The scene where 3-year-old Preston Orlando was shot accidentally by a handgun Thursday evening inside his family's home on the 7500 block of Kentwood Court.
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The father of the 3-year-old Gilroy boy who accidentally shot and killed himself on July 5 will not be prosecuted, according to a report by the Santa Clara County District Attorney’s Office which called the shooting a “horrible, irreversible mistake.”

Three-year-old Preston Orlando, the son of nine-year San Jose Police Officer Brandon Orlando, was in his parent’s bedroom on Kentwood Court around 3 p.m. when he reached into the nightstand next to the bed and accidentally shot himself in the head with his father’s Glock .30 semi-automatic handgun, according to the six-page report which accompanied Tuesday’s press release. Police and medics arrived on scene quickly, but were unable to treat his injuries and the child died en route to the hospital.

“I think that the case certainly demonstrates the importance of gun safety and that you can never be too careful,” said Terry Harman, assistant district attorney who helped handle the case. “There is definitely no court ordered punishment that could rival the degree of loss that (Orlando) and his family have suffered.”

In what was described by the DA as a fluke and “accident,” Orlando placed his backup gun in his nightstand drawer, “exhausted” upon returning from his graveyard shift with the police department the morning of July 5. The report indicates that he when he put the gun there, his children were not home, and he did not expect them to come home before he left for his second job in the afternoon.

When he awoke at 3 p.m., he had a text message indicating that his afternoon shift at his second job as a security guard for a home association had been cancelled (a job that he would have taken his backup gun to), and learned that his wife and children had come home.

Forgetting he had placed his gun in his nightstand, he went downstairs to start a load of laundry, shutting the door to his bedroom on his way out. Downstairs, he saw Preston and kissed him.

Within a couple of minutes he heard a “bang.”

Orlando went upstairs and saw the master bedroom door open and saw a “haze” in the room. He picked Preston up, who was bleeding but still breathing, and ran down the stairs, screaming. He immediately called 911.

According to the report, Orlando has taken full responsibility and is haunted by the tragedy, which the DA used as further evidence to not prosecute him.

“There is no question that Orlando has been devastated by this tragedy,” the report read. “We have been provided information that Orlando continues to have flashbacks about the incident, and has trouble being in the master bedroom where he found Preston, and even walking down the stairway of the home, where he carried Preston.”

Normally, Orlando stored his guns in a lockbox under his bed – but failed to do so that day.

Harman said that remorse of the responsible party is a huge factor in weighing these types of cases.

“We are specifically required to consider grief, and legally required to consider the impact the death or injury has had on the responsible person,” Harman said.

Orlando has sought out individual and family therapy in the aftermath of the tragedy, Harman said.

The DA report indicated that Orlando did not meet the required elements of “gross negligence” in the storage of the weapon to warrant prosecution – namely that he did not “reasonably know that a child is likely to gain access to the firearm.”

Another factor that weighed in Orlando’s favor is that he has attended gun safety courses, Harman said.

While Harman said there is “no exact recipe” for handling accidental shootings, she suggested that if alcohol or drugs were involved, or if the gun used was illegal or unregistered, perhaps the DA would have a stronger case for gross negligence.

Harman said based on the Gilroy Police Department’s “thorough” report which included “many” interviews, and the DA’s legal analysis, there was insufficient evidence to prove criminality beyond a reasonable doubt.

Still, the DA wrestled with how to handle the case and spent time in “healthy discussion” about the facts without rushing to judgment, Harman said.

But one thing that was not considered at all – either in Orlando’s favor or against him – was the fact that he is an active duty police officer.  

“His occupation is irrelevant, we had to consider the facts surrounding the death, but his occupation was irrelevant,” Harman said.

Malcolm MacPhail, Gilroy Police chaplain and pastor of New Hope Community Church, felt the DA made the right decision.

“It was a horrific accident, and a devastating situation that he and his family will carry with them the rest of their lives. I have personally prayed for him and his family, and I’m grateful that he doesn’t have to endure the court system. He has already been through so much,” MacPhail said.

District Attorney Jeff Rosen said the decision whether or not to prosecute was “very difficult” to make.

“As we made clear in our report, there are things abut how Officer Orlando maintained his firearm that we don’t condone, however in the end, our job was to follow the law – and in this case, the facts weren’t in dispute and the law wasn’t in dispute either,” Rosen said.

Rosen agreed with Harman, noting that Orlando’s occupation didn’t weigh for or against him at any point in their decision.

“People will always ask if he got better treatment because he was a police officer, meanwhile police officers will question whether he got worse treatment. That is always going to happen,” Rosen said. “So we didn’t treat Brandon Orlando any better or worse because he was a police officer. We approached this fairly and objectively as we would anyone, regardless of their occupation.”

Multiple calls to the San Jose Police Department regarding Orlando’s current duty status were not returned.

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