The officers involved in the fatal February police shooting of Kenneth Lee Bailey won’t face criminal charges, District Attorney Roger Echols said Tuesday.
“In this case, there is no question that Kenneth Lee Bailey, Jr. resisted the officers’ lawful authority to arrest him by running. There is significant evidence to believe Kenneth Lee Bailey, Jr. possessed a gun on this occasion,” Echols wrote in a report. “There is also ample evidence that Mr. Bailey displayed a firearm and pointed the firearm at the officers.”
Bailey, 24, was shot by police Feb. 15 after three members of the Durham Police Department’s Selective Enforcement Team pulled up to a house on Glenbrook Drive in the Club Boulevard or “Bluefield” public housing community, where Bailey was visiting cousins.
Bailey was awaiting trial on charges of robbery with a dangerous weapon and felony conspiracy and was wearing an electronic monitoring bracelet when Officers Thomas M. Greathouse and Alan G. D’Meza and Cpl. John E. Lloyd came to arrest him for violating his pre-trial curfew after he didn’t come home the night before.
Police say Bailey ran out a door and across the street, with police in pursuit, and pointed a gun at the officers who then shot him.
His family and others, however, have raised questions about Bailey being shot in the back and pointed to witness statements indicating police shot him after he said he had given up.
Bailey died from two gunshots to the upper back and right lower leg, according to an autopsy report.
Echols’ job was to review the State Bureau of Investigation and determine whether the officers committed crimes, he said. He released a nine-page report outlining evidence, witness and officer statements and his conclusion that officers were justified in using deadly force and that evidence supports the officers’ fearing for their lives.
“The factual accounts of the civilian witnesses were inconsistent with each other and in many respects inconsistent with the believable and physical evidence,” Echols’ report states. Based on all the evidence, including the autopsy, a review of the officers’ guns, the shell casings, probable cause does not exist to charge the officers with a crime, he said.
As standard procedure, the Police Department also performs an administrative investigation to determine compliance with department policies and procedures. That investigation is expected to be complete in the next few weeks, said police spokeswoman Kammie Michael.
The three officers will remain on administrative assignment until the department’s investigation ends, which is also standard procedure.
The officers were in plain clothes and a Durham police tactical vest that read “police” when they entered the house, the report states.
Greathouse and Lloyd went to the front door, identified themselves and saw Bailey, who was charging his ankle bracelet, they said, according to Echols’ report. D’Meza went to a door on the side of the residence.
Greathouse had his gun out and told Bailey not to move, officers said. Greathouse tried to grab Bailey, but Bailey ran through the kitchen and out the door.
Greathouse said he gave chase, but slowed down to call in on his radio, Echols’ report states. He then heard Lloyd yell “Gun, he’s got a gun,” Greathouse said.
Lloyd said he and other officers commanded Bailey to drop the gun.
Bailey ran around the house, turned two to three times and pointed the gun at police, Greathouse said, according to Echols’ report. Bailey had been moving at an angle from left to right, when Bailey turned and pointed the gun at Greathouse.
Greathouse thought Bailey was going to shoot him and fired two shots, the report states.
“He said Bailey took two or three steps, stumbled and went to the ground,” Greathouse said in the report.
D’Meza said he saw Bailey fall.
“While on his knees, Mr. Bailey reached under his left arm and pointed the gun at D’Meza,” Echols’ report states. He fired one shot from about 15 to 20 yards away from Bailey.
“Mr. Bailey appeared to be giving up because he began to lay down,” and threw the gun 10 to 15 yards away, Echols’ report states.
Investigators interviewed about 19 civilian witnesses. Some said they heard one shot. Others heard six. Only two said they saw a significant part of the chase.
One witness said he saw Bailey pull out a silver gun from his waistband while the officers were chasing him. That witness heard two shots and then saw and heard officers shoot another three to four shots after two to three seconds.
A second witness reported hearing a “pow” and thought officers tazed then shot Bailey, Echols’ report states. The witness, who said he/she didn’t see Bailey with a gun, said Bailey was on the ground when shot. “The witness heard Bailey say he gives up before the police shot three more times, including in the head,” Echols’ report states.
Echols said there were a number of inconsistencies between that witness’s statement and the evidence. There was no evidence that Bailey was tazed. The autopsy shows that Bailey wasn’t shot in the head.
Bailey’s parents, Kenneth Bailey, Sr. and Louise Pratt, met with Echols on Tuesday to discuss his office’s assessment.
“We are disappointed by their decision not to prosecute,” the parents said in a joint statement. “We will continue working to find accountability for this unjustified shooting.”
Bailey’s family doesn’t believe the police account of the events, they said.
The family has recorded testimony from witnesses who heard Kenny say, “I’m down,” and “you got me,” after he was shot the first time, they said.
Echols said that statement came from a witness who was inside the house and didn’t see whether Bailey still had a gun and whether he was pointing it at police at the time.
“No justice has been done here,” Bailey and Pratt said. “We do not believe he posed any threat to the officers when they killed him. We do not believe he was armed when he was shot.”
Community organizing group SpiritHouse also released a statement.
“The Bailey family should not have to bury their hopes for accountability for their son’s life today because a prosecutor’s determination is, based on the evidence currently available, he cannot sustain a guilty verdict in a court of law,” executive director Nia Wilson said. “The life of Kenneth Bailey cannot be forgotten and we will continue to stand with this family to find answers, and seek justice and accountability.”
“All too often, victims of police shootings are blamed, shamed, and framed as if they would still be alive if they had acted differently, when in fact, the cause of death is initiated with the police instigating an encounter that could be deescalated through community involvement, proper training and implementation of protocols,” the statement said.
Police shootings in Durham
Kenneth Lee Bailey’s death was the third fatal law enforcement shooting over the past 12 months and the sixth since 2013.
Willard Eugene “Junior” Scott Jr., 31, was fatally shot by a state trooper on Feb. 12. Echols is reviewing that case.
On Nov. 22, 2016, three Durham police officers were involved the fatal shooting of 34-year-old Frank Nathaniel Clark. No charges were pressed against officers in that and other cases.
La’Vante Biggs, 21, was shot in September after police say he was suicidal and holding what they thought was a gun that he pointed at officers while he took one to three steps forward.
In 2013, police shot and killed two men. Jose Adan Cruz Ocampo, a stabbing suspect, was shot four times after police yelled at him to put a knife down when he pulled it from his back pocket. Derek Walker, upset about losing custody of his son, was shot after he pointed a gun at police and himself during a standoff downtown.