DA: No Charge For San Jose Police Officer Whose Son Killed By Gun

The boy was killed July 5 at the family's Gilroy home.

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    DA decides not to charge San Jose police officer (Published Wednesday, Sep 26, 2012)

    After more than two months, the Santa Clara County District Attorney's Office on Tuesday announced that a San Jose police officer whose 3-year-old son accidentally grabbed a gun and shot himself to death will not be charged.

    Brandon Orlando, a nine-year veteran of the San Jose Police Department, could have possibly faced a misdemeanor charge of improperly storing a gun at his Gilroy home because the law generally states that adults must lock up their weapons, keeping children out of harm's way.

    Still, prosecutors found that there was no criminal negligence here, and that even though it may appear counter intuitive, a mitigating factor while applying the law is whether someone has attended firearm safety courses, which Orlando did in his role as a peace officer.

    "This Office does not condone Orlando's placement of weapons in his office ...and his duty belt on the bed on the day in question," reads the District Attorney's statement. "However, these actions do not rise to a level of child endangerment...because the firearms in the office were not loaded, the ammunition was stored in a separate location, and the firearm in the duty belt was not easily usable based on the holster design."

    Prosecutors noted that since the death, the entire family has been in counseling, and Orlando has had trouble eating and sleeping. Shortly after the shooting, Orlando's wife said, "This is all your (expletive) fault," the report states, and Orlando answered: "I know."

    No one from the Orlando family has commented publicly about the July 5 death of Preston Orlando. And few details had previously been released about the fatal tragedy, other than that the toddler died at the hands of a .45-caliber handgun - not his father's police weapon. It was revealed on Tuesday that the gun was a backup firearm, a Glock, he used in his duties as a police officer.

    Also on Tuesday the DA's four-page statement explained more of what happened, in a situation that prosecutors have legally declared an accidental death.

    Orlando told Gilroy police officers that he had worked the midnight shift on July 4, and returned home the next day by 8 a.m., "pretty exhausted." His wife, Juliana Orlando, and children, who included a 5-year-old and Preston, were not home. His wife was teaching summer school and his kids were at their grandparents, he told Gilroy police, who conducted the investigation. He did not expect to see anyone before he left for his second job.

    Orlando said he brought in some things from the car including an unloaded, department-issued AR-15 rifle and a 40mm launcher. Both were placed in his office and the ammunition was stored separately. He took off his duty belt and put it on the floor by the bed, and put his backup weapon on the bed. He took off his shoes and crawled into bed, the report states.

    He then realized that the Glock 30 came with a cable lock, but Orlando said he "forgot he had it." He liked to put the lockbox under his bed, he told investigators. On this morning, Orlando said he put the gun in the top wicker drawer of the nightstand and he fell asleep.

    He woke up about 3 p.m., and planned to leave by 3:45 p.m., he told investigators. But he got a text telling him that his second job had been canceled, and he stayed in bed.

    At 3:30 p.m., his wife returned home with their children, two nieces, ages 11 and 7, and his 9-year-old nephew.

    As the children played downstairs, both Brandon and Juliana decided to do some laundry, the report states. Orlando said he noticed his duty belt on the floor, and lifted up the covers of the bed, and threw it  "under the covers." He gave a kiss to Preston as his young son ran by, shirtless.

    He forgot about the gun in the wicker basket. He didn't see his son going upstairs. He and his wife both told police that their children were told to stay out of their bedroom,  and acknowledged that the kids were "pretty good" about it.

    Within a "couple of minutes," Orlando told investigators he heard a "bang."

    Preston was on the ground in the bedroom, breathing, with a hole in his forehead above his right eye.

    Orlando called 911. But it was too late. His son was pronounced dead at St. Louise Hospital's emergency room.

    "The consequences of Orlando's mistaken judgment resulted in the death of his son," the DA statement read. "A family has been forever changed. There is no court-ordered punishment that could rival the degree of loss he and his family have suffered."

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