DuPage County State’s Attorney Berlin: Naperville Police Officer’s Actions Justified Regarding Police-Involved Shooting on Ogden Ave

Following is a summation from the DuPage County State’s Attorney’s Office after an extensive and thorough investigation of the shooting of Zachery Kelley by a Naperville police officer. According to DuPage County State’s Attorney Robert B. Berlin, Naperville police officer, Jordan Koziel, who discharged his weapon seven times, striking Mr. Kelley once in his right shoulder and once in his left knee, was justified in his actions and that no criminal charges will be filed against the officer. In reaching this conclusion, the State’s Attorney’s office carefully reviewed the applicable law and thoroughly examined all the evidence, including but not limited to:

• Police reports
• 9-1-1 calls
• Statements from those involved
• Witness accounts
• Physical evidence
• Photographs
• Naperville Police Department radio traffic
• In car squad videos
• Private security video

On January 23, 2019, at 10:15 p.m. Naperville Police Officer Jordan Koziel and another Naperville police officer responded to a 911 hang up call at 1207 Whispering Hills Court. Upon arrival, the occupant advised she had a verbal argument with her boyfriend, Zachery Kelley, and that following the argument Kelley left the apartment.

At approximately 10:30 p.m., a woman on her way home stopped at the Mobil Gas Station at 1280 W. Ogden Avenue in Naperville. When she got out of her car she was approached by Kelly, whom she did not know. Kelley asked the woman for a ride and offered her money. She refused, went to the gas station and called 911 to report a suspicious person. After unsuccessfully trying to open the woman’s locked car doors Kelley walked inside the gas station, heard the woman talking to the police, left the gas station and walked to the parking lot of the adjacent strip mall.

At 10:36 p.m., a Naperville police officer responded to the call of a suspicious person at the Mobil Gas Station. As she was arriving at the Mobil, the officer heard Officer Koziel advise over the radio that it might be Kelley from the domestic violence incident on Whispering Hills Court. The officer then heard over the police radio that the subject (later identified as Kelly) was located at Los Burritos Tapatios and he has a gun. The officer then ran east through the parking lot of the gas station toward Los Burritos Tapatios where she saw Kelly with a gun in his hand. The officer, who took cover behind a sports utility vehicle in the parking lot, thought Kelly’s gun was real. At this time, the officer and another officer on the scene commanded Kelly to “drop the gun” several times. Officer Jordan Koziel, a six-year veteran of the Naperville Police Department arrived at the parking lot of Los Burritos Tapatios at this time. Koziel was working in full uniform in a marked squad car. Koziel had responded with another officer to the 911 hang up call at 1207 Whispering Hills Court and was driving around looking for Kelley when he heard over the police radio that the subject was located at Los Burritos Tapatios and was armed with a gun. Officer Koziel arrived at the scene and saw Kelley holding a gun to his own head. Officer Koziel got out of his car and used his open car door for cover. He saw the other Naperville officer run backwards, yelling at Kelley to “drop the gun” as referenced above. Officer Koziel heard Kelley say several times that his life was over and watched as Kelley dropped to his knees while holding the gun to his head. Officer Koziel talked to Kelley in an attempt to calm him down. Officer Koziel yelled, “Drop the gun” numerous times at Kelley. Officer Koziel yelled, “Are you Zach? Listen to me, just drop the gun man. Talk to me, just put the gun down and we can talk, ok? Everything is fine, just put the gun down man.” Kelley was upset and crying. Officer Koziel continued trying to talk to Kelley. Koziel stated, “My name is Jordan, what’s your name? Tell me what’s going on, we want to help you. We care about you, ok? Things can always get better. It’s not over, it’s never over. Things can always get better. Let me help you, give me a chance to help you.” Kelley then stood up, walked forward and pointed the gun directly toward responding Naperville police officers who were approximately twenty to twenty-five yards away.

Officer Koziel was in fear of his life and the other officers’ lives and he fired seven shots at Kelley and saw Kelley fall to the pavement. Officer Koziel told investigators he is positive he had to shoot Kelley or Kelley was going to kill him and the other officers. Officer Koziel thought the gun that Kelley was holding was real. Koziel described the gun as “a silver semi-automatic, there wasn’t an orange tip on it.” Officer Koziel said that neither Kelley nor anybody else ever yelled out that it was a fake gun. Officers approached Kelly while he was down where they were able to secure the gun Kelley had been holding and handcuff him. Officers and paramedics from a private ambulance that happened to be in the parking lot at the time rendered aid to Kelley. Kelley was shot once in his right shoulder and once in his left knee.

Following the incident, the entire scene was processed by the DuPage County Sheriff’s Office. Through their work, investigators recovered the gun Zachery pointed at the officers. The gun was a silver W.C.G. s-102 Sport 102 plastic BB/air soft type pistol. Investigators also recovered five .40 caliber spent shell casings which were located in the parking lot: 2 on the asphalt near Officer Koziel’s squad car, and 3 on the windshield of the squad car.

