Frank Nathaniel Clark appeared to fire a stolen handgun once and possibly twice during a fatal encounter with three Durham police officers, Durham County District Attorney Roger Echols said Monday.
Investigators found one of the Smith & Wesson 9 mm’s spent shell casings at the scene at the McDougald Terrace public housing complex, and another remained in the chamber, Echols said.
Echols shared those details Monday about State Bureau of Investigation evidence that he and three other prosecutors reviewed relating to the Nov. 22 shooting. The evidence led to Echols’ decision not to charge the officers with a crime, he said.
“There is no evidence based on this criminal investigation that rises to willful, malicious or criminally negligent conduct by law enforcement or that the use of force by law enforcement was unreasonable or excessive,” a four-page report released by Echols states.
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Dave Hall, an attorney at the Southern Coalition for Social Justice who represents members of Clark’s family, said the case should be sent to a grand jury.
“Given the close working relationship between the police and the DA’s office, and the fact that the officers involved have a history of excessive force, we call on Mr. Echols to refer this matter to a grand jury,” Hall said in statement. “When someone is shot from behind by police, their family and community deserve to know that every opportunity to find the truth and justice was taken.”
When evidence fails to provide probable cause to believe a crime has been committed, Echols said, prosecutors are ethically required not to seek charges.
Clark, 34, was shot around 12:30 p.m. Nov. 22 during an encounter with officers Charles Barkley, Monte Southerland and Christopher Goss, all members of the department’s Violent Incident Response Team.
The officers were patrolling the McDougald Terrace community. Southerland encountered Clark first, and Barkley and Goss arrived shortly thereafter, the report states.
Clark “physically resisted” the officers’ attempt to pat him down and a struggle ensued, Echols report states. Southerland hurt his knee after grabbing Clark and trying to restrain him.
Officers heard “what sounded like a gunshot,” during the struggle, the report states.
“When officers were able to focus on Mr. Clark, he had a handgun drawn and pointed towards Officer Barkley,” the report states. “Officer Barkley drew his service weapon and eventually fired several shots at Mr. Clark.”
One of Barkley’s six shots struck Clark on the left side of his scalp, according to the report. A second hit him in the back of his right thigh.
Echols said he used the available evidence, including what appears to be gunshot residue on Clark’s hands, to determine whether it was reasonable for Barkley to believe there was an imminent threat. Clark, who had been barred from the community, possessed a stolen gun and illegal drugs, including heroin, the report states.
“Given the fact that Mr. Clark is a convicted felon he would be exposed to significant periods of incarceration through federal and state prosecution,” Echols’ report states. “All of these circumstances provide great reason for Mr. Clark to resist an encounter with a law enforcement officer.”
Reketa Bagley, who told a News & Observer reporter she saw the encounter, has said Barkley was patting Clark down when a gun went off. Police shouted “gun” and Clark “took off running,” she has said, adding that Clark was at least 15 feet from the officers when they fired their weapons.
No witnesses, including Bagley, told law enforcement that they saw the beginning of the encounter between Clark and officers, Echols said.
Echols’ report will be considered along with other evidence in the Police Department’s administrative investigation that is expected to be concluded in four weeks, a Police Department statement says.
Barkley and Southerland will remain on administrative duty, the statement says. Goss returned to active duty Dec. 4, according to Police Chief C.J. Davis.