When Jefferson County Commonwealth’s Attorney Tom Wine announced he wouldn’t prosecute the officers who killed Shelby Gazaway, he called the facts of the shooting “straightforward but tragic.”
Gazaway had fired his gun inside the Portland Kroger last November.
As two officers shouted at him, he pointed his weapon in their direction.
And because the officers believed Gazaway posed an imminent danger to themselves and other customers, Wine said, they were justified when they shot and killed him.
Legal experts who reviewed the circumstances of the shooting were not surprised by Wine’s conclusion, since police are given enormous leeway when it comes to making life and death decisions. That’s especially true, the experts said, when responding to a chaotic, fast moving situation like the one at the Kroger, where more than three dozen 911 calls had been placed to report an active shooter.
But the Gazaway family has questioned the Louisville Metro Police Department’s tactics and commitment to transparency since the start. In body camera footage, his family saw him walking toward his car and officers shooting the 32-year-old Black man, without announcing themselves or telling him to drop his gun. For months, they’ve asked LMPD to show them the rest of the footage, including unedited surveillance video police said would confirm LMPD’s assertion that Gazaway put officers and other customers at risk outside the Kroger.
LMPD recently released that evidence, but the family says it hasn’t provided closure.
The evidence shows that the officers arrived at a chaotic and frightening scene. After a fight with another man, Gazaway fired his gun into the ceiling, breaking a water line. He fired several shots more into the ceiling near the exit of the store, just seconds before two officers pulled up in their patrol car.
The surveillance footage is jumpy, and doesn’t include any audio, but it captures the exchange of gunfire between the officers, shooting from behind concrete pillars, and Gazaway, who was by then already near his car.
It does not clearly answer the major questions the family has posed since the shooting:
Who shot first, Gazaway or the officers? And if it was the officers, could he have known he was firing back at the police?
“The nagging question is why Gazaway acted so violently on that night,” Wine wrote in the last paragraph of his letter to LMPD. “Unfortunately, that is a question neither I, nor Mr. Gazaway's family, who loved the son, brother and uncle they knew as a warm and caring person, can answer.”
That is not the question that’s been nagging Shelby Gazaway’s aunt, Sharon Gazaway Bell, all these months, as they wrestle with the answers that might never come.
“It seems like to me the nagging question is, why did the police react so violently?” she said.
‘Other PIU matters’
The day after Gazaway was killed last year, LMPD officials held a press conference, as they typically do after their officers fire their weapons in the line of duty.
Major Jamey Schwab of LMPD’s Public Integrity Unit said the body camera footage would show that Gazaway “turned towards the officers and began firing numerous rounds at them” when the officers, Patrick Norton and Alexander Dugan, returned fire.
Then-chief Steve Conrad released the body camera footage, which showed one officer turn on his flashlight and shout “hey” three times before the gunfire started. Conrad admitted the footage was obscured, so it wouldn’t show much of Gazaway in that exchange. But what the videos did show, Conrad said, is that “policing is a very dangerous job.”
“What you’ll see is how quickly things happen and the split second types of decisions that officers often face,” Conrad said.
That’s where the questions started for Gazaway Bell, Gazaway’s aunt. The video did not appear to show her nephew firing at officers first, and she questioned LMPD’s version of events. “Truth be told, if there wasn't the body cam footage that put a question in the minds of anyone who watched it, we would not be here,” Gazaway Bell said.
Conrad promised a thorough investigation. The family waited, and hired an attorney.
The LMPD completed its internal investigation and turned it over to Wine in December. By January, though they were waiting for Wine’s decision, the officers were back on regular duty — and received a commendation for their “acts of heroism” that night. In June, officer Norton shot another suspect, and was placed back on leave.
Wine’s letter to LMPD declining prosecution came in July, eight months after the shooting.
It opens with an apology for the delay in reviewing the Public Integrity Unit’s findings. “Unfortunately, this matter was presented during the holiday week, followed closely by the COVID-19 pandemic. Then other PIU matters arose,” Wine wrote.
Wine was likely referring to the March 13 shooting of Breonna Taylor. His office initially charged Taylor’s boyfriend, Kenneth Walker, with attempted murder after he fired at officers executing a search warrant at Taylor’s home. Walker said he believed the officers were intruders breaking in, and LMPD officers returned fire, killing Taylor, a 26-year old Black woman and ER tech.
