OFFICE OF THE DISTRICT ATTORNEY

TWEl"TIETH J UDICIAL DISTRICr

Stanle~'L. Garnett. DiSln," AuoI'ney
J uly 11,2014
Chief Greg Testa
Boulder Police Department
180533
rd
Street
Boulder, CO 80301
Dear Chief Testa,
This office has completed its review of thecircumstances surrounding theshooting of
Coleman Stewart inBoulder, Colorado onMay 30, 2014. During that incident, three Boulder
Police Officers discharged their weapons after Mr. Stewart produced areplica handgun and
pointed it at theofficers. Fortunately, Mr. Stewart survived his injuries. The officers' actions
were reviewed with regard to whether their useof forcewasjustified.
Representativcs frommy oftice haveparticipated inthis investigation and worked closely
with theBoulder County Investigation Team(BCIT) since theday of theshooting. Wewere
present for theon-scene investigation, and havereviewed thereports generated by members of
theBCIT, transcripts and video recordings of witness interviews, diagrams and photographs of
thescene, theUseof Force Policy for theBoulder Police Department, and theofficers' training
records. It isour conclusion that theuseof forcewasjustified.
The facts as determined by theBoulder County Investigation Team areas follows:
InMay 01'2014, Coleman Stewart lived alone inaground-floor apartment onthecomer
of 11
th
Street and College Avenue inBoulder, Colorado. Mr. Stewart was not employed, but
attended classes at the University of Colorado as aContinuing Education student. Hedid not
own afireann, but did possess aBB gun made by Smith and Wesson that hekept inhis
apartment. The BB gun did not haveanorange tip on its barrel, or any other obvious indicator
that it was not afirearm. Infact, theBB gun isareplica of aSmith and Wesson .40caliber
M&P, and while not identical inevery respect, looks very similar to thefirearm it isdesigned to
replicate, as shown below.
BOULDEROFFICE: JUSTICECENTER. 1777 6THST., BOULDER,COLORADO80302 303.441.3700 FAX:303.441.4703
LONGMONTOFFICE: 1035 KIM BARK. LONGMONT,COLORADO80501 303.441.3700 FAX:303.682.6711
WWW.BOULDERCOUNTYDA.ORG EMAIL: BOULOER.OA@eOUL.DERCOUNTY.ORG TDDN: 303.441.4774
Smith &Wesson 1313Gun found on scene Smith & Wesson .'10 l\l&P
On theevening of May 29
th
, Mr. Stewart was inwhat his friends described as a"weird
mood" as aresult of separate ongoing arguments with his girlfriend and parents. At around
5:00 p.m., Mr. Stewart went with his friends to theChop House at 921 Walnut Street in Boulder.
where they consumed approximately two drinks each. Fromthere, they went to aliquor store
and bought a"fitih"ofwhiskeyl and asix-pack of beer. They then went to anearby apartment
and continued to drink alcohol. According to one of Mr. Stewart's friends, Mr. Stewart and one
other person nearly finished thebottle of whiskey between them. Another friend reported that
Mr. Stewart had consumed approximately ten whiskey drinks. The group then went to Conor
O'Neill's, abar at 1932 13
th
Street where each bought around of "Irish car bombs;' drinks
consisting of Guinness beer, Bailey's Irish Cream, and J amison whiskey. By one account, Mr.
Stewart had at least four drinks during this time. Words used to describe Mr. Stewart's condition
included "pretty intoxicated," "incoh;rent," and "drunk:.
2
At around I :00a.m., Mr. Stewart exited Connor O'Neill's and hailed ataxi cab driven by
J oshua Worth. Mr. Stewart entered the front passenger seat of thecab and asked to betaken to
lothSt. and College Ave. As they approached the intersection of 11
th
St. and College Ave., Mr.
Stewart told Mr. Worth that hecould let himout there. Mr. Worth indicated that the farewould
be$4.85, and told Mr. Stewart that hecould pay by cash or credit card. Mr. Stewart opened the
door and Mr. Worth recognized that hewas preparing to exit thecab without paying. Before Mr.
