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Huntington Officer Not Charged in Shooting

Death: D.A. won't prosecute May killing of man who allegedly had a toy gun. FBI still on case.

January 05, 2002|STUART PFEIFER | TIMES STAFF WRITER

A Huntington Beach police officer who shot and killed a man allegedly holding a toy rifle in May won't face criminal charges, prosecutors said Friday.

The shooting death of 18-year-old Antonio Saldivar, a farm worker whom the officer apparently mistook for a crime suspect he was seeking, sparked protests by some Latino activists.

But prosecutors concluded that Officer Mark Wersching reacted reasonably when he shot Saldivar, who reportedly turned toward the officer with a toy gun in his hands.

"The officer's instantaneous decision to defend his life from an apparent deadly threat was reasonable," Deputy Dist. Atty. Carolyn Carlisle-Raines said in a prepared statement.

Wersching, an officer since 1995, was chasing a crime suspect in the city's Oakview neighborhood when he spotted Saldivar, authorities said.

The officer shouted at Saldivar in both English and Spanish to raise his hands, but the teenager instead turned around and pointed a gun at the officer, who shot him, police said.

Attorneys for the Saldivar family question whether the shooting victim was even carrying a toy weapon. Although no fingerprints were found on the gun, witness statements led prosecutors to believe Saldivar was carrying it when he was shot, said Senior Assistant Dist. Atty. Claudia Silbar.

The shooting sparked an FBI investigation and a federal civil rights lawsuit, which are still pending.

Tim Black, who's representing the Saldivar family in the federal civil rights lawsuit, said it would have been difficult for prosecutors to convict the officer because of the high burden of proof required in criminal courts. But he thinks the department will be held liable in civil court.

"We don't think Officer Wersching set out that night to kill an innocent man," Black said. "But we know there's very little evidence that indicates there was justification for shooting Mr. Saldivar."

A leading Orange County Latino rights advocate said he was disappointed by prosecutors' decision, but not surprised. Orange County prosecutors, who review all police shootings, have never prosecuted an officer for an on-duty shooting.

"With that background, it does not surprise us," said Amin David, president of Los Amigos of Orange County. "I do hope that the attorneys that are helping this poor family will bring this case to the proper place, a trial, and have a jury look at the situation."

Police officials have said that the toy weapon found next to Saldivar appeared extremely realistic. It had a wooden handle and a blue steel barrel and was more than 20 inches long, said Lt. Chuck Thomas, the department's spokesman.

"We are heartened by the results from the district attorney's office, but it's still a tragedy for the officer involved, for the Saldivar family, for the Huntington Beach community and the entire department," Thomas said.

Prosecutors based their decision on an investigation by the Orange County Sheriff's Department, Silbar said.

"There was a thorough investigation and careful consideration of all the facts," Silbar said.

She said O.C. prosecutors carefully consider all officer-involved shootings and discounted criticism that the department rubber-stamps police shootings.

"We are not advocates for any party, whether it's a police officer or a citizen," Silbar said. "If we ever felt objectively that an officer was involved in a criminally negligent shooting, it would be our duty to file a case."

David, who has criticized other officer-involved shootings, said he believes the outcome of the Saldivar shooting is further evidence of a need for an independent police commission in Orange County.

"Evidence presented to a quasi-enforcement body like the district attorney is viewed differently than it would be by the stockholders of the county, the citizens," David said. "This raises again the need to throw out this idea."

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