District Attorney Nola Tedesco Foulston announces today that the investigation and review of a

Office of the District Attorney

18^th Judicial District of Kansas

For Immediate Release

September 12, 2007

District Attorney Nola Tedesco Foulston announces completion of the investigation and review of a Citizen Use of Deadly Force occurring on August 25, 2007.

~~that a joint investigatory team under the authorization of the Office of the District Attorney, including the Kansas Bureau~~ ~~of Investigation and the Derby Police Department, has competed its investigation and review of a law enforcement officer involved incident that occurred on November 20, 2005 in Derby, Kansas.~~

Nature of the Investigation

The incident giving rise to the investigation and review occurred at Salyer Pharmacy, 102 East 21^st Street North, Wichita, Sedgwick County, Kansas. The incident involved two co-owner pharmacists, a third employee of Salyer Pharmacy and a citizen, Alexander R. Mies, who died as a result of the incident.

As required by protocol established by the Office of the District Attorney and under its authorization, a joint investigatory team consisting of the Wichita Police Department and the Investigations Division of the Office of the District Attorney revealed the following facts:

The incident giving rise to the investigation and review occurred in Derby, Kansas at the Dillon’s Supermarket parking lot located at 317 N. Rock Road, Derby, Sedgwick County, Kansas, and involved a Derby police officer and a citizen, Edward E. Lowe, age 56, who died as a result of the incident.

~~The joint investigation revealed the following facts:~~

Factual Summary

At approximately 3:40 pm on November 20, 2005, Derby Police Department received a call from the Dillon’s store reporting a disturbance involving abuse of a child by the child’s father. The reporter relayed that the mother and child were inside the store and the father was outside in the parking lot inside a maroon car with a veteran tag parked in handicap parking. This information was dispatched and a member of the Derby Police Department, referred to as Officer A, responded immediately to the call.

On Saturday, August 25^th 2007, Salyer Pharmacy opened to the public for normal pharmacy business at 9:00 am. The pharmacy was staffed at the time by two male pharmacists, ages 67 and 59, co-owners of Salyer Pharmacy (hereinafter referred to as Pharmacist One and Pharmacist Two) and their 19 year old female Employee. At approximately 10:45 am, a white male, later identified as Alexander R. Mies, entered the public entrance at the rear of the store. Mies had a tan Ace-type bandage wrapped around his head and face leaving only his right eye exposed. Mies was wearing a grey/black hooded sweatshirt with the hood covering his head. There were no customers in the store at the time.

Mies approached the register counter and asked the employee about a prescription called in by an unnamed doctor and provided the Employee a false patient name. The two pharmacists heard the request and discussed the fact that neither was familiar with the name of the physician or that such an order had been received at the pharmacy.

Mies moved away from the register counter to a partial wall that enclosed the pharmacist work area and drew a semi-automatic handgun. Mies stated, “This is a Hold-up give me the Lortabs and narcotics.” Mies then produced a plastic shopping bag and ordered that the drugs be placed in the bag. Mies pointed the handgun at Pharmacist One.

Pharmacist Two, upon observing Mies’ actions, realized a robbery was taking place and began to move to the back area. Mies yelled at him to “come back.” Instead, Pharmacist Two retreated to a back room where he retrieved a pistol grip shotgun hidden from view. Pharmacist Two then walked back to the work area, confronted Mies and yelled at Mies to, “Put down the gun. Drop it.”

Mies pointed his gun at Pharmacist Two and then swung the gun back toward Pharmacist One. Pharmacist Two fired the shotgun he was holding at Mies hitting him on the right side of the head and face. Mies immediately fell to the floor.

Pharmacist One pushed the alarm button under the counter and directed the Employee who was hiding under a chair to call 911.

At approximately 10:47 am, Sedgwick County Emergency Communications was notified of the shooting.

TEmergency Response to the Pharmacy~~he Police Response~~

Upon arriving in the parking lot of the store, Officer A immediately noticed that a maroon car parked in a handicap stall was occupied by one white male in the front passenger seat. When Officer A arrived, he was in his police uniform and was driving a marked patrol vehicle.

Officer A drove toward the maroon car and parked directly behind it. The officer observed the maroon car had a handicap tag with a disabled veteran label. Officer A contacted dispatch for information on the license plate and then proceeded to exit his patrol car. As that time, he saw the white male in the maroon vehicle move forward and to the left as if reaching for something. When Officer A began walking toward the maroon car, the man flung open the car door and yelled at the officer to go away. Officer A told the man, “Sir do not get out of the car.” The man responded by again telling the officer to go away. Officer A told the man, “I’m here to find out what is going on today….” Before the officer could ask for identification, the man came out of the car with a knife in his hand.

The Wichita Police Department responded to Salyer Pharmacy and found Alexander Mies on the floor bleeding from a head injury. Officers located a black semi-automatic handgun on the floor under the right side of Mies’ body. Emergency Medical Services responded to the pharmacy to provide medical treatment and transported Mies to Via Christi St. Francis Hospital where he was pronounced dead at 11:18 am.

~~The Altercation~~

When Officer A first saw the knife, the man was holding it high in his left hand, blade pointed up with the sharp edge forward. Officer A was at this time positioned at the right rear tire of the maroon vehicle. The man then swung the knife at Officer A, who pushed the man’s arm down and away and commanded him to drop the knife. The man continued multiple times to swing the knife at the officer.

Officer A backed up and drew out his firearm as the unidentified man again moved toward the officer with the knife. While pointing his service revolver at the armed man, he commanded him to “Drop the knife.” The man continued forward and Officer A again commanded him to “Drop the knife.” At this time, the man came up with the knife again, lunging at the officer. Officer A fired his weapon and the unidentified man, still armed with his knife, fell to the ground. Officer A holstered his weapon and immediately called for emergency medical assistance. While on the ground, the man continued to reach for the knife, however, the officer was able to secure the weapon by stepping on it.

