POLICE REPORT FAILS TO ANSWER QUESTION IN SWAT SHOOTING OF ALBERTO SEPULVEDA

Modesto Police Chief Roy Wasden said his department accepts
responsibility for killing 11-year-old Alberto Sepulveda, while
maintaining that the Sept. 13 shooting was accidental.

The summary of the police investigation, made public Wednesday, also
faults federal agencies for shoddy intelligence and details changes
already put in place in SWAT policy and procedures.

The report offers three scenarios but never definitively answers how
the shooting happened.

"The trigger had to be pulled, I'm convinced of that," Wasden said.
"But I can't find any reason officer (David) Hawn would want that
shotgun to discharge. There was no intent."

There were few surprises in Wasden's 35-minute presentation at the
Police Department. Those came later at the DoubleTree Hotel, when the
dead boy's grieving parents and their attorneys held a hastily called
press conference in a hallway.

Attorney Arturo Gonzalez said Wasden's report didn't go nearly far
enough to explain how such a tragedy could happen.

Moises and Sonia Sepulveda strained to describe their feelings, but
couldn't find the words. She trembled and bowed her head before her
husband grabbed her in a tearful embrace.

"We're quite disappointed at what we received," Gonzalez said. "We
intend to fight for this little boy until we get all the answers."

Here is what the police report says about the shooting, which occurred
when a SWAT team assisted federal agents in a drug raid:

Initial intelligence provided by federal agents said Moises Sepulveda
was suspected of being a member of a drug-trafficking ring believed to
be led by Manuel Ruelas and should be considered "armed and dangerous."

While investigating the shooting, police learned that Moises
Sepulveda's name surfaced only during the final two months of an
18-month investigation. Also, very little information had been
gathered about Sepulveda and his home. As a result, SWAT officers
forced entry into the house believing no children lived there.

Tests showed Hawn's Benelli shotgun almost certainly did not
malfunction. Hawn either inadvertently pulled the trigger, or the gun
could have gone off when the handle of Hawn's knife became lodged in
the trigger guard.

SWAT officers are trained never to rest their finger on the trigger,
and archive photos presented by police showed that Hawn followed that
rule on raids before the Sepulveda shooting.

The Police Department no longer will assist outside agencies in
serving warrants simply on good faith. Those agencies must provide
detailed information to justify the level of force requested.

"What are we gaining by serving these drug warrants?" Wasden said. "We
ought to be saying, 'It's not worth the risk. We're not going to put
our officers and community at risk anymore.'"

Gonzalez said he is wondering the same thing. He told reporters
Wednesday that he will file a federal lawsuit as soon as next week to
stop early morning SWAT raids such as the one that led to Alberto's
death.

At 6:21 a.m. Sept. 13, a federal agent demanded entry while a SWAT
officer pounded on the front door of a McAdoo Avenue home in northwest
Modesto. Thirty seconds later, SWAT officers forced open the door,
threw a flash-bang grenade and stormed into the dark house.

The first SWAT officers in the house found Alberto and his sister,
Xitlalic, 8, in separate bedrooms. While one officer stayed with
Xitlalic in her room, Hawn ordered Alberto to the floor and he complied.

While waiting for assistance, Hawn had his shotgun pointed at Alberto
to illuminate him with the gun's flashlight.

As this was happening, several officers found 14-year-old Moises
Sepulveda Jr. in the hallway and ordered him to the floor. He dropped
down behind Hawn.

Police say the teen repeatedly tried to stand up. The SWAT team leader
placed his foot on his back, telling him to stay down as another
officer tried to handcuff the boy.

During the commotion, Hawn's gun discharged, striking Alberto in the
back.

Gonzalez, however, said Moises Jr. remained on the floor as he was
told.

"He was nowhere near the officer who fired the weapon," Gonzalez said.
"He only tried to get up after hearing the shotgun blast. He did
nothing to contribute to his brother's death."

Gonzalez also blasted the FBI, Internal Revenue Service and the
federal Drug Enforcement Administration -- key participants in the
drug investigation.

"You've heard of Ruby Ridge and Waco," Gonzalez said. "You can add
Modesto to that list. What happened here is a tragedy."

The Sepulvedas and Gonzalez met with Wasden and City Attorney Mike
Milich earlier Wednesday.

Gonzalez said the Police Department report indicates that there was no
reason to send the SWAT team to the Sepulveda house. The attorney said
Sepulveda was not involved in methamphetamine trafficking, and there
were no guns or drugs found in the house.

While Gonzalez and the family want more details, Milich said the city
already has provided more information than it normally would in a case
involving litigation.

The boy's family has filed a wrongful death claim against the city.
Milich said no action was taken on the Sepulveda claim, paving the way
for the family to sue the city.

The family also is expected to sue federal agencies.

Federal officials withheld response to Wednesday's
criticism.

Spokesmen for the FBI and the U.S. attorney's office said they would
not comment because of the pending charge against Moises Sepulveda. He
is charged with conspiracy to distribute methamphetamine and is
scheduled to return to federal court Jan. 29.

The report is the first of three expected to be made
public.

Milich said inquiries by the district attorney and attorney general
are expected to be done by the end of the month. Those investigations
will determine whether Hawn will face criminal charges.

Meanwhile, Wasden said he removed Hawn from the SWAT team and assigned
him to an investigations unit.

Sensitive to the barrage of criticism right after the shooting, the
chief met Tuesday evening with a group primarily made up of Hispanic
leaders.

"It's not a question of blame," said Modesto lawyer Armando Flores.
"It's a question of mistakes that need to be corrected. It's a
question of too much reliance on another agency's procedures.

"It was a fatal series of mistakes that caused the death of this
child. But there was no evidence of any attempt to kill this child,
and that was very clear from that report."

Frequent city critic Miguel Donoso said he was disappointed that the
report contained little information that wasn't released within days
after the shooting.

"I want for police to come out and say the guy blew it and shot the
young boy," Donoso said. "A person with 21 years' experience and all
that training couldn't make a mistake like that."

Juan Alvarez, president of the Hispanic Leadership Council, said he
believes Wasden will make changes to make sure the incident won't be
repeated.

"I can understand we need to have a war on drugs," Alvarez said. "But
it has to come with absolutely no injuries to innocent people."

Flores said the Sepulveda family has endured enough without being
drawn into a legal battle.

"The city needs to be open and generous and cooperative with the
family in resolving the financial claims," he said. "The family has
been through enough."

Gonzalez said the planned lawsuit is not about money. Instead, he
said, the Sepulvedas hope to prevent a repeat of the tragedy that
claimed their son.

"This family must be compensated," Gonzalez said. "But I'll let a jury
decide what the value of this boy's life is."

Bee staff writer Ty Phillips can be reached at 578-2331 or
tphillips@modbee.com and Michael Mooney can be reached at 578-2384 or
mmooney@modbee.com.

THREE POSSIBILITIES

The Modesto Police Department's investigation into the shooting death of
11-year-old Alberto Sepulveda considered three scenarios involving the
discharge of the shotgun carried by SWAT officer David Hawn:

1. Did Hawn's gun malfunction?

After extensive testing, police investigators concluded there was no
evidence to suggest the gun malfunctioned.

2. Did Hawn pull the trigger?

Though other officers heard Hawn say his finger was not on the
trigger, the possibility Hawn unintentionally or unconsciously pulled
the trigger cannot be ruled out.

3. Did Hawn's personal equipment cause the gun to fire?

Hawn carried his knife on the front of his tactical vest with the
handle protruding upward and out.

SOURCE - MODESTO POLICE DEPARTMENT