When the cops don’t kill you

Paul Cantarutti is not dead. He is sitting in a handsome wood-backed chair, a purple dress shirt gowning the scars on his stout torso where the bullets gashed through spleen and lung and just missed his spine. Over the buttoned shirt, a charcoal suit jacket shrouds the manacles shackling him to his front-row seat in Department 16 of the Sacramento Superior Court.

Paul Cantarutti is not dead. And so, instead, the 30-year-old schizophrenic man is on trial for living.

It’s been two years since a Sacramento police officer fired three rounds into Cantarutti’s upper body. The May 21, 2015, shooting occurred in broad daylight on the edge of a crowded downtown park. Yet there’s no consensus as to its justification.

Police and prosecutors insist that a knife-wielding Cantarutti approached Officer Henry “Hank” McCluskey with the intent of doing harm or avoiding arrest. Cantarutti’s parents and attorneys say he was delusional but not aggressive, and that the bicycle officer overreacted to a phantom gesture when the two men met on a sidewalk bordering Cesar Chavez Plaza on that warm summer evening.

Cantarutti is a largely forgotten footnote in the expanding catalog of violent encounters between law enforcement and the mentally ill. But his case demonstrates what happens after a cop’s bullets fail to kill, according to several attorneys and legal experts: If there are criminal charges, almost always it’s the person who was shot who faces them.

“If someone’s really injured in a police encounter, expect them to be charged with a felony. If they’re hurt at all, expect for them to be charged with a misdemeanor,” said attorney Stewart Katz, who has successfully sued law enforcement agencies over excessive-force allegations. Katz currently represents Cantarutti’s mother in a civil claim against the city of Sacramento and its Police Department. “The District Attorney’s Office, in Sacramento at least, has taken the view that it’s their job to protect the agencies … from civil liability.”

Other legal minds say these types of prosecutions aren’t so common, and that there’s generally a less nefarious reason prosecutors charge people who are injured while being taken into custody: The defendants were probably doing something illegal.

But not always. And the more problematic an officer-involved shooting, the more incentive there may be to charge the person who survives it.

According to Franklin Zimring, faculty director of criminal-justice studies at the UC Berkeley School of Law, law enforcement agencies “almost always” recommend criminal charges against survivors of police shootings, he wrote in an email. Zimring couldn’t point to “a systematic study” showing the pattern, but agreed with Katz that cops and prosecutors have financial and political incentives to “threaten pretty severe penalties to push back on civil damages.”

Cantarutti faces two felony counts—resisting arrest through force or violence and delaying arrest by displaying a deadly weapon—that could imprison him for years. The people’s case hinges on whether Cantarutti lunged in the moment before McCluskey flicked his trigger.

“It’s total B.S.,” said Michael Cantarutti, the defendant’s father. “Paul was a victim of bad policing. And now he’s a victim of bad prosecution. He’s now a victim again.”

Cantarutti was one of 11 people shot by officers in Sacramento County in 2015. Yet his near-death may have happened too early, at a time when local politicians were still distancing Sacramento from the likes of Ferguson, Mo., a city that became synonymous with the searing distrust some communities hold toward law enforcement. But then Joseph Mann was shot 14 times on a north Sacramento sidewalk last July by two cops who first tried to run him over. Mann’s death prompted the Sacramento City Council to approve a raft of Police Department reforms and agree to a six-figure settlement with Mann’s relatives.

Like Cantarutti, Mann was struggling with mental illness and tested positive for methamphetamine when he encountered officers. Unlike Cantarutti’s shooting, Mann’s was well-documented by patrol car cameras, as well as a surveillance video and cellphone recording. Katz noted other differences between the two men. Mann was black and died. Cantarutti is white and lived.

“This is what happens when you survive,” Katz said.

In a sparsely populated third-floor courtroom, Deputy District Attorney Scott Schweibish spent most of his opening statement defending the actions of a cop who was not on trial.

“Mr. Cantarutti, in an aggressive posture, lurched toward Officer McCluskey,” Schweibish told the jury, acting out the word. “And he fired. He had no choice. He had to defend himself and his partner.”

Schweibish said this last part like it was a given. But the talented prosecutor knew he had a hill to climb. The confrontation between Cantarutti and McCluskey lasted seconds. Not all his witnesses saw the defendant move aggressively before the officer opened fire. And Schweibish had to convince the jury somehow that Cantarutti was trying to evade arrest, even as he walked toward the officer who beckoned him.

Still, the prosecutor had an easier case than he did a week earlier. Two days before the May 3 start of trial, Schweibish successfully motioned to swap out a felony charge of assault with a deadly weapon for a more obscure one of exhibiting a weapon at a peace officer. A felony charge of resisting or delaying arrest survived the last-minute changes.

