Should this cop be prosecuted?

[rn79870]

This happened near my home in March of this year. The attached article pretty much explains what happened. Cliff notes version: Off duty cop shoots woman and her son thinking his life was in danger. No one died.

SAN DIEGO -- An off-duty San Diego police officer who shot a woman and her 8-year-old son in a road-rage dispute in Oceanside was charged Tuesday with a felony count of gross negligent discharge of a firearm causing great bodily injury.

Frank White, 28, is accused in the March 15 shooting of Rachel Silva and Johnny Silva.

White also was charged with a misdemeanor count of exhibiting a firearm.

White, who agreed to surrender at the Vista Courthouse and was arraigned Tuesday afternoon, pleaded not guilty and was released on his own recognizance -- all part of a deal with prosecutors.

He came to court in a suit with his wife at his side.

Judge Marshall Hockett ordered him to be booked and released Saturday morning. The judge set a readiness conference for Aug. 26 and a preliminary hearing for Sept. 17.

White and his attorney left the courthouse without commenting to a throng of reporters.

He faces up to nine years in prison if convicted of all the charges against him.

"Every officer-involved shooting is carefully reviewed by the District Attorney's Office to determine if criminal charges should be filed," District Attorney Bonnie Dumanis said in a statement. "Based on the evidence and the law, these charges are appropriate."

The state Attorney General's Office last month charged Silva with felony child endangerment and five misdemeanor counts, including two counts of driving under the influence, driving with a suspended license and a revoked license, and driving while in possession of marijuana.

Silva -- who has two drunken driving convictions from last year -- faces up to six years in state prison if convicted, said Supervising Deputy Attorney General Jim Dutton. A settlement conference is set for Aug. 12 and a preliminary hearing for Sept. 9.

Silva, 27, will be allowed to remain free on her own recognizance as long as she stays in a drug rehabilitation facility.

A declaration filed in support of an arrest warrant alleges that Silva, by engaging in the traffic-related confrontation with White on the evening of March 15, "willfully put her son ... under circumstances likely to produce great bodily injury or death."

Silva's blood-alcohol level was measured at 0.15 percent, nearly twice the legal limit -- after the road-rage incident, according to the declaration filed in support of the arrest warrant.

White was not tested for alcohol because he showed no signs of intoxication, investigators said.

After a meeting with the District Attorney's Office, it was decided that the state Attorney General's Office would handle the case against Silva and the District Attorney's Office would look into whether to charge the off-duty officer, Dutton said.

The dispute between Silva and White grew out of a near-collision between her 1991 Honda Accord and his Mercury sedan on Old Grove Road in Oceanside.

Silva, whose son Johnny was in the front passenger seat of her car, pulled out of a gas station driveway into the path of White's vehicle shortly after 9 p.m., prompting the officer to swerve to avoid a crash, according to police.

She then allegedly followed White down the street, tailgating him, revving her engine and shouting.

The pulled over in a nearby parking area outside a Lowe's store, and Silva pulled up alongside, continuing to shout at him, according to police. She then allegedly backed up and sideswiped White's car, at which point he fired five rounds.

The first shot went through the tinted front passenger window of Silva's car -- next to the seat where her son was sitting -- and the others pierced the windshield.

The woman suffered two bullet wounds to her right arm, and the boy was treated for two gunshot wounds to his left leg.

White and his police-dispatcher wife, who was with him in the car, were uninjured.

Silva has insisted that she did nothing that could justify what she called the "attempted murder" of her and her son at the hands of the officer.

She has filed a claim against the city of San Diego, seeking unspecified damages. The boy's father, a Camp Pendleton Marine who is no longer married to Silva, also has filed a lawsuit against the city, claiming, among other things, that SDPD officials failed to properly screen and train White.

This shooting followed another shooting involving an off duty Coronado cop and ex-SD Charger D. Follley. Folley sued, and won 5.5 million. The cop wasn't charged.

Thoughts?

