The San Jose police officer whose 3-year-old son accidentally shot himself to death with a handgun he found in the family's Gilroy home will not face criminal charges for leaving a loaded gun within reach of children, prosecutors announced Tuesday.
In an unsettling, six-page report that recounted for the first time what happened that day, District Attorney Jeff Rosen concluded that the tragedy was "a horrible, irreversible mistake." But he found that it did not meet the required legal elements for charging Officer Brandon Orlando with either a felony or a misdemeanor for criminal storage of a firearm.
Preston Orlando shot himself in the head July 5 with a .45 caliber semi-automatic handgun that his father accidentally left in the top drawer of his night stand in the master bedroom. The little boy was able to easily retrieve the weapon because the drawer was actually a wicker basket set in a wooden frame.
"For Officer Orlando, this was a devastating mistake that can never be corrected," Rosen said. "For the rest of us, it is a sad and cautionary tale about the paramount importance of gun safety. Please don't make the same mistake and let 3-year-old Preston Orlando's death be in vain. When not in use, keep your weapons safely locked away from our innocent children."
Historically, accidental shooting deaths involving children are rarely prosecuted. The maximum penalty is three years in jail. To file such charges, Rosen would have
In addition, the law states that prosecutors must weigh "impact of the injury or death on the person" deemed responsible -- that is, whether the loss of a child is punishment enough.
Live with memories
In the report, prosecutors said there is no question that Orlando has been devastated by this tragedy. The family is in therapy, the report noted.
"He must live with the knowledge that he failed his son when he did not move the gun to the lockbox following the cancellation of a secondary job he expected to do and the arrival of his children into the home," according to the report. "There is no court-ordered punishment that could rival the degree of loss he and his family have suffered."
Orlando, a nine-year veteran of the department, worked long hours -- four 10-hour days on the graveyard shift, as well as a second job as a security guard twice a week after he finished his police shift.
The day Preston died, Orlando returned home that morning after working from 9 p.m. on the Fourth of July until 7 a.m. Exhausted, he put his department-issued AR-15 rifle and a 40 mm launcher (enclosed in their cases) in his office and went upstairs. The children were not allowed in the office.
But instead of securing his backup weapon in the lockbox underneath the bed, he put it in the wicker drawer -- without activating its cable lock, which prevents accidental disclosure, because "he forgot he had it." Many law enforcement officers carry a backup firearm in case they cannot use their duty weapon during a life-threatening situation, according to the report.
He immediately fell asleep about 8 a.m., expecting to get up later and go to his second job from 4:30 to 7:30 p.m., before his wife and children came home. But he woke up to find his shift as a guard had been canceled.
When his wife came home with the children, including two of his nieces and one of his nephews, he closed the master bedroom door and went downstairs, forgetting about the gun in the closed wicker drawer. The children were told not to go into their parents' bedroom if the door was closed, and they generally obeyed, according to the report.
Downstairs, Orlando saw Preston running by without a shirt on and heard his wife telling the boy to put on a shirt. Orlando told his son, "Listen to your mother," and gave his son a kiss. Preston apparently went upstairs to comply.
Within a "couple of minutes," the report states, Orlando heard a "bang." He ran upstairs to find his son lying on the floor with his gun at his feet and a hole in his forehead above his right eye, still breathing. The officer picked up the child and ran downstairs, screaming. They rushed him to St. Louise Hospital's emergency room, but by the time they arrived the boy was dead.
The report, written by assistant district attorney Terry Harman and supervising district attorney Steve Dick, found that Orlando's error was in failing to relocate the gun to the lockbox once circumstances changed after he woke up.
Although Orlando's actions "allowed a tragedy to occur, it does not mean he disregarded human life, or was indifferent to the consequences of his actions," as required under the criminal storage law, the report found.
Orlando, who has returned to work, has trouble being in the master bedroom where he found Preston and even walking down the stairway of the home, where he carried the child. He also suffers from flashbacks, has difficulty sleeping and is "traumatized," the report noted.
In the immediate aftermath of the accident, the report says, his wife yelled at him, "This is all your (expletive) fault." He looked at his wife and responded, "I know."
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