Suffolk CA refuses to prosecute officer in deadly shooting

28-year-old Corey Achstein died in the shooting last December.

A still image from the body camera footage of Officer Barber. Credit: Suffolk Police.

SUFFOLK, Va. (WAVY) — The Suffolk Commonwealth’s Attorney has released results of an investigation into the Dec. 28, 2015 officer-involved shooting that killed 28-year-old Corey Achstein.

The newly released report follows Suffolk Police Department criminal and internal affairs investigations.

The report from Commonwealth’s Attorney C. Phillips Ferguson, states:

In short, based on all the facts, evidence, and established law, I find that Officer [James] Babor’s use of deadly force was justified and does not constitute criminal misconduct. Therefore, this office declines to prosecute any charges against Officer Babor.”

Police said they responded to calls around 5 p.m. on Dec. 28 regarding reports that a suspect — who later turned out to be Achstein — was chasing three teenagers down Causey Avenue, while threatening to kill them.

The Suffolk Police Department released the 22-minute 9-1-1 call Thursday:

Witnesses said he had a gun, was “screaming” and was acting in a bizarre and aggressive manner.

According to Thursday’s report, Officer Babor arrived first on scene and saw a man that matched the description of the person with the gun. According to the CA’s report, Achstein refused to comply with any of his commands. Officer Babor told Achstein that if he did not comply, he would shoot, to which Achstein replied, “go ahead and shoot me.”

Officer Babor never saw a gun on Achstein, but believed he had one. When Officer Abrigo arrived on scene moments later, she saw Achstein throw an object she thought was a gun, but did not relay that information to Officer Babor.

Achstein was now on the ground when Officer Williams arrived, driving toward the subject. Officer Babor saw Achstein’s hands drop to his waist and twist towards him and Officer Abrigo. Officer Babor, believing Achstein was reaching for a gun, fired one shot that struck Achstein in the back. He died from his injuries.

The Commonwealth’s Attorney’s Office released the body camera video Thursday, which shows the moments leading up to and including the moment when the fatal shot was fired.

View the video below with caution.

Police first stated that the officers “arrived and found a subject in the middle of the street with a gun in his hand.” That turned out to be untrue, and later search warrants stated, “officers … encountered the suspect who was causing the disturbance.” There was no mention of any gun.

Police would later say that “a realistic-style pneumatic BB gun” was recovered about ten feet from Achstein’s body. According to a toxicology report, Achstein’s blood-alcohol level was .255  — more than three times the legal limit — on the night of the shooting.

The entire incident unfolded quickly. The time from when Officer Babor arrived to the shooting was approximately 83 seconds.

In his Officer Involved Shooting Review Suffolk Commonwealth’s Attorney Phil Ferguson found, “Officer Abrigo would state that she saw Achstein throw an object that she thought was a gun just as she arrived on the scene, but she did not relay that information to Officer Babor.”

Achstein’s mother Ginnie Kinsey finds that devastating, “It was clearly stated (in the report) that there was information not communicated between officers on the scene which to me is what caused the death of my son.”

10 On Your Side Investigates: What is the truth?

10 On Your Side asked Ferguson, “Had Officer Abrigo relayed to Officer Babor what she knew could that have changed the outcome of the tragedy?”

Ferguson replied,”Had she communicated it, it may not have happened. It is possible. It is possible. In the end, Officer Abrigo was correct Achstein had ditched the gun. He was unarmed at the time of the shooting, and according to Ferguson’s report the gun which was a realistic pneumatic BB gun was found 10 feet from where Achstein was laying on the ground.”

In the report narrative there were several times when the information could have been relayed, including at the exact time of the shooting. You can hear Officer Abrigo on the body cam ask Officer Babor, “Did you Taze him?” Officer Babor responded, “No, I haven’t done anything to him.”

Ferguson found then that Babor says they needed to wait for backup, because the suspect was supposedly had a gun. Striking in the report, even then, Officer Abrigo failed to tell Officer Babor she saw Achstein throw something and she thinks was a gun.

Kinsey adds, “If you have enough time to ask did you taze him, then you would think you would have enough time to say he threw something over here.”

Ferguson acknowledges, “If that information had been immediately known to Babor, without a doubt it would have been a much better situation, there is absolutely no doubt about that. It is troubling, yes troubling.”

Ferguson says he never interviewed Officer Abrigo as part of his review, and that questions about what Abrigo, did and did not do, should be directed to the Suffolk Police Department. He stated again, “The review by this office will concentrate solely on issues of criminal liability. This office will not comment upon any civil, administrative, or procedural issues.”

Suffolk Spokesperson Diana Klink provided this statement from police:

“Chief Thomas Bennett has reviewed the Commonwealth’s Attorney investigative report. The Suffolk Police Department is working to complete its Administrative Investigation into this matter.

Until that time, Officers Babor and Abrigo will remain on Administrative Assignment.”

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