A San Jose police officer acted lawfully when he shot and killed a 35-year-old man who brandished an axe at officers in May 2017, the Santa Clara County District Attorney’s Office determined in a 31-page report released Monday.
Police were called to the Donner Lofts Studio Apartments at 158 E. St. John St. at 12:10 a.m. on May 28, 2017. Officers responded to an apartment to see smoke and flames, and kicked down the door to remove the resident from the home.
Francis De La Cruz was visiting the resident inside the home and refused to come outside. Body-worn camera footage released with the report shows De La Cruz holding an axe and standing inside the apartment. An officer then discharges a Taser stun gun at Avila, but it doesn’t appear to have an effect.
According to the report, Officer Juan Avila then shot at De La Cruz four to five times, then two more times when he kept walking toward them.
De La Cruz was taken to a hospital and died about an hour later. An autopsy found he had methamphetamine in his system.
The resident of the apartment, Fred Connor, later told police he had “built a moat of lighter fluid” in his home.
Prosecutors said Connor told police:
“They were busting in my door. That was my only defense cause I’m an American and no one should enter my home. Defense is what I call it. I don’t call it arson.”
Prosecutor Sumerle Davis said in closing that officers faced an apparent, immediate threat of great bodily injury or death, and Avila’s conduct is legally justifiable with no criminal liability.
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