Stewart could exit, Mr. Worth turned thecab around. told Mr. Stewart to close his door, and
headed back down College Ave. toward the Boulder"Police Sub-Station located on 13
th
Street.
Mr. Worth reported that during this time, Mr. Stewart said something to theelTectof'Tm not
paying you," or "I'm not paying that." Mr. Worth also warned Mr. Stewart that he was going to
"push thered button that gets thecops." Mr. Stewart responded "Push it. Get thecops.
Whatever:'
As thecab approached thesub-station, Mr. Worth was honking his horn to get the
attention of Oflicer Nicholas Frankenreiter, who hadjust exited the sub-station. As soon as the
cab stopped, Mr. Stewart ran. Mr. Worth gave chase, and called oullo theoflker. Ofticer
1A "fifth" of whiskey typically contains 750mL.
2 It should be noted lhat this description of Mr. Stewart's condition is not unanimous. One of Mr. Slewart's friends
indicated lhat hedid not drink much over the course of the evening, and hedid not believe that Mr. Stewart had
ei t h er .
Frankenreiter chascd Mr. Stewart while identifying himself as apolice oflicer and telling Mr.
Stewart to stop.
Mr. Stewart opened agate inthe fencesurrounding thepatio of 1090 11
th
Street,
Apartment #I, and desccnded asmall set of stairs to thedoor of his apartment. OtTtcer
Frankenreiter could not immediately open thegate, but looked over the fence, identified himself
as apolice otTtcer, and asked Mr. Stewart to come talk to him. OtTtcer Frankenreiter could not
remember theexact epithet used by Mr. Stewart, but reported tliat Mr. Stewart mumbled "tuck
you" or "go fuck yourself," and entered his apartment. Based on his obscrvations of Mr. Stewart
to that point, Oflicer Frankenreiter had the impression that Mr. Stewart was intoxicated.
Shortly therealler, Officers Erin Starks, J acob Vaporis. Ronald Perea, and Andrew
Kirshbaum arrived on scene. The Officers again announced "Boulder Police" and ordered Mr.
Stewart to come to thedoor. OtTtcer Starks would later explain his expectations as follows: "At
that point inmy mind I didn't believe it was going to tum into what it turned into. I believe we
probably had an intoxicated person that didn't want to pay acab fare. I thought wecould get him
to come to the door, they would settle up, and that would bethat:'
There was arectangular window inthc upper portion of thedoor. There was also a large
picture window facing theenclosed patio area. Both windows were covered by interior venetian
blinds, but as theotTtcers approached, they were able to seethrough the blinds and into the
apartment at adownward angle. Officer Frankenreiter was moving between thedoor and the
picture window as hecalled out to Mr. Stewart. Ollicer Kirshbaum approached thedoor and
similarly announced that hewas apolice otlicer. Healso said "We're not going anywhere so
you need to come out and talk to us."
As hewas looking through the picture window. Officer Frankenreiter saw Mr. Stewart
approach the front door with what hebelieved to beahandgun, and point it at the window in the
door. Hebelieved theweapon was close enough to thedoor that thebarrel might have come in
contact with theglass. At that time. Oflicer Kirshbaum was shining a tlashlight through window
inthe front door. Officers Kirshbaum, Starks, and Vaporis suddenly saw the blinds lifted by the
muzzle of ahandgun, which was pointed directly at them. Before the BB gun was found, Oflicer
Kirshbaum was able to describe the weapon hesaw as having a"tan or sand colored frameand a
black barrel." The otTtcer also described that theweapon "appeared to me to betan, like sand
dessert camo, without thecamo just beige, tannish. And ablack barrel, I could seethe tront sight
because it was pointcd right at my chest:'
Officers shouted "GUN!" While quickly backing away, Officer Frankenreiter tircd
twice, Officer Starks fired 5times, and Oflicer Vaporis tired 3times. Bullets went through the
front door and picture window. Bullets also struck arock wall next to thedoor. Ofticer
Kirshbaum felt an impact to his upper leg, which was the result of afragment ricochet fromthe
rock wall. Oflicer Starks was struck intheeye by breaking glass. Believing they were
confronting an individual armed with ahandgun, theotlicers retreated to take more defensive
positions. No other shots were fired. Because theotlicers were unable to safely take cover
within the patio area, alarge tactical vehicle called a"Bear Cat""was brought into knock dOWlla
portion of the fence, and allow themto observe the front of theapartment tromasafer distance.
