OFFICE OF THE PROSECUTING ATTORNEY JEFFREY. GETTING PROSECUTING ATTORNEY 27 WIEST MICHIGAN AVENUE ALANAZOO, MICHIGAN 49007 PHONE 269/383-8900 1 269/388.0075 RE: NICHOLAS LOUIS CONKLIN OFFICER INVOLVED SHOOTING ‘SUMMARY ‘On March 20, 2022, shortly after 10:00am, the Kalamazoo Department of Public Safety (KDPS) was dispatched to 1008 S. Westnedge Ave., in the City of Kalamazoo, reference a stolen truck. The caller had reported that Nicholas Conklin (Conklin) was staying at 1008 S. Westnedge Ave. and that he was in possession of a stolen Ford F-150 truck. The caller also reported that ‘Conklin may be armed and had been seen with a gun recently. A physical description of Conklin was given. Police confirmed that there were multiple warrants for Conklin’s arrest. 1008 S. Westnedge Ave. is a large, older house that has been divided into multiple apartment units, with some shared common areas. Several unrelated people live at the address, The house is in a densely populated, urban area of the city. S. Westnedge Ave. is the most heavily trafficked north/south street in the city Multiple KDPS officers responded to the initial dispatch. Those officers included PSO Taylor Boreham, PSO Josiah Smith, PSO David Kubacki, and several others. At 1008 S. Westnedge officers found the stolen truck in the driveway. They saw a scale anda methamphetamine pipe on the console of the truck. PSO Boreham, Smith and Kubacki then attempted to make contact with Conklin. After gaining permission to enter the house from one of the residents, the officers proceeded upstairs to the apartment Conklin was believed to be staying in and began knocking on the door, announcing that they were police and wanted to talk to Conklin. That apartment is leased to Katherine Bieghler (Bieghler), girlfriend of Conklin. PSO Kubacki knocked on the door to Bieghler’s apartment and made contact with her. He told her that the police were there to talk to Conklin. She refused to open the door. PSO Kubacki repeatedly knocked on the door and told the persons inside that they were the police and that they needed to talk to Conklin, While waiting in the hallway outside the apartment PSOs Kubacki, Smith, and Boreham were told over the radio that Conklin had attempted to escape the apartment by leaving through an upstairs window but was not successful While in the hallway directly outside the apartment, officers heard a gunshot from inside the apartment and heard a woman scream. Believing that someone had been shot inside the apartment, PSO Kubacki attempted to kick open the door. Despite several attempts he was not able to get the door open.PSOs Kubacki, Boreham, and Smith were in the hallway outside the door when a second shot was fired by Conklin. This shot was fired from inside the apartment, through the door, nearly striking the officers. PSO Boreham could see drywall pieces falling from the wall near the officers. PSO Kubacki felt the drywall fall on him. PSOs Smith and Kubacki immediately took cover, retreating down the stairs. PSO Boreham took cover, backing further away from Bieghler's door, retreating down the hallway. A slight angle in the hallway provided minimal concealment for PSO Boreham. PSO Boreham told MSP that he saw Conklin “rapidly exit" the apartment. He could see that Conklin was armed with a gun. The gun was “pointed down the stairs and tracking my partners”. Conklin's head was “up looking for the officers on the stairs". Conklin continued the few steps down the hallway towards PSO Boreham and the top of the stairwell. Conklin's action placed PSO Boreham, and the other officers, in further jeopardy. In order to protect himself and others from the immediate life-threatening actions by Conklin, PSO Boreham shot Conklin multiple times. Eight shots were fired by PSO Boreham. Multiple witnesses provided relevant information to the Michigan State Police (MSP) when they were interviewed. According to MSP reports, Bieghler told them that day she was woken up by the police knocking on her door, and Conklin, who was “freaking out”. She told police that Conklin was looking for a way out of the apartment and had cut the screen to the window. ‘When he realized that the house was surrounded "he began messing around with the pistol". Conklin was struggling with the gun when it ‘went off and she realized that he had accidently shot himself in the hand. Conklin became even more panicked then and told her "he wasn't going back to prison’, kissed her, and said he had to go. She saw Conklin “point the gun at the door as he opened it and walked out into the hallway”. She tried to get him to stop but he wouldn't. Bieghler told police she did not see what happened in the hallway. She heard more than seven shots immediately after he walked out the door. One of the other tenants at 1008 S. Westnedge told MSP that she is friends with Bieghler and has known Conklin for a long time. She told MSP that Conkiin is “crazy and very violent’. She reported to MSP that Conklin was very abusive and she believed he had been previously arrested for assaulting Bieghler. When the witness heard the police yelling for “Nick”, she assumed it was Bieghler’s boyfriend and “figured he had done something to get arrested again’. A third tenant at 1008 S. Westnedge told MSP that she did not see the shooting but did hear it. When asked by the police she told them that she knew Bieghler and Conklin. She told police that a couple of weeks prior she had been hanging out with them and leamed that Conklin’s house in Battle Creek had been raided by the police. The witness told MSP that Conklin was “worried about going back to prison”. She said that Conklin told her “I'm not fucking with my freedom, | will shoot at the cops, I'm not going back to prison”. The witness told MSP that she believed that Conklin made the