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Mother Says Cop|Killed Her Naked Son

DENVER (CN) - A Colorado police officer shot a teenager to death through a closed bathroom door as the naked boy prepared to take a shower, his mother claims in court.

Elizabeth Alvar filed a federal complaint against the city of Fountain and its police officer Jonathan Kay for the death of her 17-year-old son, Patrick O'Grady.

Fountain, pop. 26,000, is south of Colorado Springs, in El Paso County.

Alvar called Fountain police on the afternoon of Sept. 22, 2014, to report someone trying to steal a motorcycle from her garage. Two other officers were dispatched, but upon hearing the address, Officer Kay said, "That's Patrick," and volunteered to take the call, the mother says in the March 4 federal complaint.

When Kay arrived, Alvar says, she told him her son was upstairs, preparing to take a shower. Kay followed her upstairs, looked into the bathroom when she opened the door, and saw her son naked, preparing to get into the shower, the mother says in the complaint.

She says Kay grabbed the bathroom door handle and told Patrick to put on his underwear. Patrick and Kay pushed and pulled on the door, and when Patrick managed to close it, "Officer Kay drew his weapon and fired one shot through the closed bathroom door. After firing the shot, Officer Kay opened the bathroom door to find Patrick lying naked on the ground with his head against the left corner by the bathtub. Blood was coming out of his head," according to the complaint.

Alvar says Kay was wearing a police-issued body cam, but it was turned off. After Kay shot her son in the head, she says, "at least four responding officers from the Fountain Police Department entered or observed the bathroom without seeing or finding a gun."

Fourth Judicial District Attorney Dan May cleared Kay of wrongdoing, after a joint investigation with the El Paso County Sheriff's Office. Colorado's Fourth Judicial District includes El Paso and Teller counties.

The District Attorney's Office said it cleared Kay because Patrick had a gun.

"Upon reaching the bathroom door, Officer Kay could hear the shower running," the District Attorney Office's wrote in a summary of the investigation "Ms. Alvar opened the door and Officer Kay saw Patrick O'Grady standing in the bathroom. Officer Kay then saw Patrick O'Grady turn and grab a gun from the bathroom counter and point it at the officer. At that time, Officer Kay drew his gun and fired one shot in the direction of Patrick O'Grady, who was struck by the bullet."

But Alvar says in the lawsuit that the gun that officers claimed to have found at the scene belonged to another officer, and that they found it only after three other officers had searched the bathroom and found nothing.

"The gun Officer [Jose] Barraza took from the upstairs bathroom was later identified as being owned by Deputy Donald Beasley of the El Paso County Sheriff's Office," the complaint states.

Alvar's attorney Mike Thomson, with Purvis, Gray & Thomson in Boulder, told Courthouse News: "At this point, what we know is that at least two, maybe three officers looked in the bathroom before the officer found the gun. The owner is an officer for the El Paso County Sheriff's department. That's what we know.

"It seems unusual," the attorney added. "We haven't even been given a serial number to the gun."

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According to the complaint: "Officer Jose Barraza of the Fountain Police Department was the fourth officer to enter the bathroom after Officer Kay shot Patrick O'Grady. When Officer Barraza entered the bathroom he located a black Glock model 27 handgun positioned behind the door of the bathroom, close to Patrick O'Grady's hand as he was lying on the floor. Officer Barraza photographed the gun, picked up the gun, put the gun in an evidence bag, and immediately took it outside and placed it in the trunk of his patrol car."

The district attorney issued a report as required by Colorado Senate Bill 219, which requires that Colorado police officer-involved shootings must be investigated by a neutral agency. If the District Attorney's Office clears the officer, the office must issue a report to the public explaining the decision. The El Paso County Sheriff's Department was the outside agency in Kay's investigation.

Attorney Thomson said that as the gun belonged to an El Paso County Sheriff's officer, the neutrality of the investigation might be called into question.

Alvar says in the complaint that the Fountain City Council was "aware of a pattern of excessive force by police officers employed by the City of Fountain. They were aware that the city's policies regarding the discipline of officers accused of excessive force were so inadequate that it was obvious that a failure to correct them would result in further incidents of excessive force; and the failure to correct said policies caused the excessive force to be used upon plaintiff."

Thomson said the allegedly lax policies may have contributed to Kay's hiring. According to the complaint, Kay worked for the Dacono Police Department in the late 1990s, but "(t)hat job ended abruptly in May 1999, when he allowed a student to use a radar gun."

Kay then "moved to the Leadville Police Department" but left that job in the summer of 2000 and went to work for Comcast for 14 years, according to the complaint.

"Officer Kay was fired from Comcast in May 2014. In his Fountain police application, Officer Kay indicated that he was terminated from Comcast after violating a code of conduct policy," the complaint states.

Fountain hired him as a police officer in January 2015.

"We don't have access to all the records or files," Thomson told Courthouse News. "But we have some concerns from the records that we know and the reports that we know in terms of Officer Kay's employment history before he came."

Fountain Police Chief Chris Heberer told Colorado Springs NBC station KOAA 5 that Kay appeared to have followed procedure that day. He said Kay failed to turn on his body camera due to Alvar's "agitated" behavior after the attempted robbery of the motorcycle.

"She was very agitated, very upset, very excitedly waving him in, and he did what he what most police officers would do," Heberer told the TV station. "He exited his car, he attempted to activate his camera and he merely went inside to help her.

"Our policy does not require that at that time, once he exits, for him to get down, take his eyes off what is in front of him and look at his camera. The first available time he was able to do that is when he was radioing for additional information," Heberer said.

Alvar seeks punitive damages for excessive force, outrage and constitutional violations.

"I would say she's devastated," Thomson said. "She's lost two sons in the last three or four years. She's absolutely devastated."

Co-counsel with Thomson is Chris Koupal with Chalat, Hatten, Koupal & Banker, of Denver.

The City of Fountain did not respond to a request for comment.

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