The two police officers involved in the fatal shooting of Kyle Miller last June won't face charges, prosecutors announced Thursday, saying investigators concluded they were justified in using deadly force against the 21-year-old after he pointed a realistic-looking Airsoft pellet gun at them.
A report by the 17th Judicial District Critical Incident Team reveals for the first time that Miller fired his pellet gun at one of the two Broomfield officers, although it is unclear whether Miller shot first or simultaneously with police.
The 16-page document also paints Miller -- who struggled with schizoaffective bipolar disorder for much of his life -- as depressed and possibly suicidal on the morning of June 28, when he ran out of his family's house in the Aspen Creek neighborhood armed with the pellet gun and a knife.
According to the report, Miller was shot three times by officers Jeff Smith and Tom Railsback near the intersection of Aspen Street and Durango Avenue. The report says Miller had taken the orange safety indicator off the barrel of his Airsoft gun before pointing it at officers, which led them to believe the gun was real -- even though the boy's family had warned police it wasn't.
Broomfield police Chief Tom Deland said he agreed with the report, but said the findings also underscored the tragedy of the event.
"It's a very, very tragic incident," Deland said. "It was unfortunate that this young man was unable to receive the mental help his family so desperately wanted for him."
In a written statement, Miller's family said they disagreed with key points in the final report.
"There are misrepresented statements, missing facts and lack of thoroughness," they wrote.
Cheryl Miller said the report falsely represents previous conversations she had with her son before he was shot. The report states that Kyle Miller voiced thoughts of being shot by police.
Cheryl Miller said her son was suicidal the day he was shot, but never spoke of being shot by police. The family would not have called police if she thought her son was purposely putting himself in the line of fire, she said.
The Millers also take issue with the part of the report which states Cheryl Miller saw Kyle remove the orange tip from his Airsoft gun. The Millers said they did not know he had removed it until he was already outside with police.
Cheryl Miller said the family called to set up a meeting with the DA's office to find out how the statements ended up in the final report, but had not received a response as of press time.
Krista Flannigan, a spokeswoman for the DA's office, said the office believes the information presented to them in the report accurately represents the scope of the investigation.
Officers arrived at 5806 Aspen Creek Drive the morning of June 28 after Miller's younger brother called 911 to report Miller had stabbed himself. The Millers had sought to hospitalize their son, but they said mental health officials would not admit him.
Although dispatchers relayed the family's warning that Miller's gun was an Airsoft pellet gun, officers said the weapon looked all too real. The report shows that Miller had removed the orange "plug" from the muzzle, which is a safety feature meant to distinguish toy guns from real ones. Miller's Airsoft gun was meant to look like a semi-automatic handgun.
According to the report, Smith arrived at the scene first, where he saw Miller holding a knife and the gun. Smith took cover behind his police car and ordered Miller to drop his weapons. The report said Miller was about 30 feet from the police car as he pointed the gun to his own head, slowly cut his throat with the knife and slowly stabbed himself in the side.
He then turned the gun on Smith, witnesses told investigators. Miller fired a pellet at Smith, and Smith fired his own weapon. Smith fired at the same time as Railsback, who had arrived on scene just after Smith, according to the report.
Smith said he shot his gun because Miller's gun looked real. He explained that what he saw in front of him seemed inconsistent with dispatchers' original report of a fake gun.
"I thought he had fired a round at me and I thought, 'He's gonna kill me,'" Smith said in the report. "'He's just... shooting, and he's gonna kill me right now,' so I kinda rolled off to the side and then realized he was down and realized that there was other officers."
A third officer, Jed Elder, also was on scene. He told investigators he ran up to Miller after he had been shot by the other two officers and kicked Miller's gun away. He was surprised the weapon was so lightweight. He expected to "feel a heavy firearm," according to the report.
Several witnesses saw the incident and recorded it with cell phone cameras. The witnesses said they never heard Miller speak, but clearly saw him point the gun at officers. Several witnesses also heard Cheryl Miller yelling warnings that the gun was not real.
Just before the shooting, Patricia Dionigi, a neighbor, went into her yard because she heard screams coming from the Millers' home. In a written statement, she said she tried to persuade Miller to go back inside.
"I pleaded with him that the police might see him as a dangerous person (because he had the Airsoft gun), and he said he did not care," she said.
On the morning of his death, Cheryl Miller said she feared her son would do something destructive and followed him to his room. He began cutting himself with a knife, then grabbed one of his Airsoft guns and ran away.
The report said Cheryl Miller told investigators her son had expressed thoughts of suicide in the past, including wanting to be shot by police. He told his mother that police were trained to shoot to kill when confronted by an armed subject, according to the report.
In an interview with the Enterprise, however, Cheryl Miller said her son never mentioned police when he talked about feeling depressed.
Miller's family said Kyle long struggled with depression and self-destructive behavior because of his schizoaffective bipolar disorder, and police had visited their house several times in the past because of his mental health. The Millers were under the impression that the police department had "flagged" their address so a Crisis Intervention Team trained in mental illness issues could appropriately respond in the future.
The Millers said the police's prior knowledge of Kyle Miller's mental condition should have been included in the report, but was not.
The Millers said they did not see that training come through on the day their son was shot.
"Based on the incident report it seems the officer had not been trained on how to attempt to de-escalate a mental illness crisis," they wrote in a statement.
Yet the Millers said they do not blame Smith and Railsback because their reactions were "basic human instincts."
The Millers said more training and better public awareness of mental health issues could have changed the outcome. The family hopes to meet with the National Alliance for Mental Illness to advocate for local law enforcement and community training, she said.
His family said they will remember Kyle as loving and compassionate. He was deeply religious and turned to God in times of stress, they said.
He often handed small porcelain frogs to homeless people and asked to pray with them. The frogs symbolized the acronym "Fully Rely On God."
"He wanted to help the outcasts, because he knew he was one of them," Cheryl Miller said.