[Cold_Zero]

I guess it would depend on California's law for use of deadly force. It would really depend on what kind of reasonable fear the off duty cop felt during the road rage incident. It could be looked at it two ways:1. Why would a man and police officer shoot a woman with her 8 year old son? What would make a police office fear for his life?2. A drunken woman in a car could most certainly pose a threat if she attempted to ram his car or him.

I dont know. Why did the cop shoot an 8 year old boy? That is what really doesnt make any sense. Was he that negligent with his rounds that he hit him on accident? Will be interesting to see how this unfolds.

[Jager]

does anyone know whether the child was visible even? the article mentions tinted windows,

I cannot say that the shoot was justified being that we dont have actual facts or photos, but If involved in a road rage incident that some one was actively trying to ram my car and was overly belligerent unless i could leave in the car the sidearm would at least be out, I can see why the officer probably fired considering his wife, especially if he could not see the child.

[AZhitman]

It's all hearsay until I see a full report, but:

When effecting an arrest, ANY attempt to strike an officer with one's car, whether they're in their own car or on foot, is grounds for the application of lethal force.

Her BAC will certainly work against her in this case.

Of course, the anti-cop coalition will come out in force as well and excuse her idiocy.

All in all, an ugly situation. I hate to say it, but ANY whining she does about the cop placing her son at "risk" is null - She did that.

When do the consequences for "stupid" come to bear?

Cause me to swerve to avoid you, then follow me down the street, tailgating drunkenly, screaming and then hit my car - You'll probably get the same reaction.

She shouldn't have been driving after the first conviction. Nor the second. Nor this time.

I'd say a full investigation is warranted. I'd say in this case, the LETTER of the law must be followed, because there are WAY too many mitigating and aggravating circumstances involved...

Personally, I hope he's exonerated, but pulled off active duty for a while, given a battery of psychometric tests, and then they proceed accordingly. But I'll defer to the courts on this one.

[AZhitman]

does anyone know whether the child was visible even? the article mentions tinted windows,

I just thought that as I was completing my post...

[AZhitman]

Bob, will you keep us posted on the progress of this one?

What's your take on it?

[rn79870]

I've been watching this case closely. I believe any officer in a uniform is a target for all the nutcases out there. But in this case there was no indication that Mr. White was an officer.

The DA assigned the Silva (the lady) part to the CA atty generals office to avoid any conflict issues. The Atty Gen is prosecuting Silva for child endangerment (a felony) and drug/dui charges. She is currently in a rehab center (for reasons other than this case).

The officer surrendered today. 2nd time in 20 years an officer has faced felony charges related to the shooting here in SD.

It was just on the news. I doubt he'll be a cop much longer - which is fine. The car he shot at had dark tinted windows, which I think would cause a reasonable person not to shoot. How could he tell how many people were in the car or how many he might hit?

[AZhitman]

The car he shot at had dark tinted windows, which I think would cause a reasonable person not to shoot. How could he tell how many people were in the car or how many he might hit?

Actually, it's just the opposite:

The car becomes the threat, not the driver, and how could he have known there was a kid in the car? She'd already made herself a threat, and the "ramming" may have justified the shooting... I wasn't there, tho, so who knows.

Any officer will tell you - If you HAVE tinted windows and are pulled over, ROLL THEM DOWN. ALL of them.

LEO's like to be put at ease, and she made herself SEEM a bigger threat be concealing her actions behind dark glass.

[Cold_Zero]

It's all hearsay until I see a full report, but:

I guess in our case it would be speculation until we see the full report or if this goes to court.

[srellim234]

I'm all for Silva getting nailed and I'm sure the prosecution of the officer will be based on the timing of the shots. The account states, "The first shot went through the tinted front passenger window of Silva's car -- next to the seat where her son was sitting -- and the others pierced the windshield." That in itself indicates that the first shot was fired as the car was passing by the officer's position, not directly at him. Silva continued to back away while he continued to fire. Silva no longer presented a direct threat to the officer, his car's other occupants or anyone else at that point in time that justified his continued shooting. Agree with the rules of engagement or not, deadly force was no longer warranted when he was shooting.

