The following is the contents of a letter dated Jan. 27, 2025, from Norfolk Commonwealth's Attorney Ramin Fatehi to Virginia State Police Captain Timothy A. Reibel detailing Mr. Fatehi's legal conclusions following the officer-involved shooting of Santonio P. Lee on March 21, 2024:
Dear Captain Reibel:
I have reviewed the Virginia State Police use-of-force investigation into the incident that took place on Terminal Boulevard in the City of Norfolk on March 21, 2024, during which Norfolk Police Department Patrol Officer Gavin McAlpine and Special Operations Team Officers James Elder, Jr., and Jacob Reeves returned fire at and fatally wounded Santonio Parish lee while attempting to serve Mr. Lee with felony warrants from Norfolk and Virginia Beach. The officers justifiably used lethal force, because Mr. Lee, a wanted violent-felony suspect, shot at them multiple times, putting them in reasonable fear for their lives and the safety of each other and other people. In returning fire, these officers did their duty to protect themselves and the public, and so there are no criminal charges to file against them.
Had Mr. Lee survived this incident, I would have sought to charge Mr. Lee with felony eluding the police, attempted malicious wounding of a law-enforcement officer, the use of a firearm in the commission of that offense, maliciously shooting at an occupied vehicle, and possessing a firearm as a convicted violent felon in addition to the charges he already had outstanding.
Facts
On the morning of March 8, 2024, Mr. Lee shot and wounded a man in the leg outside of the 7-Eleven convenience store on Park Avenue in Norfolk. Mr. Lee was prohibited from possessing a firearm due to a number of prior felony convictions, including felony eluding and voluntary manslaughter from 2010. Mr. Lee had recently completed a ten-year sentence for his manslaughter conviction and had been released to supervised probation in January of 2024. The firearm that Mr. Lee used to commit the wounding – a .40 caliber Glock semi-automatic pistol – had been stolen in Norfolk in November of 2023 after its owner left the gun in the car.
The Norfolk Police answered a 911 call to the shooting scene and collected shell casings and surveillance video of Mr. Lee and the car that he had driven to and from the scene, a silver Nissan Altima. The victim was uncooperative, but the Norfolk Police were able to identify Mr. Lee as the shooter on March 20, 2024, and took out arrest warrants against Mr. Lee for malicious wounding and possessing a firearm as a convicted felon.
In the meantime, Mr. Lee had been charged with multiple felonies stemming from a separate shooting in Virginia Beach on about March 12 ,2024, including making threats in writing, unlawfully discharging a gun in a public place, and possessing a firearm as a convicted felon. Mr. Lee fired that same .40 caliber pistol during these crimes, and Virginia Beach Police collected shell casings from the scene.
Given Mr. Lee’s prior criminal history and the violent nature of his pending charges, the Norfolk Police Fugitive Apprehension Squad coordinated with the Norfolk Police Special Operations Team on a plan to arrest Mr. Lee with minimal danger to Mr. Lee, the officers, and the public. To do so, NPD used the Flock camera system to determine that Mr. Lee frequented the Broad Creek area of Norfolk and, on March 21, 2024, assembled a team of officers to arrest Mr. Lee.
At about 1:40 P.M. on Thursday, March 21, an NPD Fugitive Squad detective in an undercover car saw the silver Nissan Altima that Mr. Lee drove at a house near Rogers and Cary Avenues in Norfolk. The detective saw Mr. Lee leave the house and get into the car, but the detective, working alone, could not arrest Mr. Lee safely on his own. That detective informed members of the Special Operations Team that he had found Mr. Lee and began to follow Mr. Lee as Mr. Lee drove off. The detective believed that Mr. Lee had spotted him, and so he fell back, allowing other police units to look for Mr. Lee, supplementing their observations with information from the Flock system.
