No charges will be filed in the shooting death of a man who was killed after coming face-to-face with police on Buffalo's west side, the Erie County District Attorney's Office announced Monday.

Rafael "Pito" Rivera was shot on Plymouth Avenue after police responded there around 3 a.m. on Sept. 12 while investigating a 911 call saying someone was threatening people with a gun.

According to prosecutors, witness statements and surveillance video did determine that Rivera had what appeared to be a gun during a foot chase.

The district attorney said that the 32-year-old was commanded to stop running and drop his weapon. Officer Elnur Karadzhaev fired, and Rivera was hit three times and pronounced dead at the scene.

Rivera's family is moving forward with its lawsuit against the city.

"We have someone who was clearly running away from the police," said Steven Cohen, an attorney with HoganWillig who is representing the Rivera family.

Rivera's family is suing both the Buffalo Police Department and the City, seeking damages for his death and calling the department and city’s response “negligent, careless, and reckless.” An attorney representing Rivera's mother, meanwhile, said video shows Rivera was shot in the back while running from police.

"Yes, he was an inexperienced officer," Cohen said of Karadzhaev. "The evidence is so crystal clear this does not constitute a situation for which deadly physical force is warranted or permitted." 

The district attorney said that Rivera did not fire a weapon, and also said that a toxicology report showed that Rivera was high on cocaine and marijuana and also had an excessive amount of alcohol in his system at the time of his death.