St. Louis Circuit Attorney Jennifer Joyce has released her report in the fatal shooting of VonDerrit Myers Jr. by an off-duty police officer. It concluded “that Mr. Myers produced a firearm on the evening in question," and that “Given all the available facts, witness statements, physical and forensic evidence and for reasons outlined in the detailed report, prosecutors have determined a criminal violation could not be proven beyond a reasonable doubt.”
Joyce said although the circumstances were tragic, the incident did not constitute a crime under Missouri law.
The report says that prosecutors tried to interview the officer and three people who were with Myers that night: "Through their lawyers, they each declined to be interviewed."
Jermaine Wooten, an attorney for Myers family, says that having additional statements would have been useless.
“Those three witnesses had given videotape statements. Officer Flanery had given a videotape statement," Wooten said. "The circuit attorney’s office had the statements. They didn’t need to speak with these gentlemen any more.”
Vigil and protest
The evening the circuit attorney issued her report, a vigil was held in the Shaw neighborhood where the shooting took place. The next morning a group of 30 or so people took to the streets near the Carnahan Courthouse, which houses the circuit attorney's office.
According to reports on twitter, Joyce's office agreed to meet with two protesters. They declined that offer, saying she should meet with the entire group. At 12:30 p.m., two people were said to be in custody. A Post-Dispatch reporter had been briefly detained.
Report
According to the report, “Multiple witnesses confirm there was gunfire coming from both directions and from two different guns at the scene. Ballistics evidence confirms that two different guns were fired at the scene. There is no evidence that Officer X (prosecutors are not naming the officer because charges have not been filed) was the person who fired both guns. No witness claims to have seen Officer X alter evidence in any way, such as throw down a gun, fire a weapon in any direction other than towards Mr. Myers or scatter bullet casings. Additionally, there are witnesses that describe how Mr. Myers illegally came into possession of the Smith and Wesson firearm used in this matter.”
See: Fatal Shooting By Off-Duty St. Louis Police Officer Sets Off Protest In Shaw Neighborhood
The circuit attorney's report is separate from an investigation conducted by the St. Louis Metropolitan Police Department's Force Investigation Unit. That report, which was issued Dec. 5, also did not find the officer involved culpable.
Today, Chief Sam Dotson responded to the circuit attorney's report in a statement that says, in part:
On October 8, 2014, VonDerrit Myers was shot and fatally wounded by a St. Louis police officer in the 4100 block of Shaw. On December 5, the department's Force Investigative Unit concluded its investigation into the incident and referred its findings to the Circuit Attorney's Office. The Circuit Attorney's Office then conducted an independent investigation and has determined the officer involved in the incident, Police Officer Jason Flanery, will not face charges. Officer Flanery has over six years of service with the department and was working department-approved secondary at the time of the incident.
Dotson also said, "I have pledged transparency to the citizens of St. Louis and am committed to upholding this promise."
In her report, Joyce says her office personally met with members of Myers' family as well as the attorney representing the family. Her team also reviewed a host of other evidence, including police reports, laboratory results, ballistics reports, DNA analysis, gunshot residue analysis, photographs and videos from the scene, 911 calls, Myers' GPS monitor, dashcam video and reports relating to the stolen gun found with Myers at the scene.
Joyce said in an interview that it was important that the investigation rebuff some of the misinformation spreading on social media about the incident, including that Myers was unarmed carrying a sandwich and not a gun.
"In today's day and age in social media I think it’s important that we address all the major rumors that are out there about what happened. We saw that in the Michael Brown case," Joyce said. "We see that repeatedly now around the country. Social media on the whole is a great thing, but in circumstances like this it can be a real source of misinformation that people are spreading around."
Reviewing the events
Myers was killed Oct 8, 2014, by the off-duty police officer who was working a second job as a security officer. The officer had chased after Myers ran from the police. The report describes what happened this way:
At that point, Myers was in the gangway between two buildings, lying on the ground. Officer X told investigators that he yelled to Myers to drop the gun, and a witness confirmed hearing someone say those words. As the officer peered around into the gangway, he said he observed Myers was still pointing the gun in his direction. The officer said he fired two more shots.
Although Joyce's office did interview dozens of witnesses, the report says that three specific witnesses refused to cooperate with her investigation. The prosecutor's office agreed to allow the witnesses' lawyers, Jermaine Wooten and Jerryl Christmas, to be present in the interview but Christmas ended up leaving a voicemail that said the "witnesses were not going to attend the meeting, and prosecutors would need to rely solely on previous statements given to police."
Joyce's office subpoenaed the witnesses but they asserted their Fifth Amendment right not to give testimony.
Although it is not explained why Myers ran from the officer, the report does say that the officer involved believed that Myers was someone the officer had chased earlier in the day. This turned out not to be the case. "A GPS device located on Myers' person appears to confirm Myers' presence at home on Castleman Ave. at the time Officer X told investigators he was pursuing a person" the report says.
In explaining the decision not to charge the police officer with Myers' death, the report examines whether or not the officer had the right to use deadly force, given the circumstances. Officers are permitted to use deadly force when "the person being arrested is attempting to escape by use of a deadly weapon."
Witnesses confirm that Myers was hostile to the officer and that Myers was grabbing at his waistband in a way that suggested he had a gun. The report says the officer had the legal right to detain Myers for questioning. Witnesses also confirm that Myers did not cooperate with the officer and that he ran away from him.
However, the officer did not have the legal right to use deadly force until Myers produced a gun. At that time, the report says, "the officer's rights changed."
In explaining why the officer was within his legal rights to use deadly force:
At the moment Myers pulled the gun, Officer X could have reasonably believed under the law that deadly force was necessary to effect the arrest. Further, Officer X had reasonable belief that Myers had committed or was attempting to commit a felony, and/or that Myers was attempting to escape by use of a deadly weapon and/or that Myers was otherwise endangering life. Officer X, however, did not fire his gun when he first saw Myers draw his weapon. He told investigators that he hesitated to make sure that it was a gun. Officer X, as a law enforcement officer, was lawfully allowed to use deadly force at that moment, but he chose not to do so. While not legally necessary, Officer X waited until he was fired upon. Therefore, self-defense was considered as well.
The report also says that, contrary to statements made at the time, there is no evidence that Myers attempted to surrender to the police officer.
Disappointment for the family
Myers' family and their attorney gathered at a press conference to respond to the report. Jermaine Wooten, an attorney representing the Myers family, said they had been hopeful that the circuit attorney would file charges against the officer, but they also doubted it would happen.
"We were really anticipating this report coming out over the next couple of weeks," Wooten said. "We kind of expected that many of the witness statements would probably be cut and spliced in a way to create some sort of contradiction in an effort not to charge [the officer.]"
The attorneys said that they and the family believe that the officer should have been charged, comparing the incident to the Walter Scott shooting in South Carolina.
VonDeritt Myers mother, Syreeta Myers said she's not surprised by the decision.
"I was hoping for justice, but I already knew we wasn't going to get it because the color of my son's skin," she said.
She says it's all part of the system.
"My son is supposed to be here with us, not gone," Myers' mom said. "I'm so sick of this broken ass system we have."
The family's lawyers said they plan to file a wrongful death lawsuit within the next 10 days.
