File photo by Andrew Goff, from the scene of the incident.

PREVIOUSLY:

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Press release from the District Attorney’s Office:

District Attorney Stacey Eads has completed her extensive review of the investigation regarding the April 25, 2024, Humboldt County Sheriff’s Office (HCSO) Officer-involved shooting of 32-year-old Kevin Jeffrey Burks. A Humboldt County Critical Incident Response Team, with members from the Humboldt County District Attorney’s Office, Eureka Police Department, Humboldt County Sheriff’s Office, Arcata Police Department, Fortuna Police Department, California Fish & Wildlife, Ferndale Police Department, and California Highway Patrol, conducted the investigation. Additionally, the Humboldt County Coroner’s Office contributed to the investigation.

The following summarizes the facts derived from the investigation, as well as applicable law and legal conclusions of the District Attorney regarding this incident.

Factual Summary

On April 25, 2024, at approximately 10:00 in the morning, 75-year-old Phyllis Coy met with her sister, Aileen, and an acquaintance, Mike, regarding maintenance work on Ms. Coy’s house, located at 2450 Fern Street, Eureka. After meeting up, Mike and her sister waited in front of the entrance to the house while Ms. Coy unlocked the door. For unknown reasons, a male stranger approached them. Ms. Coy and her sister recall they saw the stranger a bit earlier that day waving his arms in the air as they drove to Coy’s residence. After he came up the walkway towards Coy’s residence, he simply stood there and Aileen asked him if she could help him. He did not respond, and according to Aileen he “just stood there like a statue”. They told him to leave, and he eventually walked away. However, the man returned to the front door a second time.

Coy’s sister recalls during this second encounter the stranger said, “Don’t you recognize me?” She photographed the stranger, and he again left after they told him they would call the sheriff. Coy, her sister and Mike all stayed inside and discussed work that needed to be done for about ten minutes. Mike soon departed. The sisters worked inside a bit longer before they prepared to leave. They discussed reporting the stranger to law enforcement.

Just before 10:30, Coy’s sister locked the front door while Coy began walking towards their car parked on the street. Coy saw the stranger again, “angling like he was coming back toward the house” so she pulled out her phone and called 911. He then disappeared from her sight as he went behind her sister’s car. He reappeared at the front of the car, now with a gun in his hand. Coy yelled out, causing Aileen to direct her attention towards Coy and the armed man. The man raised the gun and shot Coy twice. Coy fell to the ground. The shooter fled on foot.

After being shot, Coy stayed on the 911 call reporting key information including that she’d been shot twice, the description of her shooter, and locations. Likewise, Aileen who saw the stranger point his pistol and shoot her sister causing her to collapse, called 911 reporting the incident immediately after getting to safety inside the residence.

Dispatch logged Coy’s 911 call as received at 10:31:23 in the morning of April 25, and Humboldt County Sheriff’s Office (HCSO) deputies were dispatched to respond to the Fern Street residence at 10:32:32. Multiple deputies logged as enroute to the scene at 10:33:37.

HCSO Deputy Travis Rogers and Lieutenant Conan Moore, logged as enroute at 10:34:29 to Coy’s location, were the first law enforcement personnel to arrive in the vicinity of the reported shooting. Deputy Rogers drove his marked HCSO truck with Lt. Moore riding as his passenger along Cedar Street towards Fern when they saw a man matching the description of Coy’s shooter walking on Fern Street. Both Deputy Rogers and Lt. Moore wore clothing identifying them as law enforcement. Deputy Rogers pulled his truck up approximately 20 feet behind the man and parked.

The man, later identified as 32-year-old Kevin Jeffrey Burks, was walking away from where Lt. Moore and Deputy Rogers parked. At 10:38:22, the deputies are logged by dispatch as possibly out with the shooting suspect. Lt. Moore armed with a Colt M4 Carbine patrol rifle and Deputy Rogers with his 9 mm pistol, exited the truck and drew their weapons while directing Burks to stop and show his hands. Body worn camera captures Lt. Moore yell “Sheriff’s Office, stop! Show me your hands!” Burks turns towards them, and according to Deputy Rogers, he “smiled or giggled” then ran into the 2437 Fern Street residence (later determined to be his home). Suspect having fled into 2437 is logged at 10:38:55. During this initial encounter neither deputy saw anything in Burks’ hands.

Moments later, Deputy Truex arrived in a HCSO patrol vehicle, which he parked with the driver side closest to the sidewalk immediately in front of 2437 Fern Street to provide protective cover for Lt. Moore and Deputy Rogers while they maintained sight on the front of the house. To develop a perimeter around Burks’ location Deputy Truex was directed to position himself at the rear of the residence.

