Local News

Johnston County DA Says Clayton Shooting Justified

Posted June 24, 2004

— Johnston County District Attorney Tom Lock has ruled that Clayton police were justified in firing their weapons during an encounter that left a homeowner with two gunshot wounds.

After reviewing the findings of the State Bureau of Investigation, Lock came to the same conclusion as Clayton's police chief, who had ruled within days of the shooting that his officers acted properly.

"The use of deadly force was warranted, and the number of shots they fired was not excessive," Lock said in a report released Thursday to the media.

The incident in question occurred Feb. 2, when Clayton police Officers Jeff Porter and James Barbour shot Manuel Pena as he confronted them on his front porch with a .22-caliber rifle. The officers fired more than a dozen shots, striking Pena twice and leaving him in critical condition.

Pena was upgraded to fair condition two days after the shooting.

According to Lock's report, Barbour and Porter had been conducting a search for an escaped felon in Pena's neighborhood. The report said the officers knocked on the door of Pena's trailer and saw a man inside who they thought might be the suspect.

Lock's report said the officers again knocked on the door when no one answered and identified themselves as police officers. That is when, according to the report, Pena -- who does not speak English -- came out of his trailer with a rifle.

The report said the officers ordered Pena in English to drop the gun, saw Pena move the weapon "as if to shoulder it," and fired two shots at him.

Pena stepped back into the trailer, according to Lock's report, but came back out on the porch a few seconds later still holding the rifle in both hands. The report said it appeared Pena was pointing the rifle in the officers' direction, and the officers then fired a combined 14 more shots at Pena.

Lock's report said Pena again re-entered the trailer and again emerged after a few seconds, "this time holding the rifle in his left hand." He then dropped the rifle, stumbled against the porch rail and collapsed.

The report said Clayton personnel transported Pena to WakeMed for emergency surgery.

The report also says that Pena told SBI investigators he saw a police officer and recognized him as law enforcement because of his badge.

Pena's son had disputed the officers' version of the encounter and wanted to know why police fired so many shots at his father.

"At first blush, the number of shots fired by the Clayton officers seems excessive," Lock said in his report. "However, the officers were entitled to employ deadly force until the apparent deadly threat facing them was eliminated.

"Moreover, the law does not require police officers to wait until a suspect shoots to confirm that a serious threat exists. Courts have recognized that police officers are often forced to make split-second judgements in circumstances that are tense, uncertain and rapidly evolving.'"

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