What a Michigan prosecutor considered in arriving at charging decision in the police killing of Patrick Lyoya
By Peter Nickeas, Virginia Langmaid and Pervaiz Shallwani, CNN
(CNN) -- The Michigan prosecutor reviewing the shooting death of Patrick Lyoya, who was killed by a Grand Rapids police officer following a struggle during a traffic stop, is set to announce a decision Thursday afternoon on whether he plans to file criminal charges against the officer, the Kent County prosecutor's office announced today.
Lyoya, a 26-year-old Black man, was shot to death on April 4 by an officer who was trying to arrest him after a traffic stop in a case that has drawn significant national attention because of the circumstances leading to the shooting and the multiple videos that show Lyoya's final moments.
In May, the prosecutor reviewing the case, Kent County Prosecuting Attorney Christopher Becker, announced that he was seeking guidance from outside experts before deciding whether to charge the officer. The city of Grand Rapids placed the officer, Christopher Schurr, who is White, on paid leave and suspended his police powers after the shooting.
Lyoya was pulled over for an allegedly unregistered license plate by Schurr on April 4. Lyoya got out of the car and ran and resisting Schurr's attempt to arrest him. Schurr shot him while the two were on the ground as Schurr wrestled for control of Lyoya, and Schurr said Lyoya had his Taser. Lyoya had three outstanding warrants at the time he fled Schurr, and an autopsy revealed his blood-alcohol concentration was more than three times the legal limit for the driver of a car.
Michigan State Police (MSP) turned over a partial investigative file at the end of April to the Kent County Prosecutor's Office, and after the prosecutor initially reviewed the case, he sought additional information from the police agency and the manufacturer of equipment used by the officer. The medical examiner in the county turned over an autopsy in early May after rushing toxicology tests, the prosecutor said.
Lyoya's death -- from a gunshot to the back of the head -- led to protests in Grand Rapids, where other interactions between police and residents garnered media scrutiny, and is a city with a history of tension between Black residents and police. The shooting led the state's civil rights agency to renew a request for a pattern-and-practice investigation by the Justice Department into the Grand Rapids Police Department, just one month after a new police chief took office.
Offering a loose road map on timing last month, prosecutor Becker attempted to allay concerns over the pace of the investigation by publicly acknowledging the need for more investigative material and to consult with state and national experts before making a charging decision.
"I recognize the investigation appears to be moving painstakingly slowly," Becker said in a media release last month. "However, as in all cases that come before this office, it is imperative that I review all the facts and evidence before making a charging decision. In this situation, my decision can only be made by taking the time to gather all the available information -- both from the MSP and from state and national experts."
Since the shooting, authorities have released some material prosecutors typically review to determine whether criminal charges against an officer are warranted. Some of that material was from records requests, and other material released to respond to public outcry over the shooting. A CNN review of the documents gives a clearer picture of what happened that the morning Lyoya was shot and killed and what prosecutors are considering as they weigh whether to pursue charges against Schurr.
The prosecutor will draw from material that has surfaced publicly and some that hasn't. Separate from that, Schurr's future with the department is unclear; he's on administrative leave and a separate administrative investigation into his conduct is ongoing. Records released over the last few weeks show Schurr was commended, repeatedly, for proactive policing and foot chases preceding this shooting.
The county's medical examiner's office released its autopsy results in early May, and the Grand Rapids Police Department released dispatch records and reports written by officers who responded to the shooting in late April.
Grand Rapids Police Chief Eric Winstrom said the department needs better training; officials announced his hiring in early February and he was in office less than a month when Schurr shot Lyoya.
If the county's prosecuting attorney declines charges, much of the investigative material should be available for public review. If the prosecutor files charges, that material will remain under wraps as the state prepares a case against the officer.
A clearer picture of the struggle emerges
The radio traffic, an accompanying computer-aided dispatch log, and redacted incident reports shed some light on the moments before and after the officer shot Lyoya.
Radio traffic and other records released by the Grand Rapids Police Department show the officer who shot Lyoya told supervisors after the shooting that Lyoya "has my taser."
