San Diego police under fire after killing a man who resisted arrest then took a cop’s gun


SAN DIEGO, CA. – San Diego police released bodycam footage on Wednesday of a fatal, officer-involved shooting that took place on Jan. 24 in the city’s Oak Park neighborhood.


Here is what happened. Two officers were trying to make a “law enforcement contact” with a man at about 3:40 p.m. when he took off running, going in between lanes on 54th Street near College Grove Drive, according to police homicide Lt. Matthew Dobbs at the time of the incident.

Police continued chasing the suspect as he ran onto a frontage road along the east side of 54th Street. They finally caught up to the suspect on the frontage road, when a struggle ensued.

San Diego police under fire after killing a man who resisted arrest then took a cop's gun
Toby Diller runs from San Diego cops moments before shooting

During the struggle, the suspect, later identified as Toby Diller, 31, started pulling at the officer’s gun as the two struggled on the ground. He was able to break the entire holster, with the gun inside, from the officer’s belt.

San Diego police under fire after killing a man who resisted arrest then took a cop's gun
Officer’s Broken Holster San Diego- Picture YouTube clip


When the officer lost his weapon, he “alerted the other officer,” who shot the man one time, killing him, according to Dobbs. The officers were not injured.

There were some witnesses in the vicinity, including Carlitos Figueroa, who was collecting bottles and cans from a nearby dumpster when he saw the incident unfold in front of him.

Figueroa stated that the man fell to the ground as he struggled with police and remained on the ground until the shooting occurred.

“The cops jumped on him, and he struggled and struggled,” Figueroa said.

He saw the man’s arm flailing as he struggled, and he appeared to be holding something, possibly a knife. Dobbs noted that no weapons were found near Diller, aside from the gun and holster he yanked off the officer’s belt.

“And then the cop jumped off him and just took his gun and just ‘pow,’ popped him,” Figueroa said. He said Diller was shot while face down on the ground.

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The two officers were identified as 5-year-veteran Officer Benjamin Downing, who was the officer fighting with Diller and who had his gun taken from his duty belt.

His partner, 2-year veteran Officer Devion Johnson was the officer who fired the fatal shot that killed Diller. San Diego PD officials said that the officers gave first aid to Diller until medical personnel arrived and pronounced him dead at the scene.

On the body camera footage that was released on Wednesday, one of the officers (presumed to be Downing) yells, “He’s got my gun! Shoot him!”

Just a few frames later, a gun—assumed to be held by Johnson—enters the screen near Diller’s head. You can then hear the muffled sound of a gunshot.

San Diego police under fire after killing a man who resisted arrest then took a cop's gun
Toby Diller after he grabbed officer’s weapon-YouTube screen clip

The release of the video came 40 days after the encounter. Last year, state law changed to require police officials to release body-worn camera footage, as well as other footage from “critical incidents,” including when an officer uses his service weapon, within 45 days.

The San Diego shooting was the first one in the city since a new California law went into effect earlier this year that raised the standard for when police can use deadly force.

The law changed from the widely accepted and long-held standard that a police officer can use deadly force when they “reasonably believed” their life or that of a third party was in imminent danger.

Now, officers can only use deadly force when “necessary,” when their life or the lives of others are in imminent danger and there is no other alternative to de-escalate the situation.

Citing an ongoing investigation, Lt. Shawn Takeuchi said that he could not answer questions about the case, including why Diller was being pursued by officers.

Police also released footage taken from a smart streetlight camera, with overhead footage showing Diller walking around the sidewalk on the street corner, appearing to have a large bottle of beer in his hand.

After homicide detectives complete their portion of the investigation, the case will be handed over to the District Attorney’s Office for review, in keeping with standard protocol in officer-involved shootings. That review will only look at the question of criminal liability, not the issue of police department policy.


SACRAMENTO, Cali. – It’s no secret that states across the country are aiming to revisit or even revoke when police can use deadly force. 

But it does come as a surprise to see how law enforcement groups in California are looking at the recent changes in policy. Where most law enforcement officials have opposed the new changes to the law, fearing that it would increase line of duty deaths, these organizations are going along for the ride.

On Thursday, major LE organizations in California dropped their opposition to the proposed changes in deadly force authorization. 

So what does that mean for officers on the job?

San Diego police under fire after killing a man who resisted arrest then took a cop's gun
(Weber County Attorney’s Office)


The measure would ban police from issuing lethal force unless it is “necessary” to defend against an imminent threat of death or serious bodily injury to officers or bystanders. It began with public controversy over fatal police shootings, and has evolved to written law.

It’s unclear why the organizations dropped their opposition to the bill, but changes in the written resolution may hold the answer.

The previous bill said that officers could open fire when there is “no reasonable alternative.” The language was then changed to “necessary”.

The Manteca Bulletin wrote that the amended measure, however, makes it clear that officers are not required to retreat or back down in the face of a suspect’s resistance and officers don’t lose their right to self-defense if they use “objectively reasonable force.”

gun-toting father
“We have to give the police to right to shoot people. We need to do that.” (Little Rock Police Department)


Before the bill was amended, it contained verbiage about specifically requiring officers to utilize de-escalation tactics before issuing deadly force. That part is now removed, however, courts will be still allowed to consider the officer’s actions leading up to the use of force.

Peter Bibring is the police practices director for the American Civil Liberties Union of California, which proposed the bill and then negotiated the new changes.

“The courts can still consider whether officers needlessly escalated a situation or failed to use de-escalation tactics that could have avoided a shooting,” he said.

Others are saying that the bill essentially makes no changes.

“The language is virtually legally synonymous with current constitutional standards for use of force. It really is a distinction without a legal difference,” said Ed Obayashi, a use-of-force consultant to police departments. 

stolen handgun
(KPRC Broadcast Screenshot)


Across most states, current law dictates that officers can use deadly force in situations where they have a ‘reasonable’ fear for their lives or the lives of others. Obviously, a personal feeling like that is up to a great deal of debate. Did an officer make the right call? Or, if they had waited, would they still be alive right now?

These are often the questions that follow police involved shootings and line of duty deaths. Because the current law is so open to interpretation, most officers who are involved in these situations do not face criminal punishment.

Lawmakers in California have been pushing for legal recourse against officers who wrongfully take a suspect’s life.  

“With so many unnecessary deaths, I think everyone agrees that we need to change how deadly force is used in California,” said Assemblywoman Shirley Weber, who initially wrote the measure. “We can now move a policy forward that will save lives and change the culture of policing in California.”

How will this effect officers in the streets? We’ll have to wait and see.

Stay safe.

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