Fatal Encounter: Deadly Use of Force in Tucson

No matter who Freddy Batt Sosa was, the 22-year-old’s shooting death by Tucson police in May two years ago deserves a more thorough public accounting than it has received.

Because there is no government release or, in some cases, required accounting of the number of people killed by police in the U.S., journalist D. Brian Burghart searches public information and requests data from the public for Fatal Encounters, his crowd-sourced database. “I want to be able to answer that one simple question: How often does that happen? . . . it appears there are closer to five or six reported deaths a day. That could be close to 2,000 deaths a year.”

Freddy Batt Sosa is listed on the site, but the information about him is limited to one minimal account of a police statement by local media, much of the information incorrect. Burghart asks the public to add to the knowledge available about the deaths. This article is intended to collate information about Sosa’s shooting, in part to add to the Fatal Encounters database, but also to raise the same kinds of questions in Tucson that are being asked across the nation about policing. Questions like, what would be different if the police officers had been wearing cameras? Should the police investigate themselves? And, was there no other option to the lethal confrontation that took place?

All information in this article is derived solely from the public record which includes Tucson police incident/investigation reports, Sosa’s Pima County autopsy, news reports of the shooting, and a typed statement from Sosa’s sister to the Occupied Tucson Citizen. She is not named in this article, and neither are the officers involved in this shooting. The two officers who shot Sosa were fully restored to duty after being put on paid administrative leave. Within hours after the shooting they surrendered their guns but immediately received replacements in accordance with police procedures.

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Sunset on Saturday, May 18, 2013, Tucson temperatures begin their cool-down from about 95 degrees. Visibility is excellent.

Freddy Batt Sosa, dressed in “brown shoes—no laces, one brown sock, one black sock, black shirt, black sweatpants” is shot in a parking lot near the southwest corner of Irvington and 6th. Starting at 7:10, 911 calls from several area residents reported a man struggling with a woman on the ground and pointing a gun to her head.

Two Tucson Police Department (TPD) officers patrolling the area for “The Great Outlaw Brouhaha,” a charity event hosted that evening at the nearby Tucson Rodeo Grounds, are first to respond to the possible domestic violence report. One officer is a 16-year veteran of the force, a sergeant spending his evening doing Field Officer Training time with a newbie. His trainee, on the force six months, is in Phase 3 of his training program. This officer is also a newlywed, married just one day. As the pair’s police car enters the driveway to the parking lot the sergeant unholsters his gun and the rookie does the same. Within minutes, Sosa is face up on the ground and officers begin unsuccessful resuscitation attempts on his body.

Verifiable facts about the homicide are that Sosa was hit by five bullets, all found in his body. Both officers fired their guns. Two bullets were fired from the sergeant’s gun, which jammed on the second firing, leaving a bullet casing stuck in the chamber and the gun inoperable. Five bullets were missing from the clip of the gun fired by the trainee. One of the seven bullets lodged in Sosa’s chest, two were recovered from his left side. Two bullets were shot into his back, one found high to the left of his vertebrae, and the other stopped left of his lower spine. A sixth bullet was dug out of a wall and, despite a search, the seventh bullet was not located.

Upon arrival, paramedics relieved officers administering chest compressions on Sosa, who was pronounced dead at the scene at 7:29. When his body reached the coroner, EKG leads and defibrillator pads were still attached to his chest and a tube was down his throat from efforts to revive him. Another tube intended to provide fluids was inserted into his left shin.

According to his autopsy report, Sosa was “light-brown skinned, well developed, and well nourished” at 5’5” and 142 pounds with “thick brown hair shaved short.” He had a “1-2 inch mustache shaved short in a predominately goatee distribution.” The report describes tattoos on his “well-developed torso and extremities” as “non-professional monochromatic of alphanumeric symbols.” The damage to his clothing was consistent with his wounds. The toxicology report showed a blood alcohol count of .18. Had he been driving this count is 120% over legal limit. His blood tested positive for cannabinoids, THC, alcohol, and ethanol.

Entered into police property evidence were the officers’ two guns, five bullet casings, one “Stinger P311 pellet gun with magazine”, one Sauza Tequila bottle (described as broken in other parts of the report), one “Purple Blitz“ wrapper (this same wrapper is listed elsewhere in the report as Purple Diesel Potpourri, the name of a then-popular “synthetic marijuana”), and 911 and “F1” audio.

For clarification, BB guns shoot copper-coated steel beads. Pellet guns, like BB guns, can use a manual slide to load their heavier and more dangerous pellets or can use CO2 cartridges that reload automatically. Airsoft guns usually cost under $15, are sold at Walmart and similar stores, are plastic and fire plastic pellets that can pose a danger to eyes and other soft tissue, and reload by a manual spring slide. Although these three names for non-lethal guns are used interchangeably in the reports, the gun in evidence in this case is in the Airsoft category.

