Beth McCann District Attorney 201 W. Colfax Ave. Dept. 801 Denver, CO 80202 Second Judicial District 7 20?913?9000 Beth. McCananz?Adenverda.org September 29, 2017 Robert White Chief of Police Denver Police Department 1331 Cherokee St. Denver, Co 80204 Re: Investigation of the shooting of Brendan Gerwing, 10-1?93, by Denver Police Sergeant Chad Kendall, Badge 06-142, on May 20, 2017, at 2873 S. Quitman, Denver, Colorado. Dear Chief White: The investigation and legal analysis of the shooting and wounding of Brendan Gerwing, in which shots were ?red by Denver Police Department Sergeant Chad Kendall, has been completed. I conclude that under applicable Colorado law no criminal charges are warranted against Sergeant Kendall. My decision, based on Colorado criminal law, does not limit potential administrative action by the Denver Police Department (DPD), where non?criminal issues can be reviewed, or potential civil actions where less-stringent laws, rules, and legal levels of proof apply. SUMMARY of FACTS On Saturday May 20, 2017, the Denver Police Department received multiple 911 emergency calls concerning an on-going crisis at 2873 S. Quitman involving Brendan Gerwing. The ?rst 911 call was from Sabrina Deleon at 4:25 am. Ms. Deleon is a close friend of Brandon Gerwing, with whom he had been visiting earlier on Friday night. In the early morning hours of May 20, 2017, Mr. Gerwing had been calling and sending text messages to Ms. Deleon, telling her that he was going to kill himself. Mr. Gerwing called Ms. Deleon crying and told her that if she did not call the police he would kill himself. Mr. Gerwing sent her a photo of himself holding a gun to his head. He also sent Ms. Deleon a photo of what appeared to be self-in?icted injuries of bleeding cuts. At Mr. Gerwing?s request, Ms. Deleon called the Denver Police Department seeking help for the suicidal Mr. Gerwing. Denver 911 also received multiple calls from Kendra Chadwick in the early moming hours of May 20, 2017. Her ?rst call was at 4:30 am. Ms. Chadwick is Mr. Gerwing?s girlfriend who resides in Wyoming. Ms. Chadwick reported to the 911 operator that she and Mr. Gerwing had been exchanging multiple text messages throughout that early morning. Mr. Gerwing informed Ms. Chadwick that he had been drinking alcohol that night.1 Mr. Gerwing told Ms. Chadwick, ?he wanted to put a bullet into his head? and that he was ?being bipolar tonight.? Earlier, at 4:02 am, by text message Mr. Gerwing informed Ms. Chadwick that he wanted to ?go out in a gangster way?, which Ms. Chadwick said she understood to mean that Mr. Gerwing was planning to have a ?suicide by a cop?. Mr. Gerwing also sent Ms. Chadwick the following photo: Ms. Chadwick informed the 911 operator that Mr. Gerwing was known to own a Glock 17 handgun.2 At Mr. Gerwing?s request, Ms. Chadwick called Denver 911 and relayed this information and her concerns Based on the calls from Ms. Chadwick and Ms. Deleon, at approximately 4:29 am, DPD dispatched of?cers to 2873 S. Quitman to do a welfare check on Mr. Gerwing. DPD diSpatch provided the following information to of?cers as they responded to 2873 S. Quitman: The subject of the reports was Brendan Gerwing, and a physical description was provided; 0 Mr. Gerwing had been drinking that night; 0 He had sent photos of self-in?icted cuts, but the weapon he used was unknown; 0 Mr. Gerwing had informed the 911 reporting parties (Ms. Chadwick and Ms. Deleon), ?he is making his ?nal decision and he is sorry;? a Mr. Gerwing had sent the reporting parties a photo of himself with a gun, possibly a semi-automatic, pressed to his head; 0 That there had been a similar call to this address in October 2016, and at that time Mr. Gerwing had a knife and what turned?out to be a pellet gun. DPD also dispatched paramedics to stand-by near 2873 S. Quitman. A later blood alcohol content test showed Mr. Gerwing to have a B.A.C. of 0.171 (6-209). 