Case closed 

Police withheld vital information about the 2011 fatal shooting of James Guy Jr.

From a home next door, Officer Nathan Jorstad crept up on 22-year-old James Guy Jr. the morning of April 22, 2011. Without a word, the officer fired a shotgun slug into Guy's back.

That account of the incident, contained in official reports obtained by the Independent, is different from the version reported publicly at the time: Back then, police claimed that police ordered Guy to stop firing a gun before Jorstad shot him in the "torso."

But the Colorado Springs Police Department knew the day of the shooting that no warning was given and that Guy's gun wasn't loaded. And by the next day, they also knew the official results of Guy's autopsy, which confirmed he had been shot in the back — not the "chest," as Jorstad had told investigators.

The shooting was so questionable that District Attorney Dan May submitted the case to a grand jury, instead of ruling it justified, which he has been more likely to do in such matters. On July 13, 2011, the jury exonerated Jorstad, effectively closing the criminal case in Guy's death.

But a federal civil case currently is pending in which Kathryn Guy, James' mother, alleges Jorstad used an unreasonable degree of force, violating her son's rights. The case is documented in hundreds of pages of police and DA reports, as well as court records, unearthed by the Indy during a three-month investigation of the CSPD's use of force in recent years. Other cases included the use of explosives in a residential community and the violent takedown of a handcuffed 18-year-old girl that was captured on video.

Kathryn Guy — a 27-year resident of Colorado Springs who served in the Army and has worked as a paralegal for 24 years — still grieves the loss of her son. During a recent interview, she became emotional and angry, and told the Independent she simply wants someone to take responsibility for her son's death.

"I want that cop put in jail for murder, that's what I want," she said. "But that's not going to happen."

Nathan Jorstad's family is well known in Manitou Springs, where they have been involved in school and community activities, and where his mother is an established real-estate agent. After graduating from Manitou Springs High School, Jorstad went on to earn a bachelor's degree from the University of Colorado at Colorado Springs in 1999.

CSPD hired him in 2002, and he has been rated "effective," "excellent" or "outstanding" on annual evaluations since then, records show. He's received commendations for his work with the motorcycle unit, including for "aggressive enforcement" that reduced crashes at dangerous intersections in 2007.

Jorstad's biggest honor, which he shared with two other officers, was the department's Medal of Valor for "quick thinking and action, subduing an armed male suspect [and] preventing further harm to others" during an incident in early December 2002. The man was shot and killed.

In 2004, Jorstad received a written commendation for providing cover from behind a wooden fence while another officer used a Taser to prevent an armed man from killing himself. And in 2013 he was awarded another Medal of Valor for evacuating homes alongside other officers during the 2012 Waldo Canyon Fire, which ignited one year after Guy was killed.

As a teenager, Guy attended Wasson High School and later lived with his father in Alabama. He ended up homeless, according to police and DA reports of interviews with family members, and in 2009 called his mother, saying he'd been mugged and "did not have a place to go." So Kathryn took him in to her home in east-central Colorado Springs.

Early the next year, Guy moved into an apartment, where he became the victim of two crimes: theft of his laptop and a beating. The two incidents prompted him to buy a semi-automatic firearm, his sister, Meghan, told police. Shortly before that, he returned to live with his mother, who had recently moved to 1718 Auburn Drive. Kathryn had lived in the home on Auburn once before with her boyfriend, but she moved out after he was arrested. The reason for his arrest is redacted from a police report, but records show a Springs SWAT team raided the house on October 8, 2010, seizing 123 marijuana plants and 1,879 grams of marijuana. That SWAT call to the home would resurface the day Guy was killed.

Meghan described her brother as "very social" and "a partier" who stayed up late playing video games. He also drank and smoked pot, she told police. Will Christensen, Guy's friend and co-worker, told investigators Guy was "a good person who was upbeat and had a positive attitude." He also said Guy loved to shoot his gun.

The night before he was killed, Guy went to a house party. His friend Brett Roberts told a DA's investigator that Guy arrived around midnight and "consumed a large amount of alcohol as well as smoked 'a lot' of marijuana," but he was never combative and got along with everyone. As the party wound down about 6 a.m., Roberts said, Guy was "very intoxicated...unsteady on his feet and could barely stand up."

