GLENDALE- After the fatal shooting of John Pacheaco Jr. last Halloween, Glendale Police Officer Chandler Phillips shared a social media post joking about being stuck on desk duty during the investigation that followed. Superimposed over a photo of Phillips wearing a supposed-to-be-comic frown was an image of actor Mark Wahlberg from the 2010 movie The Other Guys declaring, “I’m a peacock! You gotta let me fly!”

Phillips can take wing now. On May 12, Denver District Attorney Beth McCann announced that neither Phillips nor fellow Glendale cop Neal McCormick will be charged for killing Pacheaco. The determination was welcomed by the Glendale Police Department, whose spokesperson, Captain Mike Gross, notes: “We agree with the district attorney’s decision, and thank them for their thoroughness, professionalism and transparency in their investigation. Any loss of life is a tragedy, and our sympathy is with the family of John Pacheaco.”

A far different reaction is offered by attorney Matthew Haltzman, who represents Pacheaco’s family. “The egregious and unjustifiable use of force by officers Phillips and McCormick is symptomatic of a broader culture in law enforcement that tells officers to shoot first and ask questions later,” he says. “The video evidence already available in this case shows that no officer was hit by or endangered by Mr. Pacheaco before nineteen bullets were fired at him.”

Adds Haltzman: “Mr. Pacheaco’s family, and their counsel, are certainly disappointed by the Denver District Attorney’s refusal to prosecute the officers that killed Mr. Pacheaco. But we are also committed to getting justice for John and holding the Glendale Police Department and these officers accountable for their violations of the Fourth Amendment and Colorado law.”

The decision letter issued by McCann doesn’t take a position on the most controversial aspect of the incident — the choice of Phillips and McCormick to fire into a moving vehicle. That tactic has been forbidden in Denver since 2015, when seventeen-year-old Jessie Hernandez was gunned down behind the wheel of a car that had allegedly been stolen, like the truck that Pacheaco was in when he was killed by a barrage of bullets. But doing so is allowed under current Glendale Police Department policy.

The McCann letter’s narrative begins at approximately 10 p.m. on October 31, when Glendale Officer Bradley Reed noticed “a black truck with heavily tinted windows” stopped in the right-hand lane of Colorado Boulevard. Inside the vehicle, Reed saw “the silhouette of a person slumped over the steering wheel, immobile” even though the truck was still running, and when he phoned in to dispatch, he “learned via police radio that the truck had been reported stolen.”

Shortly thereafter, Phillips arrived on the scene and pulled his cruiser to a stop in front of the truck. When McCormick turned up moments later, he parked behind Phillips’s vehicle. The three officers then approached the driver’s side of the truck, and after discovering that the door was locked, they began to yell commands such as “Let me see your hands!” and “Stop!”

These shouts are said to have awakened Pacheaco, who “looked at the officers, put the car into gear, and accelerated forward, hitting Officer Phillips’s patrol car,” the letter continues. “Officer McCormick, still on the passenger side and realizing that the situation was escalating, did not want to be caught in any possible crossfire from his fellow officers and wanted to be on the same side of the truck with the other officers. He moved around the back of the truck in order to get to the driver’s side. As he moved behind the truck, Mr. Pacheaco put it into reverse and accelerated rapidly toward Officer McCormick, clipping Officer McCormick on the side.”

McCormick wasn’t injured by this contact; the letter notes that he was “able to move up beside Officer Phillips on the driver’s side of the truck.” Nonetheless, “Officer Phillips had seen Officer McCormick moving behind the truck and feared that he would be or had been pinned between the stolen truck and Officer Reed’s vehicle behind the truck. Both he and Officer McCormick discharged their duty weapons into the compartment of the truck and shot Mr. Pacheaco.” Reed didn’t fire.

Pacheaco’s condition at that point was unclear. But whether he was alive or dead, his foot remained on the gas pedal, and the truck “continued moving in reverse southbound on Colorado Boulevard, striking Officer Reed’s vehicle and causing it to spin sideways. The cars struck a third Glendale police car, a Tahoe in which a Glendale sergeant was seated in the driver’s seat, then came to a stop.” But no one was hurt other than Pacheaco, who was pronounced dead at an area hospital.

Here’s a very brief cell-phone video showing officers advancing with guns drawn as the truck moves backwards:

A second video located by Haltzman is surveillance footage that shows the truck entering the frame at around the 4:40 mark, after which police arrive. The truck begins moving at about 9:50 into the video, when triggers are pulled:

In the letter, McCann says that she “consulted with an independent expert in the area of the use of force by police officers,” and after reviewing “all of the video evidence, as well as all of the statements in the case” plus “the Glendale Police use of force policy,” he determined that “Officer Phillips’s use of force was reasonable and necessary given his perception that Officer McCormick was in danger of being pinned by the stolen truck,” even though that wasn’t actually the case. “He also articulated that Officer McCormick’s decision to shoot was reasonable based upon his perception that officers Phillips and Reed were in danger of being struck by this very large truck.” Another expert, hired by the attorney for Phillips and McCormick, concurred.

In the conclusion section, McCann offers her view that a jury “would find that these officers had lawful justification to fire at Mr. Pacheaco in defense of their fellow officers,” since they “reasonably believed that fellow officers were in danger of being killed or receiving serious bodily injury. Furthermore, they reasonably believed that a lesser degree of force would have been inadequate to stop the threat that they had perceived.” Moreover, they were unable to announce “their intention to deploy deadly force” because “events unfolded too quickly for them to do so.”

The consequences of their actions were predictable. Indeed, most police-reform advocates argue that officers should not fire into a moving car unless the driver or passengers are using deadly force beyond the vehicle itself, such as a gun. Blasting away without such a precursor, they believe, unnecessarily risks the lives of cops, suspects and bystanders, often over car theft, which is viewed as a relatively minor crime. During a 2019 interview with Westword following the shooting of Chayley Tolin, Chuck Wexler, executive director of the Washington, D.C.-based Police Executive Research Forum, a nonprofit, independent policing think tank, stressed that “almost no one even goes to jail for stealing a car anymore.”

The mandate against shooting into a moving vehicle adopted by Denver and many other police forces isn’t a radical new theory. Wexler argued that it has been “the gold standard, one of the guiding principles in the use of force, for more than forty years. Yet there are still departments that haven’t changed this policy.”

Asked about Glendale’s approach, Captain Gross again emphasized that McCann’s ruling “confirms that our officers acted in accordance with Colorado law.” But he added, “We have employed the services of a nationally recognized independent investigator to examine our training, policies and procedures to make sure we are in line with industry best practices. We hold ourselves accountable to the people and will continue to earn the public’s trust and confidence every day by providing the utmost professional police service to our community.”

Not everyone feels so positively about the department’s actions or McCann’s de facto exoneration of Phillips and McCormick. “John’s mother, Jamie Fowler, is devastated by this decision, causing her to lose faith in our justice system, in addition to enduring the loss of her son,” says attorney Haltzman. “However, we are confident there will be an opportunity for her to see justice obtained for John.”

Michael Roberts for Westword