Descano clears officer in shooting incident

Fairfax County’s Commonwealth’s Attorney Steve Descano issued a report stating that an undercover police officer was justified in shooting a suspect Aug. 2 in Seven Corners. Descano will not file criminal charges against the officer, Sgt. Joshua Moser.

Descano’s report says Moser was part of the police department’s Street Crimes Unit, which had arranged for an undercover detective to meet the suspect in a Wendy’s parking lot to buy crack cocaine. Several other undercover officers were there in unmarked police cars. During a briefing before the drug deal, the officers discussed intelligence that the suspect was likely armed.

When the suspect arrived at the meeting place, he parked next to the undercover officer’s vehicle, but then decided not to go through with the drug deal and backed out of the parking space.

“Although no drugs changed hands, the Street Crimes Unit had reasonable suspicion that narcotics were present inside the suspect’s vehicle and therefore decided to stop his vehicle,” Descano wrote.

Related story: Police shoot suspect in Seven Corners

As three unmarked police cars started to converge on the suspect’s vehicle, the report says, “The suspect drove through the parking lot without headlights, disregarded stop signs, and appeared to be driving over the speed limit.” A “tactical vehicle intercept” was unsuccessful in stopping the suspect, as he drove over a curb.

At this point, two of the officers activated their lights and sirens, but the suspect sped up. One of the officers then used a “precision immobilization technique” to ram into the rear of the suspect’s car, causing it to rotate and stop in a service road on Arlington Boulevard. The suspect’s car was blocked in by three officers’ cars and a hilly grass median.

Moser said he got out of his unmarked vehicle, a Ford F-15, stood on the running board, issued commands to the suspect to put his hands up, and pointed his firearm at the suspect’s car. That account was confirmed by another undercover officer at the scene, Det. Anthony Taormina.

Moser’s firearm was equipped with a flashlight, and he could see that the suspect was moving his body toward the glove box. He called it a “roll of the body.” Moser believed the suspect was reaching for a firearm and that Taormina was in a vulnerable position, the report states. Moser said he discharged one round – hitting the suspect in the rear upper left arm – to protect Taormina.

Police found drugs inside the vehicle, but no firearm.

The suspect, Jeffrey Payne, 41, of Falls Church, was charged with possession with intent to distribute narcotics and resisting arrest.

According to the report, “The physical evidence in this case supports Sgt. Moser’s telling of events.”

“My investigation of this incident included a review of reports, interviews, physical evidence, and a reconstruction of the scene,” Descano wrote. Because this was an undercover operation, none of the officers were wearing body cameras and their cars did not have dashboard cameras.

The report says that “Given the trajectory of the bullet, the location of the suspect’s injury, the suspect’s height, and the suspect’s position inside the vehicle, the only way for the suspect’s upper left arm to be struck would be for the suspect to have been reaching to the right – the ‘roll of the body’ towards the glove box.”

“If the suspect had not been reaching in that direction, he would have been struck in a different location,” it states.

This investigation found Sgt. Moser was reasonable in fearing the suspect intended to obtain a firearm and shoot at an officer, Descano says. “It was therefore legally permissible for Sgt. Moser to use the level of force he employed.”

“The fact that no firearm was recovered does not negate this conclusion because Sgt. Moser’s perception was reasonable based on the facts and circumstances known to him at the time,” he concludes. “Accordingly, I find no violations of criminal law on the part of Sgt. Moser and decline to bring any criminal charges against him.”