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February 12, 2008

Have gun, will fire

Last summer, Darren Pickerill’s life changed forever when he was shot in the parking lot of an East End strip mall. Claiming self-defense, the shooter was protected by state law. Both were armed. Is there something wrong with that? There was the fact that it was a Sunday afternoon in June, he’d just finished a job and the weather was agreeable, so pleasantries came easy for the young couple. He’d called her at work proposing a late lunch, which is a little off from ordinary but not totally. They noshed at the McDonald’s across the road from the Kroger at Stony Brook, where she is a nurse practitioner in the Little Clinic, a one-room, one-stop deal born of the healthcare crisis in this country, where people get cheap care and lessons in prevention. Toby Kubas is her name, and Darren Pickerill his. At 32 and 34, respectively, they’ve known each other 17 years, been together almost that long, been engaged the last three years, own a condo together. They have matching black Hummer H3s, his with dark window tinting. So there is lunch, then a few errands in Kroger so Darren can prep for dinner — he loves to cook — and back to work for Toby. She is with a patient when the pharmacist knocks. “Toby, are you OK?” he asks. He is unusually persistent. Fine, she says, but she’s curious. It’s not exactly a crisis kind of workplace. He tells her someone has been shot near her vehicle. What she knows that he doesn’t is that the pharmacist has mistaken her H3 for Darren’s. What we know that she didn’t is that Richard Koenig, a 51-year-old former officer with the Jeffersontown Police Department who was out on a “Sunday drive” with his wife, Barbara, before a planned stop at a gun show, has just shot Pickerill in the arm, chest and forehead. Just minutes ago, the two men had been involved in a verbal altercation at the intersection about 50 feet from Toby’s office. When it clears, Koenig will tell police that Pickerill ran a stop sign, got in front of Koenig’s tan Jeep Grand Cherokee and commenced talking aggressive trash. Then, after Koenig offered to pull over so they could chat it out, Pickerill brandished a gun, a 40-caliber Glock semiautomatic handgun, so Koenig whipped his, also a 40-caliber Glock, from the holster on his right hip and fired. Seven shots. A few seconds. Shot to kill. Koenig was not arrested, and would not be charged with a crime, as a Jefferson County grand jury declined to return an indictment this Jan. 15. The Commonwealth’s Attorney recommended as such — there was no evidence contradicting statements given by Koenig and his wife about the encounter. Meanwhile, Pickerill is stuck in a 24-hour care facility and behaves essentially like a toddler. He has a crater in his forehead the size of a softball. Stengel says his office waited months for Pickerill to come to, so that he may have spoken in his own defense. He didn’t. Doctors have suggested he probably never will. This is a dark story for many reasons, not the least of which is that the only affirmative theory of the June 3, 2007 encounter comes from the man who fired his gun into the body of another man. It is a story of how terribly wrong a simple argument can go. It is also a story about how extraordinarily pedestrian guns and gun violence have become: Both men had permits to carry a concealed weapon. Problem was, as it turned out, one was a firearms expert and the other a novice. The stream of emotion arrives: Panic. Dread. Stress. Toby runs out the door, covers about 50 feet in a few seconds. “It seemed like miles for me to run to get to that stop sign,” she will say months later, recalling the afternoon mechanically, with clarity. “You don’t know what to do.” The crush of people — bystanders, cops and EMS — is prohibitive, and she can’t get a clear look, so Toby asks what happened. Nobody knows. How is that possible? she wonders. A woman approaches to say the man in the Hummer has been shot. Is he dead? Again, no one knows. Then he’s there on a stretcher, Darren is, and she sees no body bag, no white sheet, so something instinctive tells her he must be alive. She sees no oxygen being applied to Darren, and so now she is confused. The scene does not immediately occur to Toby, and so the Jeep Grand Cherokee’s front bumper only a couple feet from the H3’s driver-side rear wheel, the broken glass, the blood, these are not components of her observation. That someone has just shot Darren for god-knows-why doesn’t register just yet. Toby rides to University Hospital with Tom Dillard, chaplain with the Jeffersontown Police Department, which responded to the initial call and would subsequently investigate the incident. She calls Darren’s parents. Once everyone is there, Toby asks the doctor — a neurosurgeon she knows, because another job she works is in the Norton Hospital chain — to bring it to her straight: Will Darren live? The doc says it’s not likely he’ll be around four more hours. It is later that evening that Toby begins to wonder who did it. On the scene, Koenig called 911 immediately. In a tape of the call obtained from the Jeffersontown Police Department through an open records request, Koenig sounds cool and measured, but speaks with a sense of urgency. In short, he’s a cop. He tells the dispatcher he’s not sure whether