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Judge Sides with Troopers Who Fatally Shot Mentally Ill Man


Published January 4, 2010 at 5:48 p.m.

A federal judge has ruled that members of the Vermont State Police tactical team were justified when they fatally shot Joe Fortunati (pictured) in the woods of Corinth in 2006.

U.S. District Judge J. Garvan Murtha cleared nine members of the Tactical Services Unit, a camouflaged and heavily armed SWAT-type team, of wrongful death in a civil lawsuit filed by the parents and brother of Fortunati, a 40-year-old paranoid schizophrenic with an intense fear of police.

Seven Days covered the Fortunati case and the discrepancies in the troopers' accounts of the shooting in a September story headlined, "Did Vermont State Troopers Go Too Far When They Shot Paranoid Schizophrenic Joe Fortunati?"

According to the judge, who issued the ruling December 29, the answer to that question is "No."

The background of the case is this: Joe had camped out along a dirt road in the hills of Corinth, with his red BMW, a kayak and a gun — his father's .22-caliber Beretta.

On June 24, 2006, Joe's parents and brother went to confront him at his campsite after a pair of environmental workers encountered Joe and complained of feeling intimidated by him. When Joe's family approached him, he pointed the loaded gun in their faces and threatened to shoot if they didn't leave him alone. The family called state police and asked for help in bringing Joe down from the woods safely.

Unbeknownst to Joe's family, the state police organized its tactical unit, armed troopers with submachine guns, Tasers, beanbag projectiles and night-vision goggles, and sent them to apprehend Joe. A helicopter was also used in the operation.

Joe ignored the troopers' commands when they approached him in the woods, so the troopers began firing beanbags at him. Eleven chaotic minutes later, state troopers shot Joe dead with live bullets after he drew the handgun from his waistband.

The Fortunati family's lawsuit claimed the police provoked the deadly confrontation, then used excessive force to end it — in violation of Joe's Fourth Amendment rights against illegal search and seizure. The judge disagreed and threw out all but one small part of the Fortunatis' lawsuit.

In a 36-page ruling heavily deferential to state police, Judge Murtha granted the state's motion for summary judgment because he found the Fortunati family had failed to prove that troopers acted improperly or violated Joe's civil rights.

Murtha agreed with the Fortunatis that the troopers' accounts of the minutes before Joe was shot dead vary widely.  But he called such discrepancies "small disagreements" and concluded that Joe appeared "ready to shoot," so the troopers were justified to fire first.

The Fortunatis suggested Joe might have drawn his gun in response to orders from troopers to "drop the weapon," but Murtha called that theory "not plausible." Judge Murtha also didn't buy the "cover-up" theory posited by the family's lawyer, who deemed that the only explanation for the varying accounts of the shooting.

"There are many possible ways for confusion and contradictory stories to develop, most of which do not involve bad faith," Murtha wrote.

Judge Murtha did find two claims to be close calls: whether shooting Joe with beanbag projectiles was excessive force, and whether the decision to use the tactical unit was unreasonable in the first place. On both questions, however, Murtha sided with the cops.

He concluded: "The facts of this case show a few questionable decisions, some perhaps preferable alternatives that were not pursued, and a generally force-oriented approach."

The only question on which Murtha agreed with the Fortunatis is the wrongful arrest of Joe's father, Robert, who stormed to the scene of the shooting when he learned his son was dead. Police claimed Robert Fortunati drove recklessly toward a police roadblock, then ignored commands to stop. Robert claimed he approached troopers calmly and police held him at gunpoint and threw him against his truck.

The state's lawyer, Assistant Attorney General David R. Groff, called the ruling "a complete vindication of the actions of the troopers."

The Fortunati family's lawyer, George Spaneas of New Hampshire, called the decision "dead wrong" and intends to appeal the case to the U.S. Second Circuit Court of Appeals. "We started the case so we could have a jury trial, so a jury of peers could decide what the truth is," Spaneas said.

Judge Murtha seemingly left open one window of hope for the Fortunatis: He noted that Second Circuit case law precludes federal courts from taking a broader view of the situation and considering "whether the police created the need for the deadly force in the first place." But Murtha said a recent Supreme Court case "calls into question" that precedent — something the Fortunatis might find useful as they pursue their case in the next courthouse.