Damon was unarmed at the time of his death, but Motz said the suspect made a "threatening-type maneuver" that prompted the officer to fire seven rounds through the windshield of the vehicle.
Now, Denver District Attorney Mitch Morrissey has deemed the shooting to be legally justified — which, as critics frequently point out, is his move. Morrissey did likewise in the fatal police shootings of Ryan Ronquillo and Joseph Valverde — incidents that have prompted separate lawsuits claiming that the men were slain before being given the chance to surrender.
Like Valverde, Damon was raising his hands at the time he was shot — something confirmed by Morrissey's decision letter, on view below. However, Morrissey believes he wasn't doing so to surrender and uses wounds on his hands and bullet holes in an arm to add credence to his argument. He also feels it was reasonable for Motz to have thought he saw a gun in Damon's hand, even though the object in question was probably his cell phone.
The decision letter's "summary of facts" begins nearly a month before Damon's death.
On March 17, the narrative states that "Dion Damon armed himself with a semi-automatic pistol and entered The Bank of Denver on South Holly Street to commit an aggravated robbery. He used the pistol to threaten three female bank tellers, forcing them to empty their cash drawers and put the money in a bag. He then ordered them to lie on the floor as he fled with over thirty thousand dollars of cash in the bag."
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Before long, detectives were confident that Damon, identified as "a known GKI gang member in Denver," had been involved in the bank job.
This determination inspired the Rocky Mountain Safe Streets Task Force Fugitive Unit to issue the following wanted poster:
The next day, April 12, fugitive-unit officers located Damon as he was climbing into his Dodge Charger with two passengers not identified in the letter, though they're known to have been his wife, Dawn Aguirre, and their son.
The Denver Police Metro/SWAT Unit soon joined the party, but its members kept their distance until the Charger parked on the 1300 block of Bannock Street and both Aguirre and their son got out of the car.
At that point, SWAT-teamers converged on the vehicle with a goal to arrest Damon.
The letter notes that a video camera on the west side of Bannock pinned down the moment Motz pulled up to the Charger — 12:36:13 p.m. — as well as the instant the first shots were fired — 12:37:07 p.m.
They were to be the last 54 seconds of Damon's life.
According to Motz, he drove his green police SUV at the Charger in a manner intended to prevent escape, actually making contact with the front left corner of Damon's car in the process. Another police SUV pulled up nearby.
At that point, Motz, standing next to the driver's seat of his SUV with the door open in front of him for protection, extended his handgun in Damon's direction. He estimated that they were about ten feet away, the letter points out, when he ordered the suspect to "show me your hands."
The simple description of the response: "Damon did not comply with any of these commands."
Although Motz acknowledged that he couldn't see Damon's hands, it appeared to him that he was "doing something...below the level of the dashboard."
His assumption: "I'm thinking he's reaching for a gun, trying to arm himself," the document points out.
Motz said that after more orders to show his hands, Damon shook his head from side to side (something he'd done earlier) before he "brought both of his hands up together above the steering wheel in a gesture toward Motz," the narrative states.
"His hands popped up quickly," Motz told investigators, adding that the motion didn't suggest that he was surrendering. The officer didn't see Damon's palms, but he did spot an object he took for a handgun.
Here's how Motz recalled these moments, as quoted in the letter:
"While I’m telling him to show me his hands, he’s doing something with his hands down — and I don’t know if it was his waistband, the seat, the seat pocket — but it was the front driver’s passenger compartment. I knew his hands were moving because I could see his shoulders moving. He would occasionally glance down into the driver’s side thing, but he was looking right at me when I was telling him: “Show me your hands.”
"At this point, after several 'show me your hands' he starts shaking his head. And it wasn’t like:'I’m scared. I don’t understand you.' It was more like: 'I’m not gonna do it.' So, I give him another order: 'Show me your hands.' And he goes back down. He’s doing something down there that I can’t see. And, then, his hands pop up quickly. And it wasn’t like, you know, raising my hands.
"It was like this. [Motz demonstrates that Damon’s hands were together, raised quickly in front of his face]. And I see a black and silver colored semi-auto in his right hand. And, it’s starting to come toward me.
"At that time, I fired at him. I’m gonna call it approximately three shots very quickly. I kind of paused there, for just a split second, because I lost sight of him. But what I saw was him rolling over this way. So, what I thought he was doing was ducking underneath the dashboard to be able to shoot through the windshield right at me. So, I continued firing and fired several more shots. He stopped moving altogether and I stopped shooting."
The document confirms that all seven shots fired by Motz penetrated the Charger's windshield. Three bullets and four fragments were recovered from the car's interior, while three more bullets were recovered during Damon's autopsy. One of them passed through the left side of his forehead and entered his brain, while a second hit him in the chest, and the third went through his left forearm. The report notes that his blood tested positive for heroin.
What wasn't found was a gun — because Damon didn't have one.
However, a cell phone with blood on it was found inside the car, in the space between the driver-seat cushion and the center console — a location that implies it may have been in Damon's hand when the bullets struck him, "although this is not known conclusively," the letter concedes.
As for the question of whether Damon was raising his hands to threaten Motz or give himself up, the document points to "punctuate abrasions noted by the pathologist on the backs of both of Damon's thumbs and forefingers," as seen in this photo:
These wounds appear to have been caused by shattered windshield glass — and the letter argues that they are evidence that his hands were above the dashboard when he was hit, as Motz said.
Also deemed significant is "the path of the bullet through Damon’s left forearm."
Why? The letter maintains that "the location of the entrance wound shows that the outside of Damon’s forearm was facing Motz when it was struck. In other words, Damon’s palms were not facing Motz when he was shot," as they would be, presumably, if he was raising his hands in the traditional surrender motion. As such, "it is exactly the wound path one would expect if Damon was shot in the forearm while making the gesture with his hands that Motz described. This evidence strongly supports Motz’s credibility and the accuracy of his description of Damon’s gesture."
Here's a photo of the bullet wounds in Damon's arm.
In Morrissey's opinion, it was reasonable for Motz to think Damon might be arming himself, since he was wanted for a violent bank robbery and didn't comply with orders to show his hands.
As such, the letter maintains, "Damon was the cause of the lethal outcome because he made the sudden threatening gesture pretending to point a gun at Motz. Why he did this cannot be known. But considering the tense circumstances facing Motz, it is clearly understandable and reasonable that he believed Damon was making a move to shoot him and was armed with a gun."
The letter adds that "it makes no difference legally that Damon was not holding a gun. An officer is not required by law to wait to be fired upon before firing in self-defense. Colorado law recognizes that self-defense applies in situations where the need for self-defense is apparent, even though later it is learned that the danger perceived was not actual. So long as it reasonably appears that the threat to the officer’s life is real, the officer may lawfully act in self-defense if he reasonably believes it is necessary."
Hence, Morrissey states, Motz's actions were legally justified — a decision that's being ripped by Occupy Denver. The group's Facebook post about Damon declares that "Morrissey refuses to do his job...AGAIN!" A subsequent reply adds, "How about JUST ONCE, DA Morrissey, you let a f*cking jury decide?!!!"
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At this point, there's been no announcement by members of Damon's family about possible legal action — but given the lawsuits in the cases of Ronquillo and Valverde, such a development would hardly qualify as surprising. Here's the decision letter.