The family of a machete-wielding man who was fatally shot by police in a University of Colorado stairwell in October is signaling to sue CU and Boulder police, alleging excessive force was used against the man.

The wife and mother of 28-year-old Brandon Simmons filed a notice of claim on April 3 to CU through the Denver law firm Killmer, Lane & Newman, LLP. Any person who wishes to sue a state entity must first file a notice of claim.

In the claim, attorney Darold Killmer describes the Oct. 5 morning when Boulder and CU police responded to 911 calls about Simmons having “a confrontation” with someone in a parking lot on campus.

Police said Simmons arrived at the CU Champions Center parking lot about 9 a.m., began writing on a car in red marker and became angry when a man wouldn’t let him write on his car. A witness said Simmons pulled out a machete with a 31-inch blade and began walking toward the man, who ran away from Simmons onto the second floor of the Champions Center. Simmons then followed the man into the building, police said.

Killmer wrote it was unclear why Simmons entered the Champions Center.

When CU police Officer Clay Austin and Boulder police Officer Jason Connor encountered Simmons in the stairwell, Killmer said police saw Simmons walking toward officers holding the machete pointed toward them. Killmer relays both officers’ accounts of the confrontation, including the officers telling Simmons to drop the weapon, Simmons pointing the weapon at police and police shooting him multiple times until he fell down.

Killmer alleged Simmons was shot 17 times by the officers. In an autopsy report, the Boulder County Coroner’s Office reported 15 of those shots hit him directly while another two ricocheted and hit him in the back.

“Inexplicably, although Officer Connor was wearing his body camera, footage provided to counsel from the camera does not start until after the shooting had taken place and Simmons had already fallen,” Killmer wrote.

Officers and first responders performed first aid and CPR on Simmons, but he died at the scene, Killmer wrote.

District Attorney Stan Garnett cleared both officers of any wrongdoing in the shooting in November.

“While it seems clear that Mr. Simmons was suffering from serious mental health and chemical dependency issues, it is equally clear that he presented a significant danger to Officers Austin and Connor, and that they acted within the law to protect themselves from him,” Garnett wrote in a November letter.

In the letter, Garnett goes on to explain why the officers were cleared of wrongdoing, including: there was not enough time for the officers to safely turn and run to contain Simmons; police likely would not have had time to switch to a stun gun; Simmons was wearing multiple layers of clothing and under the influence of amphetamine and THC; and that the former Marine was in a stairwell commonly used by students, employees and staff and put innocent people at risk.

“The University of Colorado respectfully believes that this notice of claim is not well founded,” Patrick O’Rourke, vice president of university counsel and secretary of the Board of Regents, wrote in an email on Thursday. “As the Boulder District Attorney’s Office concluded after a complete and independent investigation, Mr. Simmons was armed and presented a significant danger to Officers Austin and Connor, and they acted within the law to protect themselves from him.”

Attorneys may bring “a variety of legal claims” on behalf of Simmons and his family including excessive force and wrongful death, Killmer wrote.

“Defendants’ treatment of Mr. Simmons violated his most sacred legal rights, including his right to be free from excessive force at the hands of the government,” Killmer wrote. “Defendants’ conduct cost Mr. Simmons his life, leaving his wife without a husband, his children without a father, and his mother without a son.”

Damages are extensive, Killmer wrote, because the physical and emotional damage will affect Simmons’ family for the rest of their life.

“While the exact amount of damages will be determined at trial, the family members of Mr. Simmons will seek the maximum amount of damages and remedies permitted by law,” Killmer wrote. “They will also seek attorneys’ fees and costs.”

Elizabeth Hernandez: 303-473-1106, hernandeze@dailycamera.com