Cantarutti’s father accused the prosecutor of “jockeying here at the 11th hour” to better his odds of winning.

“The first reason there is a criminal case against Paul is to somehow give some, quote, justification to the Police Department shooting Paul,” Michael Cantarutti said. “Because it’s such a heinous crime to take a citizen off the street and throw [three] bullets at him from 8 feet away to the point of almost killing him.”

Attorney Katz, an interested observer in the criminal matter, said he also found the move deeply cynical. “If they were still going with the assault, OK, I get that,” Katz allowed, adding that people who attack cops shouldn’t get free passes. But the prosecution’s downshift in charges just days before opening statements indicated an ulterior motive, Katz argued.

In June of last year, Katz filed a civil complaint accusing officers of inflicting emotional distress on a woman who “saw her son nearly executed.” If Paul Cantarutti is acquitted or the charges are dropped, the complaint can become a lawsuit that exposes the city and its Police Department to potential financial damages. But if Cantarutti is convicted, the civil case disappears with him.

Katz claimed that’s what’s driving the Sacramento County District Attorney’s Office to prosecute Cantarutti, who was booked into jail three months after the complaint was filed in Sacramento Superior Court. “That would be the motive,” he said. “Patently, they’re trying to protect the city from civil liability.

“It’s predictable as hell,” Katz added.

Civil rights lawyer Mark Merin said prosecutors have applied similar tactics following other use-of-force incidents. In an email, he said he’d seen cases where beaten or tazed individuals had been prosecuted for the purposes of disarming excessive-force and civil-rights complaints.

Criminal defense attorney Mark Reichel said it was rare for prosecutors to charge the victims of bad or questionable law enforcement shootings, but it does happen. The reason, Reichel said, is because DA’s offices and law enforcement agencies work so closely together that their interests are naturally intertwined.

“The police need the DAs to file charges and the DAs need the officers to help them win their cases,” Reichel wrote in an email. “Prosecutors work hand-in-hand with police officers. There is an advantage also for the DA’s office to bring the charges following a shooting. The person might be willing to drop whatever civil suit they want to bring in exchange for a dismissal.”

Paul Cantarutti was reportedly offered a deal that would have meant time served if he pleaded to the underlying offenses. Such a deal would have likely canceled out his mother’s civil claim, which he isn’t a party to. Instead, Cantarutti’s public defender opted to go to trial. His client has been sitting in jail since September, in lieu of $220,000 bail.

The DA’s office didn’t directly respond to a question asking whether the people’s case had been influenced by the existence of a civil complaint. In an emailed statement, Assistant Chief Deputy District Attorney Rod Norgaard said his office “filed the appropriate charges warranted” based on the evidence presented. As for trading the assault charge for an evasion one, Norgard described the decision as routine.

“As with any case, the investigation is ongoing and continues throughout the trial stage,” his statement read.

Whatever his motives, Schweibish hasn’t left much of his case to chance. Aside from exchanging charges, Schweibish also convinced the judge to bar Cantarutti’s specific mental illnesses from being mentioned at trial. Judge Marjorie Koller granted the motion without objection from public defender Joshua Kurtz, who acknowledged he wouldn’t be calling any expert witnesses to testify to his client’s mental state.

It was a gamble, one that also prevented Cantarutti’s positive methamphetamine test from being entered into evidence. But the lack of a psychological explanation would leave jurors to wonder about the defendant’s odd behavior leading up to the shooting.

Paul Cantarutti was diagnosed with schizophrenia years earlier at a medium-security prison hospital in Vacaville, his father says. According to interviews with witnesses and testimony entered at trial, Paul was agitating through a paranoid delusion about mysterious forces out to harm him and his mother on the day he was shot. Linda remembered him being hot to the touch, grinding his teeth and muttering about dead bodies in the backyard. She knew her son drank alcohol and feared he imbibed worse.

Thinking a drive might do him good, Linda packed her troubled son into her car and left her Carmichael home in search of help. Things didn’t go as she hoped.

Once on the road, Paul’s delusion shifted. He feared a bomb had been planted in the car. Every time Linda tapped the brakes, he winced, ready for the explosion. Paul begged her to stop and told her he might have to knock her out if she didn’t.

Linda testified that she didn’t think her son was actually going to hit her, but she exited the freeway onto U Street and flipped up 10th. The idea, she later told an officer, was to drop Paul off at a populated bus station. But as the car traveled farther northeast, Linda spotted a commotion a block ahead on her left. Fire trucks, squad cars, people in uniforms and badges, all clustered around Cesar Chavez Plaza. Linda turned onto I Street and slid into a parking space in front of old City Hall, across the street from the park.

According to police, two inebriated transients had dueled with canes. The more seriously injured party had already been loaded into an ambulance headed for UC Davis Medical Center. Bicycle officers McCluskey, Bryan Stone and another colleague were hanging back with the remaining combatant.