Pickerill is alive, but is armed and needs EMS. Barbara Koenig is hysterical. According to interviews also obtained through open records, she left the Jeep right away — on Koenig’s command — and planted somewhere near Kroger while her husband conducted some rather unusual legwork. First, he reached into the H3 from the driver’s side, arcing his arm over the steering column to turn off the engine. He told police he did this because Pickerill’s foot must’ve landed on the gas and was mashing it into the floorboard, creating a potential hazard for customers of the Kroger gas station a few healthy paces away. Second, Koenig retrieved a disposable camera from his glovebox and took several photographs of the scene. Most of them are different angles on the two SUVs; there is also a photograph of Pickerill’s robust, bloodied body slumped over the center console, snapped from just a few feet away. Koenig offered the roll to his attorney, who accompanied him to an interview at the Jeffersontown police station that afternoon. The photographs are now part of the investigative file maintained by the department. For the rest of the day and in the coming weeks, Jeffersontown officers would interview a number of witnesses, none of whom counter the story told by both Koenigs in separate interviews. Conversely, no witnesses saw who first drew a weapon. Stengel said in a recent interview that he believes Pickerill pulled his gun to scare Koenig, just to mess with him a little. But when he waved it, Koenig reacted like a cop. “That’s something that I struggle with every time we have these police shootings, is that if you draw down on a police officer, he’s going to unload everything he has on you,” Stengel said. “It’s not like a cowboy movie. He’s not going to try and shoot the gun out of your hand, he’s not going to try and wound you. He’s going to try to kill you, and he’s going to keep unloading until you look dead. That’s the way they train them, and that’s what the law says he’s entitled to do. And they beat that into their heads: You either do this or you die on the street.” At the Jeffersontown Police Department, he is known as Rick. The department where Koenig worked for more than 20 years — and retired from last year — conducted the full investigation, and to be perfectly clear, there is nothing suggesting that investigation was botched or bagged for that reason. In fact, Scott Drabenstadt, the Pickerill family’s attorney, commended Jeffersontown Police Chief Rick Sanders for his work on the matter. But, as Stengel said in an interview, a cop is always going to be friendlier to one of his or her own. Just as with any officer-involved incident, particularly shootings, you’ve got to wonder about a conflict of interest. Stengel said his office has considered bringing in outside agencies to investigate, but concluded there’s not much use: It always returns to the idea that all police are police, “and they have a natural affinity toward each other. I don’t believe any other agency would look at it any more strictly.”  The investigation was completed within months and turned over to the grand jury. Ultimately, Koenig was not indicted because what he did, the way he told it in his story, is fully protected by Kentucky law. Passed by the General Assembly in July 2006, the “Castle Doctrine” expanded the circumstances under which a Kentuckian may apply deadly physical force, to include provisions for protecting one’s home or vehicle. It also clarified that there is no obligation to retreat, as there exists in some states, from a situation where deadly force is appropriate. At the time, opponents argued that the Castle Doctrine was largely unnecessary, as state law already allowed for the use of deadly physical force when faced with a legitimate threat of death or bodily harm to you or someone with you. Thus, had Koenig been arrested, the department could have faced a lawsuit — Kentucky citizens cannot be arrested for shooting or killing someone in their own defense. That both men were legally armed with semiautomatic handguns — Koenig actually had a duffel bag in the rear of his Jeep that contained two more Glocks, loads of ammunition and range gear — while driving leisurely through the parking lot of a white-bread, suburban and always-busy strip mall is prosaic, striking for its ordinariness. It is that because of a 1996 law that allows almost anyone without a criminal record to carry a concealed weapon most anyplace they go. To get a license, you need only to fill out some paperwork, pay a $60 fee, provide an updated photograph and complete a state-approved training class. State Rep. Robert Damron, D-Nicholasville, was the purveyor of that legislation. An avowed gun-rights advocate, Damron foisted a bill last month to allow students at state universities to keep firearms in their vehicles while on campus — currently against rules made by the universities themselves. A state legislator at the time, Stengel voted against the concealed carry bill, and he remains no fan of the law. “This is exactly what it brings to your society, is people getting in situations where they either think that they can get out of it by threatening with a gun, which ends up causing a gunfight,” Stengel said. “I really expected more (incidents like the one between Koenig and Pickerill), and we haven’t had that, thankfully. But that’s what we’ve done, we’ve gone back to the days of Dodge City with this carry-concealed thing. It’s just a step back.”In its 2007 report, the Brady Campaign to Prevent Gun Violence cited Kentucky gun laws as the weakest in the country.  “Guns are only defensive when they’re used offensively,” Stengel said. “You have to shoot, you know, you can’t hide behind a gun.” Guys like Koenig and Damron — and, for that matter, Pickerill, a small-business owner who installed medical equipment in the homes of elderly people and bought a gun only in 2006, deciding he needed protection on the job after working in what his fiancée called “rougher” parts of the city — would surely disagree with Stengel’s assessment. Generally, the people who think guns are tools to solve social problems are also the ones who end up in trouble because of them. Which brings us to the crux of this particular matter, the pivot on which moves everything and everyone involved in this atavistic show of brutality: Was Koenig actually firing in self-defense? Still in their vehicles after Pickerill allegedly ran a stop sign and cut off Koenig’s Jeep, the men were less than five feet from each other, driver’s side windows rolled all the way down. Multiple witnesses said Pickerill was jawing aggressively at Koenig, staring “coldly” and looking angry, and that Koenig asked Pickerill to pull over so the men could talk it out. The Koenigs both said Pickerill then pulled his gun and pointed it at them — Richard Koenig accurately described the gun to police — at which point Koenig pulled his Glock and pumped four bullets into the Hummer. Pickerill was hit first in the left arm, which had been resting on the sill of the open window. Three bullets tore through. Then in the chest, a bullet that came remarkably close to his aorta. He slumped over toward the passenger seat, motionless for a second or two. Then, according to Koenig’s version, he came up again, and Koenig assumed he was moving to return fire, so he put a bullet in Pickerill’s head. Pickerill’s body fell into the passenger seat, draped over the center console, where EMS workers would eventually find his gun, decorated with thick drops of his blood.  There is no evidence suggesting which of the men pulled his gun first, only evidence confirming that both weapons were revealed. And that evidence — blood spatter testing found specks on the top and sides of Pickerill’s gun, which means it was out when he was hit — convinced Stengel to recommend no indictment. Of course, it could’ve happened a number of other ways, and those close to Pickerill have their own theories. In an interview with LEO following the grand jury’s decision, Donald and Jessie Pickerill, Darren’s parents, said there’s no way their son pulled the gun first, that it’s not in his nature. (They did not cooperate subsequently for this story.)Ann Carr, Kubas’ mother, said in an e-mail that she believes Koenig pulled the gun to scare Pickerill, and that when he pulled his to return the favor, Koenig fired. The blood spatter on the top of the gun also suggests that Pickerill had it near his lap when he was shot, not pointed out of the Hummer’s window, as Koenig told investigators. As well, Pickerill — whose gun aptitude is questionable, as he’d bought the Glock, his first gun, less than a year before, and went to the range only occasionally, according to Kubas — is left-handed, meaning he would’ve been pointing the gun with his off hand. Pickerill stored his bullets in the pocket of the driver’s side door and his gun in the center console, which is where it was found, loaded and lying on top of a Linkin’ Park CD case. His collapsed body covered the entire console. Kubas believes this should’ve suggested to investigators that Pickerill had his gun down, near his lap, or at least close enough to the middle of the Hummer to have dropped back into the console when he was shot. “I know Darren did not pull that gun,” Kubas said. “I know him better than anybody.” Kubas called the photos Koenig took of the scene “a prize,” like a hunter mounting a deer head to the wall to celebrate a kill. She said it’s all part of a disgusting display of police covering for their own. “If the tables were turned, Darren would’ve been arrested, held on bond, and I’m sure that he would’ve been prosecuted to the maximum,” Kubas said. “There’s no doubt in my mind. None.” To observe the personnel file of Richard Koenig’s 20-plus years as a Jeffersontown Police officer is to see the machinations of a deeply troubled, aggressive, angry, even apocalyptic man who at times was so wrapped up in the strength of his own authority that he often forgot there were others above him. The file is littered with incidents consequential and not — inappropriate arrests, drawing his gun on people for no reason, a temper gone wild, endangering bystanders while speeding through a Stony Brook parking lot. From a Sept. 18, 1997 memo by Sgt. Greg Graham, Koenig’s supervisor at the time: “As you are well aware, this is not the first incident involving alarming behavior by Officer Koenig, but another in a long line of unprofessional acts he has committed since being hired. Officer Koenig’s disregard for the public, his terrible attitude and disrespect for authority has only worsened recently. None of the officers on the shift want to work with him or ride a beat with