View The Attached Document

Prosecutor Determines the Officer Acted in Lawful Self-Defense

Facts

On December 23, 2015 at 12:50 a.m., two Dearborn police officers were dispatched to a gas station at Tireman and Greenfield for customer disturbance.

Kevin Matthews was harassing a female store clerk for an extended period of time to let him have a Redbull for free because he did not have enough money. Later, he concealed a Redbull in his pocket and she confronted him about it. She repeatedly asked him to put it back and leave. Mr. Matthews became loud, agitated and hostile, and tried to start a physical fight with an older male customer who attempted to intervene. The clerk then locked Mr. Matthews in the store and called the police.

Upon arrival, Dearborn police officers asked Mr. Matthews to step outside the gas station. Instead he fled from the scene on foot. Despite their efforts, they were unable to locate him again that night.

On December 23, 2015 at 12:24 p.m., while conducting an unrelated traffic stop in full uniform, in a marked scout car, a Dearborn police officer observed Mr. Matthews walking north on Greenfield near Tireman. The officer was aware of the incident on the prior shift, as well as an outstanding misdemeanor probation violation warrant for Mr. Matthews. The officer completed his traffic stop, drove to Whitcomb, and advised dispatch that he would be attempting to make contact with a suspect at Tireman and Whitcomb.

The scout car audio and video of the preceding traffic stop were reviewed. The male motorist from the traffic stop was also interviewed. When Mr. Matthews walked past the area of the traffic stop, the officer pointed him out to the motorist during the traffic stop and said that he had to go arrest Mr. Matthews because he ran from officers the night before. The officer also told the motorist that Matthews had never run from him before.

The officer drove onto Whitcomb to a point just north of Tireman, crossing into Detroit. He parked and exited his vehicle, and told Mr. Matthews to stop where he was. The officer was 6’1" tall and weighed 220 pounds. Mr. Matthews was 35 years old, 5’5" tall and weighed approximately 155 pounds.

Mr. Matthews ran and the officer pursued him on foot, yelling, "Stop - Police." The officer chased Mr. Matthews northbound on the west side of the street and then across Whitcomb to the east side of the street, where they ran up a driveway at 8800 block of Whitcomb. The officer and Mr. Matthews then climbed over a chain link fence into the backyard in the 8800 block of Whitcomb where the shooting took place.

Interviews with five civilian witnesses, the physical evidence and statements from other police officers that arrived at the scene after the shooting show that Mr. Matthews and the Dearborn police officer engaged in an intense struggle that started in the grass near the fence line. The struggle continued around the grass area, along the rear of the house, onto the paved driveway and up against a wood gate and garage door. The struggle ended in the driveway when Mr. Matthews, while standing over the officer, pulled the ammunition magazine from the officer’s duty belt, which was positioned next to his firearm. The officer, still on his back, fired nine shots from his weapon which struck and killed Mr. Matthews.

Scout Car Video

From the location where the officer parked his scout car, and prior to beginning the foot chase, it would have been impossible to capture video of the struggle in the backyard of 8800 block of Whitcomb. As a result, there is no scout car video or audio of the officer’s December 23, 2015 struggle with Mr. Matthews in the driveway in the 8800 block of Whitcomb.

There is only an approximately ten second long video, where the officer entered the picture from the area of the front driver’s side of the police car, chasing Mr. Matthews. Both go to the left, behind a tree or shrub, momentarily before reentering the picture on the right of the screen, with the officer still chasing behind Mr. Matthews. Both then exit the screen to the right.

It should be noted that the viewing of the in-car video took four months due to a technical difficulty with the system in reviewing all of the video. This required it to be analyzed by experts from the Dearborn Police Department, Detroit Police Department, Secret Service and the West Bloomfield Michigan Police Department

Autopsy and Toxicology Results

Mr. Matthews died of multiple gunshot wounds (nine) and the manner of death was homicide. Toxicology results were negative with the exception of a positive for Hydrocodone.

Other Injuries

The report also documents three abrasions to Mr. Matthews left forehead.

Independent Autopsy

Mr. Matthews’ family retained Dr. Bader Cassin to perform an independent autopsy. His report is dated February 6, 2016.

The independent report contains nothing that appears to be inconsistent with the WCMEO report. Dr. Cassin does detail a contusion and several more abrasions than specified in the WCMEO report. These provide further corroboration that there was an intense struggle prior to the shooting.

