Zerby Attorney Requests DA Re-open Case
From Issue: Volume XXI - Number 19
The attorney representing the family of Douglas Zerby, who was shot and killed by two Long Beach Police Officers on December 12, 2010 while he fondled a garden hose nozzle, has requested that the Los Angeles District Attorney's office re-open their investigation.
Attorney Thomas Beck has asked Deputy District Attorney Shannon Presby to "commence a proper evaluation of the known evidence and file appropriate criminal charges" against the two officers, Jeffrey Shurtleff and Victor Ortiz.
Beck's entire letter to Presby follows...
THE BECK LAW FIRM
10377 Los Alamitos Boulevard
Los Alamitos, CA 90720
Tel: (562) 795-5835
Fax: (562) 795-5821
September 21, 2013
Deputy District Attorney
County ofLos Angeles
Justice System Integrity Division
210 W. Temple St.
Los Angeles, CA 90012-3210
Re: Death of Douglas Zerby
JSID File # 1 0-0966
Dear Mr. Presby,
I am writing concerning your November 3,2011 correspondence to LBPD Chief of Police Jim McDonnell related to the District Attorney's investigation into the afore referenced OIS. You letter concluded that officers Shurtleff and Ortiz "actually and reasonably believed Zerby was armed" and "raised the object in a two-handed shooting posture and pointed it directly at Ortiz" whereupon Shurtleff was reasonable in concluding that deadly force was necessary." Your correspondence closed the file and publically exonerated Ortiz and Shurtleff from criminal liability as having acted in lawful self defense and the defense of others. My letter on behalf of Mark Zerby, the decedent's father, seeks to reopen that file and to seek a redetermination based on the results of the evidence that came out of the family's lawsuit and trial which fully refuted the shooter's claimed justification for firing at Zerby and directly contradicts the DA's grounds for declining to prosecute the shooting officers.
On April 4, 2013 a unanimous jury in the Santa Ana federal court came to the opposite conclusion. They found Officers Ortiz and Shurtleff had did not shoot in self defense or in defense of one another. Rather, the trial proved both officer’s justifications for shooting Mark Zerby were completely fabricated and proven so by the forensic and testimonial evidence. Your investigation lacked statements from Ortiz and Shurtleff by reason of LBPD OIS custom and practice allowing shooters not to give statements immediately after a shooting. We had their depositions as well as the testimony of other officers and civilians on scene which ultimately condemned them. Both officers were found liable for punitive damages because of the fraud they perpetrated on the Zerby family, your office and the public.
With the exception of the shooting officers' statements, the evidence the civil jury was presented was identical to what your office had before it to review. All it really took was a careful analysis of the forensics to disprove the officers' self serving explanations. This was largely based on the LBPD OIS investigation evidence which proved that Shurtleff accidentally discharged the first round from his Glock and all other rounds were contagious fire. Shurtleff’s AD round was traced from his weapon's muzzle, glanced off the banister nowhere near where Mr. Zerby sat and came to rest between the two buildings, at the back door of the front residence and the entry to the garage. This AD round was shown not to have been aimed at Zerby at all and was identified as evidence item # l0 in the forensic report your office had to analyze. LBPD criminologist Troy Ward's report confirmed that this AD round glanced off the brick reveal and ricocheted to its resting place. As you may recall, Shurtleff claimed he intentionally fired his first and all successive rounds because he believed Zerby was pointing the hose nozzle in his hands in the direction of Ortiz. This was shown to be a complete fabrication designed to give the appearance of justification for deadly force. At this deposition and at the trial, Ortiz admitted he fired his shotgun only in response to the discharge of Shurtleff's weapon and did not respond to a threat of being shot by Zerby.
We were able to prove the sound of Shurtleff’s discharge resulted in Ortiz's firing one of his shotgun rounds, Shurtleff then quickly fired his remaining 5 rounds directly at Mr. Zerby, fatally wounding him. The second shotgun round was discharged on an open mike, captured on the LBPD communications recording. This tape confirmed the two shotgun rounds did not immediately follow one another, as Ortiz claimed during the OIS investigation. In the end, there was no controlled firing in defense of anyone and neither Shurtleff nor Ortiz were in danger of being shot, even if Zerby had a firearm and not a garden hose nozzle. Officer 0rtiz was fully concealed and protected by a brick fireplace. Shurtleff was also concealed and covered by a brick wall. Both officers admitted Mr. Zerby would have no basis to believe either one of them was present or could see either one of them or that officers had an eye on Zerby during the 7 minutes the officers kept their silence, gave no commands or warning to Zerby before shooting him dead.
An officer standing above Ortiz pointing his firearm at Zerby held his fire recognizing Zerby was no threat when Shurtleffs AD discharged. Nor did another officer who had his AR-15 rifle with a magnifying scope trained on Zerby's hands. Significantly, the garden hose nozzle that the officers claimed Zerby pointed menacingly in their direction causing them to fire was found beneath Mr. Zerby's thigh as he sat on a landing throughout the shooting. If the nozzle had been poi-nted as the officers claimed, there was no possible way for the "gun" to have ended up beneath any part of Zerby and particularly not under his thigh given the officers testimony concerning how Zerby was seated.
All of this proof was in the OIS investigation materials LBPD provided to the District Attorney for review. That review, in our judgment, was too deferential to the shooters' self serving mantra of self defense and defense of others when the OIS investigation showed the opposite.
For these reasons, request is hereby made on behalf of the Zerby family members to reopen the aforementioned file, commence a proper evaluation of the known evidence and file appropriate criminal charges. When objectively undertaken, there is ample probable cause for the prosecution of both officers for manslaughter in the intentional slaying of Douglas Zerby and for corruptly conspiring among themselves to give the appearance of lawful justification, in violation of Cal Penal Code §182, subdivisions (1) and (5).