Somehow, Guy and his black 2000 Ford Explorer made it home to Auburn Drive. He would soon cross paths with Jorstad.

At about 7:45 a.m., police dispatch aired a report of "shots fired" in the 1700 block of Auburn Drive. Within 14 minutes, Guy lay dying in his backyard.

Jorstad and his partner, Officer William Farrow, had been working traffic control on their motorcycles in the 2700 block of North Circle Drive when the call came in and they headed toward Auburn, Jorstad told DA investigators in an interview later that morning. They met up with patrol Officer Jeremy Tidwell on the drive to Auburn, where they heard a couple shots fired as they arrived. They also heard a dispatcher say the SWAT team had responded to the address "on a previous date," a DA's report says, referring to the arrest of Kathryn Guy's ex-boyfriend in 2010.

That information, Jorstad told investigators, made him think, "Oh shit," and made him "a little more nervous, and it made his adrenaline pump a little more" to know that SWAT officers had responded in the past.

The officers parked a few doors south of Guy's house, where Jorstad asked Tidwell for a long gun. Tidwell handed Jorstad his shotgun. Jorstad ejected a buckshot round and loaded two slugs. (Slugs, or bullets, are usually used for longer-range shooting than buckshot.)

Describing himself to investigators as "nervous and scared," Jorstad said the officers' plan was to "try and see better." Tidwell took cover behind a tree in Guy's front yard, and Farrow went to the house north of Guy's to hide behind a boat and a fence. Jorstad went to the south neighbor's front door, where he was greeted by a "hysterical" female who claimed Guy was shooting in the air and at houses.

The woman guided Jorstad to a kitchen window. From there, he could see Guy sitting at a table, facing away from him to the west. Jorstad said he thought Guy was loading a magazine into a handgun, which was on the table in a "locked back" position — meaning it was not loaded.

"I asked if he ever saw the suspect holding the handgun in a firing position as he sat at the table," DA investigator David Guest wrote. "He said no." Guest's report also states Jorstad said he "had his radio turned all the way up" and could hear "all the officers were getting pretty excited about it, and the adrenaline was going."

Jorstad told investigators he didn't know exactly where Farrow was located, but he figured the two were in a crossfire situation, so Jorstad "went out the back door quietly so that the suspect would not know he was there yet."

He crouched a few feet from the 6-foot wooden fence.

And then his radio went off.

"It was blaring out of his shoulder speaker," Guest reported. "Officer Jorstad said he thought, 'Oh shit, he just heard that I'm here.... God damn, I didn't turn my radio down.'"

Jorstad then claimed to see Guy stand up and walk toward him with the gun in his left hand.

Jorstad hadn't actually seen Guy reload the gun, but he assumed Guy was ready to fire. "He was swaying and the gun was going back and forth," he told Guest, adding "the suspect was in an up and ready position," which Jorstad said made him "scared shitless."

Guest continued, "Officer Jorstad said that is when he had the center of mass shot and he took it through the fence."

In all, according to a police dispatch timeline, Jorstad shot Guy approximately three minutes after first laying eyes on him.

Jorstad admitted he had a "more restricted" view of Guy from outside than inside, but claimed he could see him through narrow gaps in the fence "by moving [his] head back and forth."

Jorstad also told Guest that after he fired, he jumped onto the fence support and stood "where he could actually see him [Guy], since before he did not have a very clear view because of the fence."

From the fence support, Jorstad ordered Guy to "get your hands out to your side." Barely breathing, Guy was handcuffed. He died about 30 minutes later.

Police Detective Derek Graham asked Jorstad during an interview if he had announced himself.

"Officer Jorstad said no," Graham wrote. "He said if he would have made the time to announce, he would have been shot."

For his part, Officer Farrow told investigators Guy was drunk; he "staggered and swayed," and didn't seem aware police were watching him. Farrow said he drew his own weapon when he saw Guy turn to face north, raising the gun in his right hand, not his left, as Jorstad claimed.

"Officer Farrow stated that when the gun was coming up and he was pointing at the suspect, it was his intention to fire the gun if the suspect fired at him first," DA investigator Gene Ferrin said in his report. "Farrow did not feel directly threatened by the suspect as he believed the suspect was not aware of his location."