My wife has to make judgement calls while dealing with those rules day in and day out on the job.

[Jager]

SR im not sure that that does say that, if the car is coming at an angle at him he may have jerked the shot a bit and hit the window on the side as the car comes in at an angle but toward him.

again we would have to see photos to be sure... as depending on the holes it could be the difference between lethal force and a bad shoot.

[AZhitman]

Right.

Also, once the initial decision to fire is made, the intention is to finish the job and neutralize the threat... The car could just as easily been backing up or coming around preparing for a full-speed impact.

[skylndrftr]

While I am not arguing that this woman should lose her kid and be in jail, I do have one question and two minor points

Q) just to clarify, was he still in his car when he fired? Thats the way I read the story...

C1)I he was still in his car I find discharging his firearm slightly harder to justify

C2) No matter what the situation, he is responsible for his bullets.

Its really patetic this woman was not in jail after two DUIs. Unfortunately, I don't think her personal history is really relevant o what he did because he was not aware of it.

[Marenta]

It's also the same thing with self-defense. Once you start firing a weapon, you better make damned sure you empty that clip. If there's any rounds left in the gun, well, then you weren't frightened enough. Or, if you reloaded, you were of sound mind to make a cognizant decision. By firing multiple shots, you CYA on the grounds that you make it clear you were afraid for your life. And, if you ARE afraid, you're going to keep pulling the trigger even after you're empty. Trust me.

[srellim234]

The sentence before the one I quoted indicates she then backed up and sideswiped White's car. His first shot hit the window on the side; the next four shots went through the windshield. If she was in reverse, I can't see him hitting the windshield if she's backing up toward him.

I don't like this garbage and as callous as it sounds I really wish he had killed her. I don't think that they would prosecute him if they didn't have something along the scenario I pointed out. I hope he will still be able to convince a jury that the fear for the life of his passengers was real since assault with a car usually justifies use of lethal force. The irrational behavior of the assaulting driver, behind dark tinted windows, could lead the officer to legitimately question whether or not the attacking driver was also armed with a gun. Officers shouldn't always have to wait until they've been shot to use their guns.

[AZhitman]

I don't like this garbage and as callous as it sounds I really wish he had killed her. I don't think that they would prosecute him if they didn't have something along the scenario I pointed out. I hope he will still be able to convince a jury that the fear for the life of his passengers was real since assault with a car usually justifies use of lethal force. The irrational behavior of the assaulting driver, behind dark tinted windows, could lead the officer to legitimately question whether or not the attacking driver was also armed with a gun. Officers shouldn't always have to wait until they've been shot to use their guns.

Beautifully and eloquently stated.

I had those thoughts swirling in my mind too and just couldn't get them coherent enough to type.

I hope you're right in this case.

The ONLY real victim in this is the poor kid - His life SUCKS because his mom is an a$$ POS who doesn't deserve a car OR a kid.

[Jager]

SR i agree with your POV, just offering the other side of it since I have seen the car coming at you fight or flight response kick in (thankfully it wasnt road rage but it was a drunk).

I hope this guy walks away with a not guilty as well, but I am happy that the system is going by the book, what he did could be crossing the line or worse, and failure to try the officer if it was a bad shoot could spark quite a bit of class or possibly racial tension/violence depending on the race/color of ms silva .

[rn79870]

I'm going to add a few facts that came out on the news (so let's not assume they are gospel).

Prior to the shooting Silva had appeared international. Screaming and revving her engine. When White was in the parking lot, she pulled so close to his car as to make it impossible for him to get out. As she backed up, he got out. It is unclear how she hit his car, but she made contact with White's car while in reverse. When he fired, she was in reverse pulling away from his car. The news photos show yellow paint on the pavement that represented the position of both cars wheels. Silva's car was about 10 to 12 feet from White's car at that time. There were also at least three shots in the front windshield, about 3 inches above the hood, - one to the left of the driver, one to the right of the driver and one in the center of the windshield. He was definitely trying to kill her.

