DA: Police dad will not be charged in shooting death of toddler son - Morgan Hill Times: Gilroy

DA: Police dad will not be charged in shooting death of toddler son

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Posted: Tuesday, September 25, 2012 1:50 pm

Three months after the July 5 accidental shooting of a 3-year-old Gilroy boy and son of a San Jose Police officer that shook the community, the Santa Clara County District Attorney’s Office announced they are not prosecuting the boy's parents.

After a "comprehensive legal analysis," the DA decided the shooting was a "horrible, irreversible mistake," and did not warrant any criminal charges, according to a press release. 

To read the police report following the shooting and the DA's press release sent out Tuesday afternoon, click on the PDFs at left.

Three-year-old Preston Orlando, the son of officer Brandon Orlando, was in his parent's bedroom at his home on Kentwood Court around 3 p.m. July 5 when he reached into the nightstand next to his parents bed and accidentally shot himself with a Glock .30 semi-automatic handgun, according to the DA report.  Police and medics arrived on scene quickly, but were unable to treat his injuries. 

In what was described by the DA as a fluke and accident, Orlando left his backup gun, in his nightstand drawer, exhausted upon returning from his graveyard shift with the police department the morning of July 5. The report indicates that he left the gun there when his children were not home, and he did not expect them to come home before he left for his second job in the afternoon.

When he awoke at 3 p.m., he had a text message indicating that his afternoon shift at his second job had been cancelled (a job that he would have taken his backup gun), and learned that his wife and children had come home.

Forgetting he had placed his gun in his nightstand, he went downstairs to start a load of laundry, shutting the door to his bedroom on his way out. Downstairs, he saw his son and kissed him.

Within a couple of minutes he heard a "bang."

Orlando went upstairs and saw the master bedroom door open and saw a "haze" in the room. He picked Preston up, who was still breathing at the time, and ran down the stairs, screaming. He immediately called 911. 

According to the report, Orlando has taken full responsibility and is haunted by the tragedy, which the DA used as further evidence to not prosecute him.

"There is no question that Orlando has been devastated by this tragedy," the report read. "We have been provided information that Orlando continues to have flashbacks about the incident, and has trouble being in the master bedroom where he found Preston, and even walking down the stairway of the home, where he carried Preston."

Normally, Orlando stored his guns in a lockbox under his bed - but failed to do so that day.

The report says that in the "immediate aftermath" of the incident, Orlando's took responsibility for the tragedy.

"This is all your f------- fault," his wife, Juliana yelled at him.

"I know," he said.

Terry Harman, one of the assistant district attorneys who handled the case, said that remorse of the responsible party is a huge factor in weighing these types of cases. 

"We are specifically required to consider grief, and legally required to consider the impact the death or injury has had on the responsible person," Harman said.

The DA report indicated that Orlando did not meet the required elements of "gross negligence" in the storage of the weapon - namely that he did not "reasonably know that a child is likely to gain access to the firearm."

"For Officer Orlando, this was a devastating mistake that can never be corrected," wrote District Attorney Jeff Rosen in the summary. "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."

Harman said based on the Gilroy Police Department's "thorough" report which included "many" interviews, and the DA's legal analysis, there was insufficient evidence to prove criminality beyond a reasonable doubt.

"I think that the case certainly demonstrates the importance of gun safety and that you can never be too careful," she said. "There is definitely no court ordered punishment that could rival the degree of loss that (Orlando) and his family have suffered."

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