Officer Will Not Be Charged in Shooting Death : Slaying: District attorney says there is not enough evidence to prosecute Edward Tolley in the killing of James Buck last year. The victim's mother claims officials are lying.

By ROXANA KOPETMAN

May 13, 1993 12 AM PT

TIMES STAFF WRITER

LONG BEACH — Following a yearlong investigation, prosecutors have decided not to file criminal charges against a Long Beach police officer in a controversial shooting death because the case could not be proved “beyond a reasonable doubt.”

Dist. Atty. Gil Garcetti said there is insufficient evidence to charge Officer Edward Tolley, who shot a man to death in front of the victim’s parents in the foyer of their oceanfront home May 6, 1992. Garcetti revealed his decision last week in a letter to Police Chief William C. Ellis.

Investigators concluded that Tolley feared for his partner’s life when he fired three shots at James R. Buck, 31. But the investigators said the shooting was questionable and some of the evidence contradictory.

“I think the shooting was morally wrong. It was not a good shooting,” said Deputy Dist. Atty. Eloise G. Phillips. “(But) we can’t prove it. And for that reason, and for that reason alone, we’re not filing.”

Tolley and his partner, Richard Austin, had responded to a call that Buck and his father, Terry, were loudly arguing.

“There is a reasonable interpretation for a jury to see it the way police said it happened,” Phillips said Tuesday. Unless new evidence surfaces, the case is closed, she said.

Tom Beck, the Buck family’s attorney, said the case should have gone to trial.

“Of course they could prove it if they tried. . . . Prosecutors don’t have the guts. I do,” said Beck, who is representing the family in a multimillion-dollar civil lawsuit against the officers and the Police Department.

Meanwhile, City Manager James C. Hankla said he plans to review an investigation by the department’s Internal Affairs division to determine whether Tolley, an 11-year police veteran, should be disciplined. Tolley is now a detective in the Juvenile Division.

Hankla also will review a report by the Citizen Police Complaint Commission, which concluded that the shooting was “out of policy” and “negligent.” The commission’s findings were revealed in Garcetti’s letter to Ellis.

Last year, shortly after Buck’s death, a department shooting review board determined that the shooting was within policy.

But Buck’s parents, who witnessed the shooting, have disputed the police version of events.

Tolley and his partner were responding to a call from Christene Buck, who reported that her son James and her husband, Terry, were arguing about whether James could keep his potbellied pigs at their home.

When the officers arrived, James Buck met them at the door and a scuffle ensued. Tolley claimed that Buck took the officer’s baton and flashlight and began hitting him and Austin. Tolley said he fired because he was afraid that Buck would hurt or kill Austin with the baton. Tolley said Buck seemed to have “incredible strength” and appeared deeply disturbed. At the time, Buck was being treated for manic depression.

Buck’s parents disputed Tolley’s version, saying they never saw their son with a flashlight or baton.

Austin told investigators that James Buck hit him with a flashlight but not with a baton. It was one of several discrepancies investigators uncovered.

“It appears that James also had possession of the baton,” Garcetti wrote. “Whether James ever tried to use the baton and thereby posed a threat of death or great bodily injury to anyone, seriously calls into question Tolley’s credibility.”

But Garcetti also wrote that “it appears fairly certain” that James Buck had a flashlight in his hand and was using it as a weapon against Austin.

Garcetti’s report also said a combination of medications and alcohol may have created the impression to officers that Buck had superhuman strength. The coroner found that Buck’s blood-alcohol level was 0.18%, more than twice the legal limit allowed for driving, Garcetti wrote. Buck also was receiving three different medications, including lithium for manic depression, according to the report.

But the district attorney’s investigation turned up conflicting views on whether Tolley’s use of force was proper. One expert said it was “absolutely improper” and another said it was “not inappropriate,” according to the report.

Tolley could not be reached for comment on the decision. His attorney, Jim Trott, said he was surprised only by the time it took the district attorney took to make the decision. “I didn’t understand why it took so long,” Trott said.

But Christene Buck said she was shocked by the decision.

“How do you get people to see that they’re lying?” she asked.

Since the shooting, Buck, the mother of seven children and stepchildren, said she has been unable to sleep in her master bedroom suite, where the argument between her husband and son began.

Last November, the Bucks placed their Peninsula home, which they once considered their dream house, on the market.

“I was born and raised in Long Beach,” Christene Buck said. “But now, I can’t live here anymore.”