While 911 dispatch communications continue with Coy, as well as Aileen, additional calls are made, including from a female neighbor who calls 911 and assists Coy. Both women are outside by Coy’s side in her driveway at 10:39:11. Medical instructions are provided to assist Coy as they await arrival of first responders.

Body worn camera (“BWC”) worn footage obtained by Deputy Rogers depicts Lt. Moore position himself in the open passenger side door of Deputy Truex’s patrol vehicle in less than 50 seconds after Burks flees into the 2437 Fern residence. As additional deputies arrive on scene, Deputy Rogers and Lt. Moore provide direction and maintain armed cover of the front of 2437 Fern from their positions next to the patrol vehicle. At one minute and 24 seconds into Deputy Rogers’ BWC footage, within 40 seconds of Lt. Moore and Deputy Rogers taking position, Deputy Rogers exclaims “Show me your f***’ng hands! Show me your hands!” Simultaneously, Lt. Moore is heard yelling “Show me your hands!” Three seconds later, at 1 minute and 26-27 seconds into the BWC footage, Deputy Rogers says “He’s got a gun.” Gunfire, three shots from Lt. Moore’s rifle, immediately follows at 1 minute 27-28 seconds into Deputy Rogers’ BWC footage.

Lt. Moore describes Burks as he “just comes straight out…I see him, he has his arm up and is pointing…he’s pointing the gun right at us.” Deputy Rogers describes Burks exiting the residence with a pistol in his right hand. He raised the pistol and pointed it at him and Lt. Moore, and that is when Deputy Rogers yelled out “he’s got a gun.” Lt. Moore describes hearing Deputy Rogers yelling out “gun”. Lt. Moore thought Burks was going to kill him and Deputy Rogers, so he fired his rifle at Burks.

During the next 10 seconds, the deputies converge on Burks who now lays on his back bleeding just outside the front door of 2437 Fern Street, report shots fired, and request emergency medical assistance. Deputy Rogers uses his foot to slide a black Glock 23 semi-automatic pistol lying next to Burks’ right side away from Burks. Deputies place Burks, on his stomach and handcuff him. Immediately after the residence is cleared of any other potential persons or threats, approximately 4 minutes after Burks first fled into his residence, multiple deputies begin rendering lifesaving efforts to Burks.

Deputy Truex quickly retrieved a medical trauma kit from his patrol vehicle. Sergeant Leipzig packed gauze into the actively bleeding apparent gunshot wound on Burks’ neck. While maintaining significant pressure on the neck wound, Sgt. Leipzig monitored Burks’ pulse which rapidly weakened and dissipated. Deputy Rogers and Sgt. Leipzig began administering chest compressions until Humboldt Bay Fire and City Ambulance personnel arrived and began administering lifesaving efforts to Burks.

At 10:40:13, dispatch logs indicate Coy’s sister, still on the line with 911 dispatch, reports hearing shots fired; shots that she believes were by the Sheriff’s deputies taking the suspect to the ground. She describes seeing the suspect on the ground and four deputies. At 10:41:47, Aileen reports Coy is “shaking but she’s still awake and talking.”

At 10:43 deputies arrive to provide medical assistance to Coy, finding her lying on her right side on the ground in front of the garage door at 2450 Fern Street with her neighbor and sister. Additional emergency medical aid personnel was with Coy for her gunshot injuries by 10:45. Coy survived after being shot twice, once in the chest and once in the right elbow. Extensive medical treatment and rehabilitation assisted in her recovery.

Burks was transported to St. Joseph’s hospital and treated at the emergency department for “multisystem trauma” from gunshot wounds. During the initial operating room examination, the doctor observed a gunshot to his front right shoulder and the front left base of his neck. Further treatment was provided at the intensive care unit, however, despite lifesaving efforts, on April 27, Burks succumbed to his injuries and was pronounced brain dead by Dr. Anagnostou. On May 10, Dr. James Olson, Forensic Pathologist, performed an autopsy on Burks and determined a gunshot wound to the upper chest, severing the carotid artery, caused Burks death.

Prior to April 25, Burks suffered from severe epileptic seizures and in March underwent brain surgery as part of a treatment plan to help alleviate frequency and severity of his seizures. Burks’ long-term physician, a neurologist treating his epilepsy, and who was aware of Burks’ medical history (including emergency department records from an April 24 visit by Burks), as well as Burks’ personality and behaviors, opined Burks was experiencing either “post ictal psychosis” or, possibly, “ictal psychosis”. Burks’ neurologist opined in a written communication to Burks’ family member that “if Kevin (Burks) took a gun and shot at a random elderly lady, this behavior was unequivocally related to adverse effects of his epilepsy on his thinking and judgement.”