The above facts have been evaluated in the context of Illinois law governing the justifiable use of deadly force. In accordance with Illinois law, my staff and I have reviewed the facts and circumstances of the case with special consideration given to the perspective of the officer on the scene. It is important to remember that police officers are often forced to make split-second decisions about the appropriate amount of force necessary to bring a tense, uncertain and rapidly evolving situation under control.

In determining whether the shooting of Zachary Kelley was a justifiable, the fundamental question to be answered is whether the officer reasonably believed that Mr. Kelley posed an imminent threat of death or great bodily harm to the officers on the scene or others. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight. The Peace Officer’s Use of Force in Defense of Person (720 ILCS 5/7-1(a)) states that “A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony. Thus, the question becomes whether it was objectively reasonable for Officer Koziel to believe Mr. Kelley posed an immediate threat of death or great bodily harm to himself or others and was the use of force necessary to contain that threat.

When Kelley refused to drop the gun, and walked forward and pointed the gun directly at Naperville police officers, Officer Koziel reasonably believed that Zachery Kelley was trying to shoot him and/or the other officers. Additionally, the squad car video and audio and the video from Los Burritos Tapatios corroborates the officers’ statements. The video and audio clearly show Officer Koziel attempting to calm Kelley down and convince him to drop the gun, and clearly show Kelley walk forward and point the gun at the officers.

Kelley’s statements made after the incident, that he remembered having his BB gun in his hand and putting it to his head, that he admitted pointing the gun in the direction of police officers with the intent to get them to shoot him, and that he agreed that the officers probably felt that he was going to shoot them and that they feared for their safety corroborate the officers’ version of what happened. Kelley admitted he knew the people there were police officers. Kelley ultimately said that he was thinking “suicide by cop,” and that he remembered pointing the gun at the officers. Kelley expressed remorse and wanted to tell the officers he was sorry. These admissions corroborate Officer Koziel’s reasonable belief that he or the other officers were going to be shot.

“Every case involving the use of deadly force by a police officer must be carefully and thoroughly investigated. Such scrutiny is required to ensure the protection of the civil rights of those involved and to maintain the public’s confidence in law enforcement.”

— DuPage State’s Attorney Robert Berlin

The fact that the gun Kelley pointed at the officers was a plastic BB/air soft pistol is of no legal consequence. The BB/air soft pistol looks exactly like a real gun and Kelley’s actions indicated to the responding officers that the gun was in fact real. All of the witnesses in the Los Burritos Tapatios restaurant, the private ambulance medics, and all of the Naperville police officers at the scene believed the gun was real. Their belief was reasonable. Given the violent actions of Kelley, Kelley’s refusal to obey repeated police commands to drop the gun he held in his hand, and Kelly’s action of pointing the gun directly at officers, it was reasonable for Officer Koziel to believe Kelley was attempting to shoot him or the other Naperville police officers, and that deadly force was necessary to prevent imminent death or great bodily harm to himself and the other officers. Therefore, it is the conclusion of the State’s Attorney’s Office that



 facebook … 

GET ALERTS on Facebook.com/ArlingtonCardinal

GET ALERTS on Facebook.com/CardinalEmergencies

GET ALERTS on Facebook.com/ArlingtonHeightsCrime

Get updates from The Cardinal ALL NEWS FEEDS on Facebook. Just ‘LIKE’ the ‘Arlington Cardinal Page (become a fan of our page). The updates cover all posts and sub-category posts from The Cardinal — Arlingtoncardinal.com. You can also limit feeds to specific categories. See all of The Cardinal Facebook fan pages at Arlingtoncardinal.com/about/facebook …

Help fund The Cardinal Arlingtoncardinal.com/sponsor

THANKS FOR READING CARDINAL NEWSfficer Koziel acted lawfully and was justified in using deadly force when he fired his gun and shot Zachery Kelley.

I would like to thank the DuPage County Major Crimes Task Force for conducting a thorough and independent investigation, as well as Assistant State’s Attorney Helen Kapas for her valuable assistance.

State’s Attorney Berlin stated that in his opinion, the officer involved in this unfortunate incident made every attempt to reach a peaceful conclusion under very stressful conditions. His show of concern and compassion for Mr. Kelly and for the safety and well-being of his fellow officers is a testament to the excellent training that the Naperville Police Department provides for their entire force. Unfortunately, Mr. Kelley’s failure to obey the Officer’s commands and his aggressive, threatening behavior resulted in the officer discharging his weapon. Thankfully, for both Mr. Kelley and for the officer, Mr. Kelley’s injuries were not life-threatening.”