NPD SOT officers, operating in unmarked cars, found Mr. Lee on 27th Street in Lindenwood and followed him from there up Church Street and to the McDonald’s in the 4000 block of Granby Street in Riverview, where Mr. Lee had stopped and parked. At about 2:38 P.M. the officers turned on their lights and sirens and tried to box in Mr. Lee’s car, but Mr. Lee maneuvered around them and turned south on Granby Street. At the time, Mr. Lee had what subsequent testing of his blood would show was marijuana and a “potentially toxic” level of methamphetamine in his system. Mr. Lee was in possession of a bag of suspected illegal drugs and the same .40 caliber pistol he had used to commit the wounding in Norfolk and the shooting in Virginia Beach.
After turning south on Granby Street and speeding away, over the next nine minutes Mr. Lee took multiple marked and unmarked cars on a high-speed chase up Granby Street past Granby High School, through Ward’s Corner, over Little Creek Road, north onto Hampton Boulevard, through the Glenwood Park neighborhood, and then back south on Hampton Boulevard, finally turning from Hampton Boulevard onto Terminal Boulevard going east toward Interstate 64. During that time Mr. Lee ran multiple red lights and stop lights, wove dangerously through traffic, and reached speeds of over 90 miles per hour.
All of the NPD personnel were wearing body cameras and had them on from Granby Street onward. SOT investigators, including Officer Stanley Reeves and Officer James Elder, were in unmarked police cars and called for an officer in a marked car to be the lead officer on the chase. Officer Gavin McAlpine, a canine-handling officer in a marked car, took over as the lead car from Ward’s Corner. At the time of this incident nearly all NPD marked cars were equipped with dash-camera systems, but unmarked cars and K-9 cars were not.
When Mr. Lee turned from Hampton Boulevard onto Terminal Boulevard, traffic was nearly stopped, and Mr. Lee crashed into the rear of two bystanders’ cars. Officer McAlpine hit the back of Mr. Lee’s car, which went onto the left shoulder. Mr. Lee turned the car back onto the road, but Officer McAlpine hit the back of Mr. Lee’s car again – causing minor damage to the back – at which point Mr. Lee’s car crashed into the ditch off of the right shoulder of the road.
Once his car crashed, Mr. Lee got out of the car while armed with the .40 caliber pistol, pointed the pistol at Officer McAlpine’s car, and opened fire, shooting five times and hitting Officer McAlpine’s car twice, through the front grille and front bumper. Fortunately, Mr. Lee missed Officer McAlpine and his canine partner. One of the shots that Mr. Lee fired went past Officer McAlpine’s car and hit the B-pillar of a Jeep stopped in the opposite lanes on Terminal Boulevard; the driver of that car was, likewise, fortunately unhurt.
Due to the angle at which Officer McAlpine’s body camera was pointing, Mr. Lee is not visible while he was firing, but the body camera captures the sounds of the five gunshots on audio. The body cameras of the SOT officers following Officer McAlpine were not in a position to capture Mr. Lee’s gunshots on video, but they also recorded their sounds.
Officer McAlpine, fearing for his life and with no time even to get out of his car, drew his .45 caliber service pistol and returned fire multiple times through the windshield glass. SOT Officer Jacob Reeves, who had been in the car right behind Officer McAlpine, got out of his car and returned fire with his .45 caliber pistol. SOT Officer James Elder was in the next car back, got out, and returned fire with his SOT-issued .223 caliber rifle.
As a result of Mr. Lee’s actions, Mr. Lee suffered multiple gunshot wounds. Body-camera footage shows Mr. Lee with the gun in his hand and dropping the gun. It also shows the officers ceasing fire once Mr. Lee drops the gun and multiple SOT officers giving Mr. Lee first aid in an effort to save his life. Paramedics were on scene a little over six minutes after the shooting and tended to Mr. Lee in the ambulance on the way to Sentara Norfolk General Hospital. Mr. Lee died at the hospital of his wounds at 3:50 P.M. The medical examiner who did Mr. Lee’s autopsy extracted three bullet fragments from his body – two of them .45 caliber and one .223 caliber – and drew the blood whose analysis showed the near-fatal concentration of methamphetamine in Mr. Lee’s system.
