Shopping Mall Parking Lot
Two
Wichita police officers were conducting field sobriety tests on a 17-year-old
male involved in a traffic accident at the Central and Tyler intersection. The
officers had moved their patrol vehicles and the 17- year-old to the parking
lot of a shopping mall just southwest of the intersection when a white male
driving a Ford Explorer approached them.
Officer#1
approached the open passenger window of the Explorer and heard the driver, who
was the sole occupant, say something about a ‘vehicle being hit’.
Officer#1 then noticed a shotgun in the front passenger area. Officer#1
stepped back, drew his gun and loudly announced to Officer#2 words to the
effect that the driver had “gun” or “shotgun” “in the vehicle”.
Officer#1 observed Officer #2 come to the front quarter panel of the passenger
side of the vehicle with his gun drawn. Officer#1 heard the driver say either
“its loaded” or “its unloaded”. Officers commanded that Clay
“stay away from the gun” and “keep your hands where we can see them”.
Officer#1 saw the driver reach for the shotgun even though the driver had been
commanded to ‘stay away from the gun’. It was only seconds elapsing during
this time period as officers continued to demand that he no touch the weapon.
The driver continued reaching for the gun and at that time Officer#1 heard a
shot.
Officer#2
is in a different vantage point. He remained at the front quarter panel of the
passenger side of the Explorer. He observed Officer#1 approach the passenger
window of the Explorer and heard Officer #1 announce in a loud voice “he has
a gun”. He observed Officer #1 draw his gun and Officer#2 drew his weapon as
well.
Officer#2
heard Officer #1 issue commands to the driver to “keep his hands where he
could see them”. Officer #2 then observed the driver lean down and reach
with both hands down and over to the passenger side of the Explorer.
Officer#2 fired a single shot into the windshield that hit
the driver in the upper right chest just above the right nipple. Officer #2
then saw the driver ease back up and at that time the shotgun was in the
driver’s hand.
The
only commands directed by the officers to Clay in this short period of time
were to keep his hands up and to keep his hands away from the shotgun. No
officer directed Mr. Clay to get out of the vehicle prior to the shot being
fired. Additional Officers Arrive
At
1:07am, additional officers of the Wichita Police Department arrived and
removed Mr. Clay from the Explorer. They began administering emergency medical
care until EMS arrived. When Clay was removed from the vehicle, officers did
not have to release the seat belt or remove it from around his body.
Matthew
Clay was transported to the hospital where he received medical treatment for
his injuries. The Ford Explorer was secured against contamination for the
scene investigators and nothing was disturbed. The two involved officers had
been separated and removed from the area, immediately.
Both officers were questioned later that morning by investigators from
the Wichita Police Department and the Kansas Bureau of Investigation.
Scene Investigation
Scene
Investigators from the Wichita Police Department arrived at the scene to
photograph, diagram and preserve evidence. Photographs and diagrams show the
condition of the Ford Explorer, the location of the shotgun and the path of
the bullet. The 48” shotgun was located barrel pointing down to the
passenger side floorboard and the butt resting across the center console.
The
investigation indicated the bullet fired from Officer #2’s gun entered the
front windshield on the passenger side above the dash and just inside the
windshield frame it traveled diagonally across the interior portion of the
Explorer and entered the right upper chest of Matthew Clay. The path of the
bullet would indicate Matthew Clay’s upper right body was positioned on the
right side of the seat close to the console.
Witness Interview
The 17-year-old male civilian was interviewed by law enforcement on
February 26th 2004, and was deposed by the Office of the District
Attorney on August 19th 2004, as part of an investigative
inquisition. Most of the information provided by the witness remained the same
in both interviews, however, some relevant information changed from the first
interview to the second.
Between February the 26th and August 19th counsel for
Matthew Clay also interviewed the witness. The Office of the District Attorney
does not have access to the contents of that interview.
The witness indicated the following information in the two interviews,
reviewed by this office: He was
in the shopping mall parking lot with two Wichita Police Officers performing
field sobriety tests, when a dark in color SUV entered the lot from the first
entrance off of Tyler south of Central. He was aware each of the two uniformed officers had their
patrol cars parked in the lot. He observed the SUV pull up and Officer#1 walk
up to the open passenger window. He heard Officer #1 ask the driver what he
needed and then loudly announce that there was a shotgun in the front
passenger area. He observed Officer #1 pull out his handgun and point it at
the driver. He also observed Officer #2 who was in front of the Explorer on
the passenger side pull and point his handgun at the SUV.
