The office of Andrew Warren, State Attorney for Florida’s 13th judicial circuit (SAO13), says there is no legal basis to file charges against either of the two Tampa Police Department officers who fatally shot Dominique Mulkey.
The news comes after Warren’s office received findings from an independent Florida Department of Law Enforcement (FDLE) investigation and conducted its own review of the incident.
As previously reported by Creative Loafing Tampa Bay's McKenna Schueler, on Oct. 20, minutes before he was shot to death, Mulkey—a 26-year-old Black man—had been identified as an armed suspect from a Dollar General robbery at 3110 N. 50th St. in the Highland Pines neighborhood. The officers, one of whom was wearing an activated body camera, encountered Mulkey five blocks away from the store, on 50th Street. Video footage from the Dollar General, acquired and shared by the TPD, shows Mulkey stuffing a black trash bag with store merchandise, later identified as various snack items. When store clerks took the bag away from Mulkey, he pulled out a handgun. The store clerks called 911, and Mulkey fled the store with the bag on foot.
Previously released video from the shooting was included in a Dec. 1 release from Warren’s office (CW: shooting, death).
When asked about the shooting, Tampa Police Chief Brian Dugan said, at the time, there was no indication that Mulkey fired at officers and that it was not clear how many times officers fired.
Some witnesses saw more than 30 markers indicating where bullet casings had been found by investigators, but the FDLE investigation concluded that a total of 42 rounds—33 by one officer, and nine by the other, both using 9 mm handguns and 40 9 mm shell casings—were recovered at the scene.
The release from SAO13 says that an autopsy performed by Hillsborough County Medical Examiner determined that “two bullets had likely entered Mulkey’s body, one in the head, and another that passed through two parts of his body, creating wounds in both the left elbow and left torso.” The cause of death was the gunshot wounds to the head and torso.
In the release, Warren’s office cited Florida law which says that “anyone—police officer or civilian—can legally use deadly force when put in fear of imminent death or great bodily harm.”
Warren’s office “determined the facts and evidence of this incident prove the two law enforcement officers reasonably believed they were in fear of imminent death or great bodily harm when they used deadly force.”
“The law does not impose on any civilian or police officer faced with this situation a duty to retreat. These findings satisfy Florida Statutes 776.012 and 776.05 and, therefore, under Florida law, the use of deadly force is justified,” the release added. “Accordingly, there is no legal basis for criminal charges against either of the officers.”
FDLE confirmed that the two Tampa police officers involved in the killing of Mulkey do not have any previous incidents involving the use of deadly force. “Their names are being withheld due to Marsy’s Law, as they are the victims of an aggravated assault by Mulkey,” the release added.
At an Oct. 23 vigil outside the Dollar General, several of Mulkey’s family members—including several of his siblings, a brother-in-law, his foster mother, and stepfather—spoke to activists about their late loved one.
“He died trying to get food,” said Mulkey’s mother, referring to the black trash bag of dollar store merchandise Mulkey had stolen shortly before his death, which included a box of Cheez-Its and a bag of Ruffles potato chips. Early on Oct. 23, at a press conference outside TPD’s third precinct, his mother explained that Mulkey had been in foster care, and that if she knew he was hungry there, she would have taken him out of the home immediately.
His family also confirmed that Mulkey had a history of mental health issues, which the police officers were not aware of when responding to the initial 911 call. Mulkey’s family added that he was hard of hearing, and may not have heard the officers shouting at him; this week, in a profile of Mulkey, the family told the Tampa Bay Times that they didn’t notice his hearing issues until he was about four years old. By the time Mulkey was killed, he had been arrested for stealing twice without incident; those were the only two arrests on his record.
On Tuesday, Michelle Williams, a local civil rights activist who previously noted the sloppiness of the opened fire unleashed upon Mulkey and the homes behind, him called SAO13's decision to not press charges absurd.
"I’m truly sorry that this family will not get justice. Dominque Mulkey’s case is saddening, the foster care system failed him, the influential family members failed him and now the State Attorney's Office has failed him," Williams wrote in an email to Creative Loafing Tampa Bay.
Warren’s office addressed Mulkey’s difficult childhood and health issues in its press release, saying, “The family members’ statements shine an important light on significant challenges we face in our community related to social services and mental health support, both which are critically underfunded and overextended.”
“That is a necessary and valuable conversation our elected officials, law enforcement, and citizens must have,” Warren’s office added. “While the statements from family members provide valuable facts that may explain Mulkey’s life prior to his encounter with Tampa Police on October 20, 2020, under the law, this information is not relevant to the legal determination”
Last week, when news of Warren's office further reviewing FDLE's findings came to light, Gretchen Cothron, a volunteer attorney with the Greater Tampa Chapter of the ACLU told CL that those watching the case should allow the investigators to work the crime scene and allow the medical examiner to do their and work the death.
“We shouldn’t jump to conclusions and blame,” Cothron said in a text message.
“From a forensic standpoint I must say at this point we need to trust the experience and expertise of the forensic scientists that work for FDLE and the retired professionals that now work as investigators for the State Attorney’s Office,” she sadded. “Incidents like this are heartbreaking, as is every death. But, just as we trust investigators to solve deaths by unknown perpetrators, we must also trust investigators to solve deaths such as this one.”
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This article appears in Dec 3-9, 2020.