OAKLAND — The 77-year-old homeowner arrested earlier this week in the fatal shooting of a suspected burglar at his East Oakland house appears to have been released from jail without facing any charges in the killing, Alameda County jail records show.
The homeowner had been held since early Tuesday without bail on suspicion of murder after Oakland police said he killed one of three people who were trying to break into his home while wielding a crowbar and a replica gun. His release came amid a deadline Thursday for Alameda County prosecutors to file charges in the case, given the Santa Rita Jail’s general practice of not holding criminal suspects who have yet to be formally charged for longer than two days.
Though the jail’s online records system said the homeowner was scheduled to be arraigned Thursday morning, that hearing never happened amid a lack of charges in the case. He was not listed in the jail’s logs Friday morning, nor did he appear in the county’s criminal court records.
On Thursday afternoon, the Alameda County District Attorney’s Office said in a statement that “this case is still under investigation by the law enforcement agency,” referring to Oakland police.
The lack of charges in the case came as little surprise to several Bay Area legal observers this week, who said state laws often protect homeowners from prosecution when they open fire on intruders inside their homes. Some also noted that prosecutors must believe they can prove the case beyond a reasonable doubt when filing charges, rather than rely on police officers’ standards of having probable cause to make an arrest.
“The DA is taking the appropriate level of circumspection on making sure they get this one right, one way or another,” said Steve Clark, a Bay Area attorney and legal analyst. “And I think a quick decision one way or another would be a mistake, until they reviewed all the evidence.”
The Oakland Police Department did not immediately respond to a message Friday seeking comment.
Oakland police were called shortly before 6 p.m. Monday after someone saw two men and a woman — at least one of whom was armed with a crowbar — breaking into the man’s house at 98th Avenue and Burr Street, according to authorities. The burglars were confronted by the homeowner after at least one of them tried scaling a back fence, said OPD Acting Deputy Chief Frederick Shavies.
When police arrived, they found the homeowner pointing a gun at one person, while a man believed to be in his 40s lay wounded just inside the back fence line, authorities said. Paramedics later pronounced him dead. His name has not been released.
A third suspected burglar, a 31-year-old man, fled once the homeowner opened fire but was captured a few blocks away by officers, according to court documents. He has since been charged with first-degree burglary, with his bail set at $50,000. Jail records showed he remained in custody Friday morning.
At a press conference Wednesday, Shavies largely pinned the homeowner’s arrest on the fact that he “did not provide a statement” when questioned by homicide investigators.
“Absent any sort of statement, if ‘A’ shoots ‘B’ without an explanation, we can only go with what we have,” Shavies said. “All we know is an individual lost his life.”
The homeowner’s arrest raised the eyebrows of legal observers throughout the Bay Area.
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“I find it very troubling that the police would arrest someone, because they didn’t make a statement,” said Mathew Martinez, an East Bay defense attorney who previously spent 13 years as a prosecutor in Merced County. “You have a Fifth Amendment right not to incriminate yourself. And the fact that you exercise that right doesn’t seem like a reasonable basis to arrest somebody.”
Daniel Horowitz, a Lafayette-based defense attorney, pilloried the police department’s explanation. He and other attorneys in the Bay Area stressed that police “have to articulate facts” for why someone committed a crime, rather than let someone’s silence fill in the gaps.
“It’s really incredible to arrest someone, just simply because there’s someone dead in your yard,” Horowitz said. “If there’s just somebody on your property, and you have a gun and you shoot them, that’s not sufficient to arrest them. It just isn’t.”
The case represents another test of California’s Castle Doctrine, which generally gives homeowners the ability to protect their life or property from anyone trying to break in or cause harm. In essence, Horowitz said, if the homeowner “had any reasonable belief that his life was in danger, he had a right to shoot and kill.”
Still, Clark stressed that such killings are “very fact-specific investigations,” and numerous other factors may be at play. That includes whether the burglar was inside the house or not, and whether he was fleeing at the time of the shooting.
Shavies on Wednesday said investigators were still awaiting autopsy results to determine where the man had been shot. A call Thursday by this news organization to the Alameda County Coroner’s Office was not immediately returned.