decision to shoot it out with the police a while ago. She believed “as soon as the police showed up today it was going to end with Nick getting shot by his own choice" CAUSE OF DEATH On March 21, 2022, an autopsy was performed on Conklin at the Western Michigan University Stryker School of Medicine. The autopsy was performed by forensic pathologist Dr. Joseph Prahlow, M.D. Dr. Prahlow concluded that the cause of death was "MultipleGunshot Wounds," and the manner of death was "Homicide." Conklin suffered eleven gunshot wound complexes, causing substantial damage. These included: Gunshot wound of upper medial right shoulder Gunshot wound of upper medial right shoulder Gunshot wound of upper lateral right shoulder/arm Gunshot wound of upper lateral right shoulder/arm Gunshot wound of upper right chest Gunshot wound of lower left back Gunshot wound of right abdomen Gunshot wound of left buttock Gunshot wound of right hand/wrist 10. Gunshot wound of left index finger 11. Graze gunshot wound of abdomen O2NOMERONSa Based on interviews with witnesses it is believed that injury 10 and 11 were self-inflicted when Conklin accidently fired the first shot while in the apartment, ‘A determination of the order in which injuries 1 through 9 were received is not possible. Seven large projectiles, which included five intact or mostly intact bullets and an empty copper jacket and lead core, (six bullets in total) were recovered from the body of Conklin during the autopsy. They were seized by the police. Evidence of other significant injury found during the autopsy included small fragments of projectiles removed from the pelvis and left hemidiaphragm. There were also multiple crusted superficial linear abrasions of the medial aspect of the right calf, multiple crusted excoriations of the posterior aspects of the lower extremities bilaterally, multiple superficial abrasions of the left thumb, and a crusted 5/8-inch linear abrasion of the palmar aspect of the left wrist. Toxicology tests were performed on Conklin. Findings of toxicological significance included positive results for both Amphetamine and Methamphetamine. CONKLIN RELEVANT BACKGROUND INFORMATION Conklin had multiple open warrants for his arrest including, Criminal Bench Warrant for Felony Probation Violation (DOW 10/1/2021) Criminal Bench Warrant for Felony Failure to Appear (DOW 10/8/2021) Felony Warrant for Flight to Avoid (DOW 2/9/2022) Civil Warrant for Neglect Child (DOW 3/9/2022) Misdemeanor Warrant for Aggravated Assault (DOW 3/14/2022) Conklin’s criminal history includes convictions for, 3/7/2012 Domestic Violence (Misdemeanor)7/212013 —_Operate/Maintain Lab Methamphetamine (Felony) 7/3/2013 ‘Fleeing Police (Felony) 7/8/2014 Domestic Violence (Misdemeanor) 6/21/2018 Driving Without a License (Misdemeanor) 3/30/2018 Assault and Battery (Misdemeanor) 9/4/2018 __ Receiving and Concealing Stolen Property (Felony) 11/22/2021 Malicious Destruction of Building (Misdemeanor) OFFICERS INVOLVED KDPS PSO Taylor Boreham was directly involved in the shooting of Conklin. No other officers fired their weapons during the encounter. PSO Boreham was armed with a Glock Model 45 9mm semi-automatic handgun. PSO Boreham fired a total of eight shots. A determination of the order of the injuries to Conklin is not possible. All shots were fired by PSO Boreham. SUBSEQUENT INVESTIGATION After the officer-involved shooting, the Michigan State Police (MSP) assumed jurisdiction of the scene and began an immediate investigation. This was done at the request of KDPS, Chief Vernon Coakley to ensure a thorough, fair, and impartial investigation. The investigation was led by D/F/Lieutenant Chuck Christensen of the MSP 5th District. D/F/Lieutenant Christensen has led many complex criminal investigations, including several officer involved shootings, and is well qualified to handle this type of investigation. ‘The scene was processed under the direction of the Michigan State Police. PSO Boreham's firearm was seized and placed in evidence as part of the investigation. The investigation included documenting the scene, photographing the scene and physical evidence, interviewing all police witnesses (including those involved in the shooting), interviewing all other persons who had information relevant to the shooting, and seizing all physical evidence from the scene, including the Taurus G25 9mm semi-automatic handgun used by Conklin, seizing all video and audio evidence from the scene from law enforcement body cameras, and seizing all relevant recordings of radio communications. When seized at the scene by the MSP, the Taurus 9mm semi-automatic handgun used by Conklin was found with the safety off, a cartridge in the chamber and more cartridges loaded in the magazine. The gun was operable and ready to be fired again. Officers also attended the autopsy, during which they seized relevant evidence including recovered bullets.LEGAL ANALYSIS By law, it is my responsibility as the Kalamazoo County Prosecuting Attorney to review the actions of the officer who discharged his weapon during this incident. The purpose of this review is to determine if any criminal charges are warranted against the person involved in the shooting death of Nicholas Conklin. In considering the officer's actions, | have thoroughly reviewed and taken into consideration the investigation reports provided by the Michigan State Police and Kalamazoo Department of Public Safety. | have examined the photographs placed in evidence. | have watched all the video recordings. | have reviewed the autopsy report prepared by Dr. Prahlow. | have reviewed the reports from the Michigan State Police Crime Lab. | have been to the location of the shooting - immediately afer it occurred - in order to form my own impression of the scene. In short, I have thoroughly