Physical Evidence of Struggle

A Dearborn police officer responding to the scene observed that the officer was kneeling in the middle of the driveway, close to the garage, next to Mr. Matthews, closer to his feet. He found Mr. Matthews lying on his left side, facing west, with the officer still holding his weapon. The responding officer observed that the officer’s uniform was disheveled, shirt untucked, with mud all over and a mark on his forehead. The officer was hyperventilating and staggering on his knees, so he grabbed him by his arm to help him up. The responding Dearborn officer said that the officer told him Mr. Matthews grabbed at his pepper spray and that Mr. Matthews attempted to take his gun. The responding officer took his weapon from him and gave it to another officer. He observed the Dearborn police officer’s ammunition magazines on the ground. One was on the driveway under a barbecue grill, and one was on the driveway next to Mr. Matthews’ feet. Items in the officer’s duty belt were also spread around the scene.

Analysis of Michigan Law of Self Defense

It is well established that a police officer attempting to make a lawful arrest may use that force which is reasonable under the circumstances in his own self-defense. Further, a police officer by the necessity of his duties, is not required to retreat before a display of force by his adversary People v. Doss, 406 Mich 90 (1979). In People v. Heflin, 434 Mich 482 at 502 (1990), the Michigan Supreme Court held that "the killing of another person in selfdefense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm." Further, Officers can be mistaken as to the degree of danger they are actually in as long as their belief was reasonable under the circumstances.

The evidence gathered from witness interviews, physical evidence and the autopsy results clearly establish that there was a struggle between the officer and Mr. Matthews in a back yard in the 8000 block of Whitcomb, just prior to the shooting. In this case, the circumstances of the struggle led the officer to believe that he was in danger of death or great bodily harm, such that he was lawfully permitted to exercise deadly force.

In this case, the evidence supports that the police officer and Mr. Matthews were on the ground, in the grass area, struggling over Freeze +P spray, which Mr. Matthews had grabbed from the officer’s duty belt. The officer’s pepper spray appeared to have been thrown over a fence. This is corroborated by the fact that the spray canister was found in a position over the fence into the next drive way. It is further corroborated by the presence of divots in the grass, the loud noises witnesses heard and the damage to the house in the backyard.

Mr. Matthews pulled and tugged at the officer’s uniform as they continued to struggle. At this point in the struggle, the officer already faced the possibility of being incapacitated by pepper spray in the hands of Mr. Matthews, and by his clothing obstructing his vision, while he continued in an active struggle with him. Mr. Matthews briefly broke free from the officer’s control, and left the lawn area, fleeing to the driveway where their bodies hit the garage door and both fell to the ground.

The autopsy report provides further corroboration that Mr. Matthews was leaning over the officer when he fired. Although it is impossible to state the order in which the wounds were inflicted, the placement of the wounds, their paths and evidence of close range fire are consistent with an ongoing struggle, with Mr. Matthews struggling to gain control of the officer’s weapon. The shots that are upward and close range, very close range, and "almost contact" are consistent with Mr. Matthews positioned on top of the officer.

Mr. Matthews’s Prior Police Contacts

A review of Mr. Matthews’s prior police contacts and other history was conducted due to his family’s assertions that he was harmless and that he did not pose a threat to the officers.

Mr. Matthews has a long history of police contacts, beginning at age 25 with the 2005 incident. The rate of occurrence and the severity of the conduct appears to increase beginning in 2013. The focus of review was on relatively recent incidents which would indicate violent behavior and/or fleeing and/or resisting police.

Citgo/Greenfield and Tireman Contacts Prior To Date of Shooting

Mr. Matthews had five contacts with the Dearborn Police Department prior to July 28, 2015.

July 28, 2015 - A 911 call from a Citgo gas station for customer trouble. Mr. Matthews was issued a ticket for Drunk and Disorderly Person and Open Intoxicant and given Trespass Warning by the officer involved in the fatal shooting. Instead of arresting him on outstanding warrants, he drove him home and released him to family members in the 8200 block of Sussex.

July 29, 2015 - A 911 call for customer trouble. Mr. Matthews was arrested for trespass and outstanding warrants by the officer involved in the fatal shooting.

August 27, 2015 - Mr. Matthews was arrested on outstanding warrants in the area of Greenfield and Tireman, again heading towards Citgo by the officer involved in the fatal shooting. At Mr. Matthews’s request, the officer drove to a location in the 7500 block of Winthrop and turned his bicycle over to family members before conveying him.

November 7, 2015 - Mr. Matthews was arrested on outstanding warrants by the officer involved in the fatal shooting, as he walked north on Greenfield toward the Citgo.

November 18, 2015 - A Dearborn police officer again advised Mr. Matthews on trespass after responding to the Citgo for customer trouble. Mr. Matthews stated he understood that he was not to return to the business.

November 26, 2015 - Mr. Matthews was struck by a car as he tried to cross Tireman and sustained a broken arm. The driver was ticketed for failure to yield to a pedestrian. Mr. Matthews states he was intoxicated at the time, but claims he was in the crosswalk.

