The family of a young man who was shot and killed by officers in Kaufman County is suing for wrongful death.
The officers involved in the shooting claim Gabriel Winzer, 25, had a gun and shot at them first. But the family's attorney says that's wrong and he's being stonewalled from getting more evidence.
Dash camera video from a Kaufman County squad car shows part of the incident play out on the morning of April 27, 2013 in a small community near Terrell. You can hear anxiety in the voices of deputies and state troopers responding to a report of a man in a brown shirt walking down the street with a handgun shooting at mailboxes.
According to an affidavit by one of the state troopers just prior to this encounter, he says: "I observed the suspect walking around waving his arms in the middle of the road… …as we approached… … the suspect then raised his hand gun and fired directly at us. I saw the smoke coming from the gun and had heard the whizzing sound and believed he had taken a shot at us..."
Moments later the five officers stopped where they saw the suspect walk behind a clump of trees near a home. A short time later a man in a blue shirt riding a bicycle appears on the right side of the screen. According to several officer affidavits, the distance is roughly 100-150 yards away.
Then on the video you can hear: "He's got that gun!" "Put that down!" and shots ring out.
On this part of the incident the trooper's affidavit says: "We spotted the suspect coming back to us on a bicycle." "The suspect… again disregarded the verbal command and raised his arm to bring his hand gun to a firing position." "I was in fear of my life… …and fired one round with my m4 patrol rifle."
According to the wrongful death suit, Winzer was struck three times -- in the chest shoulder and upper back.
"All Gabriel was doing at the time of his death, at the time these officers shot him he was on his bicycle,” said family attorney Daryl Washington.
In their sworn statements, all five officers said they saw a gun and one said it was fired.
The lawsuit claims Winzer was carrying a bright orange toy gun sometime before officers encountered him, but it also says a real gun was never found. FOX4 confirmed that fact with the Kaufman County Sheriff.
"I wanted to see the gun. I wanted to see the empty casing shells. I have not seen this. I have seen none of it. Nothing that would indicate that this young man shot at these police officers,” Washington said.
FOX4 attempted to get information from the attorney representing the deputies but did not get a call back. FOX4 also contacted the Kaufman County District Attorney, but she was unavailable for comment.
Texas Rangers investigated the case, including the five officers involved, and turned their finding over to a Kaufman County grand jury who did not indict the officers.