In Wake of Fatal Burlington Police Shooting, Some Question Use of Deadly Force | News | Seven Days | Vermont's Independent Voice


In Wake of Fatal Burlington Police Shooting, Some Question Use of Deadly Force

Local Matters


Published November 13, 2013 at 1:10 p.m.

One week ago, Burlington police officers visited a New North End home after the mother of a man with a history of mental illness reported that he was agitated and destroying property. 

Approximately two minutes after he arrived on the scene, Cpl. Ethan Thibault squeezed the trigger of his Glock .40 — the first time a Burlington police officer has fired a gun in the line of duty in 16 years. The bullet killed Wayne Brunette, 49, who police would later say was wielding a shovel in a threatening way. Thibault and Cpl. Brent Navari were not injured.

Many questions remain unanswered. How large of a role did Brunette’s apparent history of mental illness play in the incident? Why did one officer fire, and the other did not? And are police justified in gunning down a man armed only with a shovel?

Burlington police, along with most law enforcement agencies in America, are trained to fire if they believe themselves to be in danger of serious injury or death. Officers are instructed not to wait until they are attacked, and to shoot to kill — not to injure or disarm.

“This is a complex area of operations and one of the most misunderstood areas of law enforcement operations, thanks to movies and TV that largely portray the impossible,” Burlington Police Chief Michael Schirling said in an interview.

But some legal experts said Brunette’s shooting, even if it was done in accordance with police department regulations, appears at first glance to follow an alarming pattern in Vermont: mentally ill people being killed by police during encounters that began when officers were called to help. 

“It’s a tragedy that could be avoided if we have a better response to these situations,” said Hinesburg attorney Robert Appel, who represents the mother of Macadam Mason, an unarmed Thetford man who died after Vermont state police shot him with a Taser last year. “It’s hard to second-guess cops. They have a very difficult job; they have to make snap decisions; they don’t have a lot of time. Why not talk? Why not other means of intervention? It seems so avoidable — two minutes ... here we are again.” 

Few Alternatives to Deadly Force 

The Burlington Police Department and the Vermont State Police are conducting separate inquiries focused on Thibault’s decision to use deadly force against Brunette. According to court records, the victim had a history of unspecified mental illness and previous run-ins with police. His family could not be reached for comment immediately after the shooting. 

As of press time, authorities had not said how many times Brunette was shot, how many times Thibault fired or how far Brunette was from the officers when he was killed. During a press conference last week, Schirling said a preliminary review indicated the officers acted appropriately.

Police say that the officers confronted an agitated Brunette outside, in the front of the home, and have provided few other details of what ensued.

“An officer may use lethal force to protect him/herself or another person from what the officer reasonably believes to be an imminent threat of death or serious bodily injury,” Burlington police regulations state. “An officer may also use lethal force to prevent the escape of a suspect where the officer has probable cause to believe that the subject has committed a violent crime involving the infliction or threatened infliction of serious bodily harm or death AND it is reasonable to believe that the freedom of the suspect poses an imminent threat of death or serious bodily injury to the officer or other persons.”

In assessing the threat they face, department procedures tell Burlington police officers to consider several factors, including the size of the suspect, the type of weapon or other instrument the suspect is wielding, the location of the encounter, prior dealings with the suspect, the subject’s response to verbal commands, and the availability of cover for officers.

But officers are told they are not required to consider any alternatives to deploying deadly force if doing so would increase the danger to themselves or others. Schirling said that Burlington officers are taught that they can be in danger of serious injury or death if a subject is wielding a potentially deadly weapon from as far as 30 feet away.

“Within training, we talk about a distance of 21 to 30 feet with any object, whether it be a bladed object or an object small or large, as being an imminent threat, because people can close that distance,” Schirling said in the shooting’s immediate aftermath.

While not discussing the Brunette incident specifically, Schirling said that officers will sometimes stay back from a potentially dangerous subject when they know details of the situation in advance.

“Avoiding a known threat is another option when a threat is known to exist,” Schirling said in an interview. “In the event we know we are responding to a situation with a person armed with anything — gun, knife, bat, anything — in most instances we set up at a safe distance and try to engage the person from there. There are instances in which a person may be posing a direct and immediate threat to themselves or someone else and that distance may not be possible or practical. In some cases we do not have the option to keep distance and in others we have no idea a threat will be posed until it is too late.”

Neighbors told Seven Days that at least one of Brunette’s parents witnessed his shooting, and police have said there were other witnesses, though it is unclear who they are or where they were located at the time.

