Deputy cleared in Fernley killing

A Lyon County deputy was justified in shooting and killing a Fernley man who was brandishing an unloaded weapon, the Lyon County District Attorney states in a report released Thursday.

Lyon County District Attorney Leon Aberasturi said in a memorandum to Sheriff Sid Smith that the death of Joshua Brinkley, 21, at the hands of Deputy Michael Gagne, was in "self-defense and was justified."

"The officer's use of deadly force constituted a reasonable and legal response to the threat the handgun presented to the officer's own life. Officer Gagne had no opportunity to discover that the weapon was unloaded. Officer Gagne's actions would constitute self-defense."

According to Aberasturi's report, Gagne and another deputy responded to the 100 block of Dallas Street on Jan. 31, on a report of a man pointing a gun at a child. When they arrived, the victim's mother reported she and her two children were walking a puppy in the trailer park when they came upon an intoxicated Brinkley. When the puppy began moving toward the woman's son, Brinkley allegedly said the puppy was his and bent down. In bending down, a handgun Brinkley was carrying fell onto the ground.

"Joshua Brinkley told the boy not to pick up the puppy and pointed the handgun at the boy's head," Aberasturi wrote. "The handgun was estimated to have been an inch from the boy's head."

Gagne and the deputy then went to Brinkley's trailer and knocked on the door announcing they were with the sheriff's department. Aberasturi said in his report the deputies reported they could hear Brinkley inside laughing.

Aberasturi said Gagne then opened the door and began to shout commands at Brinkley.

"Officer Gagne continued to shout commands that Joshua Brinkley get his hands up and to show his hands ... Joshua Brinkley looked at Officer Gagne and laughed. Joshua Brinkley continued to laugh throughout the time Officer Gagne yelled commands at him," Aberasturi wrote. "Joshua Brinkley then pointed the handgun at Officer Gagne."

According to the report, Gagne took two "quick shots."

"Joshua Brinkley began to move as if he was going to get up. Officer Gagne shot two more quick shots and Joshua Brinkley stopped moving."

It's believed the first two shots struck Brinkley's handgun, one of which also entered his torso. Shots three and four perforated his right and left lungs, spleen, stomach, liver and heart.

Toxicology reports indicate Brinkley's blood alcohol level was .25. He also had trace amounts of marijuana and sedatives in his system.

Aberasturi also notes in his report Brinkley's friends knew he was carrying a gun while intoxicated and were concerned of his actions and took the magazine from him earlier in the evening. The friends, however, refused to elaborate on why they became concerned about Brinkley and the gun, Aberasturi wrote.

"Joshua Brinkley had committed felony assault with a deadly weapon upon a young boy. Officer Gagne had the legal right to apprehend and arrest Joshua Brinkley. Joshua Brinkley failed to heed the lawful commands to show himself and put his hands up. Instead he pointed a handgun at a public officer ... The death of Joshua Brinkley clearly falls within the scope (of) a justifiable homicide by a public officer."

Following the shooting, Gagne was placed on administrative leave with pay pending an internal investigation.

According to a statement Thursday from the Lyon County Sheriff's Department, that investigation concluded in March and also found Gagne's actions were justified. He was returned to "full-duty status" at that time.

• Contact reporter F.T. Norton at ftnorton@nevadaappeal.com or 881-1213.