PEORIA, Ariz. — A Peoria man is preparing to stand trial for aggravated assault after he was shot in the face during a 2019 traffic stop.
The Peoria Police Department sergeant that shot Samuel Denk says the then 24-year-old reached for a gun in his lap. Experts who have viewed the body camera footage though, are torn.
Denk's lawyer is civilly suing the police department; arguing Denk never made a move for the pistol and that Sgt. Matthew Miller fired his weapon accidentally.
The shooting happened after a traffic stop just before 11 p.m. on March 27, 2019.
Miller pulled over Denk for not having "tail lamps." In the police report, Miller told detectives he was cautious approaching the vehicle because he saw the driver "reaching around" and looking "at him using the mirror."
As he approached the car, Miller quickly assessed that Denk had a gun his lap.
"Do not reach for that firearm," Miller warned Denk, according to body camera footage.
Miller then ordered Denk to put his hands on the steering wheel. Second later, Miller fired his gun.
Their entire interaction lasted roughly eight seconds, before Denk was slumped over, dragged out of the car and handcuffed.
"Hold on buddy, the fire department is coming," Miller said as Denk bled profusely on the pavement
"The bullet entered his left upper left cheek, tore out his upper palate, [then] exited his cheek into his shoulder," said Jocquese Blackwell, Denk's attorney.
Denk was rushed to the hospital for surgery.
Five days later, officers were at Denk's parent's house, arresting him for aggravated assault.
Days after his mugshot was taken, the Maricopa County Attorney's Office, run by Bill Montgomery at the time, got a Grand Jury to indict Denk for aggravated assault.
The indictment states that Denk "intentionally did place Miller...in reasonable apprehension of imminent physical injury."
The county attorney did not file any drug charges, although Miller noted Denk had a meth pipe in his lap next to the pistol.
Though the shooting happened in a matter of seconds, Miller told investigators Denk "put his hands into his lap and grabbed for the gun."
However, body camera footage shows that only one of Denk's hands is close to his lap. The other is propped up, as his left arm is resting on his window.
"You don't see Sam moving towards a weapon," Blackwell said. "What you see is Samuel Denk's hands move towards the steering wheel after he was commanded to do so."
The body camera is positioned in a way that does not capture Denk's lap in the seconds before he is shot.
One of his hands is not visible until the split second before he is shot when it is clearly rising towards eye level, without a gun.
"It looks like his hands are being raised to put them on the steering wheel as ordered. Not that he's reaching for his gun," said Jared Keenan, a senior attorney with ACLU Arizona.
Blackwell is now suing Peoria, alleging Denk was not a threat at the time he was shot. He also writes in the lawsuit that he believes Miller accidentally pulled the trigger, based on his reaction, which included expletives a second after the shooting.
"I don't believe the officer meant to shoot Sam when he did," Blackwell said. "The officer curses because, from our perspective, the officer made a mistake when he shot Sam."
Peoria police say that is not the case.
"The shooting was definitely not accidental. It was intentional. And Sgt. Miller has been cleared by that shooting," said Sgt. Brandon Sheffert, a spokesperson for Peoria PD.
Sheffert also noted that Peoria PD did not play a role in the county attorney's decision to seek a Grand Jury indictment.
Almost one year after the shooting, Miller was cleared of any criminal wrongdoing when the Maricopa County Attorney's Office (MCAO), under Allister Adel, stated in a letter that "Sergeant Miller did not commit any act that warrants criminal prosecution."
"They clear almost every officer. So that doesn't surprise me," Keenan said.
What does surprise the ACLU attorney though, is that MCAO believes Denk's actions "warrant criminal prosecution."
"If you're going to clear an officer [using] this evidence, this body cam — there seems to me to be not enough evidence to then go after this guy for aggravated assault," Keenan said.
"[Denk] doesn't have to be charged, just because they didn't charge the police officer. It could be a terrible accident," said Anthony Ramirez, a wrongful death attorney who sues police departments but also used to be an officer himself.
"To me, it didn't appear that [Denk] was a threat," Ramirez said. "But it really is tough to be in the role of those officers. Middle of the night on a traffic stop, you had a firearm displayed in somebody's lap. It's a tough place to be in. I wouldn't want to be there."
A jury will now decide if Samuel Denk committed aggravated assault or if he will continue his recovery from outside a cell.
His trial is set for late June and, if convicted, he is looking at years in prison.
"If he goes to prison, I think it's a sad day. I don't believe justice will be served," Blackwell said.
MCAO now has its third prosecutor on the case. It was being handled by April Sponsel, but she is still on paid administrative leave Scripps station KNXV in Phoenix exposed her role in bringing gang charges against protesters.
This story was originally published by Zach Crenshaw on Scripps station KNXV in Phoenix.