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News and Features: Features

Clearing the cops

Do district attorneys rubber-stamp police use of deadly force?

BY: Jack Sullivan
Photographs By: Frank Curran and Mark Morelli; Illustration by Rafael Ricoy
Issue: Winter 2014

From the tiny town of Colrain at the Vermont border to the siren-pierced streets of Boston, state and local police have shot and killed 73 people across Massachusetts over the last 12 years. The deadliest year was 2013, when 12 people were killed. Every completed killing investigation found the police were justified in using deadly force; only three of the cases were presented to a grand jury or judicial inquest to determine if a crime was committed.

Most of the shootings were easy to justify. Milton police, for example, shot and killed 23-year-old Kerby Rebellus in 2009 to keep him from attacking his sister with a knife. Rebellus had already killed two other sisters, decapitating one in front of police. Suspected Boston Marathon bomber Tamerlan Tsarnaev went down in a gunfight last year with police in Watertown after allegedly killing MIT Police Officer Sean Collier and trying to escape with his brother in a stolen car filled with homemade bombs. And Dominic Cinelli was killed trading gunfire with police on the day after Christmas in 2010. Cinelli, a career criminal, had shot and killed Woburn Police Officer John Maguire after a jewelry store robbery.

But in as many as 10 of the deadly force cases, the facts of what happened are not so clear and the police motivation far more murky. In some cases, the victim did nothing wrong and just was in the wrong place at the wrong time. In others, the police initiated the confrontation and didn’t appear to take steps to avoid violence. In a few instances, the police story just doesn’t add up.

Of the 73 deadly force incidents, 29 involved people wielding guns; 23 carried a knife, hatchet, machete, sword, or box cutter; three held a pointy household item such as a pen, screwdriver, or barbecue fork; 11 drove a car in a threatening way; five others were unarmed; one had a pellet gun; and one had a starter’s gun.

In every case, the initial and primary investigation of the killing was handled by fellow police. The Boston, Springfield, and Worcester police departments investigate shootings by their officers while the State Police look into the use of deadly force in other local jurisdictions as well as by their fellow troopers. The ultimate decision on whether to prosecute is made by the local district attorney, who often works with police in his jurisdiction on a daily basis.

In a majority of the cases, the officer using deadly force claimed he fired in self-defense, fearing for his life or the life of a fellow officer. District attorneys say a claim of self-defense places the burden on the state to prove otherwise, which is difficult to do because the officer is often the only witness to the shooting and the premise that they were in fear is generally accepted as legal fact.

State Police Col. Timothy Alben, a 31-year veteran of the department, says the system is working well. “The overwhelming majority of them are unquestionably justified,” says Alben. “I don’t think we should burden a grand jury with these. I’m not surprised in the number 73. In fact, that seems to me to be a small number. I just don’t see this as a problem that needs to be fixed. That’s the system we live with. Firearm discharge in my department gets a lot of attention. It’s not something here that anybody takes lightly.”

Alben’s contention that 73 is a small number cannot be verified. Law enforcement officials in Massachusetts don’t track deadly force incidents carefully and national numbers are suspect, making state-to-state comparisons impossible. (For more on how CommonWealth compiled its numbers, click here.)

R. Michael Cassidy, a Boston College law professor and a former assistant attorney general, says what jumps out at him is the low number of incidents since 2002 that were referred to a grand jury or an inquest. “I think the numbers alone suggest there is a different standard for police,” he says. “Those are powerful figures. Does that suggest there is a possible double standard? Yeah, it might suggest implicit bias in police cases by DAs.” In a high number of the deadly force cases, the facts of what took place are not so clear and far more murky.

Maki Haberfeld, chairwoman of the Department of Law, Police Science, and Criminal Justice Administration at John Jay College of Criminal Justice in New York City and a consultant to police departments on training and ethics, says the small size of most police forces makes internal investigations a closed process by nature. “Literally 97 percent of police departments have less than 50 sworn police officers,” she says. “Where everybody knows everybody can be a problem. Any profession that investigates themselves, there is always going to be doubts. Familiarity will always have some influence.”

