No charges in SWAT shooting (view press release)

YAKIMA, Wash. -- Yakima County Prosecutor Jim Hagarty announced late Thursday that the fatal shooting of 18-year-old Ross Nager by a Yakima police SWAT team last year was justified.

Click here to view the press release

Hagarty said the deadly force used by Sgts. Jay Seely and Shawn Boyle was justified under the circumstances, meaning no charges are anticipated. (A copy of the prosecutor's announcement is included below)

Nager, a 2010 graduate of Selah High School, was shot twice during an armed standoff May 18 at his family’s home on Speyers Road. Hagarty said Seely fired the fatal shot.

The standoff began when Selah police and Yakima County sheriff’s deputies arrived at the home after receiving a report that Nager was shooting a gun. Officers said they came under fire upon arrival.

Officers, a relative and a friend tried unsuccessfully to negotiate Nager’s surrender by phone.

After approximately 90 minutes, police said Nager left the home armed with a shotgun and drove toward several officers when SWAT officers opened fire.

The incident marked the first fatal shooting for the SWAT team since its inception in 1977. The shooting was one of six last year involving local authorities, three of which were fatal. Five were by Yakima police; the other was in Sunnyside.

The following was issued late Thursday by the Yakima County Prosecutor’s Office regarding its investigation into last year’s fatal shooting by members of the Yakima Police Department’s SWAT team. (See actual press release at bottom of page)

TO: Media

FROM: James P. Hagarty

Prosecuting Attorney Yakima County Prosecuting Attorney's Office

128 North Second Street, Room 329 Yakima, WA 98901

RE: Sgt. Shawn Boyle/Sgt. Jay Seeley – Officer Involved Shooting WSP# 11-007637

DATE: January 18, 2012

The Yakima County Prosecuting Attorney’s Office has now completed its review of the reports concerning the above noted incident. The following is a brief synopsis of the relevant facts considered by this office in making this decision:

On May 18, 2011, at approximately 9:55 pm., the Yakima County Sheriff’s Office received a telephone call from Dakota Wangler ("Wangler"), in which she related that shots had been fired inside the residence at 3971 Speyers Road, Selah, WA., and that she had fled the residence. Wangler advised that the gunman was out of control and the gunman’s mother was still inside the residence. Deputies from the Yakima County Sheriff’s Office and officers from the Selah Police Department responded to the residence. Selah Officers Reeves and Rodriguez were the first officers to arrived, followed shortly by YSO Deputy Swallow. Officers learned that three individuals had fled the residence after the gunman, identified as Ross Nager ("Nager"), had become angry, out of control and had apparently armed him. They indicated that gunshots had been heard from inside the residence after they fled.

It was later learned that Nager and his friends had been at the residence for dinner after spending the day together. Earlier in the day, Nager had broken up with his girlfriend, but had received several calls from his ex-girlfriend during the evening. At some point, Nager to want to leave the residence, either to drive friends home, or see his ex-girlfriend. However, Nager’s mother would not give Nager the keys to the vehicle as he had been drinking. Nager became irate and extremely angry, which lead to an argument between Nager and his mother. During the argument, Nager assaulted his mother by punching her

1in the chest. This occurred in the garage of the residence. Nager’s friends intervened and had to fight and wrestle Nager to the ground. Nager’s mother reentered the residence and locked the door. After his friends had released him, Nager then began throwing bottles at the garage door. Nager’s friend went to the front door, where they were let in by Nager’s mother. Nager then went around the house trying to get in. At the glass patio door, Nager attempted to break the glass door. Eventually Nager was allowed back into the residence by his mother. He immediately went to the kitchen, where he grabbed a boiling sauce pan of water and lavender, and threw it at his friends. Nager then went towards the master bedroom, where there were firearms. Nager made a statement something to the effect of getting a gun and blowing his head off. Nager’s mother attempted to stop him, but was unsuccessful. While this was happening, Nager’s friends fled the residence. Nager armed himself with a shotgun, and ordered his mother to sit in a chair in the living room. During this time, Nager threatened to kill himself. Nager discharged the shotgun three times inside the residence. Nager’s mother indicated that she feared for her life. Nager also called his father and had a conversation with him. During that conversation, Nager again threatened to kill himself. Eventually Nager walked to the master bedroom and broke out two windows. Nager’s mother took the opportunity to flee the residence.