At the time of the incident, Deputy Rogers had 16 years of law enforcement experience, with his employment as a HCSO deputy beginning in 2017. He carried his Glock 17, 9mm pistol, and two 9mm pistol magazines, as well as a rifle magazine. Following the incident, his firearm was examined by detectives and found to be loaded to capacity with 18 rounds of department issued 9mm hollow point, Hornady brand ammunition. His magazines were loaded with 15 rounds of ammunition. No shots were fired by Deputy Rogers during this incident.

At the time of the incident, Lt. Moore, a trained firearms instructor with 15 years of law enforcement experience with the HCSO, was armed with a pistol and department issued Colt M4 Carbine patrol rifle. The rifle was loaded with Hornady .223 rounds. Three Hornady .223 casings recovered on the ground in the street in front of 2437 Fern were determined by Senior Criminalist Dale Cloutier of the Department of Justice to have been fired by the Colt patrol rifle used by Lt. Moore. During this incident Lt. Moore fired three consecutive rounds from the rifle.

Two expended bullets, recovered from the front area of the 2450 Fern residence where Coy was shot by Burks, and Burks’ Glock 23 handgun were also forensically examined by Sr. Criminalist Cloutier. He determined the expended bullets could have been fired from Burks’ Glock or “any other firearm with similar class characteristics.” When seized by law enforcement at the 2437 Fern incident scene, the Glock 23 had 1 round of .40 S&W caliber in the chamber and 10 rounds of .40 S&W caliber in the magazine. The Glock 23 was test fired and found functional by Sr. Criminalist Cloutier.

BWC footage with audio was captured by Deputy Rogers starting immediately after Burks fled into his residence. BWC footage without audio was captured by Lt. Moore starting approximately 90 seconds before deputies contact Burks and tell him to stop and show his hands. Immediately after Lt. Moore fires shots at Burks, his hand becomes visibly close to the camera and the audio turns on for the BWC footage he captures from that point forward. After Lt. Moore clears the 2437 Fern residence, he walks out the front door towards the street while advising officers that he was the one that shot Burks. He informs on scene officers that he is placing his rifle in Deputy Truex’s patrol vehicle and footage depicts him doing so. Lt. Moore’s BWC footage, still with audio, continues with Lt. Moore standing in the street for approximately 30 more seconds before he turns off his camera.

The Law

Under California law, an officer is justified in using deadly force when they reasonably believe, based on the totality of the circumstances, that such force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or another person. Moreover, officers need not retreat or desist from their efforts due to resistance or threatened resistance.

Pursuant to Penal Code section 196, homicide committed by peace officers is justified when the peace officer’s use of force complies with Penal Code section 835a. Thus, the most pertinent law in this situation is Penal Code section 835a, which states the following:

(a) The Legislature finds and declares all of the following:

— (1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.

— (2) As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.

— (3) That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.

— (4) That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.

— (5) That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.

(b) Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.

(c) (1) Notwithstanding subdivision (b), a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:

— — (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.

— — (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

— (2) A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

(d) A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, “retreat” does not mean tactical repositioning or other deescalation tactics.

(e) For purposes of this section, the following definitions shall apply:

— (1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.

— (2) A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.

— (3) “Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.

Legal Analysis

On April 25, 2024, when Lieutenant Moore discharged his rifle, shooting at Burks, he justifiably used deadly force. The use of deadly force was legally justified because the deputies were confronted by a situation where they reasonably believed the use of deadly force was necessary to defend against an imminent threat of death or serious bodily injury, a threat posed by Burks, armed with a Glock handgun pointed directly at the deputies.

From the first moment of Burks’ encounter with deputies, he fled into the residence demonstrating his refusal to comply with lawful orders of peace officers. Moreover, he matched the description of a man who just shot a 75-year-old woman twice with a black handgun outside her home in that very neighborhood. When he first fled into his home, neither deputy saw anything in Burks’s hands, however, when he emerged from his home less than a minute later he held a loaded Glock pistol in his right hand, raised it and pointed it at the deputies. Clearly, Burks presented an imminent threat of death or serious bodily injury to the deputies, and potentially any other person nearby. Lt. Moore applied his experience and training in making the split-second decision to fire shots at Burks before his or Deputy Rogers lives were taken by the armed gunman before them.

Under the totality of the circumstances, Lt. Moore reasonably believed that the use of deadly force was necessary to defend against Burks who demonstrated the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officers. Therefore, Lt. Moore was legally justified in using deadly force to defend himself and Deputy Rogers against the imminent threat of death or serious bodily injury Burks posed.

Conclusion

District Attorney Stacey Eads has concluded the shooting was legally justified, in that the Lt. Moore’s actions complied with California Penal Code Section 835a. District Attorney Eads has notified Mr. Burks’ family of her findings and legal determination.