DA will not present death of Robert Fox to grand jury

The Washington County District Attorney's Office has decided that a sheriff's deputy was justified in shooting of an armed Aloha man on June 3.

In a Friday afternoon announcement, Chief Deputy District Attorney Roger Hanlon said the case would not be presented to a grand jury.

Washington County Sheriffs Deputy Brian McLeod killed Robert Kimball Fox, who was armed with a rifle. Fox failed to obey commands to drop the rifle, Hanlon said.

The sheriff's office released the findings on the shooting Friday, more than four months after the incident occurred.

Hanlon released the following letter to Washington County Sheriff Pat Garrett:

Dear Sheriff Garrett:

On June 3,2012 at approximately 3:27 p.m. WCSO Deputy Brian Mcleod fired a single round from his department issued AR-15 rifle striking Robert Fox in the chest. Mr. Fox died at the scene. I have completed my review of the investigation and conclude that Dep. Mcleod was legally justified under Oregon criminal laws in his use of deadly physical force as explained below.

This matter will not be presented to a Washington County grand jury for consideration of criminal charges. A brief accounting of the investigation is necessary to understanding my decision.

Tualatin Police Detective Kevin Winfield led the investigation by the Washington County Major Crimes Team. Robert Fox's wife, Zelta Fox, was interviewed. Zelta Fox stated that on June 3, 2012 she discovered that her husband was intoxicated. Zelta Fox reported that her husband had a long history of alcohol abuse (going back 26 years) and of making statements when intoxicated about'Just wanting to die."

On this occasion, at the request of Zelta Fox, Robert Fox registered either .12Yo or .14o/o BAC (Zelta Fox reported .12o/o BAC in one interview, but .14o/o BAC in a subsequent interview) on a handheld breathalyzer shortly after 3:00 p.m. (Note: Zelta's request/concern stemmed from a 2006 incident when Robert needed medical transport to an area hospital with a .40% BAC.) lt should be further noted that the medical examiner ultimately concluded that Robert Fox's blood alcohol content was .23o/o at the time of his death.

During this time Robert Fox became belligerent and would not cooperate with Zelta. She reported that Robert's behavior was different than in past instances when he was intoxicated. Robert began making suicidal statements and was more aggressive than in the past.

Zelta began calling her adult daughter and one of their three adult sons for assistance in calming Robert. Robert spoke briefly with his daughter on the phone andv was overheard saying, "l just want to die. I want to kill myself." Robert's daughter was interviewed and she reported that her father spoke with 'resolve' in his voice when stating he wanted to kill himself, and she (the daughter) believed that her father had made the decision to commit suicide.

While Robert Fox spoke with his daughter, Zelta Fox moved some of Robert's firearms and hid them in the garage. She was unable to locate a handgun and a rifle however.

At 3:15 p.m. Zella Fox called 911 and reported that her husband was drunk and threatening to kill himself. The call lasts over 5 minutes and documents Robert's continuing belligerence as he is heard retrieving a rifle (from the bedroom closet), loading the rifle as Zelta pleads with him to stop, and eventually cutting Zelta's hand as he forcefully yanks the barrel and front sight through her clenched hands. At that point Zella retreats to the relative safety of a neighbor's house while still on the phone with the 911 dispatcher.

Police arrived on scene and positioned themselves both to the north and south of the Fox residence. At 3:27 p.m. Robert Fox exited his home with a rifle in hand.

Deputies on scene, including Deputy Mcleod, repeatedly ordered Mr. Fox to drop the rifle or to place the rifle on the ground. These commands were heard by multiple neighbors.

Three times Mr. Fox appeared to comply by lowering the rifle toward the ground, but each time he stood back upright still holding the rifle. The first two times Mr. Fox held the rifle in a non-firing position as he looked directly at both groups of deputies (those to the north and those to the south). On the third occasion Mr. Fox moved the rifle into a firing position aimed toward the deputies to the north. Deputy Mcleod fired once killing Mr. Fox.

Robert Fox's actions immediately prior to being shot, and Deputy Mcleod's shooting of Robert Fox, were confirmed by the account of a neighbor who watched the entire incident from an open, upstairs window with an unobstructed view. Many other neighbors agreed that Robert Fox ignored repeated demands to drop his rifle. Mr. Fox's rifle was found cocked and loaded with ten rounds.

ORS 161.219 defines the limitations on the use of deadly physical force in defense of a person as follows " ...a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is: 1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person, or 2) Committing or attempting to commit a burglary in a dwelling; or 3) Using or about to use unlawful deadly physical force against a person."

It is abundantly clear from the investigation that Deputy Mcleod acted under the reasonable belief that Mr. Fox was "using or about to use unlawful deadly physical force" against the responding deputies to provoke a deadly response from the deputies.

Therefore, Deputy Mcleod was legally justified under Oregon criminal law in his use of deadly physical force in this matter.

Because there is no evidence of criminal wrongdoing by Deputy Mcleod, this matter will not be presented to a Washington County grand jury.

This letter concludes my review of this unfortunate matter. All investigative reports will be available to the public and media under Oregon public records laws.


Roger M. Hanlon

Chief Deputy District Attorney

Washington County

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