The police officer who fatally shot a 36-year-old unarmed man in August while responding to a domestic violence call in south Denver was legally justified in using deadly force, according to a decision letter issued by District Attorney Beth McCann on Wednesday.
Brandon Cole acted aggressively toward Denver police officers Steven Watson and Audrey McAndrews and they reasonably believed he was holding a knife when he confronted them, according to the district attorney’s office.
Investigators later found Cole was holding a black felt-tip marker in his hand during the encounter that ended with McAndrews fatally shooting him as he ran toward her.
“After carefully reviewing all the evidence in the case, I believe that Officer Watson’s use of force by the Taser and that Officer McAndrews’s use of deadly force were both justified based on Colorado law. Therefore, no criminal charges will be filed against either officer,” McCann said in a statement Wednesday.
Investigators determined that no one at the scene thought Cole was holding a marker, according to McCann’s letter. Both officers thought he was holding a knife, one witness told police they thought it was a gun and two witnesses told police they thought it was a knife or possibly a knife.
Watson and McAndrews were responding to a 911 call about a domestic violence incident in the 2300 block of West Cedar Avenue at approximately 8 p.m. on Aug. 5 and found Cole leaning into an SUV and rummaging through the front console when they arrived, according to witness statements.
When Cole saw the officers, he kept his right hand behind his back and did not follow orders to show his hands, according to the letter.
“Cole made no effort to show that he was unarmed,” McCann wrote in the decision letter. “Instead, he held his right arm and hand as if he was in fact carrying a weapon.”
Cole began challenging officers, telling them to “Pull it out” and “Letap go.” He walked toward Watson with his arm behind his back, and McAndrews called for additional officers to respond and reported that Cole had a knife.
When McAndrews called his name and told him to stop, he began running toward her.
Watson shocked Cole with a Taser as he ran toward McAndrews, but it did not appear to make full contact and did not slow him down, according to the district attorney’s office. McAndrews yelled “Don’t!” twice while backing up before firing her gun twice at Cole.
McAndrews told investigators she thought Cole was going to stab her and then take her gun and kill her, according to the decision letter. She was concerned for her life and her partner’s life, she told investigators.
The first bullet passed through Cole’s forearm before it entered his chest, where it penetrated his heart and left lung, according to an autopsy report summarized in the decision letter. The second bullet grazed his upper left back.
A woman and child standing on the sidewalk behind Cole during the shooting were not injured.
Officers applied tourniquets, a chest seal over the wound and started CPR. Cole was pronounced dead at the hospital.
Cole had a blood alcohol content of .255, according to the autopsy report.
Colorado does not require the presence of actual danger to justify use of force, McCann wrote in the decision letter, but that officers reasonably believe there is danger.
Cole “was responsible for creating the incorrect belief that he was wielding a knife” by concealing his hand, displaying aggressive behavior, challenging officers and drawing back his arm, McCann wrote.
“Based on the evidence, it was reasonable for the officers to believe that Mr. Cole held a knife and that he would use it against them,” she wrote.
Officers also had reason to believe there was danger based on other factors, McCann wrote: Dispatchers had reported Cole had assaulted his wife, and Cole appeared to be initiating an attack by running toward McAndrews.
“Officer McAndrews was not expected, nor required by law, to wait to be stabbed, assaulted, or tackled before trying to protect herself,” McCann wrote in the decision letter. “Nor was she expected to wait to see if she could win a fight to maintain possession of her gun.”
“It was reasonable for Officer McAndrews to act defensively in that final moment; and it was reasonable for her to believe that less powerful force than firing her gun would be inadequate to defend herself from imminent serious injury,” McCann continued. “I find that her use of deadly physical force was reasonable, not reckless, not negligent. Her shots were precise and justified based on Colorado criminal law.”
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