The man continued to struggle with the officer in an attempt to reach the knife. Officer A yelled at the man to stop reaching for the knife. The man, later identified as Edward Lowe, continued to try to reach the knife until he was transported away by emergency medical personnel.

~~EMS Transport~~

~~EMS arrived at the scene and provided Lowe immediate medical assistance. He was transported to Wesley Medical Center where he was later pronounced dead at 4:14p.m.~~

Crime Scene Investigation

Crime Scene Investigators from the Derby Police Department arrived at the scene to photograph, diagram and preserve evidence. The knife Lowe used to charge the officer was located on the cement parking lot near the maroon 4-door Chevrolet car. The knife was a lock blade knife with a brown handle and 4” blade.

~~Investigators determined a single shot was fired from Officer A’s gun, a .45 caliber semi-automatic pistol issued by the Derby Police Department.~~

~~Officer A received minor cuts to both of his hands.~~

Crime Scene Investigators from the Wichita Police Department arrived at the scene to photograph, diagram and preserve evidence. The handgun on the floor and the shotgun used by Pharmacist Two were collected and examined. The investigation revealed that the handgun used by Mies was unloaded. It was determined that a single shot was fired from the shotgun that hit Mies and also damaged property inside the pharmacy.

Additionally, scene photographs were taken by investigators of the District Attorney’s Office to demonstrate the placement of all individuals involved at the time of the incident.

~~Civilian Witnesses~~

Several employees and customers saw or heard portions of the altercation and were interviewed by investigators. Investigators learned that a female employee was approached by a woman and a young boy just prior to the shooting. The woman told the employee that she was scared for her life and the life of her son. The woman reported that her husband and father of the boy had been violent and was in the parking lot. The employee took the woman and the boy to the manager’s office and the police were notified.

Two other employees reported that they had observed the altercation from the drive-thru pharmacy window. They each said they saw the man swinging his hands at the officer, and saw the officer back away while the man continued to swing his hands at the officer. The employees saw the officer draw his gun and the man again started fighting the officer and the officer shot him.

Several other witnesses in the parking lot observed the man with a knife in his hand swinging at the officer and yelling for the officer to “Stop fucking with me.” The same witnesses heard the officer tell the man to get back in the car and also heard him tell the man to drop the knife.

~~The witnesses report the man refused to listen and was very irrational and aggressive. The witnesses observed the man lunge at the officer and saw the officer shoot him from approximately 3 feet away.~~

Medical History and Autopsy Results

Alexander Mies was twenty-seven years old and had undergone several surgical procedures since high school and had battled an addiction to pain medications.

An examination of the body at autopsy revealed Mies was shot one time with a shotgun from a distance. The shot entered the right frontal area of his head penetrating his brain and causing his death.

Edward E. Lowe was fifty six years old and a veteran with the United States Army, serving in Vietnam from 1968-1970. He had previously suffered from a gunshot wound to the left arm, head, thigh and shrapnel wound to the right eye. He had been diagnosed and treated by the Veteran’s Administration for Intermittent Explosive Disorder, Major Depression, prolonged Post Traumatic Stress Disorder, and personality disorder. He had numerous times self reported homicidal thoughts toward other humans and animals.

~~An examination of the body at autopsy revealed Lowe was shot one time. The shot entered the right side of his chest above the nipple, perforated the right lung and heart and lodged in the 11~~^th ~~thoracic vertebrae. The shot was fired from a distant range.~~

The Law

In Kansas, all persons including law enforcement officers are entitled to defend themselves and others against the use of unlawful force. The law provides that a person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. An officer is justified in using force likely to cause death or great bodily harm only and to the extent that it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.

The use of deadly force in defending a person is judged on a “case by case” basis. Only such force as is reasonably needed to defend against another’s imminent use of unlawful force will be legally permissible.

The use of force by Officer A against Edward E. Lowe constituted a lawful use of force under the circumstances then presented. The officer was justified in firing the weapon at Lowe who continued to aggressively strike at the officer when armed with a deadly weapon. Prior to the use of deadly force, Officer A had issued several commands to Lowe to drop the knife and Lowe still continued to charge toward the officer with knife in hand. The aggressive actions of Edward E. Lowe toward Officer A contributed to his own death and a consequence of his own actions.

~~Kansas law provides that a law enforcement officer is permitted the use of deadly force when it is reasonably necessary to defend against the imminent threat of deadly force by another.~~

In Kansas all persons are entitled to defend themselves and others against the use of unlawful force. The law provides that a person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend themselves or another against imminent use of unlawful force.

A person is justified in using deadly force if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. Kansas law does not require a person to retreat if such person is using force to protect oneself or a third person.

The law in Kansas also provides that a person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand their ground and meet force with force.

In Kansas it is lawful for a person to possess and carry a firearm in their fixed place of business.

The use of force by Pharmacist Two against Alexander R. Mies did not constitute an unlawful use of force. The firing of a single shot from a shotgun at Mies was a reasonable use of force in defense of a person and defense of others. The investigation reveals that Mies was threatening both pharmacists with a deadly weapon, a semi-automatic handgun, while attempting to complete a forcible felony.

Prior to the discharge of the shotgun, Pharmacist Two demanded that Mies put down the gun. Mies continued to point his gun at both men placing them in imminent danger of death or great bodily harm. Pharmacist Two took reasonable steps to dissuade Mies’ demonstrated intent before firing the shotgun.

District Attorney Nola Tedesco Foulston

18^th Judicial District of Kansas