Wine’s office reviews every investigation conducted by the Public Integrity Unit, and would have typically decided whether the officers who shot Taylor would face charges. But amid a firestorm of national attention, Wine recused himself from the case, and later dropped the charges against Walker.
In the months leading up to Wine’s decision in the Gazaway case, protests against police shootings became a daily occurrence. LMPD officers and National Guardsmen went into the West End to break up a party and, after firing pepper balls at David McAtee’s barbecue stand, he fired a shot. When the two agencies returned fire, McAtee was killed.
Meanwhile, the Gazaway family held press conferences with others whose loved ones were killed by the police to try and raise awareness. They filed a lawsuit against LMPD in June to compel the release of evidence from the shooting, including the surveillance footage from Kroger.
Louisville Metro Council President David James brought up Gazaway’s case while the council considered a resolution encouraging LMPD to increase transparency.
"The fact that the police department can't produce a video for the family of a man who just got killed in a police action is unacceptable. It's just unacceptable," James said before the council passed the resolution in early August. LMPD says it gave the Gazaway family access to case files a few weeks later, on August 29.
What The Evidence Answers, And Omits
Last week, LMPD released an 8-gigabyte case file, with thousands of pictures, transcripts and summaries of interviews with officers and witnesses, and videos taken from the scene, to KyCIR. It did not originally include the Kroger surveillance footage, which LMPD said was left out of the original file in error.
The evidence shows Gazaway entered the store at about 6:03 p.m. Just minutes later, according to witnesses and police descriptions of the surveillance video, Gazaway struck another man, who then pulled a knife. After they wrestled, Gazaway pulled a gun and fired into the ceiling, hitting a water line.
The surveillance footage shows Gazaway pointing a gun into the ceiling with his right hand again as he approached the exit of the store.
Twelve seconds later, in the parking lot, the footage shows Gazaway raising his right hand in the direction of the officers. On body camera footage, that happens almost simultaneously with the sound of gunshots, but it’s unclear who fires first.
Wine’s letter doesn’t definitively answer that; the officers didn’t in their testimony, either.
Witnesses told police they saw Gazaway shoot towards the store and toward officers, who were positioned near the exit. Ballistic evidence shows gouges in the pillar the officers hid behind from bullets fired by Gazaway. Four spent shell casings were found near Gazaway’s body; 16 were found where Norton and Dugan were positioned.
Officer Dugan told investigators in an interview more than a week after the shooting that he did not see whether Gazaway or his fellow officer shot first, because he was getting his rifle from the trunk of the squad car.
Norton said in his interview that he saw Gazaway “just saunterin’ out” of the store after a bystander pointed him out to the officers.
Norton said everything happened very quickly after that.
“I don’t know exactly what time he shot or I shot but I know I saw a flash and it was just an instant, like, boom boom,” Norton told an investigator at the time.
Both officers mentioned they’d reviewed the body camera footage before their interviews.
When asked for clarification, Jeff Cooke, a spokesperson for the Commonwealth’s Attorney’s office, said in an email that “Gazaway fired at police first.” He also said “surveillance footage and witness testimony also indicates he fired outside before police arrived,” though there’s no indication of that in the video and police didn’t recover any shell casings other than those found next to his body.
When asked if the Commonwealth’s Attorney’s office had evidence that explicitly shows Gazaway shooting outside of the store or firing the first shots towards police officers, Cooke referred KyCIR to LMPD; an LMPD spokesperson declined to comment due to pending litigation.
Based on the evidence provided by LMPD’s Public Integrity Unit, Wine concluded that Gazaway’s actions inside the store would justify, at minimum, a felony charge of wanton endangerment in the first degree, a class D felony that could carry up to five years in prison.
Officers Norton and Dugan “were justified in using deadly physical force against Mr. Gazaway” because of the threat he posed to officers and bystanders, he wrote.
“No charge, either felony or misdemeanor, will be sought, nor will this matter be presented to the Jefferson County Grand Jury,” Wine wrote.
LMPD’s policies stipulate that officers should give a verbal warning before using deadly force “if feasible.”
