When artist and musician Jacob Faust was shot and killed by a San Diego police officer two years ago in front of the Golden West Hotel downtown, there were a handful of people nearby-in the hotel, in a bar, on the street-who saw at least part of what happened. Some told police investigators they saw what seemed, up to a point, like a routine traffic stop; others took notice only when they heard the pop! pop! pop! of gunfire.
Mike Marrinan, an attorney for the Faust family, obtained witness statements, 14 in all, gathered by police investigators, including statements from the two officers involved. State public-records laws give law-enforcement agencies discretion when it comes to releasing information tied to an investigation-records related to officer-involved shootings are particularly guarded, especially in California, to protect a police officer's privacy; only through something like a wrongful-death lawsuit, which Marrinan filed on the Faust family's behalf, do investigatory records enter the public realm.
Faust's mom, Lynne Faust, a trained medical transcriptionist, transcribed the interviews for Marrinan. Both hoped the witness statements would provide a clearer picture of what happened that night, even if it meant finding out that Faust provoked the shooting in some way.
“I went into the transcription almost afraid of what I was going to hear,' Lynne said. “Unbiased witnesses don't have any reason to lie.'
But the witness accounts have only raised more questions, Marrinan said. For instance, both officers say there was a struggle to get Faust out of the van, and during that struggle, the 25-year-old reached for what appeared to be a gun in the back pocket of the minivan's passenger seat, prompting officer Stephen Holliday to shoot. “None of the witnesses report seeing a struggle,' Marrinan said.
“At this point, I do not believe we know the full truth about what happened in this incident,' he said. “We do know that much of what the officers say is not corroborated by witnesses and/or physical evidence.'
“It just seemed like a regular traffic stop,' one witness, Gary Bagot, told a police detective two hours after the shooting. “It was a split-second type thing. They both had their guns out. ‘Get out of the car,' I heard, and right after, ‘Get out of the ca-' pop-pop-pop. Just three of them, just like that. And then they stood there, like they were frozen.'
San Diego attorney Benjamin Pavone was standing almost directly across the street from where Faust's van was parked. After shots were fired, he repeatedly tried to call 911 but was “put on hold forever' by a supervisor. He hung up, called his own voicemail and left himself a message, describing what he'd seen. He provided Marrinan with a written affidavit.
“The two officers were both facing the seated driver, each at an angle to form a loose triangle,' Pavone's statement reads. “All of a sudden, the more northerly officer pulled out his service revolver and started firing. It seemed like he fired two shots and then the other officer fired a shot. But they could have gotten off more shots, I was not sure. It was dark inside the vehicle and I could not see whether the driver did something to provoke the shooting. I never saw either officer use mace and I am sure there was no struggle.'
In addition to questions about whether a struggle ensued, there are other inconsistencies in the officers' version of events that concerns Marrinan: The majority of witnesses don't recall seeing the van's door open-the officers say it was. The officers also say Faust had his music turned up excessively loud, making it difficult for them to communicate with him, but only one witness recalls hearing loud music coming from the van. No witnesses on the street saw an officer use pepper spray-police claim two-thirds of a canister was used to restrain Faust.
Lynne Faust has put together a chart to show which witnesses were asked which questions-about the car door, a struggle, the volume of the music-and what they described seeing. “The line of questions wasn't consistent from witness to witness,' she said. Missing from the witness statements, too, is one given by Patrick Sheehy, a Fox television producer who ran into Faust at a bar an hour before he was shot. Faust was putting up fliers for a show by his band, the Carnival Barkers.
Sheehy said a police detective asked him about Faust's state of mind and how much he had had to drink at the club.
“In no way, shape or form was he impaired,' Sheehy told CityBeat.
Faust and Sheehy parted at around 1 a.m. Twenty minutes later, officer Brian Keaton stopped Faust for making an illegal left turn from Broadway onto Fourth Avenue, a block away from his parents' apartment. Faust was driving on a suspended license, the result of a drunken-driving arrest two months prior (a blood-draw from that stop, his mother said, was, as far as she's been able to find out, never analyzed).
