The U.S. Attorney's Office has agreed to investigate the death of a Smyrna man shot in the back as he tried to flee police.
Last week, Cobb County District Attorney Vic Reynolds announced he would not seek criminal charges against Smyrna Police Sgt. Kenneth Owens, who said he shot and killed Nicholas Thomas to protect a fellow officer. A Cobb County grand jury convened by Reynolds recommended no charges be brought.
Acting U.S. Attorney John Horn said Wednesday he’ll take “a fresh look” at the case but he must overcome a high legal threshold in order to bring federal criminal charges.
“They have to prove intent,” acknowledged attorney Mawuli Davis, who represents Thomas’ parents. “We know it’s an uphill battle.”
The Atlanta Journal-Constitution has obtained and is in the process of reviewing the 1,100 page file from the Thomas case, which includes an interview with Owens by Cobb police investigators.
In it, Owens described the moments leading up to March 24 shooting at the Cumberland Parkway Goodyear store, where Thomas worked. He was in a customer’s Maserati when he spotted the officers from Smyrna and Cobb police, there to serve him with an arrest warrant for a probation violation.
Owens told investigators the officers on the scene initially thought Thomas, who had been driving “wide open,” was going to “bail” on foot after he brought the car to a stop.
Instead, “the vehicle went into drive, it aggressively came forward just like it had around the building, engine revving,” Owens said. “As I came around the building, I realized about the point when I was standing there, ‘oh hell, you ain’t got no cover.’ ”
Thomas, he said, “had no care whatsoever for anybody’s life, well-being and/or safety.”
Immediately after the shooting, Smyrna police said Owens fired his gun because he feared for his safety. However, his attorney and Reynolds said last week he shot to protect a fellow officer.
Davis said last week the shifting narrative seemed to coincide with the release of the medical examiner's finding that the fatal bullet entered through Thomas' back. If Owens felt endangered, Davis has argued, why did he wait until after the Maserati had passed him to fire his weapon?
“I clearly felt threatened and that’s why I drew down and I was on target at the driver seat of the vehicle,” Owens told investigators on April 9, before the cause of death had been made public. “I was able to get just enough out of the way where I didn’t feel that I needed to engage the target or engage the threat at that point.”
It was then, Owens said, that he spotted Officer Mark Cole, accompanied by a dog from Smyrna police’s K9 unit, coming around the corner of the building, towards the Maserati.
“I’ll never forget his face,” Owens said of his colleague. “I could see that he was placed in a situation where he didn’t know how to act, all he was trying to do was get the hell out of the way, get his dog out of the way, and the car was headed … directly at him, placing him in fear of great danger, of receiving serious bodily injury or death.”
Cole didn’t have his gun out and was trying to control the canine leading him.
“He couldn’t defend himself,” Owens said. “As I said, when the vehicle passed me, and was going directly at him, I never took off target as it passed me and it was like bang bang.”
Cole told investigators the Maserati was “coming right at myself.” Owens was “next to me” when he fired the shots, Cole said.
Thomas had a history of running from police, according to records obtained from metro police agencies. And, in at least one prior case, he drove a car toward an officer.
Davis said the situation was amped up beyond what was necessary for violating probation on a misdemeanor charge. The case file quotes the officers as saying they were serving a warrant for a felony, a key distinction, Davis said.
“They kind of cowboyed this thing,” Davis said Wednesday, “creating an atmosphere that would scare most people.”
“They wanted to prove something — we’re going to get you,” he said.
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