The Rev. Talbert Swan of Springfield is seeking an independent investigation into the 2011 shooting of 18-year-old Tahiem Goffe by a Springfield policeman, which was investigated by the Springfield police and ruled justified by the local district attorney. “There’s no way that any type of objective decision can result out of an investigation by folks investigating themselves,” he says. “We do have an attorney general, we do have State Police, we do have independent entities that can come in in those cases. The public deserves no less than to have full confidence in the results of an investigation. If my son were involved in the execution of a crime, and you allowed me and his mother and his siblings to do the investigation, you can imagine what the recommendations will be.”

Stories that don’t add up

Yarmouth police officer Christopher Van Ness tried to pull Andre Martins over for speeding on the night of July 27, 2008. Martins, a Brazilian immigrant who by all accounts was a ne’er-do-well stumbling in and out of trouble with the law, refused to pull over. Van Ness and other officers pursued Martins and cornered him and his girlfriend in their car on the front lawn of a home. When Van Ness got out of his cruiser, Martins tried to pull away in his vehicle and Van Ness fired three shots at him and killed him.
Jessica Spinney says she’s getting no answers in the shooting death of her fiancé,
Denis Reynoso, who she believes was a victim of mistaken identity by the Lynn police.

Michael O’Keefe, the district attorney for the Cape and Islands, ruled that Van Ness was justified in using deadly force because he was acting in self-defense. Van Ness said he was struck by the side mirror on Martins’s car and feared he was about to be crushed against his own vehicle.

“In order to create one’s claim of self-defense, it must appear that the person using the weapon has a reasonable apprehension of great bodily harm and a reasonable belief that their life is in danger. The law is the law and it applies to everyone,” O’Keefe says.

In a deposition for a subsequent civil suit brought by Camilla Campos, Martins’s girlfriend and the mother of his children, Van Ness was asked about firing the shots.

“Q. At the time you fired your weapon, the vehicle was no longer coming at you; am I correct?”
“A. It was passing by me.”
“Q. Okay. So it was no longer coming at you, correct?”
“A. No, it was not.”

Van Ness tried to get the case dismissed, as many are, on summary judgment through qualified immunity, a statute that protects public employees from being sued for actions taken in the performance of their jobs. But a US District Court denied his motion and the federal Appeals Court in Boston issued a strongly worded opinion upholding the denial. The three-judge panel, which included former Supreme Court justice David Souter, said Van Ness’s version of events was, at a minimum, in dispute.

The opinion says the dueling testimony of Van Ness and Campos, coupled with a credible accident reconstruction report compiled by experts hired by Campos, raise questions that must be decided by a jury. A ballistics report shows at least two of the bullets Van Ness fired entered from the back of the car. The accident reconstruction determined the car was going between 7 and 13 miles per hour, slow enough for most people to jump out of the way.

O’Keefe wrote in his investigation summary that there was no way he could challenge Van Ness’s claim of self-defense. “It must be proven that the officer’s apprehension of great bodily harm was unreasonable beyond a reasonable doubt in order to sustain legal proceedings against him,” O’Keefe wrote.

Like the appeals court in the Martins case, Fitchburg District Court Judge Robert Greco also raised questions about a case of police deadly force. Former Worcester County district attorney John Conte asked Greco to conduct an inquest into the 2005 shooting death of Preston Johnson by State Trooper Donald Gray. Gray pulled Johnson over for drunken driving. Gray said he got out of his cruiser and moved off to the side of Johnson’s car when Johnson aimed the car at him and stepped on the gas pedal. Gray said he feared for his life and the safety of a Fitchburg officer at the scene when he fired the single fatal shot.
Cape and Islands District Attorney Michael O’Keefe says once a police officer
claims self-defense, the state has a near-impossible burden to prove otherwise.

Greco recommended that criminal charges be brought against Gray because Gray’s testimony was contradicted by ballistic reports that show the bullet hit Johnson in the back of the head through the rear windshield. Greco labeled Gray’s actions “wanton and reckless.”

