By Deborah Straszheim
The Day
NEW LONDON, Conn. — A federal district court judge has ruled in favor of four state police troopers, including one who has since become the Groton Town chief of police, dismissing claims the officers provoked a suicidal Poquonnock Bridge firefighter to kill himself in 2012 by repeatedly firing nonlethal ammunition at him.
Judge Jeffrey A. Meyer entered a ruling on Jan. 14 in U.S. District Court in New Haven, in favor of the four troopers — Louis Fusaro Jr., Steven Rief, Michael Avery and Kevin Cook — in the case filed by the estate of Timothy Devine. The estate, administered by Devine’s father, Michael, had accused the officers of using excessive force and violating Devine’s civil rights, in effect “causing” his wrongful death.
“First, the police used a type of force that is designed to be less-than-lethal, rather than using deadly force,” Meyer wrote. “The degree of force is plainly relevant to its reasonableness. Second, the police used less-than-lethal force against a man whom they reasonably believed to be suicidal and to be armed with, and holding, a loaded gun while occupying public property.”
“It was definitely the right result,” Matthew B. Beizer, assistant attorney general representing the troopers, said Monday. “Everyone was sympathetic, is sympathetic to the Devine family, including my clients. But it was our position from the start that it is improper to attempt to place legal liability on the officers, and that’s what the judge found.”
Devine’s attorney, Hubert J. Santos, could not immediately be reached to comment.
Harry Boardsen, a family friend and a retired spokesman for the Connecticut State Police, said the family would most likely appeal the decision after talking to their lawyer.
“They’re very, very disappointed and disheartened over the decision,” Boardsen said.
Devine, 30, shot himself on July 24, 2012, on the University of Connecticut campus at Avery Point, while surrounded by police in the early morning hours. The day before his death, several teenage boys gave police statements accusing Devine, who owned Crossfit gym in Groton City, of touching them in a sexually inappropriate manner, court papers said.
Devine never pointed the gun at officers or any third person, but police negotiators could not convince him to give up the gun, the judge noted in his decision. At about 3 a.m. that day, members of the state police Emergency Services Unit, including the accused officers, discussed ways to end the standoff and decided to surprise Devine by detonating flash grenades and shooting him with hard rubber batons designed to inflict pain, to try to make him drop his weapon.
Jeffery Douchette, Devine’s friend and supervisor at the Poquonnock Bridge Fire Department, said he told police it wouldn’t work, the judge wrote in his summary. Douchette said in his affidavit that he heard defendant Rief say of Devine: “If he shoots himself it would be an acceptable outcome and it won’t be on us.”
Two officers fired at Devine, hitting him several times, and Devine didn’t drop the gun but said, “You guys are going to make me do this!” the judge wrote in his summary. The officers reloaded and shot more batons at Devine, at which point he raised his pistol and shot himself.
The judge said it was debatable whether the troopers acted wisely when they decided to fire the batons at the time and in the manner they did.
“Indeed, after the first round of batons did not work — and in view that Devine warned the officers to stop or that he would take his life — it is questionable whether it remained a sound decision for officers to engage Devine yet again with a second round of batons. Still, my role is not to decide if the officers chose wisely but to decide if they chose unconstitutionally,” Meyer wrote.
The officers are entitled to qualified immunity for their actions, which is meant to allow government officials to do their jobs free from doubt they’ll be sued and held liable for damages for actions “an objectively reasonable” official at the time would not and should not have reasonably known violates rights, the judge wrote.
The Supreme Court recently emphasized that “courts may not ‘judge officers with the 20/20 vision of hindsight,’ and a plaintiff ‘cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided,’” he wrote.
The estate of Devine had argued that the troopers “did not prioritize Devine’s life, that they were disgusted by the criminal allegations against him, and that they were intent on simply resolving the standoff, whether peacefully or through provoking Devine to commit suicide,” the judge wrote.
But Meyer wrote earlier in the decision that the Supreme Court has explained that “whether law enforcement officers’ use of force is ‘excessive’ must be judged by ‘whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”
“An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional,” Meyer wrote.
Police spent hours with Devine, and it’s reasonable to believe there should be an end point when an armed and suicidal man occupies part of a public university campus, Meyer wrote.
“The constitution does not compel the police to wait indefinitely and at the mercy of a troubled and unstable mind,” he wrote.
Copyright 2016 The Day