June 6, 2000
Lynn Kimbrough, 720-913-9025
Dear Chief Whitman:
The investigation and
legal analysis of the shooting of Ray William Hagedorn have been
completed, and I conclude that
under applicable Colorado law no criminal charges are fileable against
Officer Michael Wyatt. My
decision, based on criminal-law standards, does not limit administrative
action by the Denver Police Department where non-criminal issues can be
reviewed and redressed, or civil actions where less-stringent laws,
rules and legal levels of proof apply.
The complete file of the investigation is open to the public for
inspection at our office at the conclusion of the criminal prosecution
of Hagedorn, and I invite any interested party to review the
investigation and my decision in greater detail.
STATEMENT OF FACTS
On May 25, 2000, at 12:06
a.m., Denver police officer Ben Aloia (car 635), 88016, attempted to
make a traffic stop of a 1979 Subaru station wagon that was traveling
the wrong way on East 13th Avenue between Broadway and
Lincoln Street. The suspect
driver, later identified as Ray William Hagedorn, fled in response to
the officer’s attempt to stop him.
Officer Aloia pursued Hagedorn to East 14th Avenue and
Sherman Street with his emergency equipment activated.
Officer Michael Wyatt (car 633A) had just been at a
domestic-violence call with Officer Aloia. He joined the pursuit with his emergency equipment activated.
At East 13th Avenue and Sherman Street, Hagedorn drove
through the stop sign and then continued westbound on 13th
Avenue. The suspect reached
speeds of 60 to 65 mph on 13th Avenue.
The suspect ran both red lights at Speer Boulevard, the red light
at Kalamath, and the red light at Mariposa Street.
At West 13th Avenue and Shoshone Street the suspect
turned off his lights. At
the intersection of West 13th Avenue and Decatur Street,
Hagedorn jumped over the curb and entered Denver’s Rude Park.
Hagedorn drove across the park to a bridge that connects the park
to a bicycle path along the creek.
Officer Aloia pursued Hagedorn down the bicycle path to the point
it reaches the South Platte River.
The pursuit then went northbound on the bicycle path along the
South Platte River to its intersection with lower Old Colfax Avenue.
Hagedorn then drove off the bicycle path onto lower Old Colfax
Avenue where he ran over a wooden pole.
He was stalled briefly and Officer Aloia was able to pull up
behind Hagedorn in an effort to block him from backing up.
Officer Wyatt had also
been in pursuit of Hagedorn. He
pulled to the north curb of lower Old Colfax Avenue and got out of his
marked police car. Officer
Wyatt quickly approached the vehicle while Hagedorn continued to attempt
to free his vehicle from the pole.
As Officer Wyatt approached toward the driver-side window, which
was open about 6 inches, he ordered the suspect to turn off his engine.
When the suspect refused, Officer Wyatt attempted to open the door, but
it was locked. Officer
Wyatt then broke the window with the butt of his gun and reached inside
in an effort to apprehend Hagedorn.
At this moment, the suspect freed his vehicle and made a sharp
left turn into Officer Wyatt. Officer
Wyatt fired a single shot. At
12:10 a.m., Officer Wyatt radioed that the shot had been fired.
Hagedorn fled in a
continued effort to escape. He
drove back onto lower Old Colfax Avenue, then went eastbound.
Officers Wyatt, Aloia, and Daniel O’Bannon, 95009, continued
the pursuit. At 7th
and Walnut Streets, Hagedorn entered an Auraria Campus parking lot.
He attempted to elude the officers by driving over medians and in
large circles. Eventually
he returned to 7th and Walnut Streets and drove northbound on
7th Street towards the Pepsi Center.
At this time, Officer
Aloia was given permission by Sergeant Tim Rusk to use extraordinary
means to stop the suspect from leaving the Pepsi Center parking lots. Officer Aloia then rammed Hagedorn’s vehicle.
The vehicle swerved and then flipped over.
The pursuit was over.
officers took Hagedorn into custody.
It was 12:12 a.m. when the officers informed radio dispatch that
the accident had occurred and an ambulance was needed.
He was transported to Denver Health Medical Center where he was
treated for a single through-and-through gunshot wound to the right arm.