“Given the path of the bullet and the location of the entry wound, the major portion of the SUV had to have passed him by,” wrote Greco in his report. “It would be pure speculation—and difficult to imagine in view of the direction the SUV was going and the size of the vehicles involved—to find that Gray was about to be crushed by the tail end of the SUV. That Gray gave a very different account indicates to me a concern on his part that a more accurate account would be inculpatory.”

Conte, who was quoted in the local press supporting Gray’s actions, submitted the Gray case to a grand jury, which declined to indict Gray.

Malcolm Gracia

On May 17, 2012, a group of New Bedford police officers was watching a computer monitor showing a feed from a grainy surveillance camera set up at the Temple Landing housing project. The officers noticed two teens, one of whom was later identified as Malcolm Gracia, exchange what seemed like a gang-style handshake. That was enough for the police officers to head to the basketball court to confront them.

Gracia, 15, and his companion did not stop when approaching officers said they wanted to talk with them. The officers then detained the pair and put them up against a car to frisk them. Gracia took off running and the officers followed in pursuit. Gracia got into a scuffle with officers and stabbed one with a hooked fishing knife.

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The four officers on scene said Gracia kept advancing toward them and refused to obey their commands to stop and drop the knife. They said Gracia kept coming even after being shot once, so they fired again. The autopsy report indicates Gracia was shot four times, three in the back and the apparent fatal bullet behind the right ear. There were no powder burns on the entry wounds, indicating the shots were not at close range.

The officers claimed they acted in self-defense and Bristol County District Attorney Samuel Sutter sided with them, ruling the use of deadly force was justified. Sutter, who was endorsed by the New Bedford police unions in his first run for office in 2006, says politics played no role in his decision.

The Gracia case illustrates how a fairly innocuous initial encounter with police can quickly mushroom into a case of deadly force. At least 30 of the 73 police shootings since 2002 began with a routine traffic stop or street encounter and escalated from there. Gracia, for example, wasn’t suspected of any wrongdoing. The police officers didn’t even know who he was. But because Gracia refused to stop and then ran, the situation quickly escalated.

“Malcolm wasn’t committing a crime, Malcolm wasn’t suspected of committing a crime,” says New Bedford attorney Donald Brisson, who is representing Gracia’s sister in a wrongful death suit. “If the police stop me on the street and they ask me a question, I’m free not to answer them and walk away. Malcolm did walk away the first time. What the heck are they chasing this kid for?”

Another teen who was at the Temple Landing housing project that night says the handshake police witnessed was not a gang greeting. “We are not a gang,” says Alex Fernandes, 17, who returned when he heard the shots and saw his friend lying on the ground bleeding. “We are kids that all grew up with each other and we are from the projects. Yes, we have a handshake for it. We did it every time we saw each other and left each other. It’s a brother thing we do. We’re no Crips, Bloods, Latin Kings, none of that. We are just from the West Side of New Bedford.”

Victoria Snelgrove’s 2004 death is the only instance of disciplinary action for police using deadly force. Sutter and other district attorneys say the actions that lead up to the use of deadly force are typically not relevant to their investigations. The focus of the investigation is on the incident itself, not on the actions preceding the incident and whether the officers complied with departmental policy. “My inquiry from a legal point of view is very narrow: Was a crime committed and by whom?” says Suffolk District Attorney Daniel Conley. “If a situation occurs where a policy was violated, I would still have to judge an act based on law, not on policy.”

Yet district attorneys seem to have no qualms about including information about the decedent’s background in their reports on a shooting, even when the information appears irrelevant and was unknown to the shooting officer. Sutter’s report on Gracia, for instance, cites the teenager’s mental health issues, his references to violent rap music on Facebook posts, pictures of him with a knife, and his anger over the fact his father, Joseph Ramos, was shot and killed by Dartmouth police in 2009. All of those things were true, but they were unknown to the officers who confronted Gracia that evening.

“The DA’s report went to great length to detail things that had nothing to do with” the shooting, says John Reinstein, a former senior counsel for the American Civil Liberties Union of Massachusetts, which sought unsuccessfully to have the investigation reopened. “If you’re trying to show he was on the ground and he was frenzied, then that’s important information to have in the report. They don’t have that analysis; they just threw [the unrelated issues] in.”

