Charges reduced against man shot by cop

Bill Gang and Jerry Fink

Wednesday, April 14, 1999 | 11:07 a.m.

A District Court jury decided Tuesday that a 27-year-old Las Vegas man who was shot while fleeing from a Metro Police officer was guilty of misdemeanor resisting arrest.

He had originally faced charges of felony pointing a gun at a police officer and obstructing justice, but the jury reduced those charges.

Judge Jeffrey Sobel sentenced Januel Fernandez to six months in jail for running from Officer James Breed the night of Feb. 15, 1998.

Fernandez was shot three times during the pursuit in the Pinewood Apartments on Swenson Avenue, once in the left arm, once in the left leg and once in the back.

The shot in the back struck a pager, saving Fernandez from more serious injury, said his attorney, Public Defender Kevin Williams.

Williams said all three shots were from behind, disproving the officer's claims that Fernandez had been attempting to shoot him.

Breed, who normally was on bike patrol but the night of the shooting was driving a paddy wagon, testified Monday that Fernandez twice pointed a pistol at him after leading him on a foot chase in a high-crime area near the Boulevard mall.

A pistol found beneath a van at the shooting scene and presented as evidence did not bear Fernandez's fingerprints.

Metro firearms examiners could not determine ownership or origin of the small-caliber pistol, which had not been fired, according to testimony.

A cell phone found at the scene, which Breed testified he had seen in the defendant's hands, also did not bear his fingerprints.

Breed had been driving past the apartment complex when he saw a group of five to seven people that aroused his suspicion, investigators said.

He parked his paddy wagon and entered the complex to investigate. The group dispersed.

Three of the people went in one direction, then one took off running. Breed pursued the one who ran.

Deputy District Attorney Bill Hehn said Fernandez was "attempting to stop the officer from trying to do his business and establish what was going on."

In his closing argument, Williams tried to plant in jurors' minds that Breed may have used a "drop gun," an unmarked weapon some officers are believed to carry, to plant evidence.

"There is nothing to connect Fernandez to the gun," Williams said.

There also were no drugs found, although Breed repeatedly referred to the neighborhood's reputation as a haven for drug dealers, Williams pointed out. And he argued that Breed, on paddy wagon duty, had no business approaching the group in the first place and failed to inform his superiors of the surveillance.

Breed argued that despite being on transportation duty, it is his duty as a bike cop to root out street-level drug trafficking.

He said his delay in notifying Metro of his activities was because other broadcasts were tying up the radio and then "events happened very quickly."

While Metro Homicide Detective James Vaccaro generally supported Breed's actions, he admitted it is not a good idea to conduct surveillance without notifying superiors.

Two witnesses for the state testified Tuesday they saw the chase and heard the shots, but didn't see a gun in Fernandez's hand.

They also said they didn't know until after the shooting that Breed was a police officer.

Williams told the jury it was dark and that Breed did not identify himself, or if he did may not have been understood by Fernandez, a Hispanic who had translators with him during the trial.

Williams said his client ran because he was scared.

Fernandez testified in his own behalf Tuesday, the only witness called by the defense.