STATE OF INDIANA )

)

COUNTY OF JOHNSON )

IN RE THE MATTER OF FATAL )

POLICE ACTION SHOOTING )

OF KYLE COLLINS )

INTRODUCTION

This report summarizes the review of the police action shooting of deceased Kyle Collins by the Greenwood Police Department on February 21, 2007. An internal investigation by the Greenwood Police Department concluded that the employment of deadly force against Kyle Collins by officers of the Department was justified.

This office concurs.

FACTS

At 10:44pm on February 21, 2007 in the 1200 block of N. Madison, Greenwood Police Officer Eric McElhaney stopped a green 1997 Buick for speeding. The driver of the vehicle was Michael Hatchett. The only other occupant was the deceased Kyle Collins who was a front seat passenger.

On request by the stopping officer, Hatchett was unable to produce a valid driver’s license. Officers subsequently arrested him for Operating a Motor Vehicle – Never Received License (IC 9-24-18-1) and on a failure to appear warrant. Officers removed Hatchett from the vehicle and placed him in handcuffs. During Hatchett’s questioning and arrest, Office McElhaney observed that passenger Collins seemed to be hiding his face and would not turn his face toward the officer.

Once Hatchett was secured and in handcuffs, Greenwood Police Officer Jay Arnold asked Collins to exit the vehicle, which he did. Officer Arnold asked Collins for his identification. Collins stated, “Your other officer has it.” Officer Arnold then asked Collins, “Do you have any weapons, knives, guns on you?” Collins stated that he did not. For officer safety reasons, Officer Arnold then told Collins he must conduct a pat down search of Collin’s person. Such pat downs are permitted under the Fourth Amendment to the United States Constitution.[1]

Collins initially refused to submit to the pat down saying, “No, I don’t want you touching me” and he stated that he suffered from Post Traumatic Stress Disorder. Officer Arnold and later Officer McElhaney explained that a pat down is only a cursory outer clothing check for both the officers’ and Collins’ safety. Collins subsequently submitted to the pat down of his clothing. In conducting the pat down Officer Arnold located a set of brass knuckles[2] in Collins’ back pocket, after Collins’ had stated that he was unarmed. Officer Arnold did not locate the firearm that was later used to fire upon the officers.

As Officer Arnold attempted to place Collins under arrest, Collins pulled away and a struggle ensued. During the fray, the officers and Collins collided with a parked truck and fell to the ground. While wrestling for control, McElhaney called out, “Taser!” as he tried to overpower Collins by forcing his upper body to the ground.

Collins then drew a firearm that he had concealed on his person and began firing upon the officers. Officer McElhaney was immediately struck in the knee by a bullet. Officer McElhaney called out, “I’m hit. Shots fired!” Both officers retreated: Officer McElhaney rolled away from Collins and Officer Arnold backed away from him on foot. Officer Arnold attempted to summon help on his police radio but soon discovered that another bullet fired by Collins had shattered his radio rendering it nonfunctional. Collins continued to fire on the officers.

An uninvolved witness James David McKee, McDonald’s patron, observed that when Collins began firing, both officers still had their weapons holstered. After having been fired upon Officers Arnold and McElhaney drew their weapons to return fire. The officers stated that they returned fire until Collins fell to the ground and stopped shooting at them.

The weapon Collins used in the deadly encounter was a 9mm Taurus PT111 handgun. The weapon has a magazine capacity of ten (10) rounds. Carried with one round chambered and a full magazine the weapon has a maximum capacity of eleven rounds. Seven (7) 9mm shell casings were recovered from the scene and two (2) unfired bullets were found in the weapon. It is unknown for certain how many rounds Collins was carrying in the weapon at the commencement of the gun battle. The Taurus PT111 Collins used had been reported stolen in a residential burglary on 02/08/2006 under Marion County Sheriff Department case 06-0209278. There was no additional ammunition found at his residence or in his vehicle.

During the course of the encounter, investigators determined that Officer Arnold fired twelve (12) rounds and Officer McElhaney fired ten (10). In the aftermath, Officer Arnold’s weapon contained four (4) remaining live rounds and Officer McElhaney’s weapon contained six (6) remaining live rounds.