Several feet behind a diesel fire engine, Sgt. Sherry Bell sat in her parked patrol cruiser typing a message to headquarters into her computer console. She was preparing to leave the scene when a short woman with a curly tangle of salt-and-pepper hair asked for help. Something about the woman’s son thinking there was a bomb in the car. Bell called over McCluskey, who got the same brief lowdown. Troubled male. Possibly delusional.

Under cross-examination at trial, McCluskey admitted he didn’t ask for the subject’s name or whether he possessed any weapons. “But she could’ve told me, too,” McCluskey said of the mother.

Public defender Kurtz looked baffled. Maybe it’s the idea that a civilian knows more about what a cop needs to know than a cop does. Or maybe it’s the contradictory statements that there was no time for a full debriefing and yet the mother should have provided him with all pertinent information. Kurtz tried to put these conflicting concepts into a question.

“I’m struggling to understand why you felt the need to get Mr. Cantarutti here before you got any more information,” he said. “What was the emergency that you had to deal with that you couldn’t get more information about the person you’re about to encounter?”

McCluskey responded that he figured the matter was pressing enough to detain the son first and sort it out later.

“It was very important to her,” he clarified, meaning the mother.

The officer testified that he hailed the bearded man across the street and directed him toward the crosswalk. McCluskey said it was for the subject’s safety, but also to gauge whether he could follow commands. After waving over the son, McCluskey called to his partner a few feet away to alert him that they had “a possible 5150 with a beard,” McCluskey testified.

(5150 is code for an involuntary mental health hold placed on those deemed a danger to themselves or others. McCluskey and Stone both testified they use the term broadly, as shorthand to describe any subject who may behave unpredictably due to mental health issues, substance use, developmental disabilities or some combination thereof.)

But Stone couldn’t hear his partner over the clamoring traffic and grumbling fire engine. “I thought he said something about a beer,” Stone testified. “I thought we were going to contact a subject about a beer.”

It’s unclear whether Paul, standing even farther away, heard McCluskey’s commands. Instead of walking toward the crosswalk as McCluskey commanded, Paul shuffled onto I Street, moving through traffic at a dreamy pace. As Paul came closer, McCluskey said he noticed something unnatural in the man’s gait. The son was keeping his right hand slightly behind the rest of his body, McCluskey testified. When Paul got near Bell’s patrol car, McCluskey said he glimpsed a black folding knife with its blade extended. Paul held it so the blade curved through the bottom chute of his fist, McCluskey demonstrated.

Seeing the knife, McCluskey testified that he thought he shouted at the man to drop it. In reality, his voice remained calm. We know this because McCluskey activated his body camera in time to capture a snippet of audio from the last moments of the encounter. But the camera was pointed at the sky, so images of the shooting were not recorded.

Body cameras were new to the department at the time and were being field tested among only a dozen or so officers. McCluskey was one of them, but being detailed to the bicycle unit meant he wore a polo jersey, not the classic button-down of the average patrol officer. For the 6-foot-4 officer, that meant clipping the camera to his collar, which pointed the lens high and askew.

This is why the jury got only a short burst of narration before shots were fired.

With his camera trained on a blue sky, McCluskey speaks. “Can you put the knife down? Put the knife down. Put the knife down,” he says levelly.

There’s a pause. McCluskey speaks again. “Stone, can you taze him?”

Then Sgt. Bell’s voice, repeating a mantra: “Taze him, taze him, taze him.”

Three loud cracks. Someone yells fuck. A woman screams, then cries.

So what did happen that Thursday evening two years ago? Even the prosecution's witnesses aren't in total agreement.

McCluskey and his partner say the defendant’s upper body jerked forward in a threatening manner, while their ranking officer, Sgt. Bell, testified she wasn’t looking right before the shots went off—even though she was standing beside McCluskey with her gun drawn. A Fire Department captain who stood farther down the sidewalk testified that he saw the defendant’s hand make a sudden movement with the knife, then admitted under cross-examination that he initially told officers he saw no such movement. The captain’s engineer testified that he didn’t see Paul move aggressively toward officers before he was shot. But a rookie paramedic standing with the engineer testified that he saw Paul lunge with his hand cocked back like he was going to throw a football.

Those contradictions weren’t limited to witnesses wearing uniforms.

A witness for the defense, Estuardo “David” Mazariegos, told SN&R shortly after the shooting that Paul only moved his head before shots were fired. Mazariegos was in his car trawling through rush-hour traffic on I Street, and said he had a clear view of the shooting. But Mazariegos also believed Paul’s hands were empty—and raised.

“The guy had his hands up. … And then they shot him,” he told SN&R. “He literally was standing still. It looked like he was done already.”

