New allegations following man's shooting death

April 25, 2011 4:35:35 PM PDT
The family of a man shot and killed by a Houston police officer is asking the Department of Justice to investigate their claims of excessive force by the officer. The call for action came hours after the family got their first look at the autopsy report.

We were the first ones to get this autopsy report and the first ones to bring it to the family's attention. We've been fighting to get these documents for weeks.

"There's a loss there that will never go away," said Jeannette Counsil, sister of John Barnes.

It's been almost two years since Barnes was shot and killed by an off-duty Houston police officer.

"There isn't a day that I wake up that I don't' miss my brother or regret something that I didn't get a chance to tell him," she said.

HPD Officer Ryan Gardiner has maintained all along that Barnes threatened to kill him after grabbing his Taser during a fight. Yet four eyewitnesses claimed Barnes was unarmed and had his hands in the air when Gardiner opened fire.

"John had his arms folded and he was up against the car and saw the gun and said, 'What are you gonna do? Shoot me?' And then not seriously he said, 'Well then shoot me,'" said David Hodges, the Barnes' family's attorney.

What's more, the autopsy report showed Barnes was shot six times in the back and once in the chest. While his family calls it a clear case of excessive force, Gardiner's attorney says not so fast.

"These use-of-force events can unfold in nanoseconds. They can happen terribly quickly and events can change very rapidly," Gardiner's attorney Sally Ring said.

"To me, the boy was murdered," Barnes' father, John, said.

But a grand jury no billed Gardiner last year after reviewing all the evidence, including the autopsy report. Barnes' family is now calling on the U.S. Department of Justice to investigate.

"He should be no different from anybody else. If you do a crime, you should pay for it," John Barnes said.

The Houston police department released the following statement telling us:

"We are not going to reopen the investigation. The grand jury was aware of all the evidence including the autopsy report when it rendered its decision."

Officer Gardiner remains on HPD's force.

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