Beth McCann District Attorney 201 W. Colfax Ave. Dept. 801 Denver, CO 80202 Second Judicial District 720-913?9000 Beth. McCanngagdenverdaprg March 21, 2018 Robert White Chief of Police Denver Police Department 1331 Cherokee Street Denver, CO 80204 RE: Investigation of the shooting death of John T. Bazemore DOB 2/ 17/92, in which Denver Police Of?cer Brent Cairns, ?red shots on November 10, 2017, near 600 16th Street, Denver, Colorado. Dear Chief White: The investigation and legal analysis of the shooting death of John Bazemore, in which two shots were ?red by Denver Police Department (DPD) Of?cer Brent Cairns, 13-039, has been completed. I conclude that under applicable Colorado law no criminal charges are warranted against Of?cer Cairns. My decision, based on Colorado criminal law, does not limit potential administrative action by the DPD where non-criminal issues may be reviewed, or potential civil actions where less-stringent laws, rules, and legal levels of proof apply. STATEMENT OF FACTS On November 10, 2017, at approximately 12:57 pm. John Bazemore entered the ANB Bank at 600 16th Street. Mr. Bazemore entered the bank wearing a mask covering his face and approached the teller at gunpoint and speci?cally demanded $1500.00. The teller, gave Mr. Bazemore $1500 in cash. ANB Bank Vice President, A.W., became aware of the situation and realized the bank was being robbed. As AW. watched the robbery, and as seen on the bank surveillance video, Mr. Bazemore also brandished his handgun at AW. as he had at the teller. The bank employees saw Mr. Bazemore, still masked, ?ee the ANB Bank onto the 16th Street Mall. I use initials to maintain the privacy of the victim and other citizen-witnesses. ANB Bank 600 16th Street L1 .. Elle-1161 I-IU ii ANB Bank Surveillance Video Bank employees A. W. and T. ,followed Mr. Bazemore out of the bank and onto the 16th St Mall. T. almost immediately located Of?cer Cairns in his police car at the intersection of 16th and Welton.2 T. reported to Of?cer Cairns that he had just been robbed and the suspect was ?eeing At that same time, A. W. was following Mr. Bazemore and yelled out to other people on the 16th St. Mall that the still masked Mr. Bazemore had just robbed the bank. A citizen- witness 2Officer Caims had just reported but had not yet begun his assignment, as extra police patrol on the 16th Street Mall (Of?cer Cairns Interview of 1114?17 at p. 6). L.R., pointed out to Of?cer Cairns that Mr. Bazemore had just turned down a nearby alley3 and he had entered an enclosed area that surrounded a large commercial dumpster. 0 Arrow - approx location of dumpster After receiving the excited report of the robbery, Of?cer Cairns drove his police car to the area identi?ed by witnesses as where Mr. Bazemore had ?ed. LR. directed Of?cer Cairns to the enclosed dumpster area off the alley. As Of?cer Cairns approached the enclosed area, A.W. could see Mr. Bazemore emerge from his concealment in the enclosure and encounter Of?cer Cairns. A.W. reported that as Of?cer Cairns approached the enclosure he and other citizen- witnesses were repeatedly shouting that Mr. Bazemore had a gun. L.R. was interviewed by Denver police. He stated that he saw the bank robber inside the enclosure and told the of?cer where he was. L.R. stated that when the of?cer approached the suspect, the suspect was approaching him with his right hand behind his back between his coat and back. After the Of?cer told the suspect to show his hands L.R. then saw the gun in the suspect?s hand behind his back. He then yelled ?gun, gun, gun.? Enclosed Commercial Dumpster 3 The alley is near the ANB Bank, to the northwest, between Welton and California Streets, perpendicular to the 16th St. Mall. The location of the eventual shooting is just off the 16th St. Mall to the southwest of ANB Bank down the alley, in an area that enclosed a large commercial dumpster. 3 At this same time, .8. had just pulled into this parking lot area as these events unfolded, and he reported that he was approximately 15-20 feet away from the dumpster enclosure when Of?cer Cairns approached Mr. Bazemore. .8. said, ?the guy in the blue coat hiding by the dumpster came around and by then the police of?cer was facing him and I saw [Mr. Bazemore] had a gun behind his I saw the gun, he de?nitely had a gun and the police of?cer was in danger for sure.? .8. further reported Mr. Bazemore ?had his ?nger on the trigger, he was holding it like he was ready to use it and that is why I panicked and ran, I thought he was going to start shooting? and ?when I saw the gun my heart just jumped out of my chest and I ran.? .S. and other citizen-witnesses watching this all reported that Of?cer Cairns loudly gave multiple commands to Mr. Bazemore. The attorney for Mr. Bazemore?s father provided me with video interviews of two young women who were in the vicinity at the time of the shooting. Both of these witnesses were interviewed by the police immediately following the incident. One young woman, C.M., stated at that time that she and her