2 On March 11, 2017, Mr. Gerwing purchased a Glock Model 17 9mm handgun and Ms. Chadwick had seen this gun (6-52). At approximately 4:40 am. Denver Police Of?cers Rueban Garduno, John Allred, and William Moore arrived and all met down the street from 2873 S. Quitman. Sergeants Chad Kendall and Keith Cruz had been monitoring the call while at DPD District 4 station. Given the nature of the call, Sergeants Kendall and Cruz determined they needed to respond and assist on this crisis call.3 Sergeant Kendall would later say in his interview that he was aware that Mr. Gerwing?s girl?iend had called dispatch and advised that Mr. Gerwing was harming himself and he had sent his girlfriend a photo of himself with a gun pointed to his head. Of?cers Garduno, Allred, and Moore, met with Sergeants Kendall and Cruz at West Bates Street and South Quitman Street (3 homes to the south), where the of?cers formulated a plan on how to handle this volatile situation with Mr. Gerwing. Of?cer Garduno advised the other of?cers about the previous October 19, 2016 intoxicated suicide attempt by Mr. Gerwing.4 Ultimately, it was decided that Sergeant Cruz and Of?cers Garduno and Moore would take cover behind a tree across the street ?om 2873 S. Quitman, and attempt to contact and talk to Mr. Gerwing. 3 Signi?cantly, Of?cer Garduno and Of?cer Moore were certi?ed in Crisis Intervention Training, which includes training to interact with mentally unstable or distraught individuals. 4 On October 19, 2016, at approximately 6:00 am. the DPD received a 911 call of an intoxicated and suicidal party at 2873 S. Quitman, Denver, Colorado. Denver Police Of?cers, including Of?cer Rueban Garduno, responded to this call. This is the home of Abie and Mercy Vasquez, who live there with their grandchildren, M.T., O.T. EV, and Brendan Gerwing. This 911 call was made by Mr. Gerwing, who informed the DPD 911 operator that he had been cutting himself, he was suicidal, and had a pellet gun to his head. Mr. Gerwing also told the 911 operator that ?it was ok for the police to shoot him.? When of?cers responded and made contact with Mr. Gerwing, they saw Mr. Gerwing put the pellet gun to his head and repeatedly pull the trigger of the weapon, but there was no discharge of the weapon. Thereafter, Mr. Gerwing was taken into custody and he was transported to Swedish Medical Center where a mental ?health hold was placed on Mr. Gerwing. After his release from Swedish, Mr. Gerwing failed to maintain his treatment and did not take his prescribed medication (M. Vasquez interview of 5-20-17, p. 15). Further, his alcohol abuse did not abate; (B. Gerwing interview of This is a daylight v1ew faemg west ?rom the position behind the tree taken by Sergeant Cruz and O?icers Garduno and Moore during the Mr. Gerwing The distanee?om the garage to the tree is I 07 feet Also, it was determined that Of?cer Allred would attempt to intervene with Mr. Gerwing using his less- lethal option of a Taser and that Sergeant Kendall would assist and cover Of?cer Allred. As the of?cers moved into position, they could see that one of the two garage doors at 2873 S. Quitman was open. Soon thereafter, ?'om across the street Sergeant Cruz was able to make verbal contact with Mr. Gerwing. Mr. Gerwing was uncooperative and appeared to have been drinking. Primarily, it was Sergeant Cruz who gave Mr. Gerwing multiple requests to come out of the garage and/or show his hands and that of?cers were there to make sure he was safe (BWC of Of?cer Garduno and Moore). Of?cers could at times see Mr. Gerwing in the garage, ansd at some point he had what appeared to be a beer can in one hand and he was drinking from 5It was apparent to all the of?cers present that Mr. Gerwing was not compliant and he was very combative. A neighbor, M.P., reported he could hear Mr. Gerwing stating ?get the ?ick away from me? and ?get away from my grandpa?s truck.? This neighbor also reported he ?could hear the of?cers speaking to [Mr. Gerwing] in a tone that sounded like they were trying to calm the situation down. . . Much of the stand-off is captured on the Body Worn Cameras (BWC) of Of?cers Garduno and Moore. The interactions by the Denver Police Of?cers with Mr. Gerwing were described by Of?cer Allred: ?And they?re still just trying to do everything they can to get him to come out, ?Just come out. Come talk to us. We?re going to get you help.? During the stand-off, Of?cers Garduno and Moore remained across the street with Sergeant Cruz. Eventually, because Mr. Gerwing had been noncompliant, it was decided that 5 Multiple open beer cans were later recovered inside the garage. 