reviewed all the evidence in the case. Ihave reviewed and considered the law regarding the use of force by police personnel. In doing 80, | have considered decisions authored by the United States Supreme Court, including its recent opinions regarding police use of deadly force, Kise/a v Hughes 584 US _; 138 S Ct 1148 (4/2/2018) and County of Los Angeles v Mendez, 581 US_; 137 S Ct 1539 (5/30/2017}, decisions of the Federal Court of Appeals for the 6th Circuit, and decisions of the State of Michigan's Supreme Court and Court of Appeals. Lastly, | have considered the Model Criminal Jury Instructions pertaining to "self-defense" and "defense-of-others.” In Michigan, the law allows the police to use force, including deadly force, in the performance of their job. They may use that reasonable degree of force under the circumstances to effectuate an arrest. They may take reasonable action to protect, themselves while making an arrest. ‘What constitutes reasonable force depends on the facts in a particular situation. The reasonableness of the force used must be considered in the light of the circumstances as they appear to the officer at the time he/she acted. A police officer has discretion, within reasonable limits, to determine the amount of force that the circumstances require and is not guilty of any wrongdoing unless he/she abuses that power. A determination of whether the force used is reasonable under the 4th Amendment requires a careful balancing of the intrusion on the person's 4th Amendment interest and the ‘opposing governmental interest at stake. Ultimately, the police may use the necessary force, including deadly force, if they have sufficient evidence to believe that a suspect poses a threat of serious physical harm to the officer or others. Apolice officer has the same rights as a private citizen to use the reasonably necessary force to defend themselves or others. A police officer may use deadly force if he/she has a reasonable belief that he/she or others may be killed or seriously injured ‘A person accused of a crime, including a police officer, may assert justification, or self- defense or defense-of-others, to explain their actions. In Michigan, any person may use deadly force to defend themselves or others under certain circumstances. To determine whether a person acted in lawful self-defense, their action must be judged according to how the circumstances appeared to them at the time they acted. Deadly force in self-defense is, appropriate if a person has an honest and reasonable belief that they were in immediate danger of being killed or seriously injured. A belief of only potential minor injury would not justify Killing or seriously injuring another person. If their belief was honest and reasonable,a person could act at once to defend themselves even if it turns out later that the person was wrong about how much danger they were in In determining whether the action was appropriate, the surrounding circumstances must be considered, including the conditions of the people involved, their relative strength, whether the other person was armed with a dangerous weapon or had some other means of injuring others, the nature of the other person's attack or threat, and whether the actor knew about any previous violent acts or threats made by the attacker. Lastly, the actor must have an honest and reasonable belief that what they did was immediately necessary. Under the law, a person may use as much force as they believe is needed at the time to protect themselves. Ultimately, the actor does not have to prove that they acted in self-defense; instead, it is the Prosecution’s responsibility to prove that the actor did not act in self-defense beyond a reasonable doubt. APPLICATION OF THE LAW In applying the law to the facts of this situation, it is essential to do so from the proper perspective. That perspective is set forth by the United States Supreme Court in Graham v Connor, 490 U.S. 386, 109 Supreme. Ct. 1865, 18721, 104 L. Ed. 443 (1989}. In Graham, the court held that "the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight...and] must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” At 10:40 am on March 20, 2022, PSO Boreham was faced with the tense, uncertain, and rapidly evolving circumstances anticipated by the United States Supreme Court. He was confronted by a man armed with a gun he had already fired multiple times, in a small, confined space with limited exits. There were many other people nearby, including other officers and civilians, and Conklin was charging towards them with a gun in his hand The actions of PSO Boreham, when Conklin left his room, attempting to escape arrest, while armed with a gun, must be judged from the "perspective of a reasonable officer on the scene." They cannot be judged from the standpoint of someone who was not involved and who has the "20/20 vision of hindsight.” At that moment, in the morning hours, in a cramped hallway, faced with a man armed with a gun, who had already fired multiple shots, any “reasonable officer" would have an honest and reasonable belief that he, his fellow officers, and the other persons presentnearby were in immediate danger of serious injury or death. The action taken by PSO Boreham was immediately necessary to protect himself and others from the danger posed by Mr. Conklin. Indeed, his action likely saved his life and the lives of others.CONCLUSION For these reasons, it is the decision of the Kalamazoo County Office of the Prosecuting Attorney that Kalamazoo Department of Public Safety PSO Taylor Boreham was justified in the use of deadly force to stop the immediate and extreme threat posed by Nicholas Conklin. Asa result, no charges will be filed by this office. Jeffrey S. Getting Kalamazoo County Prosecuting Attorney August 25, 2022