LOUISVILLE, Ky. — No charges will be filed against two Louisville police officers who fatally shot a man outside the Portland Kroger in November 2019.
In a letter to LMPD's Public Integrity Unit, Commonwealth's Attorney Tom Wine said he believes the officers were entitled to use deadly physical force against Shelby Gazaway to defend themselves or others.
"The facts are straight forward but tragic," Wine said.
In the letter, Wine detailed the moments leading up to and after Gazaway was shot nine times by officers Alex Dugan and Patrick Norton in the Kroger parking lot on Nov. 7.
According to LMPD, an altercation led to Gazaway firing shots inside the store. Wine said surveillance footage captured Gazaway walking into the door less than 15 seconds behind another person, eventually meeting him in the produce aisle and striking him in the back of the head.
Wine said surveillance footage showed Gazaway and then man wrestle before the man pulls out a pocket knife. The two then wrestled for the knife, and the man's hand was cut. The assistant store manager then separated the two, and Wine said Gazaway then pulled out a gun and followed the man.
A Kroger deli counter clerk then said she saw Gazaway fire into the ceiling and fire several more shots. Wine said her story was corroborated by other Kroger employees. Another assistant store manager said Gazaway fired into the ceiling, rupturing water lines.
"While the number of shots reportedly fired ranged from 4 to 10, one consistent theme was there was a shot fired, a beak in the action, some more shots fired and another break in the action before a final round of shots are heard to be fired within the store," Wine said.
The two officers arrived shortly after. Wine said an exterior police camera captured Gazaway walk back toward his SUV, turn and extend his right arm toward the officers as he is getting into the SUV. He then stumbled, bent into the car and fell to the ground.
Family of Gazaway said they have still not seen this video.
"I'm by no means saying that Shelby was perfect, because he was human, but from the footage that we have seen thus far, it does not physically show that Shelby did anything incorrect," his mother, Semone Carter said Wednesday after the letter from Wine was publicly released.
Dugan said he yelled drop the gun and fired his rifle twice, but Wine said "unfortunately, Dugan's body cam was poorly positioned" and the view is blocked by the stock of his rifle.
Norton said witnesses pointed at Gazaway, telling police he was the shooter. Norton said he yelled at Gazaway, "Hey look at me," and Gazaway fired at him. His body cam captured Norton yelling "Hey! Hey! Hey." Wine said Gazaway could be seen raising his arm towards the officers in the footage.
The officers can be heard yelling "Drop the gun" during a break in gunfire. Norton then yells "Reload" and "He's still moving by the black SUV." Wine said CSU collected 16 shell casings near where Gazaway took cover.
Gazaway was found face down by the SUV. Another officer that arrived on the scene said he was gasping for breath, but then stopped breaking within a few seconds. He and another officer attempted to render first aid until an EMT arrived and confirmed Gazaway was dead.
Gazaway's family spoke about the investigation Wednesday, saying officers did not announce themselves. Wine confirmed in the letter that neither officer announced themselves as LMPD.
"While Dugan and Norton were both in uniform, which clearly identified them as LMPD, neither can be heard on the body cams identifying themselves as law enforcement officers," Wine said. "During the recorded statements, neither claimed to identify themselves as law enforcement."
Wine said the officers responding knew it was an "active shooter" situation, and that statements from witnesses and officers made clear that Gazaway "continued to discharge his weapon once he left the store."
"He fired at least twice toward the officers who were by the brick post," Wine said. "But for that post, it is most likely one or both officers would have been struck."
Because of that, Wine said both officers were justified in using deadly force against Gazaway.
"The nagging question is why Mr. Gazaway acted so violently on November 7, 2019," Wine said. "Unfortunately, that is a question neither I, nor Mr. Gazaway's family, who loved the son, brother and uncle they knew as a warm and caring person, can answer."
Gazaway's family said they do not feel like they have been given clarity, and said they believe he was ambushed when he walked outside Kroger.
"Why is it that when they come for us, the force is lethal," his aunt Sharon Gazaway said.
The family pointed to other Louisville shootings where suspects were not killed, including the 2018 shooting at Jeffersontown Kroger that resulted in a Black man and woman's deaths. Gregory Bush, the shooter, is facing murder and hate crime charges.
"According to the video footage we have received, Shelby did not have the opportunity to stop while outside of the Kroger," his mother said. "The police officers did not announce themselves, they did not give Shelby the opportunity."
Family is also disturbed by a part of the body camera video where you hear the officer say, "shooter?" before firing.
"'Is that the guy,' someone says, 'yeah that's him.' Had he been shooting, swinging his gun around, if there was a gun visible, they would not have asked that question," said his aunt.
His mother described Gazaway as "a cool kid with no criminal record," according to the letter, but Wine's report reveals a "darker, troubled side," citing texts dated his birthday, where Carter asked if he was suicidal.
"If that was actually said, there was no problem to my knowledge that Shelby was having," his mother responded.
Carter said the family has received video footage of the night, saying their lawyers were attempting to clarify it. The family said they have not heard from Wine or LMPD regarding the decision.
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