‘Justice for Joe': Can the former cops who killed Joseph Mann still be prosecuted?

An internal candidate for district attorney says he would reevaluate the criminal case against one of the officers who gunned down Joseph Mann last summer, based on admissions the fired cop made to SN&R.

Sacramento County Deputy District Attorney Noah Phillips was referring to the December 14, 2017, cover story, “Confessions of a killer cop,” in which former Sacramento police Officer John Tennis revealed that he was fired in October for violating his department’s use of force and firearms policies, among other general orders.

Tennis’ termination stems from his actions on July 11, 2016, when the veteran patrolman and his partner forced a fatal confrontation with a black Sacramento resident whose erratic behavior prompted a pair of 911 calls that morning. Last to arrive on scene, Tennis and partner Randy Lozoya quickly brought a decisive end to what had been a tentative situation, as numerous officers tried to win surrender from a man who held a knife but hadn’t hurt anyone.

After Tennis twice attempted to strike Mann with his patrol car, he and Lozoya approached on foot and opened fire, leaving Mann on a sidewalk with 14 bullet wounds. From the officers’ arrival to shots fired, 44 seconds passed.

“Anyone who’s seen the video would have concerns. … Because you see other officers that do not engage in the behavior [Tennis and Lozoya] did,” Phillips told SN&R by phone. “In simple terms, [the Police Department] came to the conclusion that it was an unjustifiable shooting.”

Tennis defended his and Lozoya’s actions, saying Mann posed an unpredictable danger to a stretch of open businesses along Del Paso Boulevard. In January, the Sacramento County District Attorney’s Office agreed, clearing the two officers of criminal wrongdoing.

But Tennis’ admission that he was fired over the deadly confrontation—and his revelation that he was under a separate internal affairs investigation at the time of the Mann shooting—should prompt another look at whether criminal charges are merited, Phillips and others say.

If that happens, it could put that rare twist on a legal warning civilians have most often heard: Anything you say can and will be used against you in a court of law.

In an email, Phillips, a 20-year prosecutor who tries homicides, said he was struggling to understand how his boss came to the conclusion that the Mann killing was justified.

“Even assuming the burden of proof in a criminal case, it is VERY hard to reconcile District Attorney Anne Marie Schubert’s determination that Officer Tennis was justified in shooting Joseph Mann when his own Department came to the opposite conclusion—that Officer Tennis was NOT justified in shooting Joseph Mann,” Phillips wrote. “The public deserves a District Attorney who will hold officers accountable for their actions. No person is above the law.”

That hasn’t been the perception when it comes to officers accused of wrongful deaths or injuries. While numerous civil lawsuits have been filed against officers and their departments in state and federal courts, the local DA’s office hasn’t prosecuted an officer for taking a life in more than 30 years—and perhaps longer.

For Joseph Mann’s loved ones, that legacy is indefensible.

“We want justice for Joe. And to not forget about him like he was disposable. No one is,” said Vernadine Murphy Mann, Joseph Mann’s sister. “All we want is for the people responsible to be held accountable. I don’t think that’s too much to ask for.”

While Phillips may have political reasons to cut a distinction between himself and the office-holder he’s campaigning to unseat, reopening a criminal investigation into a peace officer is possible if there is new and compelling information to warrant it, said the DA’s representative.

“This is not a double jeopardy situation,” DA spokeswoman Shelly Orio explained in an email. “Under certain circumstances we can reevaluate our filing decisions on a given case. As always, it depends on the nature and quality of the new information and how it might affect our previous findings.”

Asked if the DA currently had the information to justify any such reevaluation, Orio simply answered, “No.”

At least one legal expert disagrees.

Michael Vitiello is a distinguished professor at the University of the Pacific’s McGeorge School of Law who specializes in policing and criminal procedures. He says video footage released last year by the Police Department as well as new information Tennis shared with SN&R make a sufficient argument for pursuing some kind of criminal case.

“Is the DA warranted in opening the new charges? I would think yes,” Vitiello wrote in an email. “The video had many members of the public unsure why charges were not brought—in light of some substantial evidence, a full investigation, probably leading to a trial, would be warranted.”