Forty-two officers responded to the shooting. Each was required to file a report.

The two officers who shot Sosa have Hispanic surnames.

In determining what happened that evening, witness recollection of events vary widely on the same sunset-lit scene.

Seven persons are listed as witnesses to the shooting.

Farthest from the action and up above were two helicopter operators for the Tucson Police Department. They were paired for the rodeo grounds’ event and also answered the call about a man with a gun pointing it at a woman. They each report only one police car and two officers at the scene. They were in a position to witness the shooting, but each said he was focused on the woman who was walking rapidly east from the parking lot and so they did not witness the actual shooting. Each reported seeing a flash from one of the officers’ guns.

Also listed as a witness to the shooting was a man from the neighborhood who was at an undetermined distance west of the parking lot. He is quoted as saying Sosa “made a throw up gesture with his hands. . . then with his hands down the male made ‘some kind of gesture’ and he saw him go down.” The man does not report a gun in Sosa’s hands as he is shot. He places Sosa about five feet from the officers. “After the shooting he saw the Officers walk up to the male.” This witness was one of the people at a party where a 911 call was made about the couple tussling and a gun being put to the woman’s head. “He described the gun as a 9mm black handgun.” The man mentions the single “squad car” and the helicopter as being at the scene.

Two TPD officers listed as witnesses did not fire their guns. One said he was east of the location “80-100 feet away.” He told the officer interviewing him that he “came up through the parking lot and the Officers were out with the subject. In a quick instant I heard 5 to 6 gunshots and saw the male dropping, and saw a Black object falling.” Asked if he knew what the Black object that fell was, “He said, ‘Well the only Black object that was over there was a Semi-auto handgun.’ “

The second non-shooter officer testified he arrived at the scene moments after the first two officers, stopped directly behind their police car, and witnessed the shooting. His summarized testimony in the official report states the two officers first on the scene addressed the suspect. “The suspect took a couple of steps toward (the officers). The suspect then reached into his waistband and pulled what (the officer) said could clearly be identified as a handgun. The suspect drew it and began to raise it towards [the two officers who] began firing at the suspect . . . the suspect slowly began to fall and as he did the weapon he was holding dropped to the ground.”

After driving into the area the sergeant first on the scene said he “took his gun out of the holster because it was a call involving a gun and the location of the suspect was unknown. (The trainee officer) unholstered his gun when he saw (the sergeant) take his out . . . he saw a male and female matching the descriptions given in the call . . . the male suspect appeared to be following the female . . . he drove toward the suspect and stopped about 15-20 feet away. He got out of the driver’s side door and noticed that the suspect had a gun in his waistband. He gave commands to the suspect. He ordered the male to get onto the ground. The male had been facing away from [the other officer] and him. The suspect turned and walked towards them. The suspect ignored commands and reached into his waistband. He took out the gun and began to fumble with it. [The sergeant] said he felt that the suspect was going to try to shoot him at this point. He fired his duty pistol at the suspect 1 or 2 times . . . The suspect fell to the ground. The suspect dropped the gun to the ground. The gun came to rest in a position about 6 feet from the suspect. It was not moved . . . The suspect was facing him straight on when he fired.”

The trainee in his Incident/Investigation report states “There was no cover” indicating he did not see any other officers present. “He told the male to show his hands. The suspect did not comply and did not say anything. At this point . . . he said he saw that the suspect had a gun in his waistband. He described it as black and confirmed that he thought it was a gun  . . . The male suspect grabbed his shirt and lifted it, exposing the gun . . .  The suspect dropped his shirt and then reached for his waistband area again.”

The trainee officer “felt that the male was going to retrieve the gun and shoot at them. He heard [the sergeant] shoot. [He] shot at this point. He fired to address the threat and not because [the other officer] fired.”

With the suspect lying on the sidewalk, the trainee officer said he put gloves on and patted the suspect down. “He did not note any weapon on the suspect . . . He thought he fired three times and hit the suspect three times. He estimated his distance at about 10 feet when he fired.”  In describing the aftermath of the shooting, there is no mention of any gun in his statement. “He couldn’t explain why he couldn’t remember other details after he fired. He denied he fired his weapon as a reaction to [the other officer] shooting.”

Once it was determined they identified as witnesses, the TPD officer who took command of the scene was relieved of duty and sequestered along with the other officer and both were assigned “cover officers.” Cover officers receive a card with instructions to remove the involved fellow officer from the scene and not discuss the event with the witness. Four cover officers that evening stayed with their charges until they were instructed to bring them to the police department where the two shooters surrendered their weapons and each of the four police witnesses spoke with the department attorney before giving their Mirandized testimony to police detectives.

The reports from persons in the neighborhood as to the activity of the couple leading up to the 911 calls also differ. These witnesses interviewed by detectives did not see the shooting.

