ST. LOUIS • St. Louis Circuit Attorney Jennifer Joyce announced Monday that no charges will be filed against the city police officer who shot and killed VonDerrit Myers Jr.
Joyce issued a press release and a report detailing an investigation her office conducted separately from police. An assistant U.S. attorney helped with the investigation.
Joyce did not name the officer in a 51-page report because he was not charged with a crime, but Police Chief Sam Dotson released a separate statement including the name of Officer Jason Flanery, which had become public months ago anyway.
The prosecutor’s report on the Oct. 8 shooting reads, in part, “Given all the available facts, witness statements, physical and forensic evidence” prosecutors “have determined a criminal violation could not be proven beyond a reasonable doubt. Therefore, charges will not be filed in this case.”
The material Joyce released suggested, in fact, that Flanery, 31, was attacked and shot Myers, 18, in self-defense while on patrol that night for a private residents’ association in the Shaw neighborhood. The encounter occurred about 7:30 p.m. in the 4100 block of Shaw Boulevard.
But it did cast a new light on the beginnings of the incident, which Flanery had told investigators started when three youths ran from his marked security car, one of them holding his hand against his body as if securing a gun. The officer did not catch them, and approached Myers shortly later, believing it was the same person.
But Myers was wearing a GPS monitor on his ankle as a condition of his bail on charges from June 27 of unlawful use of a weapon and resisting arrest. “Based on this GPS information, it appears Myers was not the person Officer X was chasing...” the prosecutor’s report says.
It puts Myers at the Shaw Market, where he also is seen on video, and then going home briefly, where acquaintances said they went for jackets.
But the officer did have reason to suspect from Myers’ behavior in their encounter that he was armed, the report says, and after they struggled had “probable cause to give chase.” It was during the foot pursuit, officials said, that Myers fired at least three shots before Flanery returned fire. Flanery was not hit.
Flanery declined to be interviewed separately for Joyce’s investigation, so his part of it was based on statements he made earlier to police investigators.
The circumstances of the killing of Myers, who was black, by Flanery, who is white, drew angry protests as it occurred just two months after international attention focused on the killing of Michael Brown, who was black, by a white Ferguson officer Aug. 9.
An attorney for the Myers family, Jerryl Christmas, challenged Joyce’s report Monday and said he is close to filing a wrongful-death lawsuit on their behalf.
“Jason Flanery should have been charged with murder,” Christmas said. “The killing of VonDerrit was the same situation as the Walter Scott killing with the exception that (Myers’ shooting) was not on video.” He was referring to the killing of an unarmed man who fled a South Carolina officer, who was charged with murder.
“I don’t believe for a minute that VonDerrit had a weapon,” Christmas said. “Flanery threw that gun down on him just like they threw that stun gun down on Walter Scott in South Carolina.” The lawyer claimed a private autopsy showed that Myers was shot in the back while fleeing and fatally in the head as he lay wounded on the ground.
Asked to account for photos circulated on social media of Myers in the past holding a gun that looked like the distinctive two-tone Smith & Wesson pistol recovered at the scene, Christmas replied, “Prosecutors can’t say with any type of accuracy that’s the same gun. All Smith & Wessons look alike.”
Police initially described the confiscated gun as a Ruger, then changed it to Smith & Wesson, saying it was an honest mistake made in haste to provide the public with answers.
Christmas and about three dozen others gathered at 6 p.m. Monday at a makeshift memorial where Myers died.
“I’m hurt because they took my grandbaby,” Myers’ grandmother Shelley Myers-Cotton told a reporter between sobs. She said the officer “needs to be in the jailhouse,” adding, “Had it been me, I’d be in the jailhouse.”
Myers’ mother, Syreeta Myers, said she was “sick and tired” of seeing black children killed by police. “I’m sick and tired of being sick and tired.”
Joyce, the prosecutor, said that Myers’ family attorneys never showed up for meetings, and neither provided access to witnesses they claimed disputed the officer’s statements nor a copy of the private autopsy. She said she issued grand jury subpoenas for three such witnesses, but one could not be found and the others cited Fifth Amendment rights against self-incrimination.
“Mr. Christmas did not produce any witnesses to us who saw what happened,” Joyce said in an interview. “I have to assume that they did not have anything to offer that would have led to prosecuting the officer or they would have come forward.”
Her report says, “Based upon the investigation, prosecutors concluded that Mr. Myers produced a firearm on the evening in question. Multiple witnesses confirm there was gunfire coming from both directions and from two different guns at the scene. Ballistics evidence confirms that two different guns were fired at the scene. There is no evidence that Officer X ... was the person who fired both guns.”
It adds, “No witness claims to have seen Officer X alter evidence in any way, such as throw down a gun, fire a weapon in any direction other than towards Mr. Myers or scatter bullet casings. Additionally, there are witnesses that describe how Mr. Myers illegally came into possession of the Smith and Wesson firearm used in this matter.”
In December, the police department said it found no criminal wrongdoing by Flanery. But under new procedures, the evidence still must be reviewed by the prosecutor for possible charges. Previously, prosecutors examined police shootings only if the department asked.
The state crime lab found gunshot residue on Myers’ hands, shirt and inside the waistband and pockets of his jeans. Police said such residue can be present on anyone near a shooting, but this was consistent with Myers firing a weapon.
However, Joyce’s investigation concluded that the residue was not proof either way. It also said it is “rare” to find DNA or fingerprints on a gun, and neither was found on this one.
“The location of bullets, casings, bullet tracks and damage are consistent with Officer X’s and other witnesses’ versions of events,” the report said.
Police said three bullets matching the gun found with Myers had hit the ground near where Flanery said he tried to take cover. A round that pierced a car behind the officer was too damaged for a match but was not consistent with the officer’s bullets.
Dotson said Flanery has more than six years of service and was working an approved secondary job at the time.
“We appreciate the community’s patience as this investigation was conducted and commend the dedicated and thorough work of both the Circuit Attorney’s Office and the Force Investigative Unit,” Dotson wrote. “I have pledged transparency to the citizens of St. Louis and am committed to upholding this promise.”
Protesters took to the streets of the Shaw neighborhood after Myers’ death. The first night, rocks were thrown through windows of some homes and at least one business, three police vehicles were vandalized, and flags taken from porches were burned.
According to Joyce’s report, Flanery told investigators his reaction was slowed that night by thoughts of Ferguson: “I didn’t want to be wrong in my shoot. I knew it was a gun but, I just, I, I wanted to be certain. So I didn’t shoot, I hesitated.”
Flanery’s attorney, Brian Millikan, said Monday: “There’s obviously a mix of emotions right now because it brings it all back up again.” He added, “We are relieved it’s over and they concluded that no crime was committed.
“That’s what we expected. They obviously did a very thorough investigation.”
Millikan said Flanery became the subject of death threats after Christmas made the officer’s name public months ago.
“He’s certainly aware of his surroundings, let’s put it that way,” Millikan said. “But he’s continuing on with his normal job and doing it well and trying not to let this whole incident change his perspective on what he does.”
With the completion of the prosecutor’s investigation into the Myers shooting, Joyce said she will turn her attention to a review of the fatal shooting of Kajieme Powell on Aug. 19 by two city officers who said he came at them with a knife. A bystander’s cellphone video included the sound of Powell shouting, “Shoot me! Kill me now!”
Joyce said it is too soon to know how long that investigation would take.
Paul Hampel and Margaret Gillerman of the Post-Dispatch contributed to this report.