Douglas Zerby had a blood-alcohol level of 0.42% at the time of his death,… (Associated Press )
Two Long Beach police officers who shot and killed a 35-year-old man last December when they mistook a black water hose nozzle for a gun, acted lawfully in self-defense, the Los Angeles County district attorney's office said Thursday.
"The evidence examined in this investigation leads to the conclusion that this was a tragic mistake of fact," said Dist. Atty. Steve Cooley in a letter to Long Beach Police Chief Jim McDonnell.
The findings show that at the time of the shooting Douglas Zerby had an object believed by witnesses and responding officers to be a handgun, and that his position was consistent with someone having both arms extended straight out and pointing the object at an officer.
The findings identify the officers as Victor Ortiz, a 10-year veteran, and Jeffrey Shurtleff, a six-year veteran.
The shooting, which occurred Dec. 12, was investigated by the Long Beach Police Department, the district attorney's Justice System Integrity Division and the Los Angeles County coroner's office.
"The family is disappointed but not surprised that the district attorney didn't have the courage to prosecute these officers for negligent homicide," said Brian Claypool, attorney for the Zerby family.
"This is a joke, it's a joke," said Zerby's sister, Eden Marie Biele. "We're going to demand a federal investigation; we're going to demand justice."
The family plans to hold a news conference Friday to ask for a federal investigation into Zerby's death.
Claypool said Ortiz and Shurtleff should have been prosecuted because they failed to identify themselves as police officers and did not order Zerby to put down the nozzle. The attorney also said a third officer observing Zerby through a rifle scope should have been able to determine that the object in Zerby's hands was not a gun.
An autopsy showed that Zerby's blood-alcohol level was 0.42% and that he also had Valium and THC in his system at the time of his death. Claypool said that such a high blood-alcohol level would have made it hard for Zerby to be acting in an aggressive manner, as police maintained.
"So the million-dollar question is: What happened?" Claypool said. He said the family will push forward with a civil lawsuit against the Police Department.
According to the results of the investigation, officers arrived at the house in the Belmont Shore neighborhood around 4:40 p.m. after a neighbor reported a man with a handgun in his backyard. He was later identified as Douglas Zerby.
Zerby sat on a landing with his back to an apartment located behind the house. He was holding what police believed was a handgun, pointing it to his side and waving it around as Ortiz and Shurtleff took cover inside the house. The officers did not attempt to identify themselves to Zerby, nor did they order him to drop his weapon.
Ortiz, who was armed with a shotgun, stood near a sliding door, 38 feet from Zerby. Shurtleff stood behind a kitchen window, 23 feet away.
The officers observed Zerby and requested additional officers, a police helicopter and the Police Department's Mental Evaluation Team. But when Zerby pointed the object at Ortiz, Shurtleff opened fired multiple times. Ortiz fired after Shurtleff began shooting.
Zerby was pronounced dead at the scene. A black pistol-grip water nozzle with a metal tip was recovered.
Biele said that because the officers never identified themselves as police and never told her brother to drop what was in his hands, Zerby was deprived "of the most fundamental act of due process."