Farrow said when Guy began turning to the west, a shot was fired, leading Farrow to air on the police radio that Guy had shot himself. Jorstad then aired "suspect down."

The next day, police and DA investigators learned the autopsy had concluded Guy was shot in the back. On April 29, they again interviewed Jorstad. Surprised by that news, Jorstad said he "got screwed by the radio," which "made his options very limited at that time," Guest reported. Questioned further about the shooting, Jorstad said when his radio blared, he "assumed" Guy heard it and "assumed" he was coming toward him with the gun.

James Guy Jr. fired 18 rounds that morning, but he didn't fire any shots after police took their positions. And his gun was empty when the slug ripped through his left adrenal gland, left kidney, liver, diaphragm and the right ventricle of his heart.

Dan May says the Jorstad case is the only officer-involved incident resulting in serious bodily injury he's submitted to a grand jury during his six-year tenure as district attorney. He did so because Guy was shot in the back. "I'm confident the grand jury was well aware of all the circumstances of that case," May says in an interview, noting that jurors can ask questions and subpeona witnesses themselves. "In this jurisdiction, we're going to give them everything, so they see the whole picture."

But John Paul Lyle, a former prosecutor in the 4th Judicial District who's also Kathryn Guy's friend, says he's presented cases to grand juries. Sometimes they're used as "political cover" for cases in which the DA doesn't want to indict, he says. "If you've got a case where you don't want to arrest somebody or indict somebody, you go to the grand jury and feed them the evidence to return a no true bill," Lyle says, referring to the technical term for no indictment. "Then it's not on you; it's on the grand jury."

Regardless, Kathryn Guy's civil suit, which was filed in 2012, might end soon. The city, former Police Chief Richard Myers and then-Acting City Manager Steve Cox have been dismissed as defendants due to a procedural technicality. Only Jorstad remains as a defendant.

In March of this year, the city filed a motion for summary judgment, arguing Jorstad risked injury or death by giving Guy a warning and that he had no duty to do so, based on past court cases.

The department's policies require a suspect to "be informed of what is required and [be] given a chance to comply." But policies also allow officers to use deadly force "to maintain their safety or to control the subject, as long as they mentally consider the lower options."

It should come as no surprise that Jorstad fired first, according to research by Jim Fisher, a former FBI agent who taught criminal law at Edinboro University of Pennsylvania for nearly 30 years. Fisher conducted a study of police shootings nationwide during 2011 and found that officers shot 1,146 people, killing 607 that year — a statistic that isn't tracked by the federal government.

Based on that research, he says, police shoot first at least 75 percent of the time, which includes firing at unarmed people and those armed with clubs, knives and firearms.

Kathryn Guy's expert witness — Ron Martinelli, a criminology expert based in California — studied police reports and visited the scene in Guy's case. His 37-page report argues that Jorstad placed himself in a precarious position, from which he lacked situational awareness to make a sound decision to use deadly force.

He notes Jorstad gave up "an elevated position of tactical advantage" in the kitchen for a position of concealment behind a fence "where he could not accurately see what James Guy was doing."

Dan Montgomery, former Westminster police chief who consults on police and public safety practices, says annual "stress inoculation" training can help officers avoid overreacting due to becoming "emotionally captured," a condition caused by an adrenaline rush that prevents a proper assessment of circumstances.

That type of training isn't routine at CSPD. Recruits are provided "similar training" to help them "gain confidence in their ability to cope with anxiety and fear," CSPD spokeswoman Lt. Catherine Buckley says via email. Other personnel receive such training periodically, she notes, although it's not required by the city's policies, state standards for officers or a national accreditation agency.

Citing pending litigation, Police Chief Pete Carey declined to comment on the Guy case or address why police misreported what happened.

At the time, then-Chief Myers praised Jorstad, saying he "used his training well" and did "what he needed to do." Myers declined to comment when contacted recently about the discrepancies between the reports and what police said publicly at the time.

Officer Jorstad remains on the force.

But it's been difficult for Ms. Guy to put the incident behind her.

"It's not ever going to be resolved for me," she says, "because I'll never have him back."

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