TOPEKA, Kan. (WIBW) - A Topeka man who was shot by Topeka police while he was armed with a pistol wants a judge to dismiss three charges of aggravated assault of a law enforcement officer, saying the gunman never communicated any threats to officers.
Trevon Lorenzo Brown, 24, of Topeka, was struck multiple times during two exchanges of gunfire with police in southwest Topeka, according to the Kansas Bureau of Investigation, which investigated the incident. No law enforcement officers were wounded.
On Thursday, Shawnee County District Court Judge Cheryl Rios scheduled April 25 as the date to hear the dismissal motion.
Defense attorney Tonda Jones Hill contends Brown never "communicated any threats" and didn't point his firearm at officers.
Officers said they heard gunfire, "but they were unaware if the shooting came from another officer or the defendant," Hill said.
"From precedent, the officers' arrival at a scene and hearing gunfire is not enough to establish the elements of aggravated assault," Hill wrote in a motion to dismiss the three charges. "The defendant's conduct must have created a threat or an apprehension of immediate bodily harm to the officers."
Dismiss the three counts, Hill said.
Prosecutors haven't responded to the defense motion.
Brown also is charged with a fourth count of aggravated assault of an officer, two counts of interference with law enforcement,one count of criminal possession of a firearm by a convicted felon, two counts of vehicle burglary, and two counts of unlawful discharge of a firearm. The firearm discharge counts are misdemeanors.
During Brown's preliminary hearing on Feb. 4, police officers testified that the gunman may have held a pistol to his own head as he ran from police officers on Oct. 10 as a tactic to back off the pursuing officers.
Video surveillance showed Brown holding a black semiautomatic pistol to his head as he fled from police, but Lt. Kelvin Johnson, the first-shift watch commander who was at the confrontation, said he did not think Brown was suicidal.
"I assumed he was trying to keep the officers back," Johnson said.
Police Sgt. Daniel Davies said Brown remarked he wanted police to shoot him or he would shoot himself.
"We were very close to shooting him," Davies said, adding it would have been a "deadly force" situation.
Several officers, including Johnson, said Brown was firing at them.
Johnson was concerned about the safety of police officer Laura Mayer, and students at the nearby Jardine Middle-Elementary School, 2600 S.W. 33rd.
Mayer testified Brown was shooting in her direction, and "when I shot him, the gun fell from his hands."
Mayer expressed apprehension about suffering bodily harm.
On Nov. 29, District Attorney Mike Kagay said the conduct of the officers was justified, saying the officers acted in self defense and the defense of others. He said his office would not file criminal charges against the officers.
Brown's trial is scheduled to start July 29 and is expected to last five days.