Detroit Domestic Violence Complaints

September & October, 2014 - CRISNET reports indicate that Mr. Matthews’s former girlfriend called police three times to report incidents with Mr. Matthews. She accused him -more- 6 of threatening to burn her house down, being responsible for a fire at her home after the threat, and shooting her house up approximately two-three weeks after the fire. There is no indication of any warrant requests arising out of these incidents.

Redford Postal Carrier Incident

June 2013 - A female postal carrier was on her mail route when Mr. Matthews began to follow her and made continued aggressive sexual comments to her. Fearing for her safety, she contacted police. When police arrived, she observed Mr. Matthews bang his head on the police car window.

When police arrived on the scene, Mr. Matthews was extremely intoxicated, refused to comply with their commands to take his hands out of his pockets, pulled away as he was patted down for weapons and then began kicking the police car, demanding to be let out.

Mr. Matthews pled guilty to ordinance violations of Drunk and Disorderly, Assaulting or Obstructing a Police Officer and Possession of Marijuana arising out of this incident. The outstanding warrant at the time of the shooting was for violation of his probation on this case.

Conclusion

It is clear that there was a chase and then a brief but intense struggle between Matthews and the officer. Items were torn from his uniform, duty belt, and person, and strewn throughout the backyard and driveway. The bodies of the two men slammed into the house and garage door, and caused damage to the siding of the home, and overturned and broke items in the driveway area. At various times during this struggle, Mr. Matthews broke free from the officer’s control, gained possession of his self-defense spray, ammunition magazines, and most importantly, struggled for control of his weapon as he lay on his back in the driveway. For these reasons, the officer certainly had a legitimate fear that Mr. Matthews would gain control of his weapon, and use it to harm him and make good his escape.

The facts and evidence in this case support the justification of the shooting under the law of self defense in Michigan. Particularly important is the lack of proof to overcome self defense. The argument that the officer was honestly and reasonably in fear of death or great bodily harm, is directly supported by the law and evidence in the case.

There is insufficient evidence to criminally charge the Dearborn officer because the facts and the applicable laws do not support charges that can be proven beyond a reasonable doubt.

Statement of Prosecutor Worthy in the Matthews and Wilson Cases

Prosecutor Worthy said, "Our goal is to make sure that we make just decisions according to the applicable law. These decisions were particularly difficult and heart wrenching for all parties involved, including me. We take our responsibility very seriously and both cases had many issues to investigate. This added significant time to our ability to come to just decisions. We interviewed numerous witnesses, reviewed reports, analyzed all the physical evidence, police training materials, medical records, and consulted with multiple experts. Thoroughness takes time.

"After careful analysis we have concluded that we cannot prove the Matthews case beyond a reasonable doubt because of the laws of self-defense. We also cannot prove the Wilson case beyond a reasonable doubt because of the law of self defense, the law of defense of others and the law regarding apprehension of a fleeing felon."

Kevin Matthews Fatal Police Shooting Investigation Timeline

December 23, 2015  - Date of Fatal Shooting of Kevin Matthews

December 28 & 29, 2015  - Written lists of requested investigation to DPD including additional witness interviews, surveillance and scout car video, police reports, medical records, etc

January 4, 2016 - List of necessary witness interviews, lab work to DPD

January 12, 2016 - Again requested viewable video from Citgo incident prior evening, Detroit 911 calls

January 13, 2016 - Supplemental list of requested investigation, including witnesses who still needed to be interviewed

January 22, 2016 - Request for outstanding DPD photos and scene sketch, witness interview, and identification/interview of additional witness

February 29, 2016 - Warrant request submitted by DPD prior to completion of requested investigation

March 22, 2016 - Warrant returned to DPD noting outstanding investigative items. Outstanding items included video surveillance, lab results, police reports, medical records, witness interviews, etc

April 25, 2016 - List of still outstanding items in above categories to DPD

May 2 - 6, 2016 - Various investigative items received from DPD including:

• Medical records
  
• EMS records
  
• Video surveillance
  
• Witness interviews
  
• Police reports
  
• Forensic map from audio/visual test
  
• Scene sketch
  
• Photos/ grid search results from return to scene to search for additional evidence
  
• Firearms analysis results
  

June 22, 2016 - Outside review of scout car video. Meeting with Prosecutor to review evidence. Additional work requested.

July 27, 2016 - Originally assigned outside reviewer transferred out of state, project assigned to different detective

August 15, 2016 - Hard drive removed from MDVR for review of event logs

August 18, 2016 - Initial findings of outside reviewer regarding event logs

September 20, 2016 - Meeting with Task Force to review interim findings

September 28, 2016 - Meeting with Prosecutor to discuss case

October 6, 2016 - Task Force completed review of files in unallocated space

October 24, 2016 - Received final forensic report from Internet Task Force

November 16, 2016 - Meeting with Prosecutor and supervisors to discuss case

December 15, 2016 - Meeting with Prosecutor and supervisors to discuss case

#####