WASHINGTON – The Justice Department announced Friday that it will not pursue federal criminal civil rights charges against the Overland Park Police officer who fatally shot John Albers, according to a media release from the DOJ.
Officials from the Justice Department’s Civil Rights Division, the U.S. Attorney’s Office for the District of Kansas and the FBI met privately with members of John Albers’ family to notify them of this determination.
The department conducted an extensive investigation into the shooting. The evidence developed during this investigation indicated that, on the evening of Jan. 20, 2018, John Albers, a 17-yearold high school student, posted videos to social media indicating he might cause himself harm.
Two concerned friends called 911 to summon help, and dispatchers alerted Overland Park Police Department (OPPD) officers that a teenager was threatening to stab himself. Two OPPD officers then drove to the Albers’ home to check on the teen.
Upon arrival, the two responding OPPD officers initially approached the Albers’ home. The officers then decided that one of them should get a phone from a police car so they could call the home and see if anyone would answer. One officer stayed in the front yard while the other officer walked toward his police car to retrieve a phone. The first officer walked through the front yard and positioned himself near the Albers’s garage door. The garage door then began to open. John
Albers was behind the wheel of a minivan parked inside of the garage, although he was not yet visible to the officer. Once the garage door was open, Albers began to slowly back the minivan out of the garage and down the driveway. As the vehicle began to move, the first officer stepped towards it, calling out “stop!” as the minivan continued to slowly reverse. The officer backpedaled, but he did not initially move out of the vehicle’s path. He then called out “Stop!”, stepped out of the minivan’s path, and without verbally identifying himself as a police officer, fired two shots into the van. The minivan briefly paused. It then picked up speed, reversed past the officer and sharply spun around so that it was facing towards the street.
As the minivan passed the officer, the officer called out, “shots fired!” The van then slowly backed towards the home. The officer was again briefly in the path of the minivan as it began to reverse, but he stepped to the side and the vehicle again passed him. He then fired into the minivan eleven times in less than about three seconds. After this second round of shots, the minivan rolled out of the Albers’s driveway and into the driveway of the home across the street. Approximately 14 seconds elapsed from the time Albers began reversing the minivan out of the garage to the time the officer fired the 13th shot.
The officer fired 13 bullets at Albers and hit him six times, including in the head, neck and upper right torso. Albers died on the scene. Both on the scene and subsequently, the officer told law enforcement that he had shot Albers because he believed the van was going to run him over. He said that he initially fired at the vehicle because he thought it was going to hit him as it reversed out of the garage, and that he fired the second round of shots as the vehicle backed towards him after it sharply turned towards the street. The officer voluntarily resigned his position at OPPD and is not currently working as a law enforcement officer.
The focus of the department’s investigation was to determine whether federal prosecutors could prove that the officer violated any federal criminal laws, focusing on the federal criminal civil rights statute that makes it a crime for a police officer to willfully deprive a person of their constitutional rights, including by willfully using unreasonable force against the person.
In order to prove that the officer violated this statute, the government would have to prove, beyond a reasonable doubt, not only that the officer used force that was constitutionally unreasonable, but that he did so “willfully,” which the Supreme Court has interpreted to mean that he acted with a bad purpose to disregard the law. During a civil lawsuit based on this incident, a federal district court in Kansas ruled that a reasonable jury could conclude that the officer involved in this shooting had indeed used unreasonable force when he fired the first two shots at Albers, and the federal criminal investigation found no substantial evidence inconsistent with that conclusion.
The federal investigation focused largely on whether the officer’s willfulness could be established beyond a reasonable doubt. As this willfulness requirement has been interpreted by the courts, it is not sufficient for the government to prove that an officer acted out of fear, mistake, panic, misperception, poor judgment, negligence or gross negligence. Unlike in the many state jurisdictions that have statutes criminalizing killings committed with lesser mental states, such as criminal negligence or recklessness, the federal government has no statute that criminalizes a police officer’s use of unreasonable force, if willfulness cannot be proven beyond a reasonable doubt.
At this time, there is insufficient evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of the federal criminal civil rights statute. Specifically, the evidence does not clear the high bar that the Supreme Court has set for meeting this standard, and the department has therefore closed its investigation into this matter.
Department officials met with members of the Albers family, conveyed their deepest condolences for the family’s loss, and noted that the department’s decision that it could not bring charges against the officer who killed John Albers does not alter the fact that his loss was an unnecessary tragedy, and should not be read as anything more than a determination that the department cannot prove, beyond a reasonable doubt, every element of the federal criminal statute, to include willfulness.