During the interview on February 26th, the witness stated he
thought the officer told the driver to put his hands on his head but he did
not think the driver did that. The witness said he assumed the driver of the
SUV reached for the gun, but he did not see that. He saw Officer #2’s fire a
single shot through the front windshield hitting the driver in the right chest
area. He then heard the driver yell, after the shot was fired, “It’s
unloaded”.
In the inquisition statement in August, the witness stated the driver’s
hands were up by his head then the driver put his hands down but the witness
did not know what the driver was doing when the driver put his hands down. He
then said he did not see the driver put his hands down because he was looking
at Officer #2. After the shot was
fired, he heard the driver yell, “its unloaded” after he was shot. He also
added that he heard the officer tell the driver to get out of the car after
the shot was fired.
Matthew Clay’s Statement
Matthew
Clay obtained legal counsel and did not give an initial statement to the
police. He did give a brief interview to the media, shortly after the
shooting. In that interview, he said he had his hands up to his head and then
put his hand down to undo his seat belt.
On
June 22nd 2004, Mr. Clay and his attorney responded to a subpoena
issued by the Office of the District Attorney as part of the inquisition
process and Mr. Clay was deposed. In that statement, he stated he left his
home with his unloaded shotgun in his Ford Explorer to find the individuals
who damaged the family cars parked in front of 8412 Bekemeyer.
Mr. Clay stated that he originally placed the shotgun barrel down on
the passenger side floorboard with the butt resting on the center of the seat.
He stated that as he turned from Bekemeyer south onto Tyler, the shotgun
shifted and bounced up against the passenger door and the butt was then
resting between the passenger door and the passenger seat.
As
he approached Central and Tyler he saw the police officers working the
accident and believed they had caught the individual responsible for the car
damage. He entered the shopping mall parking lot from Tyler just
south of the intersection. As he pulled into the lot he saw two uniformed
police officers and one civilian.
He stated that he drove up to their location and told the
officer he needed help and that someone had hit his mother’s car.
He said Officer #1 approached his open passenger window and stated
“What?” At that point, Clay
said he realized Officer#1 saw the shotgun, which Clay said was still located
between the passenger door and the passenger seat.
Clay
heard the officer holler, “He’s got a gun”, Clay stated he then hollered
back 4(four) times “It’s unloaded”. He then observed Officer#1 step back
and pull his gun. Mr. Clay said he did not know where the second officer was
located.
Clay
then heard Officer#1 tell him to put his hands up, so he put his elbows and
hands on the ceiling of the Explorer. He also claimed that he moved his body
to the driver’s side door. He then said Officer#1 told him to get out of the
car. He said he then reached for his seatbelt with his left hand, and as he
did he heard a boom and saw a bullet hole in the windshield and realized that
he had been shot, by someone other than the officer who was talking to him.
Mr.
Clay did not remember whether he unbuckled his seatbelt or not.
After
the Shot was Fired
Matthew
Clay had his foot on the brake when he stopped to talk to the officer. After
he was shot, his foot slipped off the brake, and the Explorer began moving
forward. The officers began telling him to stop the car.
Clay
reached up and shoved the gearshift into park, stopping the vehicle.
Medical Records of Matthew Clay
Mr.
Clay was treated at Via Christi St. Francis hospital. His medical records were
obtained by subpoena issued by the Office of the District Attorney as part of
the investigative inquisition process.
He
was treated for a gunshot wound to the right upper chest. The bullet
penetrated and damaged his right upper lung. It traveled through his body
leaving bullet and bone fragments at T-5 and T-6 of the spinal canal. He
suffers from paralysis to the lower torso and lower extremeties.
The Law
In
Kansas the basic rule of use of force against an aggressor provides that all
persons, including law enforcement officers, are entitled to defend themselves
and others against the use of unlawful force. When it comes to the use of
deadly force, Kansas law states that justification in these exact words:
All
persons are justified in using force likely to cause death or great bodily
harm, only and to the extent that it appears to him, and he reasonably
believes that such conduct is necessary to defend himself or another against
such aggressor’s imminent use of unlawful force.