Doctor Brister indicated that Hagedorn received no serious
It was later determined that in addition to his criminal conduct in this incident, Hagedorn was wanted for parole violation warrant #61947 and for an Arapahoe County traffic warrant #00W5035. Hagedorn was held on the warrants and for investigation of assault to a police officer. On May 30, 2000, Hagedorn was formally charged with Assault in the First Degree (To a Police Officer), Vehicular Eluding, and felony Menacing.
STATEMENT OF INVESTIGATION
involves the shooting of Ray Hagedorn by uniformed Denver Police Officer
Michael Wyatt. The
investigation was conducted in accordance with the protocols established
for officer-involved shootings. Based
on the totality of the facts developed in the investigation of this
incident, there are no significant disputes as to what occurred.
After the suspect and
scene were secured and cover officers arrived, the involved officers
were separated and brought to the Denver Police headquarters building in
accordance with the protocol established for officer-involved shootings. Sergeant Vince Lombardi transported Officer Wyatt.
Officers Michael Wyatt, Ben Aloia, and Daniel O’Bannon gave
voluntary video-taped statements to investigators.
Any interested party is welcome to review the case-file synopsis
or to watch any of the video-tape statements in this case in their
entirety at our office.
Officers who were at the scene at the time of the shooting were dressed in Denver Police Department uniforms. At Denver Police headquarters following the incident, Officer Wyatt’s weapon was given to Denver Police crime-lab personnel for appropriate testing. Officer Wyatt was armed with his Sig Sauer, model 226, 9mm semi-automatic service pistol. This weapon has a 15-round magazine capacity and was being carried with an additional round in the chamber.
Investigators located a
9mm shell casing at the scene. Crime
laboratory firearms examiners identified it to Officer Wyatt’s pistol.
The bullet fragment investigators recovered from the right front
door “kick panel” of Hagedorn’s 1979 Subaru was too damaged for
Denver Police Department records indicate that on November 24,
1999, Hagedorn registered as a parolee with the Denver Police
Department. His file
contains a telex indicating that he was being sought as a parole
violator at the time of this incident.
A note in the telex states, “Caution – violent tendencies.
Caution parole violator assaultive.”
Denver Police radio
call-card notes indicate that car 635 radioed that he is either
attempting to contact or is following a car with possible Colorado
license PAG3509. The time
was 12:06 a.m. The officer
continues to call out the pursuit, noting speeds of up to 45 mph on
residential streets (13th & Osage).
At times the suspect is going the “wrong” way down the
street. Later, the accident
is called out and an ambulance is requested at 12:12 a.m.
After the accident that
ended the pursuit, Hagedorn was transported to Denver Health Medical
Center where Dr. Brister determined that the suspect did not suffer
serious bodily injury. Hagedorn
suffered a minor through-and-through gunshot wound to the right arm. The entry and exit wounds were less than an inch apart in the
fleshy inside area of the upper-right arm.
This is consistent with the single shot fired by Officer Wyatt
and the bullet recovered from the right front door “kick panel” of
In his voluntary video-taped statement, Officer Wyatt’s description of the chase is consistent with the “Statement of Facts” in this letter. Officer Wyatt said that when he saw the suspect attempting to free his vehicle after being briefly stopped by the pole, he drew his weapon as a precaution. As he approached the driver’s side window, which was open about 6 inches, he ordered the suspect to turn off his engine. The suspect refused and Officer Hagedorn attempted to open the door, but it was locked. He then broke the window with the butt of his gun. He reached inside in an effort to apprehend the suspect. At this moment, the suspect freed his vehicle and made a sharp left turn into Officer Wyatt. Officer Wyatt stated that he believed that the suspect was going to drive into him in an attempt to flee the situation. Feeling he was in “imminent danger,” he fired a single shot at the suspect. The suspect ducked down in the seat, continued to turn left, and made his escape. Officer Wyatt, in response to a question from investigators, indicated that when he got out of his police car his police baton fell out on the ground next to his car. This is the reason he used his gun to break the car window.
In his voluntary
video-taped statement, Officer Aloia’s description of the chase is
also consistent with the “Statement of Facts” in this letter.
Officer Aloia said he saw Officer Wyatt on foot approaching the
suspect vehicle by the driver’s side window.