Schurr notified his dispatcher he stopped a tan car around 8:11 a.m.; told the dispatcher that one person was running from the stop about 75 seconds later asked for more officers to respond about two minutes after the stop; and notified the dispatcher that he had been "involved in a shooting" about four minutes after the initial stop. The dispatcher acknowledged and said emergency medical services were en route about 11 seconds after that.
Lyoya was driving on a revoked license at the time of the traffic stop. His license was revoked in March because of a third substance abuse conviction in 10 years, according to public records. He had three open warrants at the time of the traffic stop, according to a CNN review of state records.
It's not clear if Schurr knew of the warrants or the revoked license at the time Lyoya fled. The video shows Schurr telling Lyoya the plate doesn't belong to the car, but there's nothing in the released audio or paperwork that shows how Schurr knew that or what else he might have known. A spokesperson for the Grand Rapids Police Department didn't respond to a request for comment.
Lyoya fled on foot shortly after the stop. Records show he was wanted in connection with a domestic violence case from April, charged as a second offense. Another warrant was issued in early April for failure to appear or pay. Another open warrant appeared in the court record relating to a property damage traffic crash Lyoya's alleged to have fled. His family's attorneys declined to comment on the open warrants.
Schurr wrestled with Lyoya for a few seconds before asking for more police backup. The two continued to struggle. Lyoya wasn't armed at the time of the shooting, according to a family attorney. The officer who shot Lyoya is heard saying "let go of the Taser" before firing the fatal shot.
One witness told another responding officer that Lyoya "took the officer's taser," according to the officer's summary of the witness interview, and that the officer tried using the taser but it hadn't worked.
A supervisor, over police radio, said he was "on scene" about five minutes after the initial stop. A couple seconds later, another supervisor asked about the location of the "subject," asked if he had access to any weapons, and which way he was facing.
"He has my Taser," Schurr responded.
About eight minutes after the shooting, with multiple officers and at least one supervisor at the scene, they approached Lyoya to "render aid." According to the records released, this was delayed in part by Lyoya's passenger, who officers suspect was intoxicated and was not responsive to commands. The passenger's identity hasn't been released, and their name is redacted in records released publicly.
That supervisor's report said he found Schurr's body-worn camera underneath Lyoya when he first approached him, and Schurr's Taser was found underneath Lyoya, after he rolled Lyoya for officers to begin chest compressions.
That supervisor, a sergeant, wrote in his report that he arrived to find one person face down in a front yard with Schurr "taking cover behind a tree on the parkway."
"The man's hand was concealed underneath his body near his waist possibly concealing a weapon. I did not know if the suspect had shot at Officer Schurr," the sergeant wrote.
Officers checked the stopped Altima and approached Lyoya, with officers providing "lethal force coverage" while the sergeant approached him. The sergeant, in his report, said he thought the part of the body-worn camera protruding from under Lyoya was a pistol grip, but when he got close, he "was able to distinguish that it was Officer Schurr's Body Camera that had apparently been dislodged during the struggle."
The sergeant rolled Lyoya over and found Schurr's Taser and his body-worn camera, which was still recording, according to the report. Officers began chest compressions, and an officer brought a defibrillator. They performed CPR until medics arrived, according to the report.
About 17 minutes after the traffic stop, a supervisor said there were no suspects unaccounted for and that one passenger from the car was "secured."
Kent County prosecuting attorney Christopher Becker opposed release of video in the case, but not indefinitely. He said he wanted investigators to be able to interview potential witnesses before they encountered video that would circulate after its release.
"That ... could taint what you remember, people remember things and they see a video and (it) changes what they remember because 'oh yeah, I see it this way now,'" Becker said. "That was my concern."
The criminal review process in Kent County
Police agencies in Kent County don't investigate shootings by their officers, Becker said. Each agency has an agreement with another to investigate shootings, and then investigators turn over files to Becker's office for review.
"Every shooting is different, ... they gather things, we take a look at it. If we need follow up, we'll say hey, we need this investigated but that's all through the outside agency," he said.
Becker said he typically releases an opinion, along with a press release, when he makes a decision after an officer shoots someone. He's handled about a dozen cases since his election in 2016, he said.
After the shooting, the president of the Greater Grand Rapids NAACP, Cle Jackson, called for Becker to recuse himself from the investigation, and for the Michigan Attorney General to take over the case. Jackson cited "the historical relationship between the Kent County Prosecutor's Office and the Grand Rapids Police Department" as a reason why "a fair and unbiased investigation cannot occur."
