No charges for officer in fatal shooting
Published 10:21 pm Thursday, May 5, 2016
The Suffolk Commonwealth’s Attorney has ruled that a Suffolk police officer was justified when he shot and killed a man on Causey Avenue in December.
Corey Jason Achstein, 28, of the 200 block of Causey Avenue, died at a hospital after the Dec. 28 shooting. Officers responded to Causey Avenue shortly after 5 p.m. that day upon receiving several 911 calls saying a man was chasing three juveniles down the street with a weapon.
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According to the report of Commonwealth’s Attorney C. Phillips Ferguson, Officer James Babor was justified in believing Achstein was a deadly threat, because he had information that Achstein had a weapon, Achstein was ignoring commands to show his hands and Achstein moved in a manner that could be perceived as threatening.
Immediately before Babor fired, Achstein, who had been ordered to the ground, sat up, reached for his waist and twisted toward Babor and another officer, according to Ferguson’s opinion.
The time from Babor’s arrival to the shot was 83 seconds, according to the Ferguson opinion.
“Under well-established law, a person may use deadly force when he reasonably fears, under the circumstances as they appear to him, that he or another is in danger of being killed or that he or another is in danger of great bodily harm,” according to the opinion. “The facts of the situation must be viewed from the reasonable perspective of the person using deadly force.”
The incident began with several 911 calls, including from one of the teens, who stayed on the phone with 911 throughout the entire incident. Several times, he told dispatchers that the man who was chasing him had a gun and was threatening to shoot and that information was relayed to responding officers, including Babor.
Warning: The below audio file includes offensive language.
Police later found a realistic-looking metallic pellet gun about 10 feet from Achstein’s body.
Upon arriving on scene and spotting a man in the street, Babor exited his vehicle with his police dog held by his left hand and his gun at his side in his right hand, according to the report. Achstein was more than 30 feet away and walking away from Babor. Babor told Achstein several times to stop, get on his knees, and show his hands.
Babor raised his weapon and told Achstein he would shoot if he did not comply.
Achstein, whose blood alcohol content was later determined to be .255, more than three times the level to be considered legally impaired, said, “Go ahead and shoot me.” Babor replied that he did not want to shoot.
“This noncompliance with commands, coupled with Achstein’s confrontational attitude, and statement of a desire to be shot, gave Officer Babor the belief that Achstein was armed and was considering ‘suicide by cop,’” the report states.
Achstein lay on the ground on his back with his head facing Babor, according to the report. As he did so, Babor heard a metallic sound to his left but did not see what made that sound.
Officer Cheryl Abrigo, who had arrived on scene, said she saw Achstein throw an object that she thought was a gun, according to Ferguson’s report.
As a third officer’s car approached from the opposite direction, Achstein sat up quickly, facing the car, and Babor saw his hands drop to his waist, according to the report.
Babor’s shot struck Achstein in the upper back.
“Officer Babor later stated that his thought process which resulted in firing of that shot was that ‘…he’s going for a gun to shoot me and her…’ ‘…I need to stop him,’” according to the report.
When Babor was asked why he did not release his police dog, he replied that initially, when Achstein was on the ground, he thought releasing the dog would be excessive. When Achstein started moving his arms toward his waist and twisting, Babor thought it was a deadly-force situation.
“If you have a gun, which I thought he had a gun and was going to shoot an officer, my dog is not the answer,” Babor is quoted as saying in Ferguson’s report. “Deadly force is your appropriate response to that.”
The pellet gun was later found in the street to the left of where Babor had been standing.
“It was a replica of a handgun, with no indication that it was not a real firearm,” Ferguson wrote.
Eight unnamed civilian witnesses are quoted in Ferguson’s report, including the three juveniles, four onlookers and a person who had been with Achstein most of the day. That person said Achstein had purchased liquor at the ABC store prior to the witness driving him home about 5 p.m. That person said Achstein was “definitely drunk,” according to the report.
Ferguson said he relied on written and recorded statements from the officers and witnesses in crafting his report.
“This office does recognize that this is a tragic situation,” the opinion concludes. “We empathize with the Achstein family and friends and extend our condolences to them for their loss.”
In a phone interview Thursday, Ferguson said the issue of an inaccuracy in a search warrant filed in the case — that Achstein had a gun in his hand when officers encountered him — was not the issue at hand in his report.
“We were totally focused on (Babor), what he did and why he did it,” Ferguson said. “We didn’t get into collateral issues, because otherwise you get into 50 other things.”
In response to an inquiry about the status of the officers, city spokeswoman Diana Klink said they remain on administrative duty until the police department has completed its administrative investigation.
“The Suffolk Police Department would like to express their deepest sympathies to the family of Corey Jason Achstein,” Klink wrote. She said Police Chief Thomas Bennett has reviewed Ferguson’s report.
Achstein’s family declined comment by phone Thursday. At their home on Causey Avenue, a single electronic candle burned in the window.
This is not the first shooting in which Babor has been involved. He was one of two responding officers who fired on March 19, 2010, at 49-year-old Tedlee Hargrove, who was standing on his second-floor balcony at his home on Central Avenue when he fired a “warning shot” intended for teens fighting in the street.
Officers responding to the fight heard the shot and ordered Hargrove to drop the shotgun and raise his hands. According to Ferguson’s report from that shooting, Babor said Hargrove picked the gun back up after originally putting it down. That was when Babor fired twice, and the other officer fired five times. It was impossible to tell which officer fired the single shot that struck and killed Hargrove, according to the report.
—Reporter Allison T. Williams contributed to this story.