The Tigard police officer who shot and killed Jacob Macduff on Jan. 6, 2021, had no reason to fear for his life, according to an independent report released this week. The report, which was conducted by an outside organization that reviews police shootings, offers a stinging rebuke of both the criminal and internal investigations into the shooting.
Officer Gabriel Maldonado shot and killed Macduff after a standoff with police in front of a Tigard apartment complex. Macduff was locked in his truck and refusing to come out for over an hour as negotiators attempted to get him to surrender. After the negotiations failed, officers attempted to force him from the vehicle. During the ensuing struggle, Maldonado claimed he shot Macduff after he reached for a knife. None of the other officers there saw the knife, according to the report.
“Unlike a person with a firearm, a barricaded subject armed with a knife inside a truck would have presented no significant threat to Officer Maldonado had he created distance and searched for cover like the other officers,” according to the report by the OIR Group, the outside agency conducting the review. “At no time did Macduff make any movement of aggression to any of the officers.”
The independent review was agreed to as part of the $3.8 million settlement between Tigard and Macduff’s family. The Macduff estate paid for the report.
After the shooting, Washington County District Attorney Kevin Barton asked the Oregon Department of Justice to conduct the criminal investigation. In a letter requesting the DOJ take over, Barton cited a newly passed state law requiring officers to “consider alternatives” to physical and deadly force and mandating that officers give a verbal warning and a reasonable opportunity to comply before using force if “a reasonable opportunity to do so exists.” A grand jury declined to indict Maldonado.
A subsequent internal investigation by the Tigard Police Department found the involved officers did not violate department policies.
The 45-page report released Monday suggests both investigations were deficient.
“Even under Officer Maldonado’s version of events, the only threat presented was a man who was armed with a knife locked inside his own vehicle,” the report says.
Macduff’s mother, Maria Macduff, said officers called her during the standoff and asked if she would talk to her son. She said she was put on hold before being disconnected and not contacted again for two hours when she was notified the police had shot and killed her son.
The outside review found that neither the Washington County Major Crimes Team, the interagency team charged with investigating the shooting, nor the Tigard Police Department’s internal review board asked follow up questions about this apparent missed opportunity.
At one point in the standoff, the apartment complex’s maintenance supervisor, who had a friendly relationship with Macduff, offered to speak to him. According to the report, Sgt. Caleb Phillips “dismissed the idea as too dangerous” and never revisited it after officers started talking to Macduff on the phone. The Tigard Police review board never pressed Phillips on that decision.
“My son didn’t have to die,” Maria Macduff said in a statement Monday. “There was no reason for the police to shoot him. And they covered up all their mistakes in their own investigations.”
Rather than taking steps to deescalate, the report describes a chaotic series of mismanagement and blunders leading up to Macduff’s death.
During the investigation, the involved officers claimed they did not believe Macduff was having mental health issues. That’s despite responding officers saying Macduff was nonresponsive, doing weird things “over and over and over again,” asking officers to call him “Macfluff,” and using words that did not make sense. Officers were told Macduff had been hitting his head against the wall prior to them showing up and Macduff’s mother told officers she wanted him committed because of his mental health history.
And yet, the outside report notes that “all on-scene officers disavowed having any impression that Mr. Macduff was going through a mental health crisis when they encountered him.”
From the moments after the killing, the investigation appeared sloppy, the OIR report says. After the shooting, Maldonado and another involved officer were placed in the same car, potentially giving them an opportunity to agree on a version of what happened or inadvertently influence one another’s memories. It’s a mistake that the report says violates “basic officer-involved shooting protocols” and had a “serious impact on the integrity of the investigation.”
The officers were not interviewed until three days after the killing, a delay the report calls “inconsistent with basic investigative principles of effective and objective fact collection.” The OIR Group recommended adopting policies requiring interviews with officers involved in deadly force incidents before the end of their shifts.
Barton, the Washington County DA, said that’s an odd suggestion and one which OIR previously made to the Portland Police Bureau in 2016. Prosecutors say forcing an officer to give a statement could inadvertently provide an officer complete immunity from prosecution.
“A police officer has a right not to incriminate themselves and not to be forced to provide evidence that may be used against them,” former Multnomah County Deputy District Attorney Ryan Lufkin wrote in a 2017 memo. “The most significant sanction that the court could impose is that the officer could not be prosecuted for any criminal offense, including homicide, related to the compelled statement.”
The state Department of Justice agreed with Lufkin’s memo.
When the Washington County Major Crimes Team did interview the officers after the Macduff shooting, the questioning appears to have lacked rigor, according to the OIR Group report. For example, the report finds that the investigators didn’t push back on the officers’ conclusion that Macduff was not in a mental health crisis. Investigators didn’t ask why the tactical plan for pulling Macduff from his truck was not briefed to everyone involved. And they didn’t ask about one officer’s apparently unilateral decision to fire bean bags at Macduff’s windshield.
In questioning Maldonado, investigators did not ask about his decision to punch out the truck window without explicit approval or about his decision to stay next to the truck for 18 seconds before firing the second deadly volley of shots instead of following the other officers to a safe position.
The report’s recommendations are non-binding, but Tigard Police Chief Kathy McAlpine responded to the report before it was made public in a letter to City Manager Steve Rymer. In the letter, McAlpine said the department has taken a number of steps since the Macduff shooting, including adopting body-worn cameras and adding an officer to the Washington County Mental Health Response Team.
“We are open to many of the recommendations made in the report and will thoughtfully evaluate where they can be incorporated, in alignment with national best practices and Oregon law,” McAlpine wrote.
After the shooting, Maldonado was placed on leave pending an investigation. He returned to work in March 2021 and transferred to the Port of Portland the following month. After OPB reported that Maldonado had been hired despite still being under criminal investigation, the Port of Portland fired him, saying they were not aware of the still open investigation when he was hired.
OPB also reported that Maldonado had tried and failed for years to become a police officer in the state. He failed a physical for the Oregon State Police, the oral boards for the Portland Police Bureau, the written test for the Beaverton Police, and the written test for the Clackamas County Sheriff’s Office twice. Maldonado was turned down after interviewing with Lake Oswego Code Enforcement and failed a background investigation with the Gresham Police Department after he failed to disclose a curfew violation he received when he was younger.
In 2019, after 13 years with the Tigard Police Department, Maldonado failed the background investigation for a position with the University of Oregon Police Department. Records obtained by OPB revealed the investigator who did his background check for Tigard in 2006 recommended against hiring him.
The OIR report released Monday said the Tigard command staff reviewed the hiring decision and claimed the Gresham failure was not apparent in the records. Still, the report notes, the department does not appear to have re-evaluated the initial hiring decision and recommends reviewing background investigation and hiring practices.
Barton, who helps lead the major crimes team but doesn’t have control over its policies, told OPB he has distributed the report to the members of the team.
“This is going to absolutely be one of the very first things we talk about at our next upcoming monthly meeting,” Barton said. “There are some good suggestions in here.”