For 96 hours each year, Robert Malone dons a Potter County Sheriff’s Office uniform and volunteers as a reserve deputy, a position that keeps his 25-year peace officer license current.
The license empowers Malone – and all who wear a badge – to perform certain duties while on-duty. But when he used deadly force to defend his property from burglars he was off-duty and legally, his case was treated just like any other Texan’s.
Malone is one of at least seven officers who shot someone while protecting themselves or their property while off-duty and not moonlighting from Sept. 2015 to Sept. 2016, according to a new law that requires Texas law enforcement to report fatal and non-fatal shootings. Malone and four others shot someone believed to be burgling their home, shed or vehicle, while two others were protecting themselves.
At 5 a.m. on Nov. 21, 2015, Patrick Ramos parked a pickup near Malone’s Amarillo home. He and his passenger, Joe Garcia, were high on methamphetamines and still blamed each other for planning the crime in recent interviews in two North Texas lockups.
Burglars had struck there before, and Malone had installed a surveillance system that provided a live feed. Inside the shed was a Harley Davidson motorcycle, a generator, a four-wheeler and ammunition. Awakened by a noise, Malone looked at a monitor and saw two men in the shed and his generator on the driveway, records released by the Amarillo Police Department state. His wife dialed 9-1-1 while he dressed, grabbed his gun and headed outside. Behind the house, Malone told the men to freeze, and Garcia spilled a container of bullets across the driveway.
Garcia, then 45 years old, lunged at Malone “with his hands raised as if he were going to grab or tackle” him, the 59-year-old officer said in an affidavit. Malone fired, injuring Garcia.
Experts say legally the shooting was justified – and it didn’t matter whether Malone was a licensed peace officer. Under state law known as the Castle Doctrine, Texans may use deadly force to protect themselves and their property, including when the shooter reasonably believes deadly force is necessary to prevent burglaries and other crimes in the nighttime. Local prosecutors did not present his case to a grand jury.
But others think that all shootings by law enforcement officials in Texas should always be reviewed by a grand jury — even when the incidents occur off-duty on private property.
Malone’s shooting closely resembles another incident that took place at another officer’s home in Victoria. In April, Refugio County Deputy Tammy Gregory was off-duty when she fatally shot an intruder, Wade Austin Kloesel, 27. After the case was investigated, Victoria County Criminal District Attorney Stephen Tyler presented it to a grand jury, which declined to indict Gregory in August. Tyler said he believes the law requires a grand jury to hear all such cases — not only shootings but matters involving any public officials accused of “any neglect or any failure in duty.”
The Texas Department of Public Safety and the Federal Bureau of Investigation track incidents like these that result in fatalities, which are often labeled as justifiable homicides. Reports on those homicides in Texas have risen from 57 in 2006 to 122 in 2015. Citizens and law enforcement are about equally responsible for those justifiable homicides, although the data includes fatal shootings by officers who were on-duty and off-duty.
Two people were killed in the seven recent incidents involving police, while six others were injured.
The main question jurists and prosecutors who review all shootings involving officers is whether the officer involved in the shooting had a “objectively reasonable” fear that the person shot was endangering the life of the shooter or someone else, based on a U.S. Supreme Court case.
The Castle Doctrine, in contrast, allows anyone in Texas to stand their ground to protect their own home or property – though it doesn’t allow shooting someone simply for trespassing or for running away— regardless of whether the shooter is an ordinary citizen or an officer.
Some cases are controversial, like the March 13 shooting by former Farmers Branch officer Ken Johnson, who killed one Dallas teenager and injured another. Johnson was off-duty when he reportedly saw Jose Cruz and Edgar Rodriguez, both of whom were 16, breaking into his vehicle at an apartment complex. Johnson identified himself as an officer and then chased the teens when they drove off, striking their vehicle from behind with his private car. Johnson claimed the crash was accidental but shot both teens when one made a threatening movement as he subsequently tried to arrest them, according to an account in a custodial death report. A federal civil lawsuit filed by Eva Arevalo, mother of the injured teen, challenges the officer’s account.
“Photos show that Johnson was standing in the road while shooting into Plaintiff’s vehicle with both occupants totally contained in the vehicle,” the lawsuit says. It also states he fired 17 rounds, killing Cruz and injuring Rodriguez in the hand and head.
In a rarity for officer-involved shootings, Johnson was arrested three days after the shooting and then indicted for murder and aggravated assault. He resigned from the force and faces an August criminal trial. The civil lawsuit has not yet been set for trial in federal court.
Experts say it can be dangerous for officers to perform law enforcement-like duties while out-of-uniform and off-duty, since they are often disconnected from emergency communications and can go unrecognized as police. According to the National Law Enforcement Officers Memorial Fund, 57 officers were shot and killed performing police duties while off-duty from 2006 to 2015, representing 10 percent of officers killed by gunfire during that time.
Three recent shootings involving off-duty officers protecting themselves or their property took place in Harris County including the December 2015 non-fatal shooting of a man who tried to rob an off-duty policeman at gunpoint during a firearms sale in a southeast Houston parking lot. The man tried to fire at the officer after demanding his valuables, but his gun malfunctioned and the officer shot him, according to a police department news release. Two other incidents occurred in October of 2015: In one, an off-duty Harris County Sheriff’s deputy said he fired at a man who kicked open his apartment door; in another, an off-duty Houston police officer still in uniform shot and injured a 15-year-old who was following the officer and allegedly attempted to rob him.
When Malone discovered two men inside his shed in Amarillo he ordered Ramos and Garcia to stop and told them he was an officer. He shot Garcia once, but he did not pursue and continue to fire at the unarmed men after they fled, according to documents and interviews.
Because the case involved a peace officer, it was reported to the state and investigated by the Amarillo Police Department’s Special Crimes Unit. Eventually, the case went to the Randall County District Attorney’s Office, which reviewed probable cause for criminal complaints against Garcia, Ramos and Malone.
Garcia and Ramos were charged with burglary.
Ultimately, Malone’s actions too were reviewed by the prosecutor as if he were an ordinary citizen. Although normally in Texas officer-involved shootings are reviewed by grand juries, the prosecutor decided not to present the case. “The way we evaluated it was, ‘If this were not a law enforcement officer, would the person have been justified in doing what they did under the circumstances?’” Assistant District Attorney Robert Love said in a telephone interview. The answer was “Yes.”
Bill Helfand, a Houston attorney who represents law enforcement officers, said that even off-duty, officers are allowed to perform certain duties that citizens cannot, like directing traffic. Malone never shifted into a policing role, he argued.
“He didn’t need the color of authority to pull a gun out, point it at somebody, and, if he felt threatened, to use the gun in self-defense,” Helfand said.
In prison interviews, Garcia and Ramos both say they understand why Malone fired at them.
Ramos hid in a field for hours, then turned himself in two days later to the Amarillo Police Department on his girlfriend’s advice.
“We got caught red-handed, on-camera, which you can’t get any more guilty than that,” said Ramos. “He had a right to shoot.”
Garcia, who was shot in the chest, managed to escape by scrambling over fences and through yards, ignoring Malone’s shouts for him to return. He’d already spent 10 years locked up and wanted to avoid another arrest, Garcia said, adding, “I was just trying to get home.”
Three hours later, a neighbor saw Garcia lean on a car, leaving a bloody smudge, and called police. Garcia was hospitalized for a week, and then jailed.
Garcia said he forgives Malone for shooting at him, and apologized for the break-in, though still claims he was just going along with Ramos.
“I would have shot me, too,” Garcia said.
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Recording: 15-527047 Redacted 911 Call