Zerby's Family: LBPD Should Warn Before Firing

The D.A. term ''tragic mistake of fact" seemed Thursday a gross understatement to the family of Doug Zerby, who was fatally shot by Long Beach police when they mistook a garden hose nozzle for a gun.

With the release of two law enforcement probes that found the killing of Zerby justifiable based on self defense, Zerby's older sister said the conclusions won't bear on a federal lawsuit planned against Long Beach.

The fair result for the officers? "Involuntary manslaughter charges," Eden Marie Biele told KFI radio hosts John and Ken.

The belief that Zerby had a gun colored every decision--or mistake of fact--leading to the Dec. 12 fatal shooting in Belmont Shore by Long Beach police, the D.A. report revealed. That he was profoundly drunk left his head bobbing, but police would not know that, clearly viewing his actions in the context of him being armed. 

"We're disappointed but not surprised," Biele said Thursday night of her family's reaction to the D.A. findings. "What I don't understand is how the officers could watch my brother for almost eight minutes, from inside a house and hidden from view, wearing bullet proof vests with guns aimed at him--one with a telescopic lens!--and not be able to tell it was a nozzle.

"The DA says the one officer was 24 feet away," she added, ''but you could measure from the window screen he fired through to where Doug was sitting. It's 11 feet. The officer would need to have been standing another 12 or 13 feet back from the window when he fired. It makes no sense."

Brian Claypool, the Zerby family attorney who filed a claim on their behalf against the city earlier this year and plans to sue the city for civil rights violations, said the family's waited for 11 months for the probe's close; the investigation being underway so long allowed key reports to be retained by the D.A., he said.

He threatened to file for monetary sanctions against the D.A., Claypool said, on grounds it was stalling and sitting on information. But the law requires the D.A. and the attorney meet in person before sanctions can be sought in federal court.

"Guess when we were supposed to meet? Today," Claypool said late Thursday. "Last night I was called by [the D.A.'s] John McCafferty, who said 'I might have some new information for you in the morning.' Suddenly, they've finished their investigation."

(The D.A.'s spokesperson could not respond to that given it was after hours Thursday).

He nor Zerby's sister had received or read the full reports issued to the media shortly before 11 a.m. Thursday but knew of its conclusions.

The D.A.'s five-page report states the D.A.'s police shooting division was notified of Zerby killing 92 minutes after it occurred, about 4:40 p.m. that Sunday in a courtyard surrounded by residences. Several members of that team were on the investigation the first night, interviewing witnesses and studying the shooting scene.

Significant to the report was its identifying of Victor Ortiz and Jeffrey Shurtleff as the two Long Beach officers who shot and killed Zerby, whose family sought their names for the past 11 months, as did the Los Angeles Times. Long Beach Police Chief Jim McDonnell said in a press release Thursday that Ortiz has 10 years experience and Shurtleff six.

The D.A. report mostly repeated prior police versions of the shooting. But it did reveal:

Ortiz arrived to the house first, meeting 9-1-1 caller Glenn Moore, who showed the officer where Zerby was sitting on the halfway point of a stairway leading to a pair of side-by-side studio apartments. Ortiz with a shotgun lay down facing Zerby from inside a sliding glass door. A few minutes later, Shurtleff pulled up, also spoke with Moore, and Shurtleff, armed with a handgun, positioned himself at a kitchen window closest to Zerby. You can see their positions on the Patch video shot at the same time of day two days later.

Based on their reports of the event, it was never doubted that Zerby was holding a gun. And the D.A. report throughout referred to the nozzle as a gun or firearm for brevity instead of the purported or alleged weapon. Both officers reported great concern for protecting others in the neighborhood by awaiting other officers to seal off various entrances into the courtyard by which the gunman might escape. The caller and his father-in-law went so far as to call Moore's wife to warn her not to return home via the rear alley for fear she would trip into the path of the stranger sitting on the stairs.

The report quotes both officers as intending to announce the police presence once back up arrived. The officers summoned a police chopper and a mental health team. A third officer positioned about 50 feet from Zerby and looked at him through a telescopic lens but did not fire at him. But before the back-up support could arrive, Zerby allegedly raised his arms out, hands together, in a shooting position and Shurtleff fired, followed by Ortiz. Zerby was wounded numerous tines and died there.

On Thursday, Biele said she remains outraged that more is not made by the D.A. of the lack of any verbal command or warning ala 'Police officer drop your gun!'

"That is not standard police protocol or training," said Biele.

Asked about whether the D.A. had made any findings about whether best practices or training policies were followed, department spokesperson Sandi Gibbons noted that "our job is to determine whether police committed a crime, not whether police policy or protocol was followed."

The Zerby family intends to proceed with a federal court lawsuit charging that police deprived Zerby of his civil rights by shooting him without warning or a word.

"If the D.A. says that's okay, then this [kind of police shooting] could happen to anyone," Biele said. "Say I'm talking on a black cell phone on my porch and I'm animated, waving my hands around as I talk. I guess if one of my neighbors sees me and thinks it's a gun and calls police, I could be shot, too."