The 4th Judicial District Attorney’s Office, in coordination with the El Paso County Sheriff’s Office, has completed its review into the Fountain Police Department (FPD) Officer-involved shooting that occurred in Fountain, CO on September 24, 2015. Pursuant to Colorado Revised Statute 16-2.5-3-1 Peace Officer-involved shooting investigations – protocol, all officer-involved shootings that result in injury or death shall be reviewed by a neutral agency. The outside participating agency in this incident is the El Paso County Sheriff’s Office.
At approximately 2:20 pm on September 24, 2015, FPD received a 911 call from Elizabeth Alvar regarding a physical disturbance at 775 Legend Oak Drive. At that time FPD officers were dispatched to the location. Officer John Kay, dressed in full police uniform and driving a fully marked FPD car, was first to arrive on scene.
Officer Kay stopped his cruiser a couple of houses away from 775 Legend Oak Drive in order to assess the situation. He observed a motorcycle lying on its side in the driveway of 775 Legend Oak Drive and could see the overhead garage door open, but nobody outside. The motorcycle appeared to be on because the headlight was shining.
Officer Kay was aware of the fact that this was the home of Elizabeth Alvar and that her son Patrick O’Grady was a runaway who had stolen his parents’ vehicle a few days earlier and was trying to sell it.
While Officer Kay was observing the residence he saw Elizabeth Alvar come out of the garage area waving her arms and motioning for him to come into the home. Officer Kay then drove closer to the residence, parked his police car and got out of the vehicle. At this time Ms. Alvar stated “come here, come here, I need you” while continuing to wave her arms.
Officer Kay knew that another officer from FPD was en route to this location when he exited his vehicle. He requested that his fellow officer “step up” his response to the location. At no time did Officer Kay receive any information to indicate what exactly the disturbance was at this location from dispatch or Ms. Alvar.
Ms. Alvar then pointed to the open door which leads from the garage to the residence and Officer Kay followed her into the home. He followed her through the residence to the stairs where Officer Kay could see a bathroom at the top of the stairs. The bathroom door was half open. At this time, Officer Kay and Ms. Alvar went up the stairs. At the top of the stairs, Ms. Alvar pointed to the bathroom, but did not verbally make any statements to Officer Kay. Upon reaching the bathroom door, Officer Kay could hear the shower running. Ms. Alvar opened the door and Officer Kay saw Patrick O’Grady standing in the bathroom. Officer Kay then saw Patrick O’Grady turn and grab a gun from the bathroom counter and point it at the officer. At that time, Officer Kay drew his gun and fired one shot in the direction of Patrick O’Grady, who was struck by the bullet. O’Grady was transported to the hospital, where he later died from the gunshot wound.
Unknown to Officer Kay, earlier in the day the gun and other items had been stolen from a home in Fountain and witnesses positively identified Patrick O’Grady as being one of the individuals seen carrying stolen items from the residence. During this investigation, Facebook and text messages, along with interviews, confirmed that Patrick O’Grady was in possession of a gun. The loaded gun found in the bathroom inches away from Patrick O’Grady was tested for DNA and the results confirmed his DNA was on the gun.
The investigation also revealed that Patrick O’Grady had returned to the residence that day to gather items and shower before leaving the state. O’Grady and another juvenile suspect had kicked in the front door of 775 Legend Oak Drive and were gathering items to steal, including the motorcycle in the garage. While the juvenile suspect was attempting to take the motorcycle, he was confronted by Elizabeth Alvar. The juvenile suspect then dropped the motorcycle and fled. Ms. Alvar chased the juvenile suspect for a couple of blocks then returned to the residence and called 911 to report the disturbance.
Colorado Revised Statutes 18-1-707 provides that an officer is justified in using deadly force if he or she reasonably believes that it is necessary to defend himself or a third person from what he reasonably believes to be the imminent use of deadly physical force. In addition, Colorado Revised Statutes 18-1-704 provides all citizens with the right to defend themselves with deadly force if they reasonably believe they are in imminent danger of being killed or of receiving great bodily injury and reasonably believe a lesser degree of force is inadequate. Under either standard, Colorado law allows an individual to act based on their subjective reasonable belief. Following careful review of the facts and evidence surrounding the incident, it has been determined that the officer’s use of deadly force against the suspect was reasonable and justified.
Pursuant to Colorado Revised Statutes 20-1-114, The District Attorney’s Office shall review all incidents involving a discharged weapon by an officer, release a report explaining the District Attorney’s findings, including the basis for the decision not to charge the officer. The facts and evidence from this particular investigation show that Officer John Kay acted reasonably and was justified in defending himself and others from the imminent use of deadly physical force by Patrick O’Grady. Because the officer’s actions were justified under Colorado law, no criminal charges will be pursued.