No criminal charges will be filed in the fatal shooting of BART police Sgt. Thomas “Tommy” Smith during a probation search at an apartment in Dublin in January, the Alameda County District Attorney’s Office said in a long-awaited report released today. Smith, 42, was shot by a fellow BART officer, Detective Michael Maes, while they were among a group of officers conducting a probation search at a robbery suspect’s apartment at 6450 Dougherty Road in Dublin at about 2 p.m. on Jan. 21.
Deputy District Attorney John Creighton said in a 13-page report, which took more than four months to complete, that neither Smith or Maes “uttered a single word inside the apartment that might have alerted either one to the presence of the other” before Maes fired. Creighton said Smith had heard voices inside the apartment before officers entered and Maes was aware that someone had left the front door unlocked.
The prosecutor said that when Maes walked through the center hallway to the master bedroom’s other doorway he saw “a shadowy figure” with an upraised firearm suddenly emerge from a dark walk-in closet area so “he concluded that he was confronting an armed suspect who posed an imminent threat of serious injury or death to himself and his fellow officer, Scott Hamilton.” Creighton said Maes’ decision to fire his weapon “was an objectively reasonable response to this perceived threat.”
Officers were conducting a search of the apartment of John Henry Lee, 20, who had been charged with second-degree robbery for a robbery at BART’s Fruitvale station in Oakland on Jan. 15. Creighton said, “There is insufficient evidence to warrant filing any charges against Detective Maes in connection with the shooting death of Detective Thomas Smith” and prosecutors don’t contemplate any further action in the case.
BART Police Chief Kenton Rainey said in a statement that the release of the District Attorney’s report “allows BART police to move forward with concluding its internal investigation of the tragedy.” He said that he can’t discuss the details of BART’s probe until it is completed. Rainey said that following the fatal shooting, he took action to begin the process of reviewing and updating the BART Police Department’s policies, procedures and training to ensure that such a shooting never happens again.
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