By Margaret Matray
The Virginian-Pilot
SUFFOLK, Va. — The man lay on the ground on his back.
Thirty feet away, Officers James Babor and Cheryl Abrigo waited for backup.
Babor had heard dispatchers’ transmissions on his way to the scene. This man had a handgun, a caller told 911. He had chased three teens down the street, threatening to shoot them.
Babor thought 28-year-old Corey Achstein might be considering suicide by cop, according to a commonwealth’s attorney’s report.
Backup finally arrived. Achstein sat up quickly, his back to Babor and Abrigo. He dropped his hands to his waist – out of view – and twisted toward the two officers.
“He’s going for a gun to shoot me and her,” Babor thought, according to the report. “… I need to stop him.”
Babor fired one shot, striking Achstein in the upper back. Achstein put his hands above his head.
“You shot me,” he said.
Achstein died later at a hospital. A metallic pellet gun – a replica of a handgun – was found 10 feet from where he had been lying.
Suffolk Commonwealth’s Attorney C. Phillips Ferguson on Thursday ruled that Babor’s use of fatal force in the Dec. 28 shooting was justified. No charges will be filed.
In a report to police Chief Thomas Bennett, Ferguson outlined the facts of the case, witness accounts and Babor’s thought process leading up to the shooting.
Ferguson wrote that Babor believed Achstein was reaching for a weapon and that he and his partner were “in danger of death or serious bodily harm.” Babor’s use of force was reasonable because of what he knew before he arrived, comments made by Achstein, the officer’s interaction with him and other factors, the report says.
“The legal standard for charging and successfully prosecuting an on duty police officer with homicide or manslaughter is high,” Ferguson wrote. “It requires the state to consider the case, not from the perspective of 20-20 hindsight, but of a ‘reasonable police officer’ in the heat of the moment.”
Babor’s interaction with Achstein lasted 83 seconds, during which he asked Achstein six times to show his hands, Ferguson wrote.
Babor and Abrigo remain on administrative assignment while police finish an administrative investigation, city spokeswoman Diana Klink wrote in an email.
“The Suffolk Police Department would like to express their deepest sympathies to the family of Corey Jason Achstein,” Klink wrote.
Achstein’s family did not return a call seeking comment Thursday.
Babor, an eight-year veteran of the department, was involved in another fatal shooting in 2010. Ferguson determined Babor and another officer acted reasonably in that incident, and neither was charged.
The day of the more recent shooting, Dec. 28, someone called 911 to report that an armed man was chasing him and two friends near the intersection of Causey and Maryland avenues.
“Will you please hurry?” the caller told dispatchers, according to 911 calls released by the city Thursday.
“I don’t want to die.”
According to Ferguson’s report, the caller and his friends had been walking down the road when Achstein yelled at them to “shut the [expletive] up, before I come outside and whip y’all ass.”
“Com’ on outside,” they replied.
“Hold on,” Achstein said, “let me grab this Glock.”
When they told Achstein they would call police, he said: “Go ahead and call them. I don’t care who you get, can get your mom or your daddy, I’m still going to kill them.”
Multiple witnesses heard Achstein yelling curse words and racial slurs and threatening to kill the teens, Ferguson wrote. A toxicology report would later find that Achstein had a blood alcohol content of 0.255 percent – more than three times the legal limit for driving.
Babor, who was on another call, overheard dispatch’s transmission about 5 p.m. and was the first to arrive.
He got out of his vehicle with his police dog controlled in his left hand and his gun in his right, held to his side. Achstein was more than 30 feet away and continued to walk away as Babor tried to approach.
He tried to talk to Achstein, who refused to respond or comply. He believed Achstein still had a weapon on him even though he couldn’t see a gun, according to the report.
Babor raised his gun and told Achstein that if he did not comply, he would shoot.
Achstein replied, “Go ahead and shoot me.” Babor said he did not want to shoot. He became concerned Achstein was considering suicide by cop.
Achstein eventually lay on the ground on his back, with the top of his head toward Babor. As Achstein was lying down, Babor heard “a metallic sound” to his left, although he did not see what made the sound.
Abrigo, a 12-year police veteran, said she saw Achstein throw something she thought was a gun as she arrived, although she didn’t relay that to Babor. Achstein was moving around in a “jerky manner,” and Abrigo asked Babor if he had hit him with a stun gun. The officer said no.
When a third officer pulled up – blue lights flashing and facing toward Achstein – Achstein sat up. Babor told Achstein several times to show his hands, then fired, according to the report.
“This office does recognize that this is a tragic situation,” Ferguson wrote. “We empathize with the Achstein family and friends and extend our condolences to them for their loss. We would like to assure all those involved that a thorough investigation was conducted and all evidence was considered prior to issuing this finding.”
Copyright 2016 The Virginian-Pilot