At some point, Wangler told Officer Reeves that she had received a text message from Nager indicating that he had killed his mother and was intending to kill himself. Another of the individuals who had fled the scene received a call from Nager. Reeves attempted to talk with Nager, but Nager hung up the phone. During the call, Reeves could hear a woman crying in the background.

Officers positioned themselves along northwest of the residence along Speyers Road. During the incident, Nager fired a round from the shotgun through a window towards the officers. The officers parked in the area heard shotgun pellets strike their vehicles, fly over their heads and striking the asphalt. At some point, officers also observed Nager exit the residence and hold the shotgun to his head. Officers told Nager to put the firearm down. Nager responded that the officers would have to shoot him. Nager then fired one round into the air and then went back inside the residence. Officers held gunfire coming from inside the residence. Several calls were made to Nager in an attempt to have him surrender, but the attempts were unsuccessful.

The Yakima Police Department SWAT team arrived and positioned themselves around the residence, including locating their vehicle in the driveway, blocking the exit from the property. Nager was later observed leaving the residence through the garage door, and entering a silver GMC Yukon which parked in the driveway. Nager drove around the residence, starting up the east side, and then turn to the north and towards the driveway of the residence. The SWAT unit had their vehicle blocking the driveway, making it impossible for Nager to exit the premise. As he approached the northwest corner of the residence, SWAT team member, Sgt. Shawn Boyle, believing he and other members of the SWAT unit located at that corner were in danger, opened fired on Nager’s vehicle. It appears just as Boyle engaged Nager, Nager turned the vehicle to the left, and went down the west side of the residence. Photographs indicated that Boyle struck Nager’s vehicle approximately 7 times, striking the vehicle on the engine hood and along the passenger side of the vehicle.

Nager continued along the west side, coming to a stop at the southwest corner, where there were other vehicles blocking his path. Nager was observed climbing over the center console of the vehicle with a weapon in his hands to the passenger side. Sgt. Seeley, who had positioned himself south of the residence, then fired one round into the vehicle. Nager then slumped towards the driver side, out of the view of the officers. After a few moments, Nager was observed moving and sitting up, still holding the weapon, and appeared to be making an effort to exit the vehicle. Sgt. Seeley then took a second shot which resulted in the death of Nager.

The relevant statutory provision provides as follows:

RCW 9A.16.040 provides in part that homicide or the use of deadly force by a law enforcement officer is justified when: (1) necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty; and/or (2) necessarily used to arrest or apprehend a person the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony.

In the situation where deadly force is used, some of the relevant factors to be considered are whether there is probable cause to believe the person, if not apprehended, poses a threat of physical harm to the officer or others. Circumstances which are considered threats of physical harm include the situation where the person threatens the officer with a weapon or displays a weapon in a manner which could be reasonably construed as threatening.

RCW 9A.16.010 defines necessary to mean that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.

I conclude that Sgt. Shawn Boyle’s use of deadly force was justified under the circumstances. Boyle responded to a SWAT call out involving shots being fired at officers. Upon arrival at the scene, Boyle was advised that the suspect had fired multiple rounds inside the residence, and had fired rounds at the perimeter officers on scene. Boyle had been advised that the suspect had held his mother against her will, and had threatened her life. Boyle observed Nager rapidly approaching Boyle’s location at a high rate of speed. Boyle reasonably believed that Nager intended to strike the SWAT members and their vehicle, and to flee the location, and that this placed Boyle and others at risk of serious injury or death. His belief was reasonable under the circumstances, and the force used was reasonable and necessary.

Sgt. Jay Seeley’s use of deadly force under the circumstances as they appeared to Sgt. Seeley at the time was also justified. Seeley was aware that Nager had fired at the officers at the scene. He was aware Nager had fired multiple rounds inside the residence. Seeley observed Nager enter the vehicle and then proceed to drive alongside the eastside of the residence. Shortly thereafter, Seeley heard a volley of shots, and then observed the vehicle come to a stop on the Westside of the residence near the garage area. Seeley observed Nager movement’s within the vehicle, and that there was no signs of submission, or that Nager was intending to surrender to the officers. Seeley then observe Nager move from the driver’s side to the passenger side of the vehicle and pick up a weapon. It was reasonable for Seeley to conclude that Nager was attempting to exit the vehicle, was stilled armed, and posed a risk to the officers and/or would engage in additional gunfire with officers. Seeley fired his first round. Seeley believed he had missed his target. Seeley was then advised that Nager was again moving and was still in possession of the weapon. Seeley fired his second round, which ended the incident. The force used by Sgt. Seeley was reasonable and necessary considering the circumstances.