friend, A.G., were walking across the parking lot when they saw the police car come down the alley and heard people yelling, ?there he is? and pointing to the man in the dumpster area. She heard people say ?he has a gun,? and thinks a young woman yelled that. She and her friend ducked between two cars and she later got under a car. She said she did not see the man holding a gun, and she did not hear the man or the police of?cer say anything before the of?cer shot the man. She stated that the man looked ?really scared.? C.M. said that she and her friend left the area and went back to school. However, they left school and were sitting at a deli on the mall when police of?cers asked them to come to the station to make statements. In the recent interview with the defense investigator, C.M. stated that she did not hear anyone say that the man had a gun and she con?rmed that she did not see a gun in Mr. Bazemore?s hand before he was shot. Her friend, A.G., stated that she saw the man by the dumpster, and she saw the police of?cer approach him with his gun drawn. She heard people yelling that he had a gunthe hands of the man although she said she could see his hands. She said there were no words spoken by the man or the police of?cer before the police of?cer shot the man. Her more recent statement related similar facts. I have considered the statements of these two witnesses and ?nd their accounts differ considerably from the other witnesses who clearly saw a gun in Mr. Bazemore?s hand and consistently stated the of?cer told Mr. Bazemore to drop the gun and show his hands before he ?red his handgun. The statements of the other witnesses are consistent with Of?cer Cairns? statement which was given immediately after the shooting without bene?t of knowing the statements of any other witnesses. Clearly Mr. Bazemore had a gun as he had just robbed the bank at gunpoint, and his gun was found next to him after the shooting. Of?cer Cairns reported in his videotaped statement4 that as he drove near the enclosed dumpster a citizen-witness pointed out the dumpster enclosure where Mr. Bazemore had run. Of?cer 4 Of?cer Cairns provided his statement on November 14, 2017. 4 Cairns said as he approached the enclosed dumpster he could see Mr. Bazemore in the rear of the enclosure and Of?cer Cairns thought the robbery suspect was attempting to ?ee from the areas. Of?cer Cairns reported that he drew his weapon and entered the enclosure. When he encountered Mr. Bazemore, Of?cer Cairns could not see Mr. Bazemore?s right hand, as Mr. Bazemore was at angle to the Of?cer with his back mostly turned towards Of?cer Caims?. At gunpoint, Of?cer Cairns repeatedly told Mr. Bazemore to ?show his hands.? Mr. Bazemore did not comply and stated that he could not show his hands to Of?cer Cairns. Of?cer Cairns then remembered from training that when an of?cer asks someone to show his hands, if the person has a gun, he would be asking him or her to point the gun at the of?cer. In response, although he did not at that point see the gun, Of?cer Cairns grabbed Mr. Bazemore?s right arm to minimize his ability to use a gun. At this point, Of?cer Cairns had his gun up to the suspect?s chest. Of?cer Cairns stated that he heard one of the citizen witnesses yell that the suspect had a gun, either right before he confronted the suspect or right after he grabbed his arm. Of?cer Cairns then repeated ?drop the gun.? As the suspect began to turn away, the of?cer?s arm dropped from the suspect?s arm and the of?cer?s gun moved to the suspect?s side. As this happened, ?from less than a foot away? the suspect raised his right arm with a gun in his hand and pointed it at Of?cer Cairns? stomach area and Of?cer Cairns braced to be shot. Witness A.W. con?rmed that he saw the suspect raise his right arm and that the Of?cer told the suspect several times to drop the gun. When Mr. Bazemore aimed his gun at Of?cer Cairns, the of?cer ?red twice, hitting Mr. Bazemore in his side and killing him. Mr. Bazemore fell to the ground, and Of?cer Cairns then kicked away the gun used by Mr. Bazemore. Later, recovered from the crime scene, was the semi-automatic .25 caliber handgun possessed by Mr. Bazemore. It was loaded and had a bullet in the ?ring chamber. Also recovered was $14607 from the ANB armed robbery, and the mask worn by Mr. Bazemore during the bank robbery. The two shell casings discharged by Of?cer Cairns were also recovered at the crime scene. 5 Of?cer Cairns explained that he did not activate his Body Worn Camera (BWC) until after the encounter and shooting (Of?cer Cairns Interview pp. 12-13, 26). This failure may be attributable to the fact that Of?cer Cairns had not started his shift and that this emergency situation evolved very quickly. There is no known BWC that captures the encounter or the shooting. 