By Tom Jackman
Washington Post Staff Writer
Thursday, March 23, 2006; 5:24 PM
The Fairfax County police officer who shot an unarmed man to death in January will not be charged with a crime, the county's chief prosecutor announced this afternoon.
From the start, Fairfax police declared that the killing of Salvatore J. Culosi Jr., 37, was an accident and that the SWAT officer who fired had done so unintentionally. Fairfax Commonwealth's Attorney Robert F. Horan Jr. said that when a person fires a gun without malice and unintentionally kills someone, "they do not commit a crime."
"I feel for the family of the victim in this case," Horan said. "You have to. But I also feel for the police officer. This is a good police officer. Fine record, almost 17 years. He's as shattered by this as any good police officer should be."
Police had been investigating whether Culosi, an optometrist with offices in Manassas and Warrenton, was a sports bookmaker. An undercover officer had been placing bets with Culosi for nearly four months and arrived outside Culosi's townhouse in the Fair Lakes area on Jan. 24 to collect $1,500 in winnings, Horan said.
Culosi stood next to the officer's car, on the passenger side, when the officer gave the sign for SWAT officers to move in. Two SWAT officers headed toward the car, one to arrest Culosi and one to protect the officer, Horan said.
The officer involved, a 17-year veteran with long tactical experience, pulled up in a car behind the undercover officer's. "As the officer came out," Horan said, "he was bringing his weapon up. In the course of bringing his weapon up, it discharged. He has no real explanation how."
The officer's name was not released.
Horan said the officer shouted "Police!" at Culosi. "Right after 'Police!'" Horan said, "it went pow."
Culosi was killed almost instantly. Horan said the bullet entered Culosi's left side, traveled through his body and was recovered on his right side.
Horan said the officer was aware that he should not have had a finger on the trigger and that he should not have had his .45-caliber H&K handgun pointed at anyone. "As he [the officer] says, you keep your finger straight," Horan said. "He felt his finger was straight. . . . But obviously his finger is not straight up. His finger has to be on the trigger."
Horan said the officer's gun was tested and was not at fault. He said the gun had a standard trigger pull and was only modified to add a flashlight on the barrel, but the flashlight was not in use.
Culosi's family was planning a news conference for later today to respond to Horan's announcement. His decision not to pursue criminal charges does not affect any possible civil lawsuit the family might file.
The officer, originally placed on leave with pay, was returned to work in an administrative job a couple of days after the shooting, police spokeswoman Mary Ann Jennings said. Police said they will now resume their internal investigation of the officer; they were prevented from interviewing him while the criminal probe was pending.
Horan said the accident "could have been based on the number of hours the officer was awake that day." He said the officer had started working at 5 a.m., overseeing a managed deer hunt in the Great Falls area aimed at thinning deer overpopulation. Horan said the officer went home at noon that day, then returned to work at 8 p.m.
Culosi was shot behind his townhouse on Cavalier Landing Court, just off Lee Highway, at 9:35 p.m. A medical technician who accompanied the SWAT officers worked on Culosi, and he was taken to nearby Inova Fair Oaks Hospital, where he was pronounced dead.
Horan held a news conference to announce his decision at Fairfax police headquarters, but police officials did not speak, and Chief David M. Rohrer was not present. Police said the criminal decision was solely Horan's to discuss. Horan declined to weigh in on what discipline, if any, he thought Rohrer should impose on the officer.
Jennings said police are continuing to review their policies on the use of force and also on the use of SWAT teams in serving search warrants. Horan said he thought the use of SWAT teams by Fairfax police was appropriate.
Horan said he did not know if Culosi was involved in an organized gambling operation, but said Culosi had at least one "lay off man," or another person to accept bets. He said police removed $40,000 cash from Culosi's townhouse. "He wasn't a kingpin," Horan said.
In his letter clearing the officer, Horan said that even if a weapon is discharged carelessly and negligently, there is no crime if it is done without malice. "At best, the evidence in this case does not approach criminal negligence," Horan wrote, "which, as you know, is a much higher standard. The shooting was clearly unintentional, was without malice, and was not a criminal act."
The veteran prosecutor said his test in deciding whether to file charges was whether there was enough evidence to convince a jury to vote guilty. "In this case, that evidence is just not there," Horan said.
Horan said he "felt bad" about taking two months to decide whether to file charges. "But unfortunately, we did not have the forensic evidence complete. The report of autopsy was not completed until March 16, and I got it on March 17," Horan said.