“I was having a birthday party and heard everyone gasp. I turned to the park and a Man with gun and a Lady pulling at him. He was tugging at her and he hit her with the gun.” Another woman stated: “He had her pinned to the ground. I called 911.” She estimated her distance from the two at 50 yards. The report from this witness ended shortly after the investigating officer asked if the gun looked real. “She said, ‘For me it was real. He pointed it at her. He pointed it at the back of her head.” When asked, the woman told the interviewing officer that “We had somebody in the park with a gun and they jumped the fence, but our dog ran them off. We have Gangbangers here.”

Another witness said she heard “the bald headed guy” yell to the girl he ‘didn’t care what was going to happen to him after that.’ She said she had seen the couple at midnight the Thursday before and they were arguing. She quoted the male as saying, “You like to do that to me to make me jealous.”  She said, “The girl just laughed and they walked to the apartments and kept on arguing.” Asked if she thought the couple were playing around, or if the girl was in distress, she said, “She looked like she was in distress.” When asked in which hand Sosa held the gun, one woman said “I think he had it in his Right hand, but he put it away in his waistband with his Left hand.”

A neighborhood man said, “I saw the guy and the lady fighting, the guy was carrying a gun and tried to hit the lady with the gun . . . The lady was telling him to leave her alone. She was hitting him with a stick. It was a skinny stick. He was trying to hit her in the face. I heard the cops yelling, ‘Drop it.’ “ Apparently answering the officer’s question, the witness said, “He might have the gun in his hand, and a bottle of tequila in the other. I think the gun was in the left hand.”

Yet another male witness had a similar but different view of events. “He heard the female yelling, ‘Leave me alone, get away from me,’ as she tried to fight the male off while the male held her down and was trying to kiss her. The female pushed the male’s face away several times until the male pointed the gun at her forehead. . . He described the gun that the “Cholo” was holding as a large Black pistol that the male held in his right hand.”

There is no explanation in the summary reports as to why several witnesses were questioned about which hand Sosa used to hold the gun.

Meanwhile, back at the Laos Center city bus terminal, detectives caught up with the female suspect. She was “judged by officers to be very intoxicated. She said Freddy had a BB gun earlier in the day, but she took it from him.” A 911 caller had reported “that both the subjects appeared intoxicated,” and it is not clear in the report whether this information was relayed to officers. The woman was described as “incoherent” and inebriated, about 30 years old. According to the report, she “claimed that the male had a Black BB gun but that she had taken it from him and thrown it into the desert.” The interview with detectives also revealed that the woman, who referred to the deceased as “Lulu,” was Sosa’s sister. The detectives said she first said they had the same mother and then that they had the same father. “The female was extremely intoxicated and made statements about the male being her brother and they were arguing over her birthday; she stated he didn’t have a knife but earlier he had a BB gun that she threw into a dumpster; she had been screaming for help but was just kidding around.”  And from another document, “Freddy had been trying to give her a ‘birthday beating’ so she was running and calling for help, but she did not really want help and was only kidding.”

It is a questionable birthday custom among some in South Tucson to inflict a punch for each year on the celebrant. Many Southside children stay home from school on their birthdays.

One of the two detectives who interviewed the sister stated the woman “constantly contradicted herself . . . She also had mood swings going from laughing to crying . . . Freddy was in possession of a BB gun. [The woman said] that the gun looked real and that Sosa had removed the orange cap from the front of it. She stated that she took the BB from Freddy because she didn’t want him to do anything stupid. She also stated that Freddy was ‘capable of anything’ . . . she threw the BB gun into a nearby trashcan.”

The police also report her as saying that Freddy was not on any medications and never had [a history of mental illness] but she admitted she was “Seriously Mentally Ill.” The woman, according to the report, volunteered that Sosa was a member of the Crips. It is fair to note that on Tucson’s Southside such a claim can range from not owning anything that is a particular color claimed by a gang that is rival to your street, to full-out involvement in gang culture. No follow-up is included in the report verifying her statement.

Police did not want to tell Sosa’s sister her brother was dead because “she was too inebriated.” The reports say police tried to locate other relatives to notify about Sosa’s death, but were unable. Two officers were tasked with giving the woman a ride home and making “notification to her that her brother was deceased.” Following the interview, “we drove [her] to the area where she stated that she dumped the gun . .  she directed us to an abandoned house . . . The trashcan in front of the house was empty.” No BB gun was found at either place. Next, the detectives transported the woman “to her residence. [one officer] informed her that Freddy had been killed. [She] became hysterical and was rolling on the ground screaming  . . .  Eventually [she] went to a friend’s apartment. ‘They killed Lu,’ ”  the officers said was the first thing she told the neighbors. The police wanted to take her to a mental hospital but the neighbor said he would call an ambulance if necessary.

