‘He was either gonna shoot me or I was gonna shoot him.’ Officer describes deadly shootout.

Mecklenburg County’s district attorney, Andrew Murray, said Friday he won’t seek charges against an undercover Charlotte-Mecklenburg police officer who shot and killed a motorist in January.

The officer, whose name has not been released, was justified in shooting Josue Javier Diaz, 28, on Jan. 26, Murray wrote in his finding.

“In this case, the evidence clearly supports the conclusion that Diaz was armed with a firearm and aggressively approaching (the officer) when the officer fired his weapon,” Murray wrote. “Consequently, (the officer) was completely justified in using deadly force to stop the attack and prevent his own death.”

The shooting took place on Albemarle Road in east Charlotte. Police said Diaz’s truck sideswiped the officer’s unmarked vehicle, then stopped. Diaz got out of the car, police said, and fired a pistol at the officer and the officer fired back, striking him.

Witness accounts conflicted, Murray wrote, and physical evidence could not determine who fired first. The officer said he never had time to identify himself as a police officer before the shooting.

“He was either gonna shoot me or I was gonna shoot him,” the officer told detectives.

Diaz was shot six times to the chest, abdomen and hand, all on the left side of his body, an autopsy report showed. Toxicology tests found cocaine in Diaz’s blood.

Police said investigators recovered a .22-caliber revolver at the scene and identified a bullet hole and projectile in the vehicle the officer had been driving. Police said at the time that it appeared to be a road-rage incident.

Charlotte attorney Luke Largess, who is representing the Diaz family, said Murray’s written summary omitted or downplayed important facts about the officer’s behavior and demeanor.

“I do not think the letter is an even-handed description of the officer’s conduct that led to the encounter,” Largess said Friday. “I don’t think people who read that letter would understand that the officer did a U-turn in traffic, engaged in hot pursuit, weaved in and out of traffic and collided with Diaz’s car because he was driving so close behind him.”

Some witnesses had contradicted the police account.

Juan Jose Silverio – who identified himself to police as Javier Valiente – said Diaz’s gun remained in the glove compartment and that Diaz had gotten out to talk to the other driver. Police said Silverio gave a different account to detectives.

Murray’s 120-page report includes police interviews with the undercover officer, a passenger in Diaz’ truck and witnesses. Key findings of the report:

▪ The officer’s account of being side-wiped on Albemarle Road was corroborated by telephone and radio traffic at the time. The officer said he followed the other driver until his truck abruptly stopped, their vehicles touching.

“I jump out and immediately he jumps out,” the officer told detectives, “he says something to me in Spanish like ‘I’m gonna tell you something’ and that’s when I see the silver, looks to me like a four- shooter .22 and he cocks it back, I wasn’t sure if it was single action or a double action so it’s probably a single action. So he pull it back and as he’s raising it, I drew, I engage. I think he got a shot off, I’m not a hundred percent sure.”

Police said they found a small .22-caliber revolver within arm’s reach of Diaz. It had fired four rounds in the cylinder. The door of the undercover officer’s SUV had been hit by a projectile consistent with a .22-caliber bullet.

▪ Silverio, a passenger in Diaz’ truck, gave conflicting accounts to police and the media about the incident. Silverio first denied that Diaz had sideswiped the officer’s unmarked SUV, the report said, then admitted Diaz hit the officer’s vehicle and kept going.

Silverio told detectives that when both vehicles stopped, the SUV driver shouted that he was a police officer and that Diaz got out of his vehicle with his gun “in his pocket.” He told police he could not tell whether Diaz had a gun when he was shot.

Silverio had told the Observer that the officer started to fire when Diaz got out of his vehicle, and said Diaz’ gun stayed in the glove compartment the entire time.

▪ Some witness accounts “are inconsistent with the physical and scientific evidence,” the report says. Witnesses told different accounts of which man fired first, for instance, a conclusion police said is impossible to draw from physical evidence.

The medical examiner who examined Diaz’ body found that his wounds were not consistent with Diaz being seated in his truck when he was shot, as some witnesses asserted.

▪ Diaz wore tattoos across his hands that identified him as a member of the Sureños 13 gang. His cell phone photographs showed him with known gang members and at least 10 gang members as contacts.

The officer didn’t know Diaz was a gang member before the shooting, the report said.

Elizabeth Diaz, his sister, said in a Facebook post Friday that she was not surprised by Murray’s decision. She and other family and friends have complained officers rarely face discipline after on-duty shootings and that CMPD ignored their demands to release the name of the undercover officer.

The secrecy makes it impossible to check the officer’s work history, including information about suspensions and other possible use of force incidents, Elizabeth Diaz said.

Josue Diaz’s Facebook page, which became the subject of public debate after his death, includes posts he made with images of himself holding guns and showing off his tattoos but his family has denied he was in a gang. They described him as proud father of three children and loyal friend. They dismissed suggestions that he was involved with gangs as racially biased.

Relatives said Diaz attended Independence High and then went into the construction business with his father.

On social media, Elizabeth Diaz re-posted an item from a blog that reads, “There will be times when justice will not be served here on earth and I must trust God’s judgment and timing.”

This story was originally published May 19, 2017 at 12:54 PM with the headline "‘He was either gonna shoot me or I was gonna shoot him.’ Officer describes deadly shootout.."