It was at this point that Mazariegos said he got out of his car, fumbling for his cellphone to record what he thought was about to be an execution. “I’m trying to film them because they’re about to kill this dude for no reason,” he said.

Mazariegos told SN&R that officers detained him in the back of a squad car for several hours when he refused to return to his vehicle. Officers told him he was being uncooperative, and confiscated his cellphone and wallet, he said.

That information wasn’t conveyed at trial.

Around the time of the shooting, SN&R communicated with a state EPA worker by email who was walking past the park and confirmed part of Mazariegos’ story. The worker, who asked not to be identified, said Mazariegos was detained for attempting to record the scene.

Scanning the field where the body lay, Mazariegos said he spotted the knife that officers would later say was the primary cause for their concern. “What they say was a knife is a 2-inch piece of steel beside him,” he said.

Mazariegos, who grew up in a tough part of Los Angeles, said the shooting brought back unwelcome memories. When SN&R interviewed him in the spring of 2015, the community organizer was in the process of packing up his belongings for an anticipated return to his home city. “This really bubbled up a lot of stuff from my past,” he said. “I’m literally moving because of this.”

Mazariegos didn’t respond to more recent requests for comment.

Most of the witnesses do agreed that 6 to 8 feet separated the defendant from McCluskey at the time of the shooting. They also agreed that the incident didn’t last more than a few seconds. But those seconds have stayed with McCluskey.

An imposing figure who has spent 13 years on the force, he sat on the witness stand with the posture of a folded umbrella. Asked by Kurtz whether he had any regrets about the shooting, the officer initially volleyed back the premise.

“I’m very glad that Officer Stone and I didn’t get stabbed,” he said pointedly.

Kurtz repeated the same question in a different way. And this time, something in McCluskey seemed to wilt just slightly. His eyes pinned on nothing.

“I’d rather not have flashbacks and things like that for the past two years,” McCluskey said.

The broad-shouldered cop sat upright. He told Kurtz and the jury and the courtroom what he needed to be true. It even might have been true. “[There’s] no doubt in my mind that he lunged at me,” he said.

“But you were wrong about the yelling too, and that was something you were sure had happened,” Kurtz replied.

Before Schweibish could blurt out an objection, McCluskey answered. “Correct,” he said.

The prosecutor suppressed a frown.

Debbie Cha is one of two jurors who held out for Cantarutti's innocence. The 36-year-old analyst says the jury started out 7-5 in favor of acquittal on the first count, the most serious charge, but was slowly turned by a faction of jurors who refused to doubt the police or see past the knife.

“A lot of jurors in there had already made their decisions before we debated,” said Cha, the jury forewoman. “They didn’t take any evidence into account, basically. He had a knife and that was it.”

But Cha said she and other jurors believed Cantarutti wasn’t given enough time to comply with the officer’s commands and would have been shot no matter what.

“He didn’t have a chance at all,” Cha said. “That’s police brutality. [McCluskey] didn’t need to shoot him.”

Cha said the deliberations went on for a grueling two-and-a-half days after closing arguments. Jurors who sided with Cantarutti were pressured to change their minds, she claimed. Finally, only Cha and one other juror were still fighting for the defendant.

“It got really, really heated in there,” she recalled.

Cha told Judge Koller the jury was hopelessly deadlocked. Koller sent them back to deliberate some more, but the forewoman said it was pointless. No one would talk to each other. The jurors sat and stewed in toxic silence.

On May 11, Koller declared a mistrial. The final tally was 10-2 in favor of conviction on both counts. After reevaluating its case, Norgard said the DA’s office moved to retry Cantarutti.

That do-over is scheduled to begin July 31. Cantarutti will face a different judge and jury, but much will be familiar. He will confront the same charges and listen to the same testimony from the same witnesses. He will watch his mother cry again and hear the polite anguish of the officer who shot him. He will do it all over again, as 12 new peers trudge their invisible baggage into the courtroom to measure out his fate.

But for Cha, who hopes to attend opening statements next month, the wrong person will be on trial.

“Had Paul died, then what? It would have been a life wasted,” she said. “We’re giving permission to the people who work for us to kill us.”

The defendant’s father said he, his son and his ex-wife have learned the same lesson the hard way.

“We basically concluded that, oh my God, you should never go to the police for help with a mental health [situation],” Michael Cantarutti said. “It’s about like leading the poor kid into a burning building.”

At least his kid survived.

Earlier this month, the Ninth Circuit Court of Appeals reinstated a federal lawsuit against the city of Folsom and its Police Department in the April 2009 shooting death of Joseph Han, a psychologically troubled 23-year-old. The young man’s parents had called police for help. According to the family’s wrongful death lawsuit, officers escalated the situation by forcing their way into Han’s bedroom, where Han was shot and killed.

Because Han died in the shooting, prosecutors couldn’t charge him with resisting arrest.