him. He is completely unproductive and a liability to the department. Additionally, his continued talk of the end of the world has led some officers to believe that he is about to snap.”Just four months before that memo, a citizen complaint against Koenig alleged a disturbing foreshadowing of what would come a decade later. According to the complaint, Koenig pulled a man over who was trying to pass some construction on a highway ramp. Koenig allegedly got out of his car with his gun drawn, telling him to “shut it off, or I’ll blow your fucking head off.” This was nearly 11 years ago, but the behavior follows all the way through to his retirement last year. There are several instances of Koenig flashing his bright lights and sirens while tailgating drivers who had done nothing wrong, apparently set on intimidating them. It is clear that his supervisors routinely became frustrated with him over such incidents. Chief Sanders, who was Koenig’s boss, did not return calls seeking comment for this story. Koenig’s personnel file also contains more than 20 commendations. Reached at their home, neither he nor his family would comment for this story.Investigators also interviewed a number of people connected to Pickerill, a few who said he, too, had a history of aggression. Lee Judd, Toby Kubas’ uncle, characterized Pickerill as a “bully” and a “prick.” He also claims Ann Carr, his sister and Kubas’ mother, told him horror stories of Pickerill’s aggressive side, and said at one point that Kubas was afraid of him. There are also a few bizarre statements indicating much of the same. A woman named Melanie Vincent, who claimed to know Kubas’ aunt, Sissy Mefford, said that Mefford told her of an incident where Pickerill waved a gun at someone in traffic, causing the person to “about shit his pants.” Mefford denied knowing this person more than once, and told investigators she had no idea Pickerill owned a gun. Another woman claiming to be connected to Judd relayed a similar account, offering hearsay supposedly coming from Kubas’ family about Pickerill’s nasty behavior. There is also a sworn statement alleging that Pickerill is the kind of guy who would pull a gun on somebody during an altercation in traffic. However, it is from an anonymous source whose name and personal information have been redacted from the file. Kubas said she’s not certain who it could be; the statement indicates it’s a former friend of Pickerill’s. Regardless of its accuracy, this and other statements were presented to the grand jury, along with Koenig’s personnel file. Family members say the statements about Pickerill’s propensity for violence are wrong. “There has been reference made to he has a temper. Well, in reality, we all do and if pushed, we all have our limits,” Roxann Marling, his older sister, wrote of her brother in a recent e-mail. “No, he was not an aggressive person or a bully. It amazes me how people judge someone so quickly by what they drive, wear or where they live. Yes, he was a (carry-concealed permit) holder, but that does not make him a thug. Will we ever know the whole truth?” When he rubs his right hand in and around the fist-sized indentation that is about half his forehead, Darren Pickerill will often ask when the bone flap is coming. Well, we’re not sure. He knows he was shot; he doesn’t really know why. He has lost the skill he had as an artist, drawing people and faces but never quite getting the noses right. His Etch-a-Sketch gets a workout, as does Simon Says, which he and Kubas play in the evenings sometimes, when she visits for an hour or two a few times a week. Always a reader, but more into magazines than books, Darren still devours the newspaper daily, although it’s unclear whether he is comprehending what he reads. For the most part, Darren’s parents are in charge of his care. They have no plans to pursue further legal remedy, and recently elected to move him to a facility in Lexington, where Kubas says experts are eager to get a look at his brain injury. His left arm, mangled by the three bullets that passed through it, now wears a brace that helps him with gripping. He can get to the bathroom and even wipe himself, although he can’t quite connect the need to go with the act of getting up and going. Every four steps or so, he loses his balance. “I love him so much and I know he is a strong and independent person and he will overcome this situation that he is in,” Marling wrote. Doctors suggest it’s more likely that Pickerill will spend the rest of his life operating at a toddler’s capacity. Kubas says she’s not sure what happens next. She’s lonely now, working three nursing gigs and trying to stay focused on the slow march forward. When Pickerill moves to Lexington, she says she’ll visit less frequently. And for the first time in a long time, she’s not looking forward to Oct. 21, the day she’ll turn 33. “He taught me over the years that your birthday is the most important holiday because it’s the day you were born,” Kubas says, finally giving over to sobs after nearly an hour of recounting the last year of her life in deep detail. She won’t go to Huber’s for her birthday again this year, and she’ll never see an NFL game with Darren, like he used to say he wanted to. These things, as much as the sum of everything else, make her impossibly sad.  Contact the writer at sgeorge@leoweekly.com