4 Of?cer Allred and Sergeant Kendall, as the arrest team, would circle through the backyard of 2873 S. Quitman and take a position on the north side of the garage. Sergeant Kendall and Of?cer Allred moved to this position in the event that Gerwing appeared from the garage and the of?cers could effectuate a peaceful arrest of Mr. Gerwing. Of?cer Allred eventually took a position on the concrete walkway, north of the garage, approximately four feet from the comer of the garage. Of?cer Allred had his taser drawn. Sergeant Kendall reported that he was to the north and west of Of?cer Allred, approximately ?ve feet away and standing above him on a short retaining wall.6 Sergeant Kendall had his handgun drawn. Of?cer Allred reported that he could hear Mr. Gerwing inside the garage speaking to an ?old man? and that person was telling Mr. Gerwing, ??don?t do this.? ?Please don?t do this.? ?Please stop.? ?You don?t have to do this.? Of?cer Allred and Sergeant Kendall waited in this position as Sergeant Cruz continued unsuccessfully to communicate with Mr. Gerwing from across the street. After several minutes with no response from Mr. Gerwing, Sergeant Kendall then heard multiple commands from the of?cers across the street directing Mr. Gerwing to ?show his hands.? Sergeant Kendall and Of?cer Allred understood these commands to mean that Mr. Gerwing was exiting the garage at that time. From the BWC, for approximately 26 minutes7 the of?cers attempted to have Mr. Gerwing come from the garage and comply with the of?cers. As captured by the BWC of Of?cers Garduno and Moore and dispatch records, at approximately 5:16 am, Mr. Gerwing eventually did come out of the garage, but he immediately and without warning jumped over a downspout and quickly turned the corner on the north side of the garage. When Mr. Gerwing turned the comer, he came face-to-face with Of?cer Allred. Of?cer Allred reported, ?Since he turned that corner, I had my taser on, I?m hitting him with the light, and I didn?t even see his face. I was just looking at his hands and I see a gun in his hand point at me and we both ?red.? Of?cer Allred said he thought he was able to ?rst deploy his taser, before Mr. Gerwing shot.8 Nearly simultaneously, Mr. Gerwing shot Of?cer Allred. 6 This partially enclosed concrete walkway, from the brick garage wall to the concrete retaining wall, is 3 feet and 7 inches wide. Given the construction and size of the scene of the shooting, and that Denver emergency personnel moved evidence when attending to Mr. Gerwing and Of?cer Allred, and that both Of?cers were moving before and after the shooting, positions for Of?cer Allred and Sergeant Kendall are approximated. 7 Of?cer Moore?s BWC shows an approximately 26 minute stand-off. Dispatch records indicate of?cers arrived on- scene at approximately 4:40 am, and that the shooting occurred at approximately 5: 16 8 When the crime scene was processed there was additional evidence of Of?cer Allred?s taser being deployed at marker #12. Scene of the shooting: north of the garage at 28 7 5 S. Quitman, facing west, with evidence markers Sergeant Kendall described the surprise encounter and the following shootings: And then almost instantaneously, I turn around and Brendan came around the corner extremely fast just very fast, quick?paced and he was at the corner of the residence right off the has something in his hands, couldn?t really tell what it was at that point, but then there was a pop and then it was a two pop two very consecutive pops. One was de?nitely a gunshot, and the other one was the the Taser cycling. I can?t tell you exactly which one went ?rst because they were so very quick and they sounded very similar just in the area we were at, but there?s two quick pops and heard Of?cer Allred make a sound like ?ow? or, you know, like ?ouch I?ve been hit,? or something like that. And he staggers back and kind of fails down. He probably staggers back about three or four steps. And I see Brendan, at this point, with the gun up and he?s moving towards Of?cer Allred, and that?s when I brought my gun up and I ?red at at Brendan. And after I ?red I ?red ?ve rounds at him is what I recall he he appeared to me as though he was going after [Of?cer Allred], and so my biggest concern was I need to stop this guy from going after my of?cer. Of?cer John Allred was shot by Brendan Gerwing with Mr. Gerwing?s Glock Model 17 9mm handgun. Of?cer Allred was shot in the upper right quadriceps of his leg, and his femur was fractured. He suffered ?serious bodily injury,? and Dr. Michael White of Denver Health Medical Center concluded that Of?cer Allred was in ?substantial risk of deat from the gunshot wound and injuries. I