United States District Court, D. Vermont
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC.
Christina Reiss, United States District Court District Judge
case arises out of an incident on November 6, 2013, during
which two Burlington Police Department ("BPD")
officers, Corporal Ethan Thibault and Corporal Brent Navari,
responded to the residence of Wayne Brunette and his family
based on a report that Wayne Brunette was experiencing a
mental health episode. After Wayne Brunette approached
Corporal Navari with a shovel, Corporal Thibault shot him
four times, causing his death. Wayne Brunette's wife and
surviving heir, Barbara Brunette, brings this lawsuit
individually and on behalf of the Estate of Wayne Brunette
(collectively, "Plaintiffs") asserting claims under
42 U.S.C. § 1983, Title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§
12131-34, state law claims of assault, battery, negligence,
intentional infliction of emotional distress, and damages
under Vermont's wrongful death and survival statutes, 14
V.S.A. §§ 1451-55, 1491-92, respectively.
before the court is a motion for summary judgment filed by
Defendants City of Burlington, Vermont (the
"City"), former BPD Chief Michael Schirling,
Corporal Thibault, and Corporal Navari (collectively,
"Defendants"). On March 6, 2018, the court heard
oral argument. In the course of the hearing, the court
granted Defendants leave to file a response to
Plaintiffs' statement of undisputed material facts and
denied Defendants' motion to strike as moot. On March 22,
2018, Defendants filed their response to Plaintiffs'
statement of undisputed material facts. After Defendants
filed a notice of supplemental authority, to which Plaintiffs
responded, the court took the pending motion for summary
judgment under advisement on April 12, 2018.
are represented by Richard R. Goldsborough, Esq., Steven A.
Adler, Esq., and Jennifer E. Agnew, Esq. Tristram J. Coffin,
Esq. and Jennifer E. McDonald, Esq. represent Defendants.
27, 2015, Plaintiffs filed their First Amended Complaint,
alleging nine causes of action. Counts I and II alleged
claims pursuant to 42 U.S.C. § 1983 that Corporal
Thibault violated Chapter 1, Article 11 of the Vermont
Constitution and the Fourth Amendment of the United States
Constitution through the use of excessive force. Count III
asserted a claim under Section 1983 that the City and former
Chief Schirling failed to train, supervise, and institute
policies regarding individuals with mental health issues.
Count IV alleged that Defendants violated Title II of the
Counts V through IX, Plaintiffs asserted state common law
claims for assault and battery against Corporal Thibault
(Count V); negligence against Corporal Thibault and Corporal
Navari (Count VI); negligent training, hiring, and retention
against BPD, former Chief Schirling, and the City (Count VI);
loss of consortium against Defendants (Count VII);
intentional infliction of emotional distress against Corporal
Thibault and Corporal Navari (Count VIII); and a statutory
wrongful death and survival action against Defendants (Count
September 4, 2015, the court granted in part and denied in
part Defendants' motion to dismiss the First Amended
Complaint. The court dismissed: (1) all claims against the
individual defendants in their official capacity; (2) all
claims against BPD; (3) all claims against the individual
defendants in their individual and official capacities under
the ADA; and (4) Plaintiffs' loss of consortium claim set
forth in Count VII. The court declined to rule on the issue
of qualified immunity, determining that this issue was
"best decided on a motion for summary judgment when the
facts are more fully developed[.]" (Doc. 33 at 9)
(internal quotation marks omitted) (citing Walker v.
Schult, 717 F.3d 119, 130 (2d Cir. 2013)).
Events of November 6, 2013.
November 6, 2013, at approximately 3:30 p.m., Lawrence
Brunette and his wife, Ruthine Brunette, observed their adult
son, Wayne Brunette, cutting down a portion of an apple tree
with a reciprocating saw in the front yard of their home at
85 Randy Lane, Burlington, Vermont. Wayne Brunette had a
history of mental illness, including diagnoses of paranoid
schizophrenia and delusional disorder, grandiose type. After
he was arrested in 2001, Wayne Brunette spent an unidentified
amount of time at Vermont State Hospital due to his mental
health. As of November 6, 2013, however, he had not sought
treatment for his mental health in almost ten years.
watching his son cut down the apple tree, Lawrence Brunette
believed that Wayne Brunette was out of his mind and
"out of control" (Doc. 99-5 at 3), although he
testified that he "wasn't afraid for [his] life or
[his] wife's [life][.]" (Doc. 99-5 at 4.) Lawrence
Brunette told his son that he was not allowed to cut down the
tree and unplugged the saw. Wayne Brunette then entered the
house and went upstairs to have a soda.
approximately 3:30 p.m., Ruthine Brunette telephoned Wayne
Brunette's wife, who was at work, and advised her of what
had taken place. Barbara Brunette responded that her husband
"ha[d] been acting terribl[y][, ]" (Doc. 95-2 at
4), and "if they needed help, . . . call the
police" because "[t]he police were there to
help." (Doc. 99-6 at 5.) At 4:18 p.m., Ruthine Brunette
called BPD's non-emergency number and requested
Mrs. Brunette: [T]his is Mrs. Brunette on 85 Randy Lane.
I've got a problem here with my son that's upstairs.
He's gone berserk, I think, and I mean I've got to do
something. He's cut my apple tree down out front just
now. He's violent and he's just mean. We live
downstairs. Him and his wife live upstairs over us. And now
he says he owns this whole house and this whole property and
everything, which he doesn't. And he's really bad.
Dispatcher: Ok, what is he doing right now m'am?
Mrs. Brunette: Right now I chased him upstairs. He's
upstairs in the apartment right now[.]
Dispatcher: Does he have mental health issues?
Mrs. Brunette: Yes he does[.]
Dispatcher: Keep your door locked and I'll send somebody
(Doc. 95-1 at 2-3, ¶ 6.)
p.m., Corporal Thibault and Corporal Navari received a radio
call from dispatch while they were parked in separate police
cruisers in a parking lot at Ethan Allen Homestead Park. The
dispatch call directed the officers to respond to a mental
health issue at 85 Randy Lane, informing them that: "(a)
the caller lives downstairs and owns the property; (b) the
caller's son lives upstairs; (c) the caller's son has
been threatening, out-of-control, and destroying property;
(d) the caller's son is now in the apartment upstairs;
and (e) the caller is downstairs and was advised to stay
inside with the door locked." (Doc. 95-1 at 3, ¶
he was assigned to the New North End, the area in which the
incident took place, Corporal Thibault was the primary
officer to respond to the call. After receiving it, Corporal
Navari testified that he "said something to [Corporal
Thibault] probably to the effect of, [s]hit, can't even
talk for four or five minutes, and then [Corporal Thibault]
said, [y]up." (Doc. 99-11 at 4.) Corporal Navari further
recalled that Corporal Thibault stated that he would
"talk to the Complain[ant] and you can do what you do
best and talk to the other person, [the] other party."
Id. When asked in his deposition if that was the
extent of the plan, Corporal Navari responded "[p]retty
much, if that was a plan." Id. at 5. Similarly,
Corporal Thibault acknowledged that "[t]here was no
specific -- like an operational plan." (Doc. 99-7 at
22.) He recalled that:
There was nothing formalized. I guess I would describe it as
[Corporal Navari] and I had been on calls together for years.
I knