Stanislaus County DA Birgit Fladager clears Ceres cop who shot fleeing teen in back
The Stanislaus County district attorney’s office will not charge the Ceres police officer who fatally shot a fleeing suspect in the back, a shooting that resulted in a lawsuit against the city that recently settled for $2.1 million.
District Attorney Birgit Fladager announced in a Thursday news release that “after a thorough review of all the relevant evidence” the Aug. 18, 2018, shooting of 15-year-old Hughson resident Carmen Spencer Mendez by officer Ross Bays “has been determined to be justified.”
One of the attorneys who represented Mendez’s family in the lawsuit against Ceres said the decision was disheartening. The attorneys have said the 15-year-old never threatened Bays and was running away when the officer shot him.
“It’s no surprise, but it’s disappointing,” Sacramento attorney Mark Merin said in a phone interview. “I guess the district attorney has not seen a police shooting she has never not liked.”
Fladager in an email declined to comment except to refer to the Dec. 17 letter her office sent to Ceres Police Chief Rick Collins and Sheriff Jeff Dirkse (the shooting took place in the county’s jurisdiction) that spells out why the shooting was justified. The letter is attached to Thursday’s news release.
“I think the letter is very thorough and clearly details the facts and the applicable law to our decision-making process so there’s not much more I can add,” Fladager said in an email.
Bays is a law enforcement veteran, serving as a Stanislaus County sheriff’s deputy from 2004 to 2011 before joining the Ceres Police Department. This was his second fatal shooting in less than a year.
Bays and Ceres Sgt. Darren Venn fired on Nicholas Pimentel in October 2017 after the 27-year-old Modesto man had led Ceres police on a high-speed chase. The district attorney’s office later ruled the shooting was justified.
Bays, 39, confirmed in a brief interview a couple of weeks ago that he had been on medical leave for about 16 months. He moved to the Boise, Idaho, area several months ago but said he remained a Ceres employee.
He said because he was a city employee he could not talk about the Mendez shooting. He did not return a request for comment Thursday.
Workers comp dispute with Ceres
Bays filed a claim with the California Division of Workers’ Compensation in July for an injury he sustained on Aug. 18, 2018, the same day he shot Mendez. “While in the course and scope of his employment applicant (Bays) alleges stress and PTSD injuries,” according to the claim.
The case is the result of a “dispute with the medical (care) there was or was not provided (by Ceres) for what Mr. Bays believes to be a work-related injury,” California Department of Industrial Relations spokesman Frank Polizzi said in a Dec. 13 email to The Bee. The DIR oversees the workers’ comp division.
An update was not available, and the attorney representing Bays in the workers’ compensation case declined to comment.
City Manager Toby Wells confirmed Thursday that Bays remains on medical leave. How much the city has paid Bays while on leave was not immediately available.
Mendez was a passenger in a black Lexus sedan that Ceres police were chasing after someone in the car had brandished a handgun at Smyrna Park, and the car then was involved in a felony hit and run.
A man described as Latino in his late teens to early 20s and wearing blue jeans and a black shirt pointed a silver handgun at a man at the park with his wife and their two children, according to accounts the man and his wife gave to Ceres police.
Mendez was wearing red pants and a white shirt.
The threat with the gun happened after the man had words with someone from the Lexus. The Lexus had been parked next to the family’s truck.
The husband and wife feared for their and their children’s lives. Passengers in the Lexus shouted “Don’t do it! Don’t do it!” as the suspect pointed the handgun at the husband. The husband called 911 as the Lexus drove off.
Vodka grabbed from liquor store
The district attorney’s office reported that before the incident at the park, Mendez had walked into the Liquor King on Mitchell Road, grabbed two bottles of vodka, and ran back to a waiting car, the black Lexus. Mendez was intoxicated when he was shot.
The district attorney’s office also said the silver handgun had been stolen the day before along with other firearms from a Riverbank residence. Officers reported finding two stolen rifles in the Lexus’ trunk.
Bays chased the Lexus in a pursuit that topped more than 100 mph. It ended in a rural area surrounded by orchards outside of Ceres on Sperry Road near Service Road.
There were five young people in the car, four of them minors. Authorities have said Mendez got out of the car armed with the silver handgun and started running into an orchard of young trees.
“As Mendez ran/stepped from the car he fell to the ground,” states the district attorney’s office letter summarizing its analysis of the shooting. “(I)t appeared that he dropped the gun. Instead of getting up and fleeing, it appeared that Mendez stopped and picked up the gun while looking at (Bays).”
The DA’s letter states Bays believed he may have driven into an ambush based, in part, because the car slowed down on Sperry Road, reports that the people in the car were armed and dangerous, and one had fled on foot. The four young people in the car surrendered without incident.
Bays also was concerned Mendez did not leave the gun behind as he fled and initially believed Mendez was running toward him. He believed Mendez also was a threat to residents of surrounding farms.
Fired more than a dozen rounds
Bays was out of his patrol vehicle in less than three seconds after pulling up to the black Lexus. He issued no commands and immediately fired more than a dozen shots as Mendez ran, according to his body camera footage.
The autopsy report shows Mendez was shot twice — once in the back and once in his right upper arm.
“The law in California does not require proof that Mendez was an actual threat, only that he appeared to be,” the letter states. “Bays ... was allowed to factor in all the facts known to him and his specialized knowledge to make the split-second decision he made.”
The letter concluded the shooting “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
But Merin, one of the attorneys who represented Mendez’s father, and Modesto attorney Adam Stewart, who represented Mendez’s mother, reiterated Thursday that Bays had many nonlethal options instead of immediately opening fire.
They included commanding Mendez to surrender before shooting, deploying the police dog that was in the back of his patrol vehicle to subdue Mendez or waiting for other officers to arrive. Stewart said Ceres officers started arriving on the scene less than a minute after Bays.
They also have said the farms were not nearby.
“He had significant reinforcements,” Stewart said. “There is nothing that would have prevented Bays from taking a safe position behind the door of his vehicle and assess the situation. He had the opportunity to take a position of safety and wait for backup.”
Stewart repeated that Mendez was running away and not threatening Bays when the officer shot him in the back. Stewart and Merin have said Mendez was 30 to 35 yards from Bays when the officer shot him.
Stewart added that while prosecutors have a tough job in evaluating officer-involved shootings, he was not surprised by the decision not to prosecute, calling the letter “a conclusion-driven analysis. They knew the outcome they wanted to get to.”
This story was originally published December 27, 2019 at 12:57 PM.