According the autopsy report, Collins died as a result of gunshots wounds to the head, chest, abdomen, arms, right leg, back, and buttock.

Officer McElhaney sustained bullet wounds to the leg, buttock, and abdomen. The bullet to the leg entered near his kneecap and traveled down the leg before exiting. The bullets to the abdomen entered below the officer’s ballistic vest. One of the rounds that entered McElhaney’s abdomen was removed in surgery. The other remains lodged in his chest at this time. Officer McElhaney’s recovery required eight weeks of hospitalization and eight surgeries, thus far.

Officer Arnold received a grazing wound to his right thigh.

In a post-shooting interview, driver Michael Hatchett told officers that Collins was drunk and that Collins had told him, “I got my gun on me.” Hatchett did not believe Collins intended to use the weapon, however.

Collins’ autopsy revealed the presence in his blood of THC (tetrahydrocannabinol)(indicating use of marijuana within 3 hours before his death), metabolites of THC, and a blood alcohol content of .068.

LAW

No right to resist arrest. Since “a private citizen may not use force in resisting a peaceful arrest[3] by an individual who he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful” it is of no consequence that Collins may not have agreed with the officers’ decision to arrest him. Ronco v. State, 840 N.E.2d 368, 375 (Ind.App. 2006); Robinson v. State, 814 N.E.2d 704 (Ind.App. 2004).

Deadly force. Indiana’s self defense statute (IC 35-41-3-2) provides in relevant part:

(a) [A] person is justified in using deadly force . . . if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person . . . . No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

Indiana’s statute relating to force in effecting an arrest (IC 35-41-3-3) states, in relevant part:

(b) [A] law enforcement officer is justified in using deadly force only if the officer:

(1) has probable cause to believe that deadly force is necessary:

(A) to prevent the commission of a forcible felony;

(B) to affect the arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person.

Since Officers McElhaney and Arnold were fired upon while in the performance of their duties, their employment of deadly force was necessary to prevent Collins from inflicting serious bodily injury, to wit, death upon them.

Moreover, Collins act of firing upon the officers constituted the commission of a forcible felony, to wit, attempted murder. The officers were therefore justified in employing deadly force in order to terminate the commission of that forcible felony.

Accordingly, the officers’ employment of deadly force in this engagement was legally justified.

CONCLUSION

Irrespective of whether Collins’ agreed or disagreed with the police officers’ decision to arrest him, Collins was not legally justified in resisting arrest. Initially the officers did not perceive Collins’ act of physical resistance to be a deadly force encounter, as evidenced by Officer McElhaney’s call for a Taser and witness McKee’s observation that both officers had their weapons holstered when Collins opened fire.

On drawing and firing his weapon at the officers Collins posed a threat of serious bodily injury, to wit, death, to the officers and to other persons in the vicinity. He was also engaged in the commission of a forcible felony. Both circumstances manifestly justify the officers’ use of deadly force against Collins under the Indiana Code. When Collins ceased his assault on the officers, they stopped firing as evidenced by the fact that both officers had unfired rounds remaining in their weapons.

Accordingly, the Greenwood Police Department’s police action shooting which resulted in the death of Kyle Collins was legally justified under Indiana Law.

[1]In United States v. Simmons the United States Seventh Circuit Court of Appeals held that when a person is placed under custodial arrest, officers may also conduct a cursory pat down of the arrestee’s companion, as in this case. The Court explained:

It is inconceivable that a peace officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from defendant's associates because he cannot, on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.

Simmons, 567 F.2d 314, 318-319 (7th Cir. 1977).

[2]Held to be a deadly weapon under Phelps v. State, 669 N.E.2d 1062 (Ind. App. 1996).

[3]An arrest is deemed legally “peaceful” if it does not involve “unconstitutionally excessive” force. “Grabbing” a subject and engaging in a “struggle” to handcuff him is not unconstitutionally excessive. J.S. v. State, 843 N.E.2d 1013, 1017 n. 7 (Ind.App. 2006).