Several additional officers responded, including those fromthe Special Wcapons And Tactics or
SWAT tcam, Shortly therealter, theofficers involved intheshooting were taken fromthescene
to the Boulder Police Department, where they were interviewed by Detectives fromthe BCIT.
Mr. Stewart was shot inhis right armand right knee. Hethen went into his bedroom,
where heremoved his shirt and pants. SWAT Team members broke out the bedroom window of
the apartment, at which time they heard Mr. Stewart say things such as "what areyou doing?"
and "leave mealone." Officers asked through thewindow if Mr. Stewart was hurt, and he
responded "I don't think so, I don't know," though he was bleeding heavily fromhis wounds.
Mr. Stewart was ordered to place his hands through the broken window, which hedid. Mr.
Stewart made additional statements at this time including "( didn't do anything", "( don't know
what isgoing on" and "I'mscared." Healso reported that his legwas hurting, but hedidn't know
why. Heappeared surprised when told that hewas injured and possibly shot.
An additional teamof otlicers entered theapartment through the front door, and escorted
Mr. Stewart outside, where his wounds were assessed. Mr. Stewart was then taken to the
hospital. During the ambulance ride, Mr. Stewart told officers that hewas drinking at Conor
O'Neill's, then came home and went to bed. Heclaimed not to remember anything else. Shortly
thereafter, while being treated at the hospital, Mr. Stewart was heard to say "Why amI
handcuffed, who fucking shot me?" Healso stated repeatedly that he"didn't even own agun,"
Healso told detectives that heowned aBB gun that hedescribed as a"Smith and Wesson replica
pistol." That pistol, which is pictured above, was later found near thedoor of the apartment
during theexecution of asearch warrant.
A blood sample was taken fromMr. Stewart at thehospital and sent to an independent
laboratory for testing. The results revealed that when his blood was dra\\TI at 3:50a.m., Mr.
Stewart's Blood Alcohol Content was .176.
The use of forceby Officers Frankenreiter, Starks, and Vaporis wasjustified pursuant to
~18-1-704, C.R.S. and ~18-1-707, C.R.S. Those sections provide that apeace officer isjustified
inusing reasonable and appropriate physical lorce upon another person when hereasonably
believes it necessary to defend himself or athird person fromwhat hereasonably believes to be
the useor imminent useof physical force. Here, while the weapon was ultimately determined to
bea BB gun, it closely resembles areal firearm. Having pursed Nlr. Stewart into his apartment.
theotlicers had no reason to believe that Mr. Stewart would threaten themwith aBB gun. nor
can they reasonably beexpected to unnecessarily risk their lives to make such an assumption
under these circumstances. Rather. these ortieers were reasonable intheir belief that they were
about to come under fire, and used their weapons only until they were no longer presented with
an imminent threat.
Wealso note that while theotlicers may have been legally entitled to enter Nlr. Stewart's
apartment without his consent to place himunder arrest, they exercised restraint and attempted to
get himto come outside voluntarily, and without further useof lorce. See People v. Mendoza-
Eolderama, 981 P.2d 150, 157(Colo. 1999) (exigent circumstances may exist justifying a
warrantless entry when the police areengaged inabona fidepursuit of a fleeing suspect).
Because the useor force by Officers Frankenreiter. Starks, and Vaporis was legally
justitied, no charges will be filed inthis matter.
Sincerely,
.-
Stanley L. Ga et-=
District Attorney
Twentieth J udicial District
,
J!
Sean P. iIm
ChiefTrial Deputy
Twentieth J udicial District