, including a report from a ShotSpotter engineer,” spokesman Mike Manko wrote in an emailed response to The Associated Press. “Why they would choose to contradict that report at this time is a question for them and does not change the fact that this individual fired his gun at police officers or the conclusion that the actions of the police officer were justified.”
But Mr. Zappala’s written analysis for not filing criminal charges against the officers relies heavily on the idea that Mr. Daniels fired first. And without body camera footage or street cameras capturing the initial gunfight, and with the contradiction to Mr. Zappala’s assertion that ShotSpotter proves Mr. Daniels fired first, the remaining evidence is largely in the narrative provided by the officers.
The Allegheny County Police Department that investigated the shooting and the district attorney’s office both declined to release investigative materials including the ballistics report, saying only Mr. Zappala’s conclusion is a public document.
The Associated Press obtained the initial ShotSpotter report and a second report submitted by Mr. Greene before his deposition. Neither report includes the names of Daniels or the officers or offers any determination of who fired which shot. They only offer projected times and locations of each gunshot.
The first report by an engineer named P.J. Ramos placed the first two shots at an intersection where police say the initial altercation happened, but placed four following shots about half a block away.
Mr. Greene testified that Mr. Ramos likely didn’t factor the echo of the shots into his analysis, and Mr. Greene moved the shots in his report to all cluster around the intersection. Mr. Greene’s analysis places the first two shots closest to the alley where the officers were standing, and both reports note all six shots happened within fractions of seconds of each other.
Lawyers for Joyce Daniels, Mark’s mother, have raised other issues in the case, including the initial reason Pittsburgh Police officers Gino Macioce and then- recruit Kevin Kisow decided to engage Daniels and whether they did not identify themselves as police officers as they exited a dark alley with their guns drawn.
“Officer Macioce’s story that this all started from a look and that he was ambushed has never added up and it is shocking that the leadership of the Pittsburgh Police Bureau and the County (District Attorney) would conduct such a shoddy and misleading investigation just so they could justify the actions of a police officer who clearly should not be wearing the uniform,” said attorney Glenn A. Ellis, a partner at Freiwald Law, P.C. who represents Mr. Daniels’ family.
In the early morning hours of Feb. 11, 2018, Officers Macioce and Kisow said they saw the 39-yearold Mr. Daniels leaving a 24hour convenience store. Officer Macioce said he believed Daniels dipped his body in a suspicious way to possibly get a better look at the officers who were on foot about 150 feet away.
Officer Macioce instructed Officer Kisow to draw his gun and the two moved quickly down the alley.
Police said Daniels fired at the officers as he came to the alley entrance, and Officer Macioce returned fire. Police said Daniels ran, and began talking to a woman nearby to try to blend in. When Officer Macioce saw Daniels, he believed it to be the same person who had fired at them, and he ordered Daniels to get on the ground.
Police said Daniels responded, “It wasn’t me,” and attempted to run. Officer Macioce fired four times, striking Daniels at least once. Police found Daniels a few blocks away on the back porch of a residence bleeding heavily. He was pronounced dead a short time later.
Public records showed Officer Macioce was cleared in two other nonfatal shootings in January 2018 and April 2017, both determined to be justified shootings. In both those incidents, he was responding to reports of crime involving guns.
In his April 18, 2018, written analysis, Mr. Zappala wrote, “It would be counterintuitive to debate whether Macioce’s first set of gunshots were justified. The ShotSpotter data and ballistics revealed that it was Daniels who initiated the first three gunshots against Macioce and Kisow.”
Mr. Zappala also writes that Officer Macioce was right to consider Mr. Daniels a threat, based on the fact that Mr. Daniels had opened fire on police previously.
“On the surface, it could be disputed that a fleeing Daniels posed no threat to Macioce or others in the area,“he wrote, calling the view “myopic” and added, “Daniels could have taken cover behind a car, house, tree or other object and then re-initiated the offensive gunfire that he began seconds prior.”
Legal experts say that analysis must change if Officer Macioce fired his weapon first. David Harris, a law professor at the University of Pittsburgh School of Law, reviewed the ShotSpotter reports and Mr. Zappala’s analysis.
“Without the ‘determination’ that the victim fired first from ShotSpotter, which we now know was not part of the record after all, we are left to wonder whether other assertions made by the police would or should have undergone greater scrutiny,” Mr. Harris said.
“The ( District Attorney’s) letter makes clear that all of the facts in it come from police sources,“he added. “With the key ‘determination’ of who fired first now in doubt, public confidence in the whole investigation will be hurt.”