Remember, at no time did Silva have any reason to believe White was a cop, he appeared to her as some nutcase with a gun. She appeared to him as some nutcase with a car.

This is going to be a tough one. It's hard to convict a cop, but I guaranty you, this is going to cost the City of San Diego some big bucks.

[Jager]

RN any updates on this at all?

re reading the article and then your last post makes it sound like the officer didnt provoke anything other then swerving to miss an accident.

There has to be something going on here to not be that cut and dried. cause both your posts paint it like until he came out with the gun he didn't do anything, and if someone pinned me in and then started backing up you better believe i wouldn't be sitting there waiting to get hit...

that being said police are held to a higher standard (as they should be) so anything else for us to chew on here?

[rn79870]

Officer White is awaiting his preliminary hearing. He has a good attorney, and some support. If it wasn't for him hitting the child, I doubt the public would be so interested in this case, but the public is and the DA knows it.

I'll keep everyone posted on the progress of the case, or if you've got the time you can google "Frank White shooting Oceanside" and see other articles on it.

I'm glad I'm not on that jury because it would be hard to convict a cop and equally hard to justify the accidental shooting of a kid. Fortunately, no one was killed here.

[OriginalWheelman]

I think we may all be missing one important thing. The officer's wife. If my wife was in danger from this woman, I probably would have shot too. I don't know about CA, but in NY using a vehicle to hit / try to hit someone is considered Assault with a deadly weapon, and would justify the use of lethal force.

[srellim234]

Assault with the car normally does justify the response of lethal force, but so many lawyers have played so many games that now it actually does come down to changing your assessment and being a fortune teller predicting the future in order to comtinue applying it from one second to the next.

Unfortunately, now if you shoot someone, he spins around and your second shot puts a round in his back, you're going to get nailed because you should have stopped shooting when his back was turned. "He was no longer a threat at that moment in time."

Same thing here. Despite the irrational behavior of the suspect, despite the assault with the car, if the car was going parallel to the officer or backing away it will be argued that the car no longer posed a direct threat "at that moment in time." Never mind that the odds were pretty good that she was going to circle around for another crack at him with her car.

It's absolutely ridiculous, but that's the way it's going in courtrooms these days. My wife sees it all the time reviewing cases at work. It's really changed the rules of engagement and gotten some officers hurt.

[AZhitman]

^ I concur.

The more I read this, the less critical I am of the officer's actions.

Here's another take on it: Had she killed him or his wife, would she be looking at losing a "career"? Losing a pension? Losing respect in the community? Nope. Not a real solid contributor to society.

She could just as easily killed someone else, had she not tangled with the wrong guy.

He had a lot to lose. It's easy for us to second-guess things, but the bottom line is, lethal force is justified when a car is being used as a weapon, REGARDLESS of the direction the car is facing or the "threat" it poses after further review.

I had to complete a series of state-mandated accident reconstruction and investigation courses in order to hold a position on the state's accident review board... I learned a ton. There have been fatalities at speeds less than 10mph, and a car is a lethal threat to a pedestrian even at walking speed (which seems crazy, but is true).

In fact, let me go "all in" here:

She owes him and his wife (and the City of San Diego) an apology for being an a$$. She needs to fix the damage to his car, reimburse the State for her medical bills (bet she didn't have health insurance), and attend mandatory anger management and alcohol abuse treatment.

She can pick up trash on the side of the road to reimburse the City for the four rounds of ammo that just MIGHT HAVE saved her life....

She can be placed on probation to ensure full compliance, and she can have regular visits from a CPS worker to make sure she's not endangering her child any more.

[rn79870]

But, If I remember correctly, she "hit" (sideswiped) his car when she was in reverse backing away from the incident. Now, it's easy to argue, as someone already pointed out, that she was winding up for phase 2, but the fact is, he shot when there was not an immediate threat. However, the irrational demeanor of the lady change things in his favor here. Would a uniformed cop in the same situation have fired? Could a civilian with a CCP have fired? Would a 911 call have been a better choice? All very tough Monday morning quarterback type questions.