Brendan Gerwing ?3 Glock Model 17 9mm handgun recovered at the crime scene. A knife was also located in this crime scene. It did not belong to either Of?cer. Brendan Gerwing was tased by Of?cer Allred and there were two related injuries to Mr. Gerwing?s chest. Mr. Gerwing was then shot ?ve times by Sergeant Chad Kendall with his Smith and Wesson 9mm handgun. Mr. Gerwing ?sustained abdominal and right ?ank trauma as well as transverse process factures of L1 through L5 on the right side? and he suffered ?serious bodily injury? from the gunshots. Sergeant Kendall shot Mr. Gerwing twice in his right buttocks, twice in his right side near his hip, and once in the back. As shown on the BWC of Of?cers Garduno and Moore, Mr. Gerwing quickly came from the garage and jumped over the downspout and moved west to Of?cer Allred. After he rounded the garage comer, Mr. Gerwing was then immediately tased by Of?cer Allred. Given Mr. Gerwing?s movements and his probable reaction to the taser, coupled with Sergeant Kendall?s relative positioning, Mr. Gerwing was shot in the side and rear. On May 25, 2017, after waiving his Miranda rights, Brendan Gerwing was interviewed. He told Detective Marty Smith that he recalled texting his girlfriend, Kendra Chadwick and his friend Sabrina Deleon before the police arrived. Mr. Gerwing said he drank a case and half of beer that night and that he was ?really intoxicated? and he ?was just really drunk and depressed.? Mr. Gerwing said he knew he was dealing with the police and they were there to assist him, but he ?didn?t want to comply.? Mr. Gerwing would later admit that he realized the police were there and trying to assist him. He admitted he ignored the police commands and that he was intoxicated and suicidal. He said he was armed with his handgun ?just to have leverage.? He admitted that he ?ran around that corner,? but he claimed did not know why he did so. Although Mr. Gerwing said ?everything is so hazy from that night,? he said he ?had no intention? to shoot the of?cer. He concluded by stating, know I already done screwed up and I will go away for a while.? LEGAL ANALYSIS 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 de?ned by Colorado statute, and it is proved beyond a reasonable doubt that the offense was committed without any statutorily-recognized justi?cation or excuse. While knowingly or intentionally shooting another human being is generally prohibited as assault or homicide in Colorado, the Criminal Code speci?es certain circumstances in which the use of physical force or deadly physical force by a peace of?cer is justi?ed. As the evidence establishes that Brendan Gerwing?s injuries resulted from shots ?red by Sergeant Kendall, the determination of whether Sergeant Kendall?s conduct was criminal is primarily a question of legal justi?cation. Section 18-1-707, C.R.S. de?nes the circumstances under which a peace of?cer can justi?ably use physical force and deadly physical force in Colorado. In pertinent part, the statute provides: 1) Except as provided in subsection (2) of this section, a peace of?cer is justi?ed in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary: To effect an arrest or to prevent the escape from custody of an arrested person unless he knows that the arrest is unauthorized; or 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 of?cer is justified in using deadly physical force upon another person only when he reasonably believes that it is necessary: To defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or To effect the 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 in?ict serious bodily injury to another unless apprehended without delay. In addition, an of?cer may rely on the Colorado law regarding self-defense which is applicable to all citizens. Section 18-1-704, C.R.S. sets forth the law which allows a citizen to use force in defense of himself or another citizen. It provides, in pertinent part: 8 (1) Except as provided in subsections (2) and (3) of this section, a person is justi?ed in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. Section and C.R.S. de?ne the terms ?Deadly weapon? and ?Deadly physical force? as follows: ?Deadly weapon? means 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; (II) A knife; A bludgeon; or (IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate. ?Deadly physical force? means force, the intended, natural, and probable