Inquest finds no fault with shooting by deputy

by Jan Anderson

No criminal charges should be filed against a Jefferson County sheriff’s deputy who shot and killed a Boulder man in January, a coroner’s jury said June 10.

Deputy David Kosola did not act criminally when he fatally wounded 31-year-old Francis Michael Stately, known to family and friends as Saul Stately, found the nine-person jury.

Following the jury finding, Kosola expressed relief. “I’m very happy with the verdict,” said Kosola. After a pause, he added, “What else can I say?”

Kosola, who was placed on administrative leave immediately after the shooting, returned to duty about a month after the shooting. The county’s use of force review board found he followed all established law enforcement policies and procedures in the incident, and Sheriff Craig Doolittle said he evaluated other information before okaying Kosola’s return.

The shooting came about fifteen minutes after Stately called 9-1-1 at 3:16 in the morning and reported that he had a 12-gauge shotgun and wanted to “kill police,” according to evidence presented at the trial.

“Everybody else fled and so, I guess the only other people that are gonna f---ing get within my range is the police,” Stately told Jefferson County Dispatcher Becky Warner.

“As I talked to him more, I realized that he was very serious,” Warner told the jury as she testified about the seven minute call from Stately.

In expletive-laced statements, Stately said he didn’t care about anything any more, wanted “a f---ing shootout,” and urged, “I’m not scared. Let’s get it on.” He emphatically repeated the address where he was, 108 S. Cleveland, and told Warner to get police there.

Following the shooting, investigators found a note from Stately on a dry erase board. It read, “I failed Look at my life i hafe nothing 2 offer anyone.”

A transcript of the 9-1-1 call introduced as evidence in the coroner’s hearing showed that Warner tried to distract Stately from his train of thought and his announced intention to get into a gun battle with law enforcement. Her training during twelve years as a dispatcher taught her that interrupting a suicidal caller could buy time and perhaps avoid a tragedy, she testified. In the recorded call, she asked Stately about his family, his job and his family pets.

Although Stately answered many of Warner’s questions, his determination remained. He told Warner he did not blame his family for being scared and fleeing, and “I just want you guys to come and get me before I hurt somebody that I really like or maybe even love.”

His last comments before the call ended included statements about how hard he had worked his whole life with nothing to show for it and an appeal for “the deputies – f---ing bring ‘em on.”

OFFICERS ARRIVE

Before the call ended, Warner had dispatched Rick Streib to the scene. Streib, also a reserve officer for the county, was working for the City of Boulder Police Department that night.

Stately’s widow took the witness stand to tell jurors that she spoke with Streib when he arrived at the end of the block. She testified that she urged Streib not to go to the trailer home where Stately was outside with the shotgun because that was exactly what Stately wanted to happen.

Heather Stately said her husband had been suicidal in three prior episodes, and had been diagnosed with bipolar disorder but was no longer taking medication for it. She also said he had been violent toward her, prompting at least two calls to law enforcement and court-ordered anger management and alcohol abuse counseling.

In the hours before the shooting, Stately became agitated, pacing and mumbling. “I knew he was not in his right mind,” his widow testified.

Her four children left the trailer home through a window, an escape route she had planned ahead of time, but she chose not to call police because “I was afraid that he wanted the police there so he could have them kill him,” said Heather Stately. Her husband’s father was a chief of police elsewhere and “he knew that was a sure way that he would die,” she testified.

“He never wanted to harm a police officer. I wanted to make that clear,” said the widow.

Streib said the wife asked him not to go down to the trailer, but told the jury he had no choice. Stately was a threat to himself and to others, the officer said.

Before any other officers could arrive at the scene, Stately approached within five to eight feet of him, continuing to hold the gun and saying that nobody cared, said Streib. Trying to avoid escalating the situation, Streib said he holstered his own weapon, something he probably should not have done.

At one point, when he urged Stately to put down the gun, the man snapped back, “Don’t interrupt me,” said Streib. Stately then turned around, headed back toward the trailer and fired a shot into the front of the home before going inside, Streib said. Streib said he feared that Stately was about to commit suicide then.

“I radioed that it didn’t look good,” he testified.

Streib said it is department policy that two officers are dispatched to any scene involving a weapon, and, “It seemed like a long time before anybody else got there.”

NEGOTIATOR ON SCENE

The next officer to arrive was Undersheriff Steve Marquis, who is a designated, trained negotiator for the department. In keeping with that role, he was not in uniform and was not carrying a visible weapon, he said.

“I want to make the individual feel as trusting and comfortable as I can,” explained Marquis.

When he heard via radio before even arriving on scene that shots had been fired, “it immediately altered my adrenaline,” Marquis said.

It would be critical to make sure that no bystanders were in danger of losing their lives, he said he remembered thinking.

From the moment he arrived at the scene, though, things advanced quickly, he said. “This is the absolute fastest situation that I have ever been involved in,” he testified.

“At one point, he asked me to shoot him, and I told him, ‘No, I don’t have a gun,’” said the undersheriff.

Asked why the officers did not bring in a mental health professional to deal with Stately, Marquis said that once a person is in a neighborhood making threats with a deadly force weapon, safety is paramount. “We never, ever, ever bring anybody else” who can be taken as a hostage, even a mental health professional, and “there just wasn’t any time” to convey information about the man’s mental health history, said Marquis.