The Norfolk Police sealed off the shooting scene. Pursuant to longstanding and commendable NPD policy, NPD contacted your agency, the Virginia State Police (VSP) Bureau of Criminal Investigation (BCI) to investigate the officer-involved use of force. The Norfolk Police also called me, and I arrived at the scene pursuant to my practice of personally viewing all homicide scenes and all scenes of the use of lethal force by officers.
Your personnel collected the physical evidence and took statements from the involved officers and from a number of non-police witnesses, including the drivers or occupants of the Jeep that Mr. Lee’s shot had hit and the two cars into which Mr. Lee had crashed. Among the items that the agents collected from the scene were Mr. Lee’s pistol and the three guns the officers had fired, plus a number of shell casings and a smaller number of bullets and bullet fragments, submitting them all to the Virginia Department of Forensic Science for ballistics analysis.
The special agents recovered five .40 caliber shell casings from inside and outside of Mr. Lee’s car and a spent bullet from inside the engine compartment of Officer McAlpine’s car. No other person at the scene was in possession of a .40 caliber pistol. Testing at the Virginia Department of Forensic Science showed that the casings and bullet matched Mr. Lee’s pistol and identified his DNA on it, meaning that Mr. Lee had in fact been touching the gun and had fired at least five shots at Officer McAlpine. The special agents examined and photographed the bullet hole in the bystander’s Jeep, but the bullet had ricocheted and was gone. The remaining shell casings and bullets from the scene were linked with various levels of certainty to one or more of the police’s guns.
The forensic testing of Mr. Lee’s gun also confirmed a match between his gun and the shell casings at the scenes of the earlier shootings in Norfolk and Virginia Beach.
Legal Standard
The United States Supreme Court has recognized that law-enforcement officers may use deadly force to arrest (and by inference to neutralize) a dangerous individual:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Tennessee v. Garner, 471 U.S. 1, 11–12 (1985).
The Court has further explained:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight….The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
Graham v. Connor, 490 U.S. 386, 396–97 (1989).
Virginia Code § 19.2-83.5(A) permits the use of deadly force if:
- The law-enforcement officer reasonably believes that deadly force is immediately necessary to protect the law-enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death;
- If feasible, the law-enforcement officer has provided a warning to the subject of the deadly force that he will use deadly force;
- The law-enforcement officer’s actions are reasonable, given the totality of the circumstances; and
- All other options have been exhausted or do not reasonably lend themselves to the circumstances.
Virginia Code § 19.2-83.5(B) lays out factors to consider when weighing the reasonableness of the use of deadly force:
- The reasonableness of the law-enforcement officer’s belief and actions from the perspective of a reasonable law-enforcement officer on the scene at the time of the incident; and
- The totality of the circumstances, including
- the amount of time available to the law-enforcement officer to make a decision;
- whether the subject of the use of deadly force
- possessed or appeared to possess a deadly weapon and
- refused to comply with the law-enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law-enforcement officer using deadly force;
- whether the law-enforcement officer engaged in de-escalation measures prior to the use of deadly force, including taking cover, waiting for backup, trying to calm the subject prior to the use of force, or using non-deadly force prior to the use of deadly force;
- whether any conduct by the law-enforcement officer prior to the use of deadly force intentionally increased the risk of a confrontation resulting in deadly force being used; and
- the seriousness of the suspected crime.
Finally, the Virginia Supreme Court and Court of Appeals have further recognized that a law-enforcement officer may use deadly force to protect himself, others, or the general public from what a reasonable observer would consider to be the imminent use of deadly force. See generally Mercer v. Commonwealth, 150 Va. 588, 599–600 (1928); Foster v. Commonwealth, 13 Va. App. 380, 385–86 (1991).