consequences of which is to produce death, and does, in fact, produce death. As Brendan Gerwing survived his wounds, this is not a deadly physical force encounter. The issue in this case centers on the question whether the use of physical force by Sergeant Kendall was justi?ed and whether the nature of the force used was appropriate. The test is whether the nature and degree of force used is objectively reasonable after considering the totality of the circumstances. Of?cers are entitled to rely on the doctrine of ?apparent necessity? so long as the conditions and circumstances are such that a person would reasonably believe, erroneously or not, that action was necessary. See, People v. La Vole, 155 Colo. 551, 395 P.2d 1001 (1964), People 12. Silva, 98?? P.2d 909 (Colo. App. 1999). It is legally immaterial whether the suspect was actually trying to injure the of?cers or another, so long as a reasonable person, under like conditions and circumstances, would believe the appearances were suf?cient to require the action taken. It is fundamental that the law of self?defense, which is emphatically a law of necessity, involves the question of one?s right to act upon appearances, even though such appearances may prove to have been deceptive; also the question of whether the danger is actual or only apparent, and as well the fact that danger is not necessary, in order to justify one in acting in self- defense. Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being suf?cient to require action, justi?es the application of the doctrine of self-defense to the same extent as actual or real necessity. Young v. People, 107 P. 274, 275-276 (Colo. 1910). The issues are, therefore, whether at the time Sergeant Kendall discharged his ?rearm, did he reasonably believe that he and /or Of?cer Allred were about to be subjected to the imminent use of additional unlawful physical force, and furthermore, that his actions in defending against that force were objectively reasonable. Alternatively phrased, the question is 9 whether a reasonable of?cer, confronted with the same facts and circumstances, could have concluded that he was under ?re and that it was necessary to discharge his ?rearm to defend himself or another and stop the threat that Brendan Gerwing presented. Sergeant Kendall?s actions would also be justi?ed if a reasonable police of?cer could have concluded that under the totality of the circumstances, it was necessary to discharge his ?rearm to take Brendan Gerwing into custody. CONCLUSION The facts of this case demonstrate that the actions of Sergeant Chad Kendall are legally justi?ed under Sections and and C.R.S. Sergeant Kendall and Of?cer Allred were confronted by an intoxicated and distraught individual whom they had reason to believe was armed. When Brendan Gerwing confronted Of?cer Allred, he in fact shot Of?cer Allred. After Brendan Gerwing shot Of?cer Allred, Sergeant Kendall then responded and immediately returned ?re. Sergeant Kendall?s response stopped the on-going threat to Of?cer Allred and may have saved Of?cer Allred?s life and the lives of the other of?cers who were attempting to apprehend Brendan Gerwing. Under controlling Colorado law. Sergeant Kendall?s actions of using a ?rearm to take Brendan Gerwing into custody were objectively reasonable. Further, given the facts of this case, including the fact that Of?cer Allred?s use of a less lethal option was already unsuccessful and Of?cer Allred had been shot and injured, Sergeant Kendall?s actions were legally justi?ed. The Denver Police Department is the custodian of records related to this case. All matters concerning the release of records related to administrative or civil actions are controlled by the Civil Liability Division of the Denver Police Department. The investigative ?le in the District Attorney?s of?ce is available for review upon request. As in every case we handle, any interested party may seek judicial review of my decision under C.R.S. 16-5-209. Sincerely, Beth McCann Denver District Attorney cc: Sergeant Chad Kendall, Denver Police Department; Of?cer John Allred, Denver Police Department; David Quinones, Deputy Chief of Police Operations; Matt Murray, Deputy Chief of Police Administration; Barb Archer, Commander of Investigative Support; Lieutenant Matthew Clark, Major Crimes; Lieutenant Adam Hernandez, Major Crimes Division; Ryan Brackley Assistant District Attorney. 10