Ten minutes later, Holliday drove by and asked Keaton if he needed any help. Keaton said he did. Faust, according to Keaton's statement to police detectives, was “somewhat uncooperative' and since Keaton was going to impound the van, he asked Holliday to stick around as backup. While Keaton went over to talk to Faust, Holliday told police investigators that he shined his flashlight in the back of the van and spotted what looked like a gun. He says he yelled at Keaton to get Faust out of the van. Keaton told investigators he couldn't hear Holliday because Faust had his stereo up too loud; then he heard “something about a gun.'
'I wasn't sure what Officer Holliday was talking about, but if he thought there might be a gun in the car, I wanted to get the suspect out of the car,' he told investigators.
Keaton told investigators that he opened the driver's door, reached in and grabbed Faust by the arm and tried to pull him out. Faust resisted. Keaton said Faust told him he had no right to forcibly remove him from the car. Holliday says he told Faust, 'I think you have a gun.' Keaton told police investigators he then heard Faust say, 'Well, that's just a toy gun.'
'And then he leaned back and then reached with his right hand into the back passenger seat floorboard area,' Keaton told investigators. 'I feared that he was reaching for something.' Keaton says he pepper-sprayed Faust, but Faust 'continued to reach.' Keaton tried again to pull him out of the car. 'I was trying to grab a hold of him and pull him out and I see his right hand come up....'
Keaton told investigators he spotted a 'shiny object' in Faust's hand. Keaton says he crouched down and turned away from the van. He spun around and drew his gun just as Holliday, standing behind Faust, with his gun pointing through the van's back-seat window, fired three times, striking Faust in the neck, upper left arm and back. The young man was pronounced dead at Scripps Mercy Hospital 25 minutes later. The gun, which an officer removed from the car and put in the back of a police cruiser, turned out to be a toy. Police Chief William Lansdowne held a press conference shortly after the shooting and displayed a photo of the gun sitting with five similar guns to illustrate how it could easily be mistaken for a real weapon.
'Why'd you shoot him?' Holliday was asked, on tape, by an investigator.
'Cause I thought he was going to shoot officer Keaton,' Holliday replied.
The city's response to the Fausts' lawsuit states that 'the City of San Diego and defendant police officers acted in good faith and with a reasonable belief that their conduct was lawful and necessary.' The city attorney further argues that Faust was negligent and that 'carelessness on his own part' contributed to his death.
District Attorney Bonnie Dumanis, who reviews all officer-involved shootings to make sure there was no criminal conduct on the part of officers, cleared both Keaton and Holliday. California law allows law-enforcement officers to use deadly force if they believe their lives are at risk.
Dumanis concluded that Faust was probably reaching for the gun to show Keaton that it was a toy-Faust was an actor and part of a theater group-when Holliday fired. Fingerprints taken from the toy 'lacked sufficient clarity to establish a match' the DA's report said.
The Citizens Review Board on Police Practices, an oversight panel that reviews complaints brought against San Diego cops, found that of the six officer-involved shootings in 2005, in all cases officers followed proper policy and procedure. Because of confidentiality laws, the review board does not comment on individual incidents and instead provides an overall summary for all shootings and allegations of officer misconduct.
This bothers Lynne Faust.
'We don't have a system in place in this town where there is any oversight, really,' she said. It was only in the last few weeks that she was able to get a copy of the police review board's report. 'It's 25 pages of absolutely nothing,' she said. 'It just says nothing. They don't even list names of the people who've been killed. It's all statistics, and it's all justified.'
The Fausts' case against the city seeks monetary damages. That's the only option in a civil case, Marrinan said-the Fausts can't sue for the substantive changes they'd like to see: more-open scrutiny of officer-involved shootings by an objective third party, for one.
'You can't ask a jury to take action against the police; you can't ask the jury to order the police department to make changes,' Marrinan said.
'Even if we win our case, it's against the city and it's only money,' Lynne Faust said. 'It has absolutely nothing to do with reprimands or with any kind of repercussions that would be felt by the officers. There's no deterrence in place that's going to touch any of these guys from going out and doing the same thing again because there's no punishment for them.'
She says they'll pursue the case as long as they can, but it might be from a distance. Rick Faust, Jacob's father, was recently diagnosed with advanced liver cancer. The family plans to move to Washington state within the next couple of months to be closer to his brother.
But before then, Jacob Faust's friends have organized a second annual 'Faust Fest,' a multi-day fundraising event to help the family cover their legal costs. Like last year, it kicks off on April 4 with a memorial service in front of the Golden West Hotel. For details about other Faust Fest events, please see Page 17.