Jackson asked that Michigan Attorney General Dana Nessel take over the investigation. In a statement Nessel's office said it was available to assist Becker if Becker thought the help would be "warranted."
Becker has said he wouldn't recuse himself from the case because the legal standard for recusal hadn't been met. He said the job of prosecutors is to review cases like this for potential charges.
"We've charged officers for drunk driving. We've charged officers for other things, assaulting ... this is not out of line for what goes on every day in just about every prosecutor's office," he said.
In early May, the Kent County medical examiner's office released its autopsy results, showing that Lyoya died from a gunshot wound of the head. The autopsy was conducted on April 4, the same day Lyoya was shot, Kent County Chief Medical Examiner Dr. Stephen Cohle said. At the time, Cohle's office said the full autopsy report would be final once toxicology results were available.
That office released the autopsy findings to media after it was given to the prosecutor's office. The autopsy performed by the pathologist hired by the Lyoya family confirmed the findings of the county medical examiner: that Lyoya died from a gunshot wound.
The county's autopsy also found that Lyoya's blood alcohol content was .29%, three-and-a-half times the state legal limit to operate a motor vehicle, Cohle said. The legal limit for blood-alcohol concentration in drivers Michigan is .08%.
'A lot going on' in this case'
In a statement, attorneys Ven Johnson and Ben Crump, who represent Lyoya's family, called on prosecutors to file criminal charges against the officer for the "unjust killing." Lyoya family representatives did not indicate what the officer should be charged with.
Lewis Langham, a criminal justice professor at Western Michigan University and former Michigan State trooper, and public defender, who is an expert in criminal procedure and evidence, said this case had "a lot going on."
Langham said that it was unlikely Schurr knew of Lyoya's past, but that "the things that Patrick did when the officer was trying to control him and detain him" -- like running and wrestling with the officer -- "were worse than what he would have had been convicted or charged with" had he just complied with the officer's commands during the stop.
Langham said if the officer was charged, it's possible a jury would hear about Lyoya's criminal history in some form.
"All of those things will come up during trial. And even the possibility that the jury may hear about Patrick's bad acts," Langham said. He singled out the domestic violence, saying those are "actions that have some kind of physical confrontation attached to it."
If the prosecutor files charges, he'll want a case likely to result in conviction, and the video shows Lyoya not doing what "he was legally obligated to do. He failed to produce a license, he was driving on a bad registration tag, resisting arrest...not to mention the fact had Patrick not been shot and killed, he would have been charged with one or two felonies. One attempting to disarm a police officer and resisting arrest," Langham said
"It is not an easy case, because the prosecutor knows that if they charge, the jury is going to have to, pretty much, say the officer wasn't justified in pulling his weapon regardless of all the things that Patrick did."
Cle Jackson, of the NAACP in Grand Rapids, also urged Winstrom, the city's police chief, to fire the officer who shot and killed Lyoya.
Becker's review, and subsequent charging decision, is separate from the police department's review of Schurr's conduct during the shooting. A police department review of the shooting could result in a far wider review of Schurr and whether he broke department policies leading up to, during, and after the shooting, and look at other officers and policies that may have contributed to the shooting. The city has also promised to review its policies related to shootings by officers.
Winstrom said that Schurr remains on administrative leave and has been stripped of his policing powers, pending a criminal investigation by Michigan State Police and an internal police investigation that will determine if he violated department policies.
Schurr was commended, as an officer early in his career, for gun and drug arrests and other proactive policing efforts he made. This included his work on a patrol team that logged more felony arrests, field interrogations, drug arrests, and weapons arrests than other patrol teams. The commendation noted more than 80 suspects resisted arrest during nearly 2,000 arrests, and the team logged no excessive force or discourtesy complaints.
Langham said that there may be some questions about the officer's conduct during the Lyoya stop, but it would be "very surprising if there is something there that would be a violation of policy."
"As far as the other stuff, the traffic stop, calling for backup, being polite to Patrick Lyoya, trying to persuade him to cooperate, chasing him, tackling him, none of those things will be perceived as violation of Grand Rapids policy," Langham said.
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