OAKLAND -- No criminal charges will be filed in the fatal January shooting of a BART police sergeant by one of his fellow officers after investigators concluded that the shooting was a tragic mistake, enabled by a communication failure during a search of an apartment with a circular floor plan.

Det. Sgt. Thomas "Tommy" Smith Jr., 42, was shot Jan. 21 during a probation search of a 723-square-foot unit at the Park Sierra Apartments in Dublin. The rare "friendly fire" police shooting was the first line-of-duty death in the BART police department's 42-year history, and sent shock waves across the Bay Area law enforcement community.

The evidence surrounding the shooting of Smith by Det. Michael Maes does not justify criminal charges against 26-year police veteran Maes, Alameda County District Attorney Nancy O'Malley said in a statement released Friday. Her statement accompanied a report on the shooting prepared by the district attorney's office.

The DA's report on the killing concludes that Smith entered one door inside the one-bedroom apartment and emerged from another in shadow, prompting Maes to think he might be an armed suspect. The report says none of the officers knew whether anyone might be inside the apartment, and they had not reviewed the floor plan, leaving them unaware of the unit's circular layout.


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After both men had entered the unit, the report adds, neither Smith nor Maes "uttered a single word ... that might have alerted either one to the presence of the other" before Maes fired.

Smith was leading a search team of five BART detectives, two uniformed BART officers and an Alameda County Sheriff's deputy when they went to search the apartment around 1:50 p.m. Two of the detectives and the deputy remained outside the apartment during the search, entering only after they heard the single gunshot.

The officers arrived at the apartment to find the front door unlocked, and were unsure whether anyone was inside when they entered shouting their presence.

According to Maes' account, Smith told him, "I can hear somebody. I think there's somebody inside," before he entered the unit. Smith turned left into a laundry room -- though no one on the team knew that the laundry connected to a bathroom, a closet, and ultimately the master bedroom.

Maes walked down the main hallway, past a kitchenette and to the bedroom doorway. He looked into the bedroom; as he looked at the dark closet area, he saw a person emerging with what appeared to be a gun in his hand.

"When Detective Maes saw the 'shadowy figure' with an upraised firearm suddenly emerge from the dark walk-in closet area, he concluded that he was confronting an armed suspect who posed an imminent threat of serious injury or death to himself and his fellow officer," deputy district attorney John Creighton wrote in the report.

Creighton wrote that it seemed possible that Smith's raised arm may have blocked the "POLICE" lettering on the front of his bulletproof vest from Maes' sight in the darkened bedroom.

"Maes said that when he discharged his gun he thought Detective Smith was either behind him near the front door or still in the laundry room area. He said ... 'the last thing on my mind was that there was some walk-through that led to the bedroom,'" Creighton wrote. "Maes said the incident happened so quickly that he neither shouted any warnings nor issued any commands before he shot at Detective Smith."

The Alameda County Sheriff's deputy who remained outside the apartment estimated that "approximately ten seconds, maybe less" elapsed between the team's entry and the gunshot.

Maes fired a single shot that struck the side of Smith's body, between the front and rear panels of his bulletproof vest.

Smith shouted "I've been hit!" and staggered backward into the bathroom, collapsing on the floor of the laundry area. Another officer heard Maes saying, "Was that Tom?" and telling a dispatcher that the shooting was a "friendly fire" incident when he called for help.

BART Police Chief Kenton Rainey said in a statement that the completion of the district attorney's office report allows BART police to move forward with its own internal investigation. Shortly after the shooting, Rainey ordered that residential probation or parole searches must be approved ahead of time by a deputy chief.

Two BART officers who were part of the search team that day were wearing video recording devices, but neither had them turned on at the time of the shooting. Rainey said all sergeants and officers have been retrained in the use of such cameras. Officers are also being retrained, or will be retrained, in executing warrants and high-risk operations, he added.

Maes' attorney could not be immediately reached for comment Friday.

"I'm sure the DA did a thorough investigation," Maes' brother, John Maes, said Friday. "I'd have to go with them and believe what they did was thorough and impartial."

The shooting occurred at the home of 20-year-old John Henry Lee, who was in Santa Rita Jail that day in connection with an armed robbery at the Fruitvale BART station and several auto burglaries on Jan. 15.

The officers were executing a probation search, which does not require a warrant, looking for stolen laptops and other items with Lee's alleged thefts.

Smith was the first BART police officer to die in the line of duty in the agency's 42-year history. The last friendly fire police death in the East Bay was Jan. 12, 2001, when detective William Alberto "Willy" Wilkins was accidentally shot and killed by other officers while on an undercover narcotics stakeout.

Staff writer Natalie Alund contributed to this report. Reach Malaika Fraley at 925-234-1684.