The San Bernardino County District Attorney’s Office recently completed its review of the fatal officer-involved shooting of Mark Matthew Bender Jr. at the King Tut Liquor store on Oct. 22, 2020, and concluded that, based on the facts and applicable law, San Bernardino City Police Officer Brandon McCaulley’s use of lethal force was a proper exercise of the right of self-defense and the defense of others and legally justified.

The district attorney’s office released a memorandum detailing the San Bernardino City Police Department’s investigation into the case and the district attorney’s review and conclusion on Oct. 8.

The evidence collected in the investigation included the original 911 call reporting a man with a gun at the strip mall parking lot at 279 E. Base Line, video footage from McCaulley’s body camera, cell phone video taken by a bystander, video surveillance footage from the location’s businesses, McCaulley’s testimony and witness testimony. Also, a loaded 9 mm handgun with Bender’s fingerprints on the magazine (which was inside the gun) and a large amount of suspected narcotics were collected from the scene and Bender’s possession.

The body camera footage shows McCaulley’s perspective when he first approaches Bender but blacks out once the physical altercation begins as the camera was pressed against Bender’s body during the struggle. Audio was recorded throughout the incident.

The bystander’s phone footage begins after the physical struggle had started and shows the shooting.

According to the report, Bender had a prior criminal history that included convictions of spousal battery, false imprisonment, possession of marijuana for sale, possession of cocaine for sale and taking a vehicle without consent. At the time of the shooting, Bender was out on bail for pending cases of driving under the influence, corporal injury to a spouse, first degree burglary, resisting a peace officer, shooting from a motor vehicle, infliction of great bodily injury and attempted murder.

“It is reasonable to assume that Bender was not complying and knew if he was searched and those illegal items found on him he would be arrested and forfeit bail on his pending cases,” the report stated.

Further investigation included additional surveillance video from the strip mall businesses that “showed Bender engaged in what appeared to be sales of narcotics and marijuana while he was at the location.”

The confrontation

At approximately 11:16 p.m. San Bernardino Police received a 911 call reporting a man with a gun jumping on the top of cars and acting erratically. According to the 911 caller, the man was “real drunk” and “He has a gun and he’s just going crazy.”

McCaulley was the first officer to arrive at the scene. He located and approached a man fitting the caller’s description—Black male wearing a white T-shirt and black shorts—walking across the parking lot in front of King Tut. Due to the report that the man was armed with a gun, McCaulley approached Bender with his sidearm drawn and ordered Bender to show and raise his hands.

Bender at first began to raise his hands but then dropped them to his waist and continued toward the store. Bender reponded saying, “Why you got a gun on me?” and “I’m going to the store,” but he continued to walk away and failed to comply with McCaulley’s numerous commands to show his hands, stop and “come here.”

According to the report, McCaulley became fearful that Bender would enter the store where there were several bystanders, that Bender might shoot or take the bystanders hostage. In an attempt to de-escalate the situation, McCaulley holstered his gun and attempted to detain Bender through physical force. He grabbed Bender from behind and forced him to the ground. But Bender was larger and stronger than McCaulley and continued to resist. McCaulley again gave numerous commands to stop resisiting, to which Bender did not comply.

Accordign to McCaulley, it was during the struggle that he felt the gun in Bender’s hand and then saw the gun. As McCaulley tired, Bender began to rise to his feet with McCaulley on his back. Feeling that he was “overpowered” McCaulley stood up, backed away and drew his gun. As Bender turned toward McCaulley, gun in-hand, McCaulley fired four shots, hitting Bender in his left side and back.

District attorney’s conclusion

According to the district attorney office’s review, while McCaulley did not know Bender’s criminal history, McCaulley approached Bender with caution and gun drawn, acting on the report that Bender was armed with a gun. While attempting to detain Bender with non-lethal force McCaulley confirmed that Bender indeed had a gun in his hand. During the struggle, McCaulley felt the gun in Bender’s hand and saw it. McCaulley feared that he and the nearby bystanders were in imminent danger when Bender was able to overpower him and draw the gun from his shorts.

“Under all of those circumstances, it was objectively reasonable for Officer McCaulley to believe that Mark Bender posed an immediate and serious threat to his physical safety and to the safety of others and thus, Officer McCaulley’s decision to use deadly force was justified,” the report stated.

In March 2021, Bender’s family, represented by the Cochran Firm and Ivie, McNeill, Wyatt, Purcell and Diggs, filed a claim for damages against the city of San Bernardino for Bender’s death. They claimed that the officer did not have reasonable justification for use of lethal force and that McCaulley escalated the situation with his actions.

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