Tennis told SN&R the department attempted to fire his partner, but that Lozoya was able to medically retire prior to receiving a termination letter.

Police Chief Daniel Hahn said he was prohibited from discussing personnel issues, even regarding former employees. “All of the video was released,” Hahn said. “Part of the reason we released it was so people could come to their own conclusion.”

Robert Mann has watched those videos. The three dashboard camera recordings from the officers on scene and the silent surveillance video that shows the shooting are the last images Robert has of his little brother Joe. For Robert, they tell a story in two parts: Officers who did their jobs correctly—and the two who erased a life they didn’t have to.

“I don’t have a law enforcement problem,” Robert said. “The problem is with those that are not doing their job correctly, that are abusing their power. They know that they can hide behind the badge. They know that the DA is not gonna drop any charges on them.”

It’s never been easy to prove murder by peace officers, because they are judged by their perception of danger, not by the realities of it. In other words, officers are justified in using force if they reasonably believe their lives or public safety is in danger. Piercing that defense means convincing a jury that an officer is lying about what was in their head at the time of the encounter.

Both Vitiello and Phillips say the odds of a successful prosecution against a peace officer could be enhanced by pursuing lesser charges, like manslaughter or assault with a deadly weapon.

“The way I see it working in the future is charging manslaughter,” Phillips said by phone. “If you can’t sell it … then you’re going to instill a lack of trust, both in law enforcement’s work and our work as a prosecutor.”

Meanwhile, Tennis’ unfiltered approach to telling his story may provide ammunition for a prosecutor looking to use it.

A few months before he aimed his car at Mann, Tennis told SN&R he responded to an assault near Grant High School. The reports were of a black male teen beating up on his girlfriend and jumping on a car, Tennis said.

Tennis said he was driving down an alleyway when the 15-year-old suspect and an officer veered into his path. He said he braked, but clipped the suspect and the officer with the corner of his car “at less than 5 mph.”

“I’m going, ’Shit!’ Never happened before,” Tennis said.

Tennis said a supervisor complained about other aspects of his performance that day, and that he was suspended one month without pay over the incident. In his termination, Tennis said, the department cited his handling of the incident along with multiple general orders he violated in killing Mann. Here’s Tennis reading from that portion of his termination letter: “’Prior use of force incidents, much of the same inappropriate and excessive behaviors, including using your patrol vehicle in a violent manner that could and did hit the suspect.’”

“They’re saying before Joseph Mann, in March, I intentionally hit a 15-year-old boy,” Tennis added. “And so I told them, ’Why am I not being prosecuted for that?’”

Robert Mann says he has the same question.

“This one officer that they just let go, Tennis, his background was so ugly that he shouldn’t have even been on the force anymore,” he said.

Before the Joseph Mann incident, Tennis was disciplined for alcoholism and had his gun temporarily taken away during a divorce proceeding. In his interview with SN&R, the 56-year-old also took responsibility for the 1997 death of Albert Thiel, saying it was probably his attempt to get the unarmed black man in a chokehold that resulted in a fatal neck injury. Tennis said the death prompted the city to settle a wrongful death lawsuit with the Thiel family.

“These are all very unacceptable things,” Robert Mann added. “He already has a problem within himself. And then you put him out here to police our communities. That’s a problem.”

Phillips said he wants to know whether the DA’s office knew about Tennis’ prior use-of-force incidents when it reviewed the Joseph Mann shooting, or whether they were withheld under the state’s Police Officers Bill of Rights. The answer to that question, Phillips said, could determine whether reopening a criminal investigation is realistic.

“I don’t have access to the Mann case file, but with this new information available for anyone to read in the press, certainly, a review of this new information is warranted,” he wrote in a follow-up email.

Robert Mann says he won’t stop fighting until that happens. Soft-spoken and gentle-humored, the 53-year-old says he made a promise the day he learned his little brother had been killed.

“I made a vow that day. Until the day that I die, I’m gonna keep advocating, gonna keep pushing for accountability, transparency,” Robert said. “That’s the struggle—not just for my brother, but for every other family, every other person that has to wake up and get that phone call that they don’t want to get: that a family member’s been gunned down.”