March 9, 2022
DA Maggie Fleming has completed her review of the investigation regarding the September 9, 2021 California Highway Patrol (CHP) Officer-involved shooting of 35-year-old Charles David Chivrell. A Humboldt County Critical Incident Team, with members from the Eureka Police Department, Humboldt County District Attorney’s Office, Humboldt County Sheriff’s Department, Arcata Police Department (APD), CHP, and Ferndale Police Department, conducted the investigation. The Humboldt County Coroner’s Office and the California Department of Justice (DOJ) – Bureau of Forensic Services also contributed to the investigation.
The investigation revealed that the incident began at approximately 10:47 am when a citizen called 911 to report a man walking with a firearm and a briefcase in the roadway near the intersection of Heindon Road and Miller Lane.
CHP and APD officers responded to that area and began looking for the man described in the call. CHP Officers Griffin and Cornejo, traveling in one vehicle, located Mr. Chivrell on Miller Lane. As the officers first approached Mr. Chivrell, they observed a pistol in a holster on his right thigh. Their vehicle’s camera recorded their initial interaction with him. Using the vehicle’s loudspeaker, one of the CHP officers asked Mr. Chivrell to stop walking and speak with them. Mr. Chivrell refused to comply and continued to walk away. At various points he turned to face the CHP vehicle, sometimes raising his hands, but then again walking away. The officers repeatedly ordered Mr. Chivrell to drop what he carried and come to the patrol vehicle. At one point, Mr. Chivrell removed his leather jacket, dropped it and continued walking and carrying his briefcase. The officers repeatedly ordered him to show his hands. This interaction continued for more than 10 minutes. During that time, Mr. Chivrell stated he was going to McKinleyville “…to the only motel and run out the *expletive* Mexicans that are running the show and spending all the money.” When Officer Cornejo responded by saying “We just want to talk,” Mr. Chivrell yelled to him, “Hey go back to Mexico, you don’t have papers here.”
At another point he yelled and simulated drawing his gun. While following him at a distance the officers saw other vehicles and people in the area. At one point they saw a person talking with someone parked in a car and motioned for them to get out of the area. After a bicyclist went by the officers discussed concerns for public safety. Given the safety concerns that included nearby houses, the loss of visibility that an upcoming curve would create, and Mr. Chivrell’s threatening statements and erratic behavior, the officers chose to deploy a pepperball launcher in a straight section of road. By using the pepperball launcher, the officers sought to incapacitate Mr. Chivrell so that he could be safely apprehended: the contents of the pepperballs cause irritation of the eyes, nose and throat. Because officers could not safely approach Mr. Chivrell, the pepperball launcher was the only non-lethal option.
Multiple officers reported the following sequence of subsequent events. APD Sergeant Hoffman - who had earlier moved to the CHP patrol vehicle - exited the vehicle to deploy the pepperball launcher. Standing next to the front passenger seat with the vehicle door open, he fired pepperballs at Mr. Chivrell; several pepperballs hit Chivrell’s back and legs. Sergeant Hoffman heard an officer say that the man was drawing his gun and looked to see the man raising his right arm while turning his body towards the officers. He then heard a gunshot and heard the bullet go past his head. Sergeant Hoffman was aware that the CHP officer to his right then fired his rifle and he observed Mr. Chivrell go to the ground.
Officer Cornejo stated that Sergeant Hoffman exited to fire the pepperball launcher and Officer Griffin stood nearby to provide cover with his rifle. As Sergeant Hoffman fired pepperballs, Officer Cornejo exited the driver’s side of the CHP vehicle and saw the pepperballs hit Mr. Chivrell, and then saw Mr. Chivrell reach for, and draw his pistol from a holster. Officer Cornejo heard a shot and moved for cover. He then saw Mr. Chivrell on the ground.
Officer Griffin described the entire sequence of events in the same way. When pepperballs hit Mr. Chivrell, Officer Griffin saw Mr. Chivrell reach down, draw the pistol and raise it toward the officers. Officer Griffin fired one round from his rifle and saw the man fall to the ground. Officer Griffin said he fired his rifle because he believed the man would shoot them.
APD Officer Rodes also described following in his patrol vehicle behind the CHP vehicle and the ongoing efforts to engage Mr. Chivrell. As officers followed Mr. Chivrell for about a mile, several times officers got out of their vehicles and spoke to Mr. Chivrell when he stopped walking, but then resumed their slow pursuit by vehicle when he resumed walking. When the opportunity arose to deploy the pepperball launcher, Officer Rodes -who was directly next to Officer Cornejo on the driver’s side of the CHP vehicle- saw the pepperballs strike Mr. Chivrell, saw Mr. Chivrell remove his pistol from the holster, level the pistol at the officers and fire one round that Officer Rodes heard “whiz” nearby. Very close in time, he heard a second round fired from the direction of the right-hand side of the CHP vehicle and then saw Mr. Chivrell go to the ground.
Officers ordered Mr. Chivrell to show his hands, then approached him and saw his revolver immediately on his right. Officers then began life-saving efforts including CPR. Medical personnel arrived and continued life-saving measures while transporting Mr. Chivrell to Mad River Hospital, where he was pronounced deceased on arrival.
In an analysis of the firearm recovered near Mr. Chivrell, a DOJ Senior Criminalist found the hammer down on one expended cartridge case and 5 intact cartridges in the remaining chambers. DOJ’s examination of the CHP patrol vehicle revealed a single bullet strike to the left-hand side of the windshield in front of the driver’s seat and glass fragments on the dashboard. DOJ also found in the pasture next to the roadway a single expended cartridge that the Senior Criminalist determined had been fired from the rifle used by the CHP officer.
An autopsy by Dr. Olson on September 11 revealed Mr. Chivrell died from a single bullet wound that entered the left side of his face below his eye and exited the right side of his neck. The bullet path is consistent with the observations of the officers that Mr. Chivrell turned as he drew his weapon and fired at them. A toxicology screen revealed that Mr. Chivrell had methamphetamine and THC in his system. Investigators also found methamphetamine in the briefcase Mr. Chivrell carried during the incident.
The California Penal Code describes justifiable homicide at Section 196:
Homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, under either of the following circumstances:
(a)In obedience to any judgment of a competent court.
(b)When the homicide results from a peace officer’s use of force that is in compliance with Section 835a.
The California State Legislature made significant additions to Penal Code Section 835a in 2019 (Assembly Bill 392) which now states:
Section 835a. Reasonable force to effect arrest; Resistance
(a) The Legislature finds and declares all of the following:
(1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.
(2) As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.
(3) That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.
(4) That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.
(5) That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.
(b) Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.
(c)(1) Notwithstanding subdivision (b), a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:
(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.
(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.
(2) A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
(d) A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, “retreat” does not mean tactical repositioning or other de-escalation tactics.
(e) For purposes of this section, the following definitions shall apply:
(1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.
(2) A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
(3) “Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.
The District Attorney has concluded the shooting was legally justified, in that the officers’ actions complied with California Penal Code Section 835a. Once Mr. Chivrell pointed and fired his gun at them, the officers reasonably believed they were in imminent danger of being killed or suffering great bodily injury. The District Attorney has notified Mr. Chivrell’s family of her decision.