District Attorney rules that CMPD acted lawfully in fatal April shooting

The Mecklenburg County District Attorney’s Office has ruled that a Charlotte-Mecklenburg Police officer acted lawfully when he shot and killed Sylasone Ackhavong last April.

In a 179-page report released Wednesday, District Attorney Andrew Murray said Ackhavong posed a legitimate threat to officers and the public as he held a gun and stood on a car outside a 7-Eleven convenience store. Murray said Ackhavong was wearing a bullet-proof vest at the time and refused to disarm during an hour-long, 3 a.m. standoff at Tuckaseegee and Little Rock roads.

In his report, Murray said police believed that Ackhavong, who had begun acting irrationally in the days before the shooting, was about to open fire on officers when two SWAT team members shot first.

Police on the scene said Ackhavong claimed to have had been poisoned and wanted the media on hand to report on his case. He had tried to take the cars of a convenience store customer and its clerk, saying his life was on the line, police said.

Officer O.M. Lester fired the shot that killed Ackhavong. Fellow SWAT team member Derek Rud also used his weapon.

According to Murray’s report, Lester told investigators that he believed Ackhavong wanted to “engage the officers out there into a gun fight to his death and he’s hell bent on killing them.”

Rud later testified that at the end of the standoff, Ackhavong “kinda starts moving the gun and he starts bringing it up, raising it towards the officers on the scene. … Lester shot, then I pretty much immediately right after, uh, Lester.”

The dead man’s family had asked the State Bureau of Investigation to review the shooting. Murray and his office have the final say on whether criminal charges are warranted.

In Ackhavong’s case, Murray decided they were not. Police are justified in using lethal force if they hold a “reasonable” belief that they or the public face an imminent threat of death or serious injury. The fact that Ackhavong never aimed his gun directly at the officers is not legally relevant, Murray said.

“An officer has a right to protect his life or the lives of others by acting on his reasonable perception of the threat confronting him,” Murray wrote. “It is not required under the law that an officer wait until the firearm is pointed at him. Once a firearm is pointed at an officer, there is not time to successfully stop the deadly attack.

“… Based on the facts and circumstances of this case and the law of self-defense in North Carolina, I have concluded that Officer Lester acted lawfully and … no charges will be pursued in this matter.”

Ackhavong’s family on Wednesday night said they will request access to CMPD’s full investigative file regarding the case.

“We want clarity on the situation, and we still have not received it,” the family said in a statement via the Southeast Asian Coalition, which addresses needs of North Carolina’s Southeast Asian population. “We are still unclear on what happened to Bong in the last hours of his life. Today was the first time that we have even seen any images of what happened that night. Anything that we know was relayed to us, firstly, by a CMPD officer and today by a DA.”

Ackhavong’s family said the media “have erroneously painted Bong as a danger, stating in earlier reports that Bong pointed his gun at the police. Despite the fact that Bong had a gun and a bulletproof vest, we would like the public to know he never lifted or pointed his gun at the police, or made any sudden moves to harm them. This fact has been confirmed to us by both CMPD and the DA. We know Bong as a person who would never hurt anyone. He should still be here with us. We love and we miss him.”

Criminal charges in police shootings in Charlotte-Mecklenburg are exceedingly rare. Only once in the last 35 years has an officer been arrested in connection with an on-duty shooting. That occurred in 2013 when Officer Randall “Wes” Kerrick shot and killed an unarmed Jonathan Ferrell. Kerrick’s voluntary manslaughter trial ended with a hung jury and eight jurors voting to acquit.

Last fall, the police shooting of Keith Lamont Scott led to nights of demonstrations and rioting throughout uptown. In that case, Murray also found the shooting lawful, saying Scott was armed and refused multiple orders to drop his weapon. Critics say Scott died because police brought on a confrontation that should have been avoided.

Staff Writer Joe Marusak contributed.

This story was originally published January 4, 2017 at 2:55 PM with the headline "District Attorney rules that CMPD acted lawfully in fatal April shooting."