Analysis
Mr. Lee began shooting at Officer McAlpine as soon as Mr. Lee got out of his car and before Officer McAlpine had even stopped his car, striking Officer McAlpine’s car twice and striking the Jeep of an innocent bystander. Given that Mr. Lee was shooting at a police officer, Officer McAlpine and the SOT officers behind him had no choice but to respond to Mr. Lee’s deadly force to protect themselves, each other, and anyone else nearby. Those facts by themselves are enough to justify the officers’ actions, but an examination of the factors in Virginia Code § 19.2-83.5 reinforces that conclusion.
Under Virginia Code § 19.2-83.5(A)(1) and (A)(3), the officers reasonably believed that they must use deadly force, and their actions were reasonable given the totality of the circumstances. Given how quickly Mr. Lee opened fire, there was no time for the officers to warn Mr. Lee that they would use deadly force, and there were no other options for the officers under the circumstances. See Code § 19.2-83.5(A)(2) and (A)(4).
Turning to the factors in Code § 19.2-83.5(B), under the totality of the circumstances:
- The officers had no more than a split second to decide how to protect themselves from Mr. Lee’s gunfire;
- Mr. Lee:
- Not only possessed a deadly weapon but used it, and;
- Offered Officer McAlpine no opportunity to give commands and initially did not obey the commands of the other officers to drop his gun;
- It was impossible for Officer McAlpine to deescalate the situation, since Mr. Lee opened fire on the officers without warning and with no way to predict what Mr. Lee would do next;
- Nothing the officers did intentionally increased the risk of a deadly confrontation – in fact, the measures they had taken to arrest Mr. Lee safely were expressly designed to minimize the risk of such a confrontation; and
- Mr. Lee, previously convicted of a homicide and felony eluding in separate incidents, was wanted for violent firearms-related felonies out of two separate incidents in two cities within less than a week of one another and less than three months after his release from prison for homicide.
In short, Officers McAlpine, Reeves, and Elder all of their fellow officers, and innocent bystanders were under fire from Mr. Lee. The officers had a duty to respond in kind to Mr. Lee, and they did so. Officers McAlpine, Reeves, and Elder responded to a deadly situation exactly how their training and the law of necessity required them to do.
Had Mr. Lee survived his catastrophic mistake in opening fire on these officers, he would have faced indictment for multiple felony counts, including felony eluding, attempted malicious wounding of a law-enforcement officer, using a firearm while attempting to commit malicious wounding, maliciously shooting at an occupied vehicle, possessing a Schedule I or II controlled substance, and possessing a firearm as a convicted violent felon, and I would have prosecuted him on those charges.
Conclusion
We owe Officers McAlpine, Reeves, and Elder and the members of the Norfolk Police Fugitive Apprehension Squad and Special Operations Team our gratitude for putting themselves in harm’s way and making a wrenching and split-second decision to use force in service to public safety. These officers were legally justified in using the force necessary to protect themselves and the public from Mr. Lee’s dangerous and illegal conduct.
While it is unfortunate that Mr. Lee has died, the responsibility for his death lies with him. I cannot help but think that, had Mr. Lee not been heavily under the influence, perhaps he would have made better choices and may still be alive today. My heart goes out to Mr. Lee’s family members. They have done nothing wrong, and regardless of the circumstances they are entitled to grieve the loss of their loved one.
Finally, please allow me to express my appreciation to you and your investigators—in particular Senior Special Agent Ryan W. Fox—for the highly professional work you devote to these important use-of-force investigations and to the Norfolk Police Department for their cooperation in these important cases. You set an example for how agencies can build public trust through transparency and a search for the truth no matter where it leads. Thank you.
Sincerely yours,
Ramin Fatehi
Commonwealth’s Attorney
CC: Mark Talbot, Chief of Police, City of Norfolk
Bernard A. Pishko, Esq., City Attorney
Andrew A. Protogyrou, Esq., Counsel for Officer Elder
Thomas L. Sheppard, II, Esq., Counsel for Officer McAlpine
Ali T. Sprinkle, Esq., Counsel for Officer Reeves