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DA Report: Officer Lawfully Shot Ax-Wielding Man

For release on July 8, 2019

CONTACT: 
Sumerle Davis
Supervising Deputy District Attorney
(408) 792-2969

DA REPORT: OFFICER LAWFULLY SHOT AX-WIELDING MAN

A San Jose police officer responding to a bomb threat and an intentionally set apartment fire lawfully shot and killed a city man who threatened officers with an ax, the Santa Clara County District Attorney’s Office has determined.

The officer shot 35-year-old Francis De La Cruz after repeatedly ordering him to drop the ax. Even after he was hit by a Taser and fired at with a service weapon, De La Cruz raised the ax and came at officers, prompting the same officer to fire again.

The incident was caught on body-worn camera footage, relevant portions of which were released by the DA’s Office.

Prosecutor Sumerle Davis wrote in the 31-page public report​: “All three officers stated that they believed through their experience that De La Cruz’s intentions were to injure or kill the officers with the ax. The security guards made similar statements. They believed that their lives were in danger, and that if the officer did not shoot, they would have been hurt or killed.” 

The District Attorney’s Office investigates all fatal law enforcement encounters to determine if the lethal force was legal. By law, officers can use deadly force when they or others are faced with imminent danger.

Just after midnight on May 28, 2017, three officers responded to reports that a man in an apartment had threatened a security guard. For more than eight minutes, the resident refused to open the door. When officers smelled smoke and saw flames underneath the door, they kicked it open, taking the resident into custody. The resident later told police: “I built a moat of lighter fluid to keep them out. They were busting in my door. That was my only defense cause I'm an American and no one should enter my home. Defense is what I call it. I don't call it arson.”

De La Cruz, who was visiting the resident, refused to come out and, picking up an ax from the floor, advanced on the officers. After being unsuccessfully Tased, he got within a few feet before Officer Juan Avila opened fire with four to five shots. When De La Cruz kept advancing with the ax, Officer Avila fired twice more.

An autopsy showed that De la Cruz had been shot twice and had methamphetamine in his system.

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Last updated: 7/8/2019 9:11 AM