As he was approaching, the suspect started to get the vehicle
free. As the car got free,
he spun to the left towards Officer Wyatt and attempted to run over him. Officer Aloia said that Officer Wyatt was yelling something
at the suspect, but he could not hear it because of the sirens and radio
talk. He said Officer Wyatt
was trying to move out of the way of the suspect’s vehicle when he
fired the single shot at the suspect.
The suspect then continued to flee.
Officer Aloia stated that after the accident he got the suspect
out of the vehicle and checked him for weapons.
He found drug paraphernalia in his pants pocket: two syringes and
a cooking spoon. When asked
by Officer Aloia why he didn’t just stop, he stated that he was wanted
for escape and was under suspension.
After giving a Miranda advisement, Detective Bart Malpass
interviewed Hagedorn at Denver Health Medical Center.
Hagedorn stated that he was going the wrong way on a one-way
street when officers attempted to stop him.
He said he intended to slow down by braking, but hit the gas
pedal instead. He felt the
officers probably thought he was running so he decided to try and get
away. Hagedorn said that at
one point in the park he was approached by an officer who told him to
stop. He said the officer
then broke out the driver’s side window with the butt of his gun, then
shot him. He said he then
drove away and was eventually struck by one of the pursuing police
vehicles. Hagedorn said he
had outstanding warrants for a parole violation related to a criminal
trespassing conviction. He
was also wanted on a warrant for Eluding Police Officers and Reckless
The following is a
synopsis of a statement given by Michael Conway.
Conway told investigators that he was leaving the Conoco Station
near Auraria Parkway about 12:10 a.m. when he heard sirens and saw
several police cars chasing a vehicle through an Auraria Campus parking
lot. The vehicle was
attempting to force the police vehicles out of the way while leaving the
lot. When the vehicle crossed 7th Street, the driver
tried to ram a police car. He
said that after impacting with a police car, the suspect vehicle
flipped. The officers then
took the suspect out of the driver’s side door and cuffed him.
Criminal liability is
established in Colorado only if it is proved beyond a reasonable doubt
that someone has committed all of the elements of an offense defined by
Colorado statute, and it is proved beyond a reasonable doubt that the
offense was committed without any statutorily-recognized justification
or excuse. While knowingly
or intentionally shooting and causing injury to another human being is
generally prohibited as assault in Colorado, the Criminal Code specifies
certain circumstances in which the use of physical force is justified.
As the evidence establishes that Officer Wyatt intended to shoot
Hagedorn, the determination whether his conduct was criminal is
primarily a question of legal justification.
Colorado Revised Statutes, Section 18-1-707 states the law concerning “justification and exemption from criminal responsibility. It states as follows:
physical force in making an arrest or in preventing an escape.
Except as provided in subsection (2) of this section, a peace
officer is justified in using reasonable and appropriate physical
force upon another person when and to the extent that he reasonably
believes it necessary:
(a) To effect an arrest or to prevent the escape from custody of an arrested person unless he knows that the arrest is unauthorized; or
(b) To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect such an arrest or while preventing or attempting to prevent such an escape.
(2) A peace officer is justified in using deadly physical force upon another person for the purposes specified in subsection (1) of this section only when he reasonably believes that it is necessary:
(a) To defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or
(b) To effect an arrest, or to prevent the escape from custody, of a person whom he reasonably believes:
(I) Has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon; or
(II) Is attempting to escape by the use of a deadly weapon; or
Otherwise indicates, except through a motor vehicle violation,
that he is likely to endanger human life or to inflict serious bodily
injury to another unless apprehended without delay.
18-1-901 of the Colorado Revised Statutes defines “deadly weapon” as any of the following which in the manner it is
used or intended to be used is capable of producing death or serious
bodily injury: (I) a firearm, whether loaded or unloaded; (II) a knife;
(III) a bludgeon; or (IV) any other weapon, device, instrument,
material, or substance, whether animate or inanimate.
