DA: Officer Fired Unauthorized Military 'Penetrator' Bullets

Police To Conduct Internal Review After Bystander Wounded

The Denver district attorney said a police officer used unauthorized military ammunition when he fired his weapon at an armed man near Club Vinyl four weeks ago, injuring an innocent bystander.

No charges will be field against Officer Robert Fitzgibbons in the July 2 incident. District Attorney Mitch Morrissey cleared him of criminal wrongdoing for wounding the bystander, Diamond Demmer, who was hit by bullet fragments in both legs and the torso.

Morrissey said the investigation determined Fitzgibbons used non-department-issue bullets in his .223-caliber Smith & Wesson rifle.

"An innocent bystander was injured in this police action," Denver District Attorney Mitch Morrissey said in his police shooting review decision letter issued Wednesday. "Failure to adhere to policies and procedures designed to protect officers and citizens can increase the risk to all."

Morrissey said the DA's office will not investigate the use of the ammunition, but the Denver Police Department will conduct an internal review.

The officer's assault rifle was loaded with two brands of .223 caliber ammunition, including unauthorized military "tracer" bullets manufactured by Lake City Arsenal in 2008, Morrissey's letter said. The other ammunition in the rifle's magazine were authorized hollow point bullets, which tend to stop after hitting an object.

The unauthorized "tracer" ammunition is a military bullet that has an illuminating trail so soldiers can see where they're shooting at night.

The military surplus ammunition Fitzgibbons purchased himself is marketed as the "Lake City Penetrator," a "steel tipped penetrating core for combat use," on CheaperThanDirt.com, a Web site that sells discount ammunition and firearms.

"This is identical to the ammo being used right now in Iraq by US troops," said the website, which also described it as a "Steel Core Full Metal Jacket Bullet."

The danger of officers using the unauthorized bullet is it travels farther, penetrates objects and can fragment, said district attorney spokeswoman Lynn Kimbrough.

One bullet fired by Fitzgibbons went through an open car door before fragmenting and striking the bystander in her left side, the Morrissey letter said. Another bullet penetrated a metal utility box, fragmented and then struck the bystander in her side.

Two of the spent .223 shell casings recovered at the scene were the unauthorized military bullets, Morrissey's letter said. The other three shell casings recovered were for authorized hollow point rounds.

"This investigation raises important administrative issues related to compliance with policies and procedures of the Denver Police Department concerning tactics, uniforms, authorized firearms and ammunition, firearms training and certification and other matters that are beyond the scope of our review and authority," Morrissey added.

Read District Attorney Mitch Morrissey's police shooting decision letter

Police spokesman Sonny Jackson said Fitzgibbons is on an assignment that keeps him off the streets while the investigation continues.

"The fact that an uninvolved person was injured by bullet fragments from two of Officer Fitzgibbons' rounds is an unintended and very unfortunate outcome, but does not change the officers' justification for firing the shots at (suspect Sorl) Shead," Morrissey wrote in his report. "Therefore, no criminal charges are fileable against either officer for his conduct in this incident."

Morrissey said Fitzgibbons and Officer John Schledwitz were patrolling the area near Club Vinyl near 11th Street and Broadway as clubgoers were leaving around 2 a.m.

The officers said they heard shots coming from the Arby's parking lot across the street from the club. When they went to investigate, they said they were confronted by Shead, who was holding a gun.

The officers said they approached Shead who fired the gun upward and then lowered it toward the officers. The officers opened fire, but neither hit Shead, according to police.

Demmer was hit in the left leg and lower torso by bullet fragments from bullets fired by Fitzgibbons, Morrissey said.

Police said Shead had a stolen 9 mm Ruger semiautomatic pistol, which he tried to throw away. He tried to run off but was quickly apprehended by officers, police said. Shead now faces charges of first-degree assault and prohibited use of a weapon.

Morrissey expressed concern about the violent reputation of Club Vinyl. Five people were shot outside Vinyl in December 2008.

Morrissey said that Club Vinyl "and the surrounding area continue to consume police resources responding to criminal conduct inside and outside the establishment."

"This is presenting a significant recurring threat to both officers and citizens," said the district attorney.