D.A. Absolves Policeman in Slaying on I-5 : Law Enforcement: Man wielding trowel in rush-hour traffic posed a lethal threat, report says.

A San Diego police officer was justified in shooting to death a mentally disturbed man waving a cement trowel on Interstate 5 because the man approached the officer with “a lethal weapon in a threatening manner,” the district attorney’s office said Tuesday.

In clearing Officer Thomas O’Connell of any illegality in the May 21 shooting, Dist. Atty. Edwin Miller dismissed criticism from incredulous rush-hour motorists who witnessed the incident and were outraged that O’Connell and two highway patrolmen could not subdue a man with a plastering tool.

“The fact that it is a trowel with a benign purpose does not alter its potentially deadly employment as a slicing or stabbing device,” Miller said, noting that the shooting victim, Jose Eleazar Lopez-Ballardo, had already cut one of the patrolmen with the tool.

O’Connell, 29, could not be reached for comment Tuesday. According to Miller’s five-page letter to Police Chief Bob Burgreen, O’Connell said he feared Lopez would harm him or other motorists. The eight-year officer fired at least four rounds from his semiautomatic weapon, the report says.

“I feared for my life and for the lives of the people in the cars behind me,” O’Connell said. “The look in . . . his eyes told me that he either wanted to die or he wanted to kill somebody.”

Two San Diego civil rights groups denounced Miller’s findings but said they had grown accustomed to law enforcement officers being absolved after shootings.

“That’s always the result with the district attorney’s office,” said Linda Hills, executive director of the American Civil Liberties Union of San Diego and Imperial counties. “There’s got to be a better way to get a confused man off the highway other than shooting and killing him.”

Roberto Martinez, co-chairman of the Coalition for Law and Justice, a volunteer civil rights group that works for the protection of Latino immigrants, said the Lopez shooting has no defense.

“This is one of the most blatant examples of unjustified use of deadly force I’ve seen in a long time,” he said. “This is a case we’ve never been able to get to the bottom of. We can’t get any answers about what went on.”

The district attorney’s office reviews dozens of police shootings each year and has ruled every shooting justified since 1984. Escondido Police Officer David DeLange was charged at that time with killing a 22-year-old office secretary who was taken hostage and shot to death while fleeing her abductor. He later was acquitted.

Miller also announced Tuesday that he had turned the investigation of another controversial law enforcement shooting--a sheriff’s deputy’s slaying of 21-year old Jeffrey Bray of Vista--over to the San Diego County Grand Jury.

The district attorney’s office will forward the sheriff’s investigation of Bray, whom deputies mistakenly believed was a car thief, to the grand jury and will assist where necessary, Miller said. The Bray shooting occurred May 18, three days before Lopez was shot and killed.

Miller’s report describes the Lopez shooting this way:

California Highway Patrolman Carlos Gutierrez spotted Lopez, carrying a bucket of masonry tools, in the northbound lanes of I-5 at Ardath Road early that Monday morning. Gutierrez offered Lopez a ride off the freeway but Lopez refused.

Gutierrez grabbed Lopez, threw him into a patch of plants that line the freeway and then began hitting Lopez with his baton. Lopez retaliated by cutting Gutierrez’s hand with the trowel and shattering a plaster level against his body.

The officer released Lopez, who ran across all four northbound lanes as cars swerved to avoid him. Gutierrez drove to the next exit at Gilman Drive, then headed south on I-5, where he found Lopez walking across the southbound lanes.

When Highway Patrolman William Shipley arrived to help Gutierrez, both men held out their batons and Lopez waved his metal trowel. Hearing the patrolmen’s request for help on his police radio, San Diego Police Officer O’Connell arrived at the scene, heard Gutierrez order Lopez to drop the trowel, and drew his pistol. Lopez pounded on one car with a trowel, and O’Connell approached.

Lopez advanced to within 5 to 10 feet of O’Connell, waving the trowel as if he were fencing. With cars stopped behind him and Lopez approaching, O’Connell fired “approximately three rounds” at Lopez, who kept advancing with the trowel. O’Connell shot again and Lopez fell. He was dead at the scene.

“There is no doubt in my mind whether he was going to try to hurt me,” said O’Connell, who is assigned to a task force that investigates crimes in city high schools. “If I wasn’t in his way, he was going to hurt someone in one of the cars.”

Some witnesses said they could not understand how three police officers could not peacefully apprehend Lopez, described by officers as mentally disturbed.

“Why not throw a net over the guy?” Stan Leener, a witness from Encinitas, told The Times shortly after the shooting. “Or come up behind him? It just takes an ounce of guts to tackle the guy, especially when the cops have all the advantage.”

San Diego Police Department procedures allow officers to use “any force which is reasonable and necessary to protect themselves and others from bodily harm while accomplishing a lawful police purpose.”

In fact, police recruits are taught that, if someone moves within 21 feet of them with an “edged weapon,” which could include a knife, screwdriver, sword or trowel, they are permitted to respond with whatever force the officers decides is necessary.

“If they get within 21 feet, which is considered a safe distance away, the officer is to take that person out,” said San Diego Officer Mike Burstein, an instructor of defensive tactics with the police academy. “You rub a trowel back and forth over cement, it gets sharper and it can become a deadly weapon.”

Everett Bobbitt, who has represented a number of police officers as contract attorney for the Police Officers Assn., said it is, appropriately, nearly impossible for an officer to be criminally charged in a shooting.

“There is so much leeway in that area that it’s difficult to make a case against a cop,” he said. “Ten different officers will respond in 10 different ways, and they’ll be justified.”

In his report, Miller said those witnesses who criticized the police and Highway Patrol had not seen Lopez cut Gutierrez with the trowel in the northbound lanes.

However, he acknowledged that many believed “there just had to be something else the officers could have done, that the use of deadly force was an overreaction.”

Miller included anonymous praise from two witnesses, one of whom he quoted as saying: “They didn’t let it get out of hand, and I was so scared that (Lopez) might start hitting the cars or the people in front of us that I locked my door. I think that, for no one else to get hurt in this incident, was good.”

San Diego police have shot and killed seven people this year, including Lopez, and injured 12 others. The Lopez shooting, followed soon after by the police shootings of two men with baseball bats in two separate incidents, prompted Chief Burgreen two weeks ago to order an unprecedented review of the department’s shooting policy.

Burgreen detached three members of the department, including a deputy chief, to review all academy lesson plans and classes that teach the use of deadly force. They are part of a 16-member task force Burgreen created to analyze the department’s policies and procedures. Burgreen also has agreed to let a civilian review board investigate a number of shootings in which officers seriously wounded or fatally shot someone, including the Lopez shooting.

As in all police shootings, the Lopez case will be considered by the department’s internal affairs department, which reviews the officer’s actions for violations of police policy and forwards the findings to a shooting review board that includes three police commanders.