Prosecutor rules South Bend police officer's fatal shooting of man was in self-defense

MISHAWAKA — The St. Joseph County Prosecutor's Office has ruled a South Bend police officer's fatal shooting of a 69-year-old man justified.

Prosecutor Kenneth Cotter held a news conference June 27 and explained the decision and recounted the sequence of events as portrayed by the investigators with the St. Joseph County Police and Mishawaka Police departments.

About 6:40 a.m. on June 11, a caller told 911 dispatch that a man was threatening someone with a knife and tried to stab the person's vehicle near the East Race on LaSalle Avenue.

That man was later determined to be 69-year-old John Charles Neiswender, and on June 27, Cotter said workers in the area had asked Neiswender to stop urinating in public. Cotter said the workers told investigators that Neiswender was upset to be confronted about the urinating and started yelling.

South Bend Police officers Randall McMurray and Joseph Carey arrived that night, and Carey spoke with the witnesses and told McMurray "it's leaning more toward vandalism than felony intimidation because of what they said," according to a press release said announcing the results of the investigation. The officers reportedly decided to speak with Neiswender.

The officers said Neiswender initially denied having a knife, then pulled it out, at which point Carey drew his firearm and McMurray drew his taser.

The officers told investigators they asked Neiswender three times to take his hands out of his pockets and put them on the wall. According to the press release, officers tried to deescalate the confrontation with Neiswender by saying it's not a big deal and that they just wanted to talk with him about what happened.

The officers claimed Neiswender refused to be cuffed and threatened to kill them.

According to county police, McMurray unsuccessfully tased Neiswender in an attempt to disarm and detain him. From 15 feet away, McMurray discharged the prongs from his taser two times and cycled it once, to no effect, according to police. Investigators later determined that Neiswender was wearing six layers of clothing and the prongs did not penetrate his skin.

Neiswender stood up after being tased a second time and approached officers while raising his hands and making contact with the taser leads, according to the press release. The officers said they retreated as Neiswender made death threats. As Neiswender began walking toward his knife on the ground, the officers said, they asked him not to pick it up.

Around 6:55 p.m., according to police, Neiswender picked up the knife, opened it, turned towards officers and stepped toward them.

Officer Carey fired six shots from his handgun and struck Neiswender, according to investigators, leaving three wounds: a graze on his right wrist, a wound through is left side and a wound that entered through his back and exited his chest.

Officers tried to give medical aid, Cotter said, as seven witnesses watched.

"One witness believed Neiswender had a death wish," Cotter said.

Neiswender was transported to Memorial Hospital for emergency medical treatment and died at the hospital.

The prosecutor's office found the officer was acting in self-defense and in the defense of others. If the officers had run away, the bystanders would have been in danger, Cotter said.

Cotter said the events of that night are visible on footage from both officers' body cameras and also on the squad car's dash camera. Cotter said he did not feel comfortable releasing video of a homicide, though this homicide was justified. Cotter said the South Bend Police Department does plan to release the footage.

"The shooting that resulted in the death of John Neiswender was legally justified," Cotter said in a press release.

The state of Indiana provides a uniform deadly force policy stating, "A law enforcement officer is justified in using deadly force if the officer has probable cause to believe that deadly force is necessary to prevent the imminent threat or serious bodily injury to the officer or a third person or the commission of a forcible felony."

Cotter said it takes a person half a second to process danger from 21 feet away and it takes a person about 1½ seconds to cover 21 feet. Officer Carey was 15 feet away from Neiswender, Cotter said, while McMurray was 17 feet away.

"I'm glad that they were on the streets," Cotter said about Carey and McMurray, saying he didn't personally know the officers and had only met them a few times. "I'm glad that they were protecting us. I think they tried everything to not have this happen, and unfortunately they had to make that ultimate choice."

He concluded the press conference with saying how sorry he was for Neiswender's family, the officers and the community.

"But, it was necessary," he said.

Email Tribune staff writer Camille Sarabia at csarabia@gannett.com.

This article originally appeared on South Bend Tribune: Police officer fatally shooting South Bend resident ruled 'justified'