An unarmed man who was shot by a South Miami police officer is now suing the cop and the city, while NBC 6 obtained exclusive video of the moments when the shooting happened.
Michael Gavins was pulled over by two officers in South Miami late last year for an alleged traffic violation at a gas station on U.S. 1, near the University of Miami. Gavins didn't have a weapon, but said he ended up being shot under his right armpit with the bullet exiting his chest.
Gavins says he should have never been shot and and on top of it, is upset that no charges were filed by the state attorney against the officer.
"I'm disappointed because to me they're basically saying that it's OK for police to shoot unarmed guys with their hands up," Gavins said.
In the video, Gavins and his attorney claim he can be seen with his back to the camera and putting up his right arm and that he was complying with all the officer's instructions, but the officer shot him anyway.
"I definitely don't think I should have been shot," Gavins said.
The officer who shot Gavins, South Miami Patrolman Aryo Rezaie, stopped Gavins for a traffic violation in November. Gavins ended up in the hospital where a small amount of marijuana was found in his pants. The drug charge and one for resisting arrest without violence were dropped.
"I was compliant to the officers. Everything they asked me to do I did," Gavins said.
Gavins filed a lawsuit Friday against Officer Rezaie and South Miami for battery and violating his civil rights.
"I'm just disappointed they have this officer out in the streets doing these things to people," Gavins said.
Miami-Dade Police investigators say Officer Rezaie told them he observed Gavins reaching into the front of his waist band and gave Gavins a verbal command to take his hands out but with negative results.
But Gavins' attorney, Paul Layne, says the video shows that isn't what happened.
"In the video you can clearly see he has his right arm raised. Now his right arm is raised for several seconds before he is shot and goes down," Layne said. "The police report repeatedly says says he had his hand in his waist band. It actually says he had both of his hands in his waist band and wouldn't remove them. But contrary to that, video shows he had his right arm up and that happens to be the same place where he got shot."
The state attorney concluded: "It is clear that Mr. Gavins, both through his own testimony....and through the testimony of Officer Pierre, did not comply. At that point officer Rezaie discharged a single shot which hit Mr. Gavins...a reasonable officer could believe that Mr. Gavins was about the retrieve some firearm or weapon."
"Our state attorney and her assistants have decided that there was no crime committed here and we find that to be completely outrageous," Layne said.
The state attorney told NBC 6 their investigation speaks for itself and they had no further comment. No one from South Miami or the police union responded to NBC 6's request for comment about the video and the allegations going along with it.