Prosecutors explain why Modesto police shot man who hit officer with glass ‘bong’

Prosecutors determined two Modesto police officers had no choice but to fire their guns at Spencer Herckt after he hit one of the officers in the head with a glass “bong” during a deadly confrontation nearly two years ago.

Medics performed lifesaving measures, but Herckt, 42, was pronounced dead at the scene. Officers Lewis Sargent and Samuel Muncy fired at Herckt.

Prosecutors said the officers initially used a Taser to subdue Herckt, but he violently resisted by hitting Sargent with the 16-inch bong.

“There can be no doubt that Herckt posed a threat to both officers and left them with no choice but to shoot to stop the threat,” according to a Dec. 18 letter from the Stanislaus County District Attorney’s Office to Modesto Police Chief Galen Carroll.

Prosecutors attached the letter — describing the details of its investigation — to a news release issued this week.

This year, the District Attorney’s Office has concluded its investigations into 10 use-of-force incidents. Nine were police shootings, and one was a suspect who died while in custody. In all 10 investigations, the District Attorney’s Office determined that the law enforcement officials involved acted lawfully and did not use excessive force.

Herckt’s encounter with police began shortly before 9 p.m. on Jan. 30, 2017, when Herckt’s estranged wife called 911 to report Herckt throwing items at her car in the 3700 block of Maserati Drive, a few blocks north of Sylvan Avenue.

The officers responding to the call for help were told by dispatchers that Herckt had warrants for his arrest. Herckt was the subject of a domestic violence restraining order and was supposed to stay away from his wife.

Sargent and Muncy were the first officers to arrive at the Maserati home. Both were wearing body-worn cameras which recorded video of incident as it unfolded. Prosecutors reviewed the footage.

Herckt’s wife told the officers her husband wasn’t supposed to be in her apartment because of the restraining order. She also told the officers about Herckt’s mental health problems and his drug abuse, according to the prosecutors.

The officers approached the apartment and exited through the home’s garage. The officers spoke to him to try to assess the situation, before Sargent started to pat-down Herckt. During the pat-down search, Herckt ran into the apartment.

Muncy used a Taser, which caused Herckt to fall to the apartment’s kitchen floor. At that point, the officers could be heard on the video yelling commands at Herckt, demanding that he stop resisting and put his hands behind his back, prosecutors said.

A “fight” ensued between Herckt and the two officers as they tried to restrain him, according to prosecutors. Then, Herckt hit Sargent with the bong, which was about 2.5 inches wide and appeared to be made of a heavy glass material, prosecutors said. Most of the bong remained intact after Herckt struck the officer, but the mouthpiece broke off into two pieces.

After Herckt hit Sargent in the head, both officers fired at Herckt until he went down, according to the prosecutors. Their review of the video footage showed Sargent on the floor and momentarily not moving.

Sargent was treated by medics at the scene after suffering a head wound on the back of his head, Modesto police officials have said.

Prosecutors said they learned Herckt had a history of resisting arrest, and Herckt had struck another officer with an elbow to the face during a confrontation in another county. They also said Herckt had been referred to mental health court for that violent encounter, but the case was still pending when he was shot by police.

The District Attorney’s Office determined that Herckt’s failure to surrender after he was Tased would clearly raise any reasonable officer’s fear, but he went further and attacked Sargent, forcing the officers to shoot him in self-defense.

“After being Tased, Herckt still had the opportunity to surrender but instead violently resisted,” the prosecutors wrote in the letter to the police chief. “He obtained a weapon and struck Officer Sargent in the head, rendering him momentarily incapacitated.”

This story was originally published December 21, 2018 at 3:35 PM.