LMPD policies also say officers can use force at any level they think is necessary, and don’t have to wait until a suspect uses force first.
Although the Public Integrity Unit investigation is closed and the officers were found not to have violated the law, an LMPD spokesperson said the Professional Standards Unit investigation to determine if officers violated LMPD standards is still open.
It’s unclear how often LMPD officers have been found to violate policy after shooting investigations, or how many of those investigations are still open. LMPD’s own data on such shootings has large gaps and leaves out important details of high profile shootings, a KyCIR investigation found.
Mayor Greg Fischer elaborated in a recent letter to a community activist: he said that, since January 2018, LMPD’s Public Integrity Unit has investigated 25 police shootings. Fourteen of those investigations have been completed and closed, though the letter doesn’t provide the outcome. Eight other investigations have been completed, but have not closed because they are pending in court or awaiting a decision by the Commonwealth Attorney’s Office or Attorney General’s Office. Three shootings are still under investigation.
'Cops have this leeway'
Officers who responded to the Kroger that night were responding to an active shooter call — and that means they were unlikely to be held criminally responsible for shooting the suspect regardless of who fired first in the moment, said Walter Signorelli, an adjunct professor and lecturer at John Jay College of Criminal Justice who spent 30 years at the New York Police Department.
“A private citizen has a much higher standard, but the cops have this leeway,” Signorelli said.
Even if officers make a mistake, Signorelli said the law gives officers the discretion to make life-and-death decisions if they feel the “reasonable” need to defend themselves or others.
“You could always bring a civil lawsuit saying, ‘Well, you should have taken other precautions or something,’” Signorelli said.
But that would not be for the Commonwealth’s Attorney to decide.
Nicole Gonzalez Van Cleve is an associate professor at Brown University who hasresearched the relationship between prosecutors like the Commonwealth’s Attorney and police departments. Gonzalez Van Cleve says the criminal justice system is designed in such a way that gives police “control of the narrative” before the case even gets to a prosecutor. “That's really what should alarm us,” Gonzalez Van Cleve said.
In cases like the Gazaway case, due to the limitations of the video and Gazaway’s death, important details about that narrative might always be unresolved.
To Wine and LMPD, it’s not complicated: the officers killed Gazaway because he was presenting an immediate threat to the safety of officers and bystanders.
Gazaway’s family looks at the same evidence and sees Gazaway — who had no criminal record — on his worst day, killed in what they call “an ambush.”
“From what we have seen, they never identified themselves, and they didn’t try to de-escalate in any way,” Gazaway Bell said. “Isn’t there some responsibility on their part to try and de-escalate?”
That narrative is the difference between Gazaway surviving to face the consequences, or being killed in the parking lot.
“The law is not written to have police be the judge, juror and executioner. If someone is accused of a crime, we’re supposed to charge them, we’re supposed to take them to court,” Gonzalez Van Cleve said. “But what we’re seeing is that the police have so much power on the front end and we never get to decide on these cases.”
Shelby Power
Gazaway’s family found out the officers wouldn’t be charged when they got a call from a television reporter last month.
The police just recently returned the car Gazaway was driving to his mother, Semone Stephenson Carter. It was riddled with bullet holes and torn up from the investigation.
The family still wears neon green t-shirts with his face on it that say “Shelby Power.” LMPD says it released the case file to Gazaway’s family in late August. The family can’t bring themselves to watch the surveillance footage from outside the store, but their attorney has reviewed the video.
The family feels the officers violated Gazaway’s civil rights by not identifying themselves or de-escalating, and they’re considering filing a civil rights lawsuit against LMPD.
Nine months after Gazaway was killed, Stephenson Carter sat in her house with her daughter, Sterling Gazaway, as family and friends from church milled around. Autumn decorations were already on the kitchen table.
The family usually celebrates this season. September kicks off a stretch of birthdays that runs up to Shelby’s, which is a few days before what will be the first anniversary of his death.
Stephenson Carter had still one more question, one that the Commonwealth’s Attorney’s office can’t answer.
“We always ask ourselves, why us?”
Stephenson Carter said that there were some questions they would probably never get answers to. But, she said, the family would continue to lean on their faith, and stand strong.
Contact Jared Bennett at jbennett@kycir.org.
