By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
By Charles Lam
Dec. 12, 2010, was a reasonably nice day in Long Beach, hitting a high of 64 degrees. On that late-Sunday afternoon, the streets of Belmont Shore were full of people returning from the beach, shopping or just enjoying the day. One of them, Doug Zerby, 35, was sitting on the porch of a friend's home in the 5300 block of East Ocean Boulevard just after 4:30 p.m. He had been drinking and was idly playing with a metal object.
A neighbor, Gordon Moore, was inside his home with his father-in-law when he saw Zerby in the back yard. Moore thought Zerby had a gun. He asked his father-in-law what it looked like to him. He also thought Zerby had a gun. Moore said later he was concerned for the safety of his wife and mother-in-law, who soon would return from shopping. Moore called 911 around 4:40 p.m., reporting a man with a small "six-shooter" in his back yard.
The first officer to arrive, Victor Ortiz, got to the scene just three minutes later. After talking to Moore about the "man with a gun," Ortiz got his shotgun and set up in Moore's living room, about 40 feet from Zerby. The next officer, Jeffrey Shurtleff, arrived around 4:45 p.m. and positioned himself in the kitchen, less than 25 feet from Zerby.
The officers later told the Long Beach Police Department (LBPD) and Los Angeles County investigators they watched Zerby manipulating what they thought was a handgun and pointing it toward an apartment building. Another officer arrived around 4:50 with an assault rifle with telescopic sights. He set up in front of the house, less than 60 feet away.
At this point, the LBPD and LA County reports claimed, Zerby grew more alert as he heard police sirens. "Mr. Zerby raised both arms and extended them out in front of himself while pointing the object believed to be a handgun toward Officer Ortiz." Officer Shurtleff opened fire on the man with his Glock 40-caliber handgun.
Ortiz claimed Zerby was looking directly at him in the living room when he raised the gun-shaped object. Ortiz released the safety on his shotgun. According to the LA district attorney's report, when he heard gunshots, "believing that Zerby was shooting at him, Ortiz fired his shotgun at Zerby. . . . The combination of Zerby pointing the object directly at him coupled with the sound of Shurtleff's gunshots led Ortiz to conclude that he was under attack. Ortiz fired to end this threat."
In fact, they ended Zerby's life. After he was shot, a police spokeswoman said the suspect was handcuffed. An autopsy would later conclude he was hit by 12 shots in the chest, arms and lower legs fired by officers Shurtleff and Ortiz. It would also find Zerby had a BAC level (blood-alcohol content) of 0.42. In a macabre coda to the shooting, according to Zerby's father, Mark, the DA's report stated that first responders removing his son's body from the stoop bounced his head against the stairs seven times.
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The "six-shooter" that Zerby was holding, the one that put the neighbor and well-armed police in fear of their life? It turned out to be a black pistol-grip water nozzle with a metal tip. More disturbingly, Zerby had never been ordered to drop the "weapon" or given any other command. He probably never even knew the police were nearby.
The shooting underwent an internal review by LBPD. It was also investigated by the LA County Coroner's Department and the LA County district attorney's office. The LA DA cleared Shurtleff and Ortiz of criminal liability in a November 2011 report. "The evidence examined in this investigation leads to the conclusion that this was a tragic mistake of fact," the report states. "The evidence also demonstrates that the police actually and reasonably believed that Zerby was armed with a firearm at the time of this incident."
In fact, Ortiz initially reported seeing muzzle flashes from Zerby's "weapon." Later, testifying at the federal civil trial, he acknowledged that a water nozzle could not produce such flashes.
Erwin Chemerinsky, dean of UC Irvine Law School and a noted legal scholar, says police action against civilians rarely results in criminal prosecution, except in what he describes as "egregious incidents, of which Rodney King is the most famous. It depends on the nature of the harm inflicted, the extent of the evidence. Often, this means terrible injuries and extreme force used relative to the need. If there hadn't been the videotape of the beating of Rodney King, there would never have been a prosecution."
Police action against civilians results in civil litigation far more often. "The standard of proof is easier," explains Chemerinsky. "Also, the victim can initiate the civil suit, while only the DA can initiate criminal prosecution. It's a much higher priority to the victim or their family than to the DA."
Long Beach Police Chief Jim McDonnell refused to comment for this article. But shortly after prosecutors refused to charge any officers in the shooting, he called the incident a "tragedy" in an interview with the Long Beach Press-Telegram. "Hopefully, this conclusion provides some closure for the family, the community and the officers involved," he said.