Screw ups

Since 2002, only one case of deadly force has triggered disciplinary action for the officer involved. In 2004, crowds were celebrating in Kenmore Square after a Red Sox comeback victory over the New York Yankees in the playoffs. A Boston police officer fired a pepper ball, which is designed to explode upon impact with the street and emit irritant pepper powder to disperse a crowd. But instead of hitting the street, the projectile hit Victoria Snelgrove and killed her. The incident prompted the police department to demote the officer’s supervisor and suspend the officer for 45 days without pay.

But there are other examples where police made a fatal mistake yet no one paid any price. In 2011, a Framingham SWAT team executed a search warrant for two men believed to be dealing drugs. They arrested one man outside his home but then kicked down the door of the house the man lived at even though they knew his cohort did not live there. Police found the arrested man’s stepfather, Eurie Stamps Sr., a retired MBTA mechanic, watching television in his bedroom. Stamps, a grandfather of 12, was not the subject of the warrant, had no criminal record, and was not armed. In fact, he was in his pajamas.

Police ordered Stamps to lie on the floor face-down with his arms out, which he did. But while he was in that position, a SWAT team member says he tripped and his assault weapon fired a bullet into Stamps’s head, killing him almost instantly.

Gerry Leone, who was Middlesex County district attorney at the time, ruled the shooting an accident and did not press any charges. He did not seek what amounts to a second opinion by taking the case to a grand jury or seeking a judicial inquest. To avoid similar incidents in the future, the Framingham police have since changed their SWAT team procedures, reducing the number of team members on a raid and requiring officers to keep their weapons in a non-shooting position until forced to shoot.

On September 8, 2002, Eveline Barros-Cepeda crouched down in the back seat as police pursued a car in which she was a passenger. The driver of the car had fired several shots earlier outside on a street, and then fled when police arrived. As he drove away, he struck one officer, causing minor injuries. But as the vehicle sped away, another Boston officer fired five shots into the back of the vehicle, fatally shooting Barros-Cepeda, a 25-year-old mother of two.

Conley, then the new Suffolk County district attorney, ruled the shooting justified as a matter of self-defense. His report also noted that Barros-Cepeda had drugs on her when she was found, even though the pursuit had nothing to do with drugs. Paul Evans, the police commissioner at the time, subsequently changed the department’s deadly force regulations, prohibiting officers from firing on a fleeing car unless they are being shot at or someone’s life is in danger. The policy change prompted an outcry from the Boston Police Patrolmen’s Association, which called on Evans to resign.

“The determination for criminal charges is based on whether there was a grossly disproportionate force in self-defense,” says Conley, who has never referred a deadly force case to a grand jury or sought a judicial inquest. “The [Supreme Court] said it must be based on what a reasonable officer at the scene, based on the information he has at hand, would decide. The calculus of reasonable must allow for the fact police officers are forced to make split-second judgments.”

Jessica Spinney thinks Lynn police may have mistakenly killed her fiancé, Denis Reynoso, in September. She says she has been given no detailed information by the police or the district attorney while an investigation is ongoing, but believes it was a case of mistaken identity.

Reynoso, 30, was at home in Lynn with the couple’s 5-year-old son when police arrived. They were investigating an outside disturbance at another address on a different street but somehow ended at the apartment of Reynoso and Spinney. Spinney wants someone to explain how and why Reynoso, an Iraq war veteran with no criminal background and no history of violence, would “lunge” for one of the officer’s guns, as police charge. Most of all, Spinney wants to know why anyone thinks Reynoso would jeopardize the safety of his small boy, who was close enough to the confrontation that his father’s blood splattered on him when police shot Reynoso.

“That’s not the type of person he was. He was the calm one in the relationship,” says Spinney, who at the time was in a seminar for work. “There were three armed police and one unarmed citizen. How could that happen? I just don’t understand. There are a lot of things that went wrong that day. I feel like I’m living in a nightmare.”

How the data were gathered The Lynn police say Reynoso was the aggressor and the shooting was justified. Essex District Attorney Jonathan Blodgett is overseeing an investigation by State Police but the only witness besides the officers is Reynoso’s 5-year-old son. Spinney says he is traumatized and won’t say anything.