Sosa’s sister contradicts the key item in the police report in her statement to OTC. Handcuffed during her questioning, she was asked what Freddy looked like, what he was wearing “and so on.” She verifies police did take her home after driving her around to look for a BB gun. The apartment she shared with Freddy Sosa and their other brother was adjacent to the site of the shooting. Once there, “The police searched my house then told me they had shot and killed my little brother . . . I lost my mind started crying begging them to let me see, let me say goodbye, hug him anything.

“The news and papers said the police were called cause of a man fighting with a woman. They said the police stopped him and he pulled a bb gun on the police. Funny thing is there was no bb gun and still is no bb gun. I had no bb gun.”

Her statement ends the way so many do when someone’s loved one who never presented an actual threat to the police dies in a bullet shower. “Why couldn’t they have tazzed him, pepper spray him. Why did both officers unload their clips on an unarmed man?”

Grasping the uselessness of Sosa’s homicide means recognizing that so many variables conspired to go wrong for him that evening they are hard to count. All the witnesses seemed to be “seeing things.” If each told the truth, whose truth to believe? Like Tamir Rice, the 12 year old shot dead in a Cleveland park by police after calls to 911 reported he was armed when his only weapon was a plastic Airsoft gun, this death would not have happened had Sosa not also been seen in public playing rough with a realistic-looking toy gun.

Given the evidence, or lack of, in the reports, it is difficult to fault the police for this death, and yet Sosa truly had no good reason to die much less so violently that evening. Pointing a fake pistol at his sister’s head was not a crime. Except for extreme public intoxication he broke no laws unless it could be confirmed that he defended himself with a plastic gun against two police officers who confronted him with unholstered real guns.

The case was closed with apparently no further investigation than what was conducted the evening of the shooting and in police interviews the days following. And perhaps at random searches of Sosa’s relatives’ home afterwards, searches his sister claims were made. “Since this has happened the property where I live has been searched from top to bottom looking for a bb gun.. . I got four different stories on why they came in to search my house.” The sister recounts a “raid” on her house almost a year after the shooting. “I still don’t know the reason why they raided the house. I feel it is because they still can’t find the bb gun.”

The police were absolved of any responsibility for Sosa’s death on July 10, 2013, about six weeks after the shooting and on par with the national statistic for disposition of such cases. The Closing Supplement document that TPD received regarding the two officers who shot Sosa states: “Due to the circumstances and evidence surrounding the shooting, no criminal action on behalf of the CAO [County Attorney’s Office] is going to be initiated. Both officers were advised of the declination and this case will be closed as exceptional clearance.” The term “exceptional clearance” means discretionary closure of a case based on department policy. Determination was Sosa was justifiably killed by police.

In part, this decision was based on federal law regarding so-called non-lethal guns like the P311 Stinger found near Sosa’s body.

Under federal gun laws, individuals who use these replicas as though they are real firearms in a robbery or police standoff will be charged as if the gun were real. Pellet, BB, and Airsoft guns must be manufactured with a 6 mm orange tip at the barrel end. The packaging must inform consumers that tampering with the manufacturer logo or orange tipped barrel could result in penalties. These penalties are determined state by state. Arkansas, for example, has outlawed sale and possession of all replica guns. With zero restrictions in Arizona, the extreme default penalty for removing the orange plastic tip from a plastic gun, as proven in this case, is death.

There is nothing that came out of Sosa’s shooting to keep something similar from happening again. There is no citizen review board to ask hard questions or demand changes in policing. Questions like, are there other options to the police confrontations that limit the possible outcome to homicide? Logistically speaking, Sosa was dead when the 911 call came in. It only took a few minutes to accomplish what was practically pre-ordained by the police direct confrontation response. With only seconds allowed to respond to police commands before they start shooting, a person who does not speak English, a person impaired mentally or by substances, or who is experiencing a medical emergency is at distinct disadvantage. It likely was never Sosa’s intention to die by police that night. If one of the officers who shot him could not explain why he couldn’t recall what he experienced or even remember what he did at the shooting, how much more so for Sosa who was the only one present who knew he was unarmed?

Would police body cameras have recorded events more definitively in Tucson’s bright hot light that evening? Would the public know any more than is known now about the death of this young man? Would a camera as quickly cleared the police in this shooting as their own investigation did?

As in any complete tragedy, everyone in this one loses. No decent police officer, and most are, would ever want to make such a killing.

In case we in Tucson think we do not have local experience relevant to the current national controversy about police wearing cameras, the regulation of replica guns, the creation of citizen review boards, or the practice of police investigating police killings, this shooting death disputes that. The only one who must remain silent in the critical debate is Freddie Batt Sosa, along with thousands of others who have died tragically in police contact.

Summary Report for Case # 1305180499
Summary Report for Case # 1305180499 (photo by Norah Booth)

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