It's the shooting of the child that really puts me on one side of the fence though. I expect a cop to skillfully use his weapon every time he uses it, and hitting a child fails that requirement.

In other news, the courthouse is about 1 1/2 miles from my house and trials are free, so I may drop in for his upcoming prelim. Until then, I will just say I see both sides of the case and both have valid points. I'll be Nico's ears to this.

[rn79870]

SDPD officer Frank White (in sunglasses) walks with his wife Jacquellyn and his lawyers to an appearance in Vista Superior Court. White is arraigned on charges including felony gross negligent discharge of a firearm. Photo - Charlie Neuman



Rachael Silva.

This version is the one Oceanside Police believe...

White and his wife were driving south on Old Grove Road. A woman in front of them said she noticed Silva’s Honda Accord “rolling” out of a Shell gas station, making “no attempt to stop.”

White’s car had to “swerve abruptly” into another lane to avoid hitting Silva’s Honda. Silva followed White into a Lowe’s parking lot, tailgating his car. White told his wife to call 911, “which frightened her . . . ”

In the parking lot, Silva briefly pulled in front of White’s car, blocking it. Silva then drove in reverse, behind White’s Mercury, and pulled next to it, so close that White couldn’t open his door.

White drew his .38-caliber Smith & Wesson revolver, pointed it at Silva, and shouted, “Police! You need to stop! Police! Stop!”

White then backed up and stopped. Silva called 911. “There’s a guy who’s pointing a gun at me,” she told the dispatcher.

As White began to open his door, Silva drove in reverse. Their side-view mirrors made contact, and the right front side of Silva’s Accord hit the left rear of White’s car.

White opened fire as the car passed, his first round shattering his closed driver’s-side window and passing through Silva’s passenger window, apparently striking her son. White fired four more rounds through Silva’s windshield, hitting her twice.

Gunshots can be heard on a recording of Silva’s 911 call, according to the arrest warrant declaration.

“I’ve been shot at,” she tells the dispatcher, who asks who did it. “Some guy,” Silva responds. “A policeman.”

[AZhitman]

Keep us posted....

This can all-too-easily turn into an issue where emotion takes over... "anti-cop" and "drunks need love too" people vs. the "law-and-order" and "DUI should fry" people...

This one should come down to the letter of the law, since the evidence seems sketchy.

[Jager]

so she knew he was a cop and she didnt stop her car. that make my pov shift alot. once ordered to stop and failing to do so would imply in my mind (if i was the cop) that theres another pass coming and that i duly notified her to stop and ided myself.

as a CCW carrier id be on 911 and id have pulled the gun, IDK that i would have shot her, but i wouldn't be sitting in the car waiting for her to make another move. and the blocking in meant retreat in the vehicle is not possible safely.

interesting still is that no mention of the child being visible any photos or comments on the child's age/height? if it was a small child would the silhouette even appear in a tinted car? i know the drivers would partially, but that bothers me more then anything. was the child visible or did the officer respond to what he saw? one possible ive been toying with is as the car was backing up he probably was tunnel visioned (what happens when you hyper focus on a target) and may not have even seen the kid but aimed for her. the glass deflecting or the child moving etc could have been enough to get a non lethal hit. it doesn't sound like the cop aimed for the child's center of mass but was aiming for Silva's chest /head.

be interesting to see what happens.

thanks for the update RN.

[rn79870]

Her son was 8 or 9. Probably barely visible if at all. It was dark but the lot was well lit.

[AZhitman]

Her son was 8 or 9. Probably barely visible if at all. It was dark but the lot was well lit.

Makes sense.

Tinted windows at night in a lighted parking lot = no seeing inside.

[Soravia]

I'd shoot ANYONE if they do that to me. Child or underage or not. My life is more important to me than anyones.