Conclusion
The
use of force by Officer#2 against Matthew Clay did not constitute an unlawful
use of force. The firing of a single shot at Clay was a reasonable use of
force in defense of a person and defense of others.
All
four individuals present at the time of the shooting agree the officers gave
clear commands for Clay to stay away from the gun and keep his hands up. Both
officers from two different vantage points observed that (1) Clay fail to
follow the several commands to “stay away from the gun and to keep his hands
up”. And (2) that Clay reached for the shotgun.
Clay’s
statements regarding the location of the shotgun between the passenger door
and the passenger seat support the facts and evidence that he reached for and
moved the weapon. Clay was the only person to have been in the vehicle prior
to Crime Scene Investigators documenting by photographs the condition of the
Explorer and the location of the shotgun by the console.
Only
Clay says that he was told to get out of the car before the shot was fired.
The officers are trained to contain a dangerous situation until sufficient
back up assistance is obtained. These two officers already had one individual
in their care at this location when a second individual drove up on them with
a shotgun in the front seat. It was unknown to the officers the intent of the
individual or whether he had any other weapons.
They did not and would not ask the driver to “get out of the car”
under these circumstances. To do so would have extremely unsafe, particularly
since no additional officers were present to assist them.
The
evidence does not support Clay’s statement that the officers requested that
he “get out of the car”. Clay’s vehicle was running and in gear with his
foot on the brake. It is not clear whether he had his seatbelt fastened. However, Clay indicates that because officers requested him
to “get out of the car” his first movement was to unbuckle the seatbelt;
this was with his left hand. He did not place the vehicle in park before
attempting to release the belt. This would be an unlikely sequence, leading to
the conclusion that he was not told to get out of the vehicle before the
shooting.
The
evidence does not support Clay’s suggestion that he had moved his body to
the driver’s door. The evidence gathered from the interior of the vehicle,
the photographs from the scene, measurements and review of the trajectory of
the bullet do not support Clay’s placement being at the driver’s door, but
rather closer to the chest height top portion of the front driver’s seat
near the center of the vehicle.
In
the final analysis, this case is a tragic set of circumstances that has left a
citizen with his life forever changed by the significant injuries that he
sustained on February 26, 2004. There
cannot be a discourse of this incident without compassion for Mr. Clay;
however, compassion does not guide the decision in determining whether the use
of force by the officers was justified under the facts presented and the law
that is applicable to this case.
Matt
Clay was seeking to discover vandals who had destroyed his property. He took a
weapon with him. He came upon two law enforcement officers who were engaged in
a vehicle stop and by his presence posed concerns to the officers, enhancing
apprehension by when a shotgun was observed in the front seat of his vehicle.
The officers immediately took safety precautions for themselves and the
civilian in their custody. Clay
was given lawful commands by the officers who were observers of his conduct
and not in a position to read his mind and determine his intent. These
commands are made for the safety and protection of not only the officers and
civilians in the area, but also for persons who are the subject of the
commands by law enforcement.
The
investigation does not indicate that Clay had intent to harm the officers,
however, he failed to respond to their immediate and direct commands. Knowing
that officers were watching any movement that he made, telling him to keep his
hands up, “stay away from the gun” Clay moved his hands towards the
gun…and kept reaching in that direction despite repeated officers’
commands…whether it was as Clay suggests to “unlock his seatbelt”...or
to show the officers that the gun was unloaded…matters not.
Clay placed himself in a position that reasonably appeared to the
officers that he did intend to retrieve the weapon. The officers had no
information that the weapon was loaded or unloaded. There was no information
available to the officers that Clay possessed more that one weapon in the
vehicle. All the officers knew is that this person was in possession of at
least one weapon and that he failed to comply with the lawful commands of law
enforcement officers and that the imminent threat of harm had been presented.
The
District Attorney finds that under the laws of the State of Kansas that the
officers’ use of deadly force against Matthew Clay was, under the totality
of these circumstances, reasonable and justified.
No
additional information is available.
Nola
Tedesco Foulston
District
Attorney Nola Tedesco Foulston
18th
Judicial District of Kansas
