Sonoma County DA Finds Three Time Shooter Two Time Killer Justified In Latest Killing


Press Release
Date: December 9, 2010
Contact person(s):

Media Coordinator, Terry Menshek (707) 565-3098
Media Spokesperson, Assistant District Attorney Diana Gomez

Santa Rosa, Sonoma County, California

District Attorney Stephan Passalacqua announced today that a Sonoma County Sheriff’s Office patrol sergeant was legally justified in using deadly force at the conclusion of a high speed pursuit. Sergeant Mark Fuston had been in a high speed pursuit with a parolee, Albert Mike Leday, 49, of Santa Rosa, which came to an abrupt conclusion when Leday failed to negotiate a turn in the roadway and crashed his vehicle into a light pole near the Coddingtown Library. Leday immediately exited his car, took a fighting stance, and began threatening to shoot and kill Sergeant Fuston. Leday made several movements with one of his hands attempting to retrieve something from his waistband and was clearly acting as if he was armed with a weapon. Sergeant Fuston fired in self defense and Leday died from the resultant injury.

Leday was on parole for a burglary he committed in Rohnert Park in 2003 at the time of this incident and was currently being investigated for a criminal offense. He had an extensive criminal history of arrests and convictions, including a prior burglary in 1987 in Redwood City, for crimes involving drug offenses, theft related offenses, assaultive conduct, and crimes against peace officers. Recent methamphetamine use was also a factor contributing to his out-of-control behavior. He had also recently stated his desire not to go back to jail.

Leday had a legal duty to submit to the deputies original lawful show of authority when he activated his patrol vehicle’s emergency lighting and siren. Instead of lawful submission, Leday chose to unlawfully evade the police by driving recklessly, ignoring speed limits, driving into on-coming lanes of traffic, through stop signs, through stop lights, endangering pedestrians and other motorists; in sum, driving in a reckless and wanton manner in order to evade police contact or capture which put the community at great risk or injury or death.

Given the inherent unpredictability of this high speed pursuit and its abrupt conclusion with Leday colliding with a light pole, it was reasonable for Sergeant Fuston, as well as the other responding deputies, to exit their vehicles and immediately draw and train their weapons on Leday. The elements of unpredictability and potential danger must reasonably be met with extreme caution. Leday’s evasion did not end voluntarily, but as a result of his losing control of his vehicle.

The law does not require a progressive escalation in the force which is employed in these types of situations because the exigencies of real world law enforcement do not make such a course of conduct always feasible. That is because such a progression is not reasonable under many real world situations in which an officer is faced with a direct and immediate threat to life and limb.

Sergeant Fuston was in a distinctively marked patrol vehicle, he was in a distinctively marked uniform, and had previously announced himself with emergency lights and siren. There was simply no mistaking him for anything but a law enforcement officer. Even a violent collision with a light pole did not bring the encounter to a peaceful conclusion.

Though witness accounts differ somewhat in detail, it is overwhelmingly clear that Leday feigned armed resistance and directed threats to Sergeant Fuston. Leday was being aggressive in his demeanor and even more aggressive with his words and threats to kill Sergeant Fuston. Moreover, Leday was making movements with his hands to the area of his waste in a fashion which made it entirely reasonable for Sergeant Fuston to believe that a weapon was going to be produced and for him to reasonably believe, therefore, that he was in imminent danger of being killed.

No show of authority stopped Leday; a collision did not stop him; and even having been shot, he did not immediately stop.

The law imposes upon Sergeant Fuston (or anyone confronted with the same or similar circumstances as presented in this case) the duty to behave reasonably. Sergeant Fuston did behave reasonably under the circumstances; in stark contrast to Leday who was behaving wildly and unpredictably and in a fashion which would suggest to a reasonable person (based on all of the information known to Sergeant Fuston, coupled with Leday’s suspicious and threatening movement’s) that they were in imminent peril of serious bodily injury or death.

Immediately after the shooting the Sonoma County Sheriff’s Office invoked the Sonoma County Law Enforcement Employee-Involved Fatal Incident Protocol (“protocol”). The purpose of this protocol is to set forth procedures and guidelines to be used by Sonoma County law enforcement agencies in the criminal investigation of specifically defined incidents involving law enforcement employees. Under this protocol an outside law enforcement agency is designated to investigate officer-involved fatalities.

In this case members of the Santa Rosa Police Department assumed responsibility for the investigation of the shooting incident. Members of the Sonoma County District Attorney’s Office participated in the investigation in a supporting role, in accordance with the protocol. Under the protocol the role of the Sonoma County District Attorney’s Office is to review the investigation to determine if there exists any criminal liability on the part of involved parties, including the law enforcement employee(s); to provide assistance to the investigating agency regarding legal issues; to supplement the investigation when necessary; and, when appropriate, prosecute those persons believed to have violated the criminal law. Once the investigation is complete the District Attorney is required by the protocol to complete a thorough review of the investigation and prepare a report summarizing the investigation and documenting his conclusions. A copy of this report is submitted to the foreman of the Sonoma County Grand Jury.

The District Attorney does not examine issues such as compliance with the policies and procedures of any law enforcement agency, police training, or issues involving civil liability. Neither the report submitted to the Grand Jury under the protocol, nor this statement, should be interpreted as expressing any opinion on those matters.

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