Marquis, who said he has successfully defused similar situations in the past, tried to employ the same basic technique as dispatcher Becky Warner. “One of the things that we’re taught to do is break that chain of thought,” he said.

“I’m a negotiator. I’m trying to get this guy’s trust,” said Marquis. When Stately asked something like “who the f--- are you?” Marquis replied, “I’m Steve. You know me.”

Marquis said that prompted Stately to ask, “Steve?”

Unfortunately, things escalated quickly after that, said witnesses.

THE SHOOTING

The third officer on the scene was David Kosola, a sheriff’s deputy. He had been directed to approach from the opposite direction than Marquis and Streib’s post just north of the Stately trailer. Coming in from the south, Kosola walked to a spot behind a wood hauling trailer parked in front of the trailer house.

Seeing that Stately was distracted by discussion with Streib and Marquis, Kosola said he believed he could step out and use a TASER to disable Stately long enough to gain control of the situation. He retreated from that plan, though, and stepped back to cover when noise from his radio apparently attracted Stately’s attention, Kosola testified.

Stately turned and said, “You’re dumb,” raising his weapon as if readying to shoot, said Kosola. When he heard a click from Stately’s gun, he fired, said Kosola.

“It was like everything went silent and I heard a click,” he recalled.

Kosola said he shot twice because after the first shot Stately was still a threat. “We are not trained to shoot to kill. We are trained to stop the threat,” testified Kosola.

Other witnesses said Stately’s turn was deliberate. “I saw Stately turn and I heard a metallic click and I saw the flash from two shots,” said Streib.

“I heard the sound but I didn’t see the flashes,” testified Marquis.

Ronald Lowe, a 61-year-old neighbor, said he watched the event unfold from across the street. His testimony was consistent with what the officers said, including saying that Stately raised his weapon as he turned toward Kosola. When Stately turned, “I thought somebody was going to get shot,” testified Lowe.

Two attorneys watching the inquest periodically submitted written questions to coroner Mickey Nelson, who was called in from Lewis and Clark County to preside in the hearing. Nelson read some of those questions to witnesses, including a question to Streib: “Are surprise confrontations with armed, suicidal persons the recommended procedure for de-escalation?”

All three officers testified that Kosola acted appropriately and everyone was just trying to do the best they could in the situation.

Immediately after the shooting, Kosola switched roles to react as an emergency medical technician in an attempt to save Stately’s life. Stately was transported by ambulance to Helena, where he died at St. Peter’s hospital about four hours later.

OUTSIDE INVESTIGATION

Shane Shaw, an investigator with the state Department of Criminal Investigations from the Attorney General’s Office, testified that he and an officer from Lewis and Clark County investigated the incident. He said he found no evidence to contradict the story told by the officers and called the testimony “remarkably consistent.”

There was no basis for any criminal charges “against anyone but Stately,” he said.

The investigation revealed that Stately’s blood alcohol level was tested at .26 at the hospital, about three times the limit set in the law defining DUI.

Shaw said the officers could not just ignore the situation, because the public was at risk. If Stately had killed himself while the officers did nothing, they would have been criticized. If the officers had stayed away, Stately might have taken more desperate measures, said Shaw.

“No matter what we do, this is a tragic situation,” Shaw told jurors.

“If they don’t respond, he goes next door and tries to find a neighbor to encourage the response,” he said.

All four entries to a four-plex next door to the Stately trailer faced the porch where Stately was through much of the confrontation, and officers had no good means or time to get those occupants to safety, witnesses testified. That had to be factored into response decisions, they said.

When public safety is involved, the public has a right to expect police protection, Shaw testified. If the officers had failed to respond, the public would probably think, “If they don’t respond like this under these circumstances, I don’t know if they will protect me, either,” said the investigator.

Stately’s weapon was cocked at the time it was collected, Shaw said, explaining the click heard by officers. “It’s not a very loud click, but it does click when that hammer is drawn back,” he testified.

Investigators also recovered a bandolier with twelve shells, a number of other unexpended shells, and other evidence, he said. He also noted that a bumper sticker on a Stately vehicle photographed after the shooting bore a bumper sticker that read, “Some people are alive only because it’s illegal to kill them.”

Shaw said it was “remarkable” how fast the officers responded to the situation and how quickly they had to make decisions. “This whole thing lasted fifteen minutes,” he pointed out.

THE JURY DECISION

The nine citizens on the jury took less than a half hour to return a decision, which is only a recommendation in a coroner’s inquest. All nine jurors agreed that no criminal charges should be filed against Kosola. Coroner Nelson accepted the recommendation and issued that finding.

Jefferson County Attorney Matt Johnson repeated Shaw’s sentiment that the entire situation was unfortunate but said the officers did what they had to in the situation. “Our officers are trained for a purpose, and that is to protect the community,” he said.

Johnson also said the jury heard the evidence and came back with a decision based on that evidence. Ever since the shooting, the community has been left with incomplete information about what really happened, leading to speculation and rumor that should be put to rest by the inquest, he said.

Inquest finds no fault with shooting by deputy

Saturday, June 21, 2008