Spinney is trying to get Attorney General Martha Coakley or Gov. Deval Patrick to launch an independent investigation, something that hasn’t happened in any of the deadly force shootings.

Training and transparency

Police work is dangerous business. Since 2002, there have been three Massachusetts police officers killed in the line of duty: Collier at MIT, Woburn officer Maguire, and Springfield Police Officer Kevin Ambrose, who was shot and killed in 2012 while responding to a domestic disturbance. In each case, the officer was either caught off guard or engaged in a shootout.

But in many of the cases in which police have used deadly force, the situation often starts with a minor incident or confrontation and escalates. Officials inside and outside of law enforcement say there is often both time and space to diffuse a situation using proper equipment and training.

“We privilege police officers to use force in a different manner than we might individual citizens,” says Reinstein, the former ACLU official. “Deadly force comes with its own standard. There is an inherent danger in being a police officer. That has some bearing on this. But that doesn’t mean that they’re exempt from the law or exempt from review or from the justice system.”

Some police departments are buying Tasers for officers to use in situations where the suspect does not have a gun. Of the 40 communities in Massachusetts where there has been a deadly police shooting since 2002, only 21 have Tasers. But only seven of the communities had Tasers before the shooting; the rest bought the electric-shock guns after the fatal shooting.

In Essex last year, voters approved the purchase of Tasers for their officers after Police Chief Peter Silva convinced residents of the upside of having the devices. “If we have a tool that we can utilize and it shows my guys can go home at night, I’m all for it,” says Silva. “It reduces officer injury, reduces injury to the subject, and it reduces lawsuits. My guys want to go home to their families, they should go home to their families. We have seconds to make the best, healthy decisions we can make—seconds.”

Even when deadly force is used, critics such as Reinstein and Springfield’s Rev. Swan say there needs to be a careful review of what happened to assure the families of those killed, to maintain the trust of the public at large, and to look for ways to avoid such confrontations in the future.

“In a culture where people are acting in a manner that says shoot first and ask questions later, the police have to set a different type of example,” says Swan. “I know there are times where lethal force may be warranted, but I also know those instances are few and far between.”

Sutter, the Bristol district attorney, says proposals to reduce conflicts of interest by referring all police shootings to other district attorneys or even the attorney general or US attorney would cause even greater delays in justice and lessen the transparency of a local investigation. Sutter referred one case to Plymouth District Attorney Timothy Cruz because the state trooper involved was assigned to his office. Cruz similarly referred a police shooting in East Bridgewater last year to O’Keefe, the Cape and Islands DA, because the trooper involved was attached to his office. Those are the only two instances where DAs made referrals since 2002.

“Most of the time it’s not necessary,” says Sutter. The system here in Bristol County has worked well. To contemplate the other alternatives, you still have the situation where you have police investigating police. I’m not sure how different that would be. I’m not sure that would be enough of an improvement.”

Blodgett, the president of the Massachusetts District Attorneys Association, says he’d have no problem indicting a police officer, bringing the officer’s case to a grand jury, or referring a deadly force case to another DA if the circumstances warranted it. In his 10 years as a DA, Blodgett says, that’s never happened. But if the Legislature felt another approach was needed, he says he wouldn’t object. “I’m not going to abrogate my authority, but I wouldn’t be opposed to a change,” he says. “These are a heavy burden in our offices.”

For more detailed information on each of the 73 fatal officer-involved shootings in Massachusetts since 2002, click here.
1 Article Comments

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Comment by Christine Cole
Says on 12.23.2013
at 8:02 PM

A provocative and well done story by MassINC that examines officer involved shootings in Massachusetts. The story raises a critically important point though may be unnecessarily condemning of the current model of investigations. If the public finds that investigations by the district attorneys and Massachusetts State Police are not credible or sufficiently open, then a call for a change in practice is reasonable. Changing long-held practice to improve relationships and legitimacy is a good plan and not suggestive of prior malfeasance. It is clear that departments have learned from bad incidents and made policy changes, though more systemic changes in oversight and accountability are needed for better relationships with those who are policed.

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