In addition to their Glock pistols, Burlington officers are armed with batons and Taser stun guns, but those tools, according to department regulations, are to be used when the officers need to gain compliance or believe themselves at risk of physical harm, not “serious bodily injury or death.”

“If I had a knife or baseball bat, and I come at you, you can shoot me,” said Washington County State’s Attorney Tom Kelly, speaking generally and not about the Burlington investigation. “You have to look at all the different circumstances, but ... you could kill someone with a shovel.”

And there is no such thing, in police protocols, as shooting to injure or disarm: Officers are taught that, once they believe they are at risk of serious injury or death, to shoot for the center of the visible portion of their target — in most cases, the torso. 

The Burlington Police Department explicitly forbids officers from firing warning shots.

“That is not the reality of law enforcement in Burlington, in Vermont, or anywhere else in the nation,” Schirling said.

Legal Challenges

Incidents in which citizens are shot by police often end up in court, usually as a result of a lawsuit filed on behalf of the dead subject’s estate and family, or, on exceedingly rare occasions in Vermont, in criminal court if the officer is charged with a crime. (Winooski police officer Jason Nokes is currently facing an aggravated assault charge for allegedly shooting the leg of an unarmed, mentally ill man suspected of trespass.)

There, the question boils down to one essential determination — the “reasonableness” of the officers’ decision that deadly force was necessary.

Attorneys across the state who have represented families of Vermonters killed by police say it’s an uphill fight to convince judges and juries to rule that police officers made the wrong call.

The surviving family of Joseph Fortunati, a mentally ill man from Corinth killed in 2006 by a Vermont State Police tactical team, launched a failed lawsuit based on claims that police had no legal right to fire on him. Several tactical team members surrounded Fortunati in the woods, and some of them later said he brandished a gun, prompting them to fire. The family claimed that Fortunati only drew his gun from his waistband because other officers were yelling at him to “drop” the gun.

The bulk of the Fortunati family’s case was dismissed in U.S. District Court before it got to a jury, after a judge ruled there was not enough evidence for a jury to question the officers’ account of what happened. The Second U.S. Circuit Court of Appeals unanimously dismissed an appeal.

The family’s attorney said in an interview last week that judges give great weight to the word of the police officer. 

“The difficulty with the case is the man who got shot to death will not be able to testify,” said New Hampshire-based attorney George Spaneas. “At the end of the day, the judge is going to listen to the police officer.”

The family of a Brattleboro man shot to death by police inside a church in 2001 also failed to convince a judge that police had strayed from use-of-force rules. Robert Woodward, 37, was in the throes of a psychotic episode and threatening suicide when he was shot by two officers who said that Woodward advanced toward them with a knife. Some witnesses maintained that Woodward never threatened police. 

In 2004, a U.S. District Court judge dismissed the Woodward family’s lawsuit. That decision was overturned by the Second Circuit, where, according to the Woodward’s attorney, Tom Costello, appellate judge and future Supreme Court Justice Sonia Sotomayor asked counsel for the Vermont Attorney General’s Office: “You mean they’re shooting people in churches up there in Vermont?”

But the lower court judge dismissed the lawsuit again on different grounds, and that decision was upheld.

The attorneys interviewed by Seven Days, none of whom is involved in the Brunette case, urged closer scrutiny of several aspects of last week’s shooting, including the relatively short amount of time officers were on scene before they fired, what exactly Brunette was doing with the shovel and the decision by one officer not to fire.

“It’s an analysis, a weighing process,” Costello said in an interview. “Did he take that step forward, did he threaten, was there a risk to them?”

Spaneas said the distance between Brunette and the officers could prove pivotal.

“If a man with a samurai sword is standing 30 feet away from you and just raises it, deadly force would not be allowed,” Spaneas said. “The only time a shovel is going to be really considered a deadly weapon is if it’s in absolute striking distance of an officer and there is behavior to demonstrate an intent to strike an officer. But it has to be a real threat. Even if the poor individual was charging at the officers, I would argue they should have retreated. But they have no duty [legally] to retreat.”

Police Chief Schirling urged restraint in judging the case and noted that his department has handled more than 600,000 calls since 1997 — the last time his officers fired on someone. 

“I would encourage anyone to await the details of this particular incident before weighing in,” the chief said. “Any opinions offered at this stage have been offered without the benefit of any substantive information about what occurred.”

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