Police: Killing of man wielding BB gun justified

Casey Grove
JR ANCHETA / Anchorage Daily News

Anchorage police and the state Department of Law said an investigation of the fatal officer-involved shooting of 59-year-old Harry Smith at his Jewel Lake home July 1 determined the killing was justified.

Patrol officers arrived at the Noble Circle home that night after Smith's son called 911. The officers approached Smith in his backyard, where he refused to drop a handgun he was holding, police said. After an officer shot Smith with a foam projectile, Smith pointed a gun at them and two officers opened fire with shotguns, killing Smith, according to police.

The gun Smith allegedly brandished was a .177-caliber BB gun that looked almost identical to a larger-caliber, more deadly Smith and Wesson handgun, police said.

The fatal shooting was the second by Anchorage police officers during the summer of 2012, out of three for the year so far.

According to a written statement from police Thursday, the Department of Law's Office of Special Prosecutions and Appeals reviewed a police investigation and "concluded that the use of deadly force was justified and that the officers acted believing that deadly force was necessary to protect their lives and the lives of others."

Smith's son, Russell Smith, said Thursday the police officers involved in the shooting are lying about what happened, including about what he told dispatchers and police officers at the scene. Police say Smith's version of the story is wrong and that the officers shot to protect him and others.

Russell Smith said the police are hiding the truth to protect their officers.

"They're making statements that are contrary to fact," he said.

Smith said he called police because he wanted help getting his father -- who was struggling with alcohol abuse and depression and wanted to hurt himself -- to involuntary psychiatric care. Smith said he told dispatchers his father did not have access to a deadly firearm and had only a BB gun.

"He was going to trick the police officers into shooting him," Smith said.

The elder Smith was in the backyard when about 10 police officers arrived, his son said. The dispatcher told the younger Smith to meet the officers in front of the house, where he says he again told them about the BB gun.

"I told them that very loudly," Smith said.

Police spokesman Lt. Dave Parker said there was no mention of a BB gun in recordings of the 911 call, which he reviewed personally, and none of the officers involved in the incident reported being told anything about a BB gun.

Smith said he watched as several officers in ballistic gear, including helmets, walked around the back of the house.

Parker said two groups of officers took up separate positions, one group was in the Smiths' fenced backyard trying to conceal themselves next to the house and the other was in an adjacent backyard. One officer from each group fired, he said.

"It was only a matter of minutes. When I heard gunshots, I didn't make a conscious decision, but I ran to the backyard. I was physically stopped by a police officer," Smith said.

Parker said the officers immediately began CPR on the elder Smith, and medics were soon there trying to save his life, but he was soon pronounced dead.

"When they wheeled him past me, I could see the gunshots in his chest, right over his heart. I knew. But I wasn't going to accept it until somebody told me," Russell Smith said.

The official word that his father had died didn't come until he'd been sitting alone in an interrogation room at the Anchorage Police Department for two hours, Smith said.

An interview that lasted more than an hour followed, and Smith said he couldn't go home because crime scene investigators were still poring over the house.

"I was taught if you need help, you call 911. But the state of affairs in Anchorage right now, I'm more afraid of the police than anyone else," Smith said.

Parker defended the officers' actions and disputed key parts of the younger Smith's account, specifically that he told them about a BB gun.

The police spokesman said he listened to a recording of the 911 call and did not hear any mention of a BB gun.

Detectives interviewed all of the officers involved in the incident, Parker said, and none of them said Russell Smith told them his father had only a BB gun.

"Even if he had said that, you'd have to take that with a grain of salt and react to the situation as you perceive it," Parker said.

"It doesn't matter what he said. It matters what the officer is perceiving at the back of the house, away from him. And they perceived that they were being drawn upon with a real gun."

The officers gave repeated orders to drop the gun, Parker said. They tried the "less-lethal" foam round and had no other option but to fire their guns, he said.

"It's a tough deal. And our hearts go out to his family, as well as those officers," Parker said. "Our duty is to preserve life, and any time we use lethal force, we feel as though we've failed. But it is necessary in some circumstances and there are times when we're given no other choice."

Clint Campion, the assistant attorney general who determined the shooting was justified, said he watched over the police investigation from the beginning, listened to audio from the 911 call as well as the communications between officers, and watched video of witnesses who were interviewed, including the police officers.

Campion said his review also involved visiting the scene of the shooting and looking over pictures taken by a police photographer.

What the police presented in their investigation of the shooting of Harry Smith matched what Campion saw for himself, he said.

"This is a homicide investigation," Campion said. "I made a decision that I wasn't going to file charges against anyone."

Campion said he saw the police interview with the younger Smith as it happened, watched it twice more later, and listened to the 911 call several times.

But Campion refused to say if he heard any mention of the BB gun in the 911 call, saying that he is barred from discussing certain details of a case that have not been made public. He did acknowledge that Russell Smith appeared worried about what would happen to his father.

"Russell was concerned that his father might try to commit what's called a 'suicide by cop.' That was very clearly conveyed to the police officers on scene," Campion said.

Campion referred questions about whether the officers were told Smith had a BB gun back to police.

Dealing with a still-unfolding situation at the time, it would be up to the officers to decide if they could rely on the information anyway, he said.

"That's a decision the officers have to evaluate, what they're being told and whether that matches what they're seeing," Campion said. "Just because somebody said something doesn't mean it's true."

Russell Smith said he's still dealing with the aftermath and replaying his father's death over and over in his mind. The family has decided to sell the house, so he's gotten rid of many belongings and moved his things into a storage unit, he said.

"We had to throw away 40 years worth of memories," Smith said. "A house that's been collecting things for 40 years, you know, you can only fit so many things in a storage unit."

Still, the loss doesn't compare to his father dying and what Smith called a lack of honor on the part of the Anchorage Police Department.

"Of course they can't admit they were wrong. That's just part of the process. I didn't expect anything different," he said. "It doesn't change anything for me. Nothing's going to bring my father back. Nothing's going to piece my family back together."

Reach Casey Grove at casey.grove@adn.com or 257-4589.

Anchorage Daily News