6 Mr. Bazemore was 6 foot 3 inches tall (Autopsy of Dr. Tim) 7 UMB Bank reported a robbery of $1500. If indeed 1500 was seized by Mr. Bazemore, the whereabouts of the other $40 is unknown. Mr. Bazemore?s .25 caliber semi-automatic ANB Bank money taken by Mr. Bazemore Using his Glock 9mm, Of?cer Cairns shot Mr. Bazemore twice. Per the aut0psy of November 11, 2017, Dr. Krista Timm determined these gunshot wounds caused the death of John Bazemore. LEGAL ANALYSIS Criminal liability in'Colorado is established only if it is proved beyond a reasonable doubt that all of the elements of an offense de?ned by a statute have been committed and it is proved that the offense was committed without legal justi?cation, as set forth in Colorado statutes. The justi?cation for a peace of?cer?s use of physical force while attempting to make an arrest is set forth in C.R.S. ?18-l-707. As pertinent to this case, C.R.S. ?18-1-707 (1) states: 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 unless he knows that the arrest is unauthorized; or To defend himself or a third person ?om what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect such an arrest Further, C.R.S. ?18-l-707(2) states that: A peace of?cer is justi?ed in using deadly physical force upon another person for a purpose speci?ed in subsection (1) of this section 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 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 in?ict serious bodily injury to another unless apprehended without delay. These justi?cations are ?af?rmative defenses.? This means that a person accused of a crime for using force does not need to prove that he or she was justi?ed in using the force. Instead, the prosecution must prove, to a unanimous jury, that the force was not justi?ed. The determination of whether Of?cer Cairns conduct was criminal is primarily a question of legal justi?cation. The issues are, therefore, whether at the time Of?cer Cairns discharged his ?rearm, he reasonably believed that he was about to be subjected to unlawful physical force, and furthermore, that his actions in defending himself against that force were objectively reasonable. Alternatively phrased, the question is whether a reasonable of?cer, confronted with the same facts and circumstances, could have concluded that he was in imminent life-threatening danger and that it was necessary to discharge his ?rearm to defend himself or to prevent injury to another. Accordingly, the question I must consider is: Is there enough evidence of criminal conduct that a jury could ?nd, beyond a reasonable doubt, that Of?cers Cairns acted Without lawful justification? CONCLUSION The question presented in this case is whether, at the instant Of?cer Cairns ?red his weapon, the legal justi?cations for using deadly physical force as set forth in C.R.S. ?18?l-707( 1) and ?18?l- 707(2) were applicable. I conclude that they were. Of?cer Cairns was aware that Mr. Bazemore had, moments before, committed a bank robbery. Further, concerned citizen-witnesses feared for Of?cer Cairns safety when they repeatedly warned Of?cer Cairns that Mr. Bazemore had a gun. Further, Mr. Bazemore demonstrated his willingness to again use his weapon when he refused to show his hand or disarm, even after Of?cer Cairns gave repeated commands to do so. Moreover, Mr. Bazemore then aimed his semi-automatic handgun, from point-blank range, at the midsection of Of?cer Cairns. Of?cer Cairns stated that he was preparing to be shot when he ?red his weapon. These circumstances caused by Mr. Bazemore placed Of?cer Cairns in imminent life?threatening peril. Under these circumstances, pursuant to Colorado law, speci?cally, Of?cer Cairns reasonably used ?deadly physical force,? to defend himself and to effect an arrest of a person whom he reasonably believed was likely to endanger human life or in?ict serious bodily injury to another if not apprehended without delay. As the United States Supreme Court has instructed regarding assessing the reasonableness of an of?cer?s beliefs when using physical force: The calculus of reasonableness must embody allowance for the fact that police of?cers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in -a particular situation. Graham v. Connor, 490 U.S. 386 (1989) at pp. 396-397. Under these dangerous circumstances, Of?cer Cairns made a split?second judgment, and my conclusion is that a jury could not reasonably ?nd, beyond a reasonable doubt, that Of?cer Cairns acted without legal justi?cation as provided in Colorado law. Therefore, no criminal charges will be ?led against Of?cer Cairns. 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. This letter will be posted on the Denver District Attorney website and our investigative ?le will be available for interested citizens to 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, ?lg/?t CCa/c Beth McCann Denver District Attorney CC: Of?cer Brent Cairns; Chief Robert White; David Quinones, Deputy Chief ofPolice; Matthew Murray, Deputy Chief of Police; Barb Archer, Commander of Major Crimes Division; Ron Sauiner, Commander of District 6; Lt. Matthew Clark, Major Crimes Division; Sgt. Joseph Engelbert; Sgt. Thomas Rowe; Sgt. Brock Ellerman Detective Bruce Gibbs, Homicide; and Nicholas E. Mitchell, Of?ce of the Independent Monitor.