Prosecutors explain why they decided shooting by Baltimore police commander was justified

A police officer shot a man in Morrell Park last fall because the officer didn't know if the man was armed.

A Baltimore police commander did nothing wrong when he shot a man who wouldn't remove his hands from his pockets, city prosecutors say, because the officer couldn't risk that the man was holding a weapon.

The shooting, which took place in Morrell Park last fall and was captured by a surveillance camera, occurred within seconds of the encounter. Maj. Byron Conaway was on his way to a community meeting in an unmarked SUV when he spotted John Rau, jumped out of his vehicle and ordered Rau to show his hands. Rau, who was unarmed, was shot in the leg.

In an interview, the prosecutor who investigated the case said Conaway had no way of knowing that Rau wasn't armed and trying to take cover when he backed away from Conaway, who was pointing his gun at Rau.

"You don't know whether he has a weapon. You can't take that chance," said Assistant State's Attorney John T. Mitchell, who reviewed the case. "It all comes down to reasonableness. What would a reasonable officer feel or do?"

Given what Conaway knew about the situation, Mitchell concluded, "the shooting was a good shoot."

The state's attorney's office cleared Conaway earlier this year, and released documents and videos related to the case as part of a public information request. It comes as prosecutors are investigating a spate of police-involved shootings. Officers have shot six people in a span of about five weeks.

The incidents include an armed father and son, a man who police said tried to hold up an off-duty officer in a liquor store with what turned out to be a fake gun, and a 14-year-old boy with a BB gun who ran from officers.

Rau, who could not be reached for comment, told investigators that he couldn't initially tell who Conaway was, then was startled when the officer drew his firearm and pointed it at him, according to his taped interview with police.

"I ain't do nothing, and you're pointing a gun at me," Rau said. "I just had a feeling he was going to shoot me. And he shot me."

Mitchell, who was a Howard County police officer for 22 years, said Conaway's knowledge of drug activity in the area and being in an "urban environment with violence," factored into his decision to shoot.

"Mr. Rau wouldn't take his hands out of his pockets, which is going to raise the officers' instincts anyway — 'Why's he not taking his hands out of his pockets?' So, he's in a high-crime area, he's got this guy who's not heeding his orders," Mitchell said. "We can't get in Conaway's mind about what he's thinking, but what would a reasonable officer think at that time? 'This guy's trying to either evade me, or he's going to get behind cover and take a weapon out of his pocket.'

"Officers always have a right to protect themselves, and that's paramount and goes all the way up to the Supreme Court. There's never going to be a situation where the officer gives up a right to protect himself."

Conaway invoked his right to remain silent and did not talk to investigators.

Police officers "have a Fifth Amendment right not to speak with us," Mitchell said.

Police have not said what prompted Conaway to stop Rau.

Police interviewed two independent witnesses who said they believed Rau's actions exacerbated the situation.

"Joe did not respond to any of the police officer's commands," said one man, whose identity was redacted by prosecutors. "I think if he had done what the officer told him … it didn't even have to happen like that. Joe kept saying, 'OK, OK,' but he didn't do it."

Another witness contacted police after seeing news reports in which Rau's family said Rau had his hands in the air when he was shot.

"When I watched the news, [a family member] was telling lies. I felt as though, if you're going to do something wrongly, you need to tell the truth. … That man's job is on the line," the woman, whose identity was also concealed, told investigators in a videotaped statement.

She said Rau had multiple opportunities to comply and yelled profanities at Conaway.

"If I was him [Conaway], I would've probably done the same thing. I actually would've killed him, because he didn't listen, and he continued to walk into the officer's personal space," the woman said.

Rau said after the shooting that Conaway began giving him orders while still inside an unmarked police vehicle, when Rau did not know who Conaway was. After the shooting, Rau said, Conaway told him that Rau had scared him.

Rau said he was scared, too.

"I'm walking up the street when someone jump out real fast. It ain't like he had a siren on his car," Rau said. "It was a plain black car, with tinted windows. Once he got out the truck, I knew he was a police, of course, but he had his gun pointed right in my face, so I was scared."

jfenton@baltsun.com

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