Therefore, a vehicle could be considered to be a deadly weapon if
intentionally used in an effort to seriously injure or kill a citizen or
Section 18-1-901 of the Colorado Revised Statutes defines “deadly
physical force” as force the intended, natural, and probable
consequences of which is to produce death, and which does, in fact,
produce death. Therefore,
under Colorado law, Officer Wyatt, by definition, only used “physical
force,” because the shot he fired wounded but did not kill
the question presented in this case is whether, at the instant Officer
Wyatt fired the shot that caused the injury to Hagedorn, Officer Wyatt
reasonably believed that he or another person was in imminent danger of
serious bodily injury or death. In order to establish criminal responsibility for knowingly
or intentionally causing the injury of another, the state must prove
beyond a reasonable doubt that the person doing the shooting either did
not really believe in the existence of the requisite circumstances, or,
if he did hold such belief, that belief was, in light of all available
There is no material dispute concerning the facts of this case. Officer Wyatt stated that he fired the single shot to protect
himself because he feared for his safety as a result of what he
perceived to be Hagedorn’s attempt to strike him with his car.
Hagedorn’s vehicle could be considered to be a deadly weapon
under Colorado law, because in the manner it was being used by Hagedorn
it was capable of producing serious bodily injury or death. There are no witnesses who dispute Officer Wyatt’s account
and there is no other evidence to the contrary.
The physical evidence is consistent with Officer Wyatt’s
Wyatt’s statement is also consistent with the citizen witness and the
other officer witnesses. The
issue is not whether every officer would have fired under the facts and
circumstances of this case, but rather, whether criminal charges would
have been fileable had they done so.
From beginning to end, Hagedorn’s conduct was aggressive,
non-compliant, and reckless. He
had every opportunity to comply with the officers’ lawful right to
stop him. During his flight, he placed the officers and numerous
citizens at risk by his behavior. By
his own admission, he had a criminal motive for attempting to elude the
officers. When his vehicle
became stuck on the pole, rather than complying with Officer Wyatt’s
commands to stop and surrender, he broke free and intentionally turned
at Officer Wyatt. Based on Hagedorn’s behavior that preceded this, Officer
Wyatt believed he was attempting to run him down.
In response to this perceived vehicular attack, Officer Wyatt
fired a single shot. Under
the circumstances that faced him at that instant, an intermediate weapon
response was not available in that split-second time frame.
Confirming his intent to escape at any cost, even after being
shot, Hagedorn led officers on a further high-risk pursuit until
extraordinary means were used to end the chase.
Based on Hagedorn’s conduct throughout this incident, it was
reasonable for Officer Wyatt to believe that Hagedorn was attempting to
injure him at the time he fired the shot.
We clearly could not disprove this beyond a reasonable doubt,
which would be our burden if criminal charges were filed.
I conclude that under
applicable Colorado law no criminal charges are fileable against Officer
Wyatt. As in every case
we handle, any interested party may seek judicial review of our decision
under C.R.S. 16-5-209.
Very truly yours,
Bill Ritter, Jr.
Officer Michael Wyatt
Doug Jewell, Attorney-at-Law
Wellington Webb, Mayor
Fidel “Butch” Montoya, Manager of Safety
Deputy Chief Dave Abrams
Deputy Chief Heather Coogan
Division Chief Armedia Gordon, Criminal Investigation Division
Division Chief Dan O’Hayre, Patrol Division
Division Chief Mary Beth Klee, Special Operations Division
Division Chief Steve Allison, Staff Services Division
Captain Tim Leary, Crimes Against Persons Bureau
Lieutenant Jon Priest, Homicide Unit
Detective Dave Neil, Homicide Unit
Chuck Lepley, First Assistant District Attorney
Lamar Sims, Chief Deputy District Attorney
Dick Reeve, General Counsel, Deputy District Attorney
Doug Jackson, Chief Deputy District Attorney
Eric Perryman, Chief Deputy District Attorney
All City Council Members
Justice William Erickson, Erickson Commission
OFFICER-INVOLVED SHOOTINGS IN GENERAL
The great majority of
officer-involved shootings in Denver, and throughout the country,
ultimately result from what is commonly called the “split-second
decision to shoot.” It is
often the culmination of a string of decisions by the officer and the
citizen that ultimately creates the need for a “split-second decision
to shoot.” The
“split-second” decision is generally made to stop a real or
perceived threat or aggressive behavior by the citizen.
It is this “split-second” time frame which typically defines
the focus of the criminal filing decision, not the string of decisions
along the way that placed them in the “life or death” final frame.
When a police-citizen encounter reaches this “split-second”
window, and the citizen is armed with a firearm, or with a knife in
relatively close proximity to the officer, the circumstances generally
make the shooting justified, or at the least, difficult to prove
criminal responsibility under the criminal laws and required legal
levels of proof. The fact that no criminal charges are fileable in a given
case is not necessarily synonymous with an affirmative finding of
justification, or a belief that the matter was handled appropriately
from an administrative viewpoint. It
is simply a determination that there is not a reasonable likelihood of
proving criminal charges beyond a reasonable doubt, unanimously, to a
The Denver Police Department’s Firearms Discharge Review Board’s after-incident, objective analysis of the tactical and strategical string of decisions made by the officer that lead to the necessity to make the “split-second decision to shoot” is perhaps the single most important ingredient in saving lives on both sides of these confrontations. It is clearly not always possible to do so, but to the extent through appropriate tactical and strategic decisions officers can de-escalate, rather than intensify these encounters, the need for “split-second” decisions will be reduced. Once the “split-second decision” time frame is reached, the risk of a shooting is high. The administrative review of officer-involved shootings is a difficult responsibility and task, but one that, if done professionally and fairly, improves police performance, protects officers and citizens, and builds public confidence in the department. Where mistakes or better approaches are identified, administrative action may be the only way to effect remedial change. The administrative review process provides the greatest opportunity to bring officer conduct in compliance with the expectations of the department and the community it serves. Clearly, the department and the community expect more of their officers than that they simply conduct themselves in a manner that avoids criminal prosecution.
Because of the difference
between the criminal, administrative, and civil standards, the same facts
can fairly and appropriately lead to a different analysis and different
results in these three arenas. While
criminal charges may not be fileable in a case, administrative action may
be appropriate. The legal
levels of proof and rules of evidence which apply in the criminal-law
arena are imprecise tools for examining and responding to the broader
range of issues presented by officer-involved shootings.
Issues related to the tactical and strategical decisions made by
the officer leading up to the “split-second decision to shoot” are
most effectively addressed by the Denver Police Department through the
Firearms Discharge Review Board process and administrative review of the
The administrative-review process, which is controlled by less stringent legal levelsof proof and rules than the criminal-review process, provides both positive remedial options and punitive sanctions. This process also provides significantly broader latitude in accessing and using information concerning the background, history, and job performance of the involved officer. This type of information may have limited or no applicability to the criminal review, but may be very important in making administrative decisions. This could include information concerning prior officer-involved shootings, firearm discharges, use of non-lethal force, and other conduct, both positive and negative.
There are a variety of actions that can be taken administratively in response to the department’s review of a shooting. The review may reveal that no action is required. Frankly, this is the case in most officer-involved shootings. However, the department may determine that additional training is appropriate for all officers on the force, or only for the involved officer. The review may reveal the need for changes in departmental policies, procedures, and rules. In some instances, the review may indicate the need for changing the assignment of the involved officer, temporarily or permanently. Depending on the circumstances, this could be done for the benefit of the officer, the community, or both. And, where departmental rules are violated, formal discipline may be appropriate. The department’s expertise makes it best suited to make these decisions.
It is clear not every officer will handle similar situations in similar
ways. This is to be expected.
Some officers will be better than others at defusing potentially
violent encounters. This is
to be expected. To the degree
officers possess skills that enhance their ability to protect themselves
and our citizens, while averting unnecessary shootings, Denver will
continue to have a minimal number of officer-involved shootings.
Denver officers face life-threatening confrontations hundreds of
times every year, yet there are an average of less than ten officer-
involved shootings annually. This
reflects favorably on the men and women of the department as a whole.
Skill in the use of tactics short of deadly force are an important
ingredient in violence reduction. Training
to guide officers in making judgments about the best tactics to use in
various situations, beyond just possessing firearms proficiency, is a key
to minimizing unnecessary and preventable shootings.
Clearly, not all potentially-violent confrontations with citizens
can be de-escalated, but officers do have the ability to impact the
direction and outcome of many of the situations they handle, based on the
critical decisions they make leading up to the deadly-force decision.
This should be a part of the review of every officer-involved
shooting, not just to look for what may have been wrong, but also to see
what occurred that was appropriate, with the ultimate goal of getting
better at what they do.
 We do not need to apply the less stringent “use of
physical force” standard to our analysis because under the facts of
this case Officer Wyatt was justified in using deadly physical force.