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DA Investigation Of Gaines Shooting Finds No Criminal Conduct By Officer

The District Attorney says the South City police officer who shot teenager Derrick Gaines in June did not commit criminal conduct.

According to the San Mateo County District Attorney's Office, the DA has completed its investigation into the death of Derrick Gaines, the South City 15-year-old who was shot by a police officer at the Arco gas station on Gellert Blvd and Westborough on June 5.

Inspectors Ivan Grosshauser and William Massey of the DA's Office conducted the investigation, and DA Stephen Wagstaffe stated Wednesday that the filing of criminal charges are not warranted against officer involved, Joshua Cabillo of the South City Police Department.

A press release stated that Wagstaffe concluded that the use of lethal force was a lawful response to the conduct by Gaines and no criminal conduct by Cabillo occurred. 

Thus, the DA declines to file criminal charges and the case is now deemed closed by the DA's Office.

Update 4:45 p.m.: In a letter dated Aug. 29 to South San Francisco Police Chief Michael Massoni, District Attorney Stephen Wagstaffe gave details of the investigation’s findings. A PDF of this letter is attached to this article. According to the report, the events that immediately led up to the shooting were as follows:

Gaines attempted to flee the Arco gas station property after Officer Cabillo had instructed him and his companion, Remy Carrillo, to sit down. The officer chased after Gaines.

Officer Cabillo observed a weapon in Gaines’s waistband and the officer pulled his own weapon while running. The officer struck Gaines on the head with his service weapon in order to stop him, and both individuals fell to the ground. During the tumble, a gun fell from Gaines’s waistband onto the ground. Gaines moved his arm in the direction of his dropped firearm.

According to the report, “Officer Cabillo concluded that he did not have enough time to get to the firearm before the subject would, and believed that once the firearm was seized by Gaines that it would be used on the officer. Fearing for his life, Officer Cabillo fired a shot, which hit the subject in the neck.”

“This is what we expected from this investigation -- that this police officer would be exonerated and protected,” Dolores Piper, the great aunt of Gaines, said on Wednesday afternoon in reference to the DA's conclusions.

Piper spoke on the phone from Butte, Montana, where she was visiting family and dispersing Gaines’s ashes.

Oakland-based attorney John Burris has filed a claim on behalf of the Gaines family.

"This decision today has no impact whatsoever on my decision [to file against the city]," Burris said Wednesday, in reference to the DA's statement. "[The DA's Office is] looking at it from a criminal point of view -- that’s a very high standard for a police officer. My civil rights case is about wrongful death and violation of civil rights."

Burris intends to file suit against the city of South San Francisco this fall.

For more details of the DA investigation, see the PDF attached to this article. 

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Ean Dawson August 29, 2012 at 10:14 PM
Conflict of interest... why would the DA get to investigate thier buddies (Cops) ? Bring it to trial in front of THE PEOPLE. Its the people who have the right to determine who is guilty or not. To much power for the police system and not enough for the people. They are no more special then the average civilian.
Doofus August 29, 2012 at 10:23 PM
Teenager with gun!! He's oh so innocent. Bite me!!!
Mike August 29, 2012 at 11:07 PM
Conflict of interest? The DA's office is a separate County agency and it is not part of the South City Police or even the So. City Gov. So, there will be no criminal trial by jury when the DA does not find criminal actions. There could be a civil trial and my best guess is that will occur.in the form of a wrongful death law suit. In addition the family may file a complaint with the State or Fed. DOJ. The State or Fed. will perform their investigation and proceed accordingly. My guess is that the State probably has seen things already. The largest problem I see is that young Derrick Gaines had a firearm in his posession (illegal possession), that supposedly was provided to him by his (absent) father who is alledgely a convicted felon (another double illegal issue). If in fact the matter of hand gun possession is true and the rest the story is correct, I believe Derrick's father may be someone who should face a criminal trial.
Mike August 29, 2012 at 11:43 PM
Althought the investigation has found that the police officer responded in a appropriate and lawful maner there is no reason to cheer. A youngman is dead, and and another person will forever have to live with having taken a life. Trust me, no matter how many times the officer is told he had no other choice, the officer will still experience the pain associated with what has happen and he will do so for the rest of his life. South City is changing, but let none of us allow it to become what we have seen other cities become. Gang banger mentality associated with young people caring firearms and such has no place in our community. Gang members have no place in our community. People who support or give comfort to such things have no place in our community. South San Franciscians must stand up so that we see no more youg people falling victim to what I call a gangland mentality. Parents be vigilant and above all be a mom or dad before being a friend. Neighbors report iwhat you believe to be unwanted/illegal activity. The results of our efforts regardless of how hard, difficult and uncomfortable they may be will help to maintain what is still a good community to live in.,
Sean Kay August 30, 2012 at 01:09 AM
I have had about enough with all this everybody's fault but the parents that raised this child. A child that with no suppervision sat out in front of my till all hours in the night drinking, smoking and god only know what else. My children are his age in fact when to school with this boy... that is when he showed up.. and guess what people, mine were home in bed while he was out and about. Was it worth his life for his parents to profit from his death this way... It must be nice for his parents to care now.... This child never had a chance... these parents should not be allowed to profit from his death, for in my eyes they are the true cause. I do not think they should be allowed parent any children they may currently have or even be allowed to keep them. What ever happened to parent puts their children first and I mean while they are alive not after their death. Wow, you don't care what I do or where I am but when you die I will place a picture of you on a shirt. Now that must be love!!!!
Jim C August 30, 2012 at 06:33 PM
Well said, Mike. I'm right there with you. The only thing I disagree with is your statement "South City is changing" because it makes it sound like the slide to mediocrity is inevitable. We don't HAVE to settle for it changing. We don't HAVE to let it creep one step closer to "what we have seen other cities become". Let's fight it. Let's let the police know we want them to be MORE vigilant and less "understanding", let's let the school board know that we want HIGHER standards set for our kids and less "understanding", let's let the City Council know that we expect them to make TOUGHER decisions, not easier decisions.
Rhonin August 30, 2012 at 09:44 PM
It looks like attorney Burris won't be making any money off of this family's tragedy. The DA's investigation letter is very clear that Gaines had many opportunities to NOT get shot by the police officer but Gaines made the wrong decision each time. Sad for the Gaines kid but he brought it upon himself.
Jim C August 30, 2012 at 10:55 PM
Now we have to make sure the city government knows that when the inevitable lawsuit does come, we want to fight it and not settle. Not a penny for Burris. Not a penny for the family.
Judy August 31, 2012 at 12:48 AM
It's hard for a family/friends believe their loved one committed a criminal act. I agree that parents need to pay attention to their kids; however, there are children that cannot be controlled. Obviously, a teenager in possession of a gun, drugs and under the influence of drugs doesn't strike me as someone that will be going to school and doing homework. Unfortunately some children make wrong decisions regardless of what is taught at home. I've read about kids who grow up in a dysfunctional home, parents on drugs/alcohol and they choose to have a better life by staying in school and working. It's all about who you are and how you choose to live.
Tess August 31, 2012 at 12:55 AM
Right there with you Jim and Rhonin. SSF leaders need to stand behind our Police Officers and support them and the FACTS by fighting for the truth and not give a cent to underserving individuals. I never doubted that the officer involved acted properly, but as Mike said earlier, this tragedy will be with him for the rest of his life. The loss of a young life is always hard to grasp let alone accept and Derrick's loss is no exception - however, NO ONE should PROFIT from his loss, especially those who failed him to begin with.
Mike August 31, 2012 at 01:54 AM
Problem: Unforunately we are a country of laws and not consistently a country of justice (which is more of a perception than not). So, sometimes the best decision from a financial stand-point is to propose a settlement. I much like many others hope that does not become the case this time.Whatever the outcome I'm confident that our City Council will do the right thing for the So. City.
Mike August 31, 2012 at 02:14 AM
Rhonin, John Burris is a heck of a good attorney and he has made alot of money doing what he does. I have spent some time with him and he's not a bad guy. In fact although we do not agree on many things I think he is a pretty decent fellow. He has a passion for what he does and, what he does is represent people who he has reason to believe have had their civil rights violated. Generally speaking (settlements aside) in the end if there has been no civil rights violation or other unfavorable issues Mr. Burris may get paid by his client, but that's about all the money that changes hands.
Jim C September 01, 2012 at 05:18 PM
Mike, I think we've reached a point where lawsuits are filed PRECISELY because there is an expectation that some attorney or bureaucrat is going to make the decision to "manage the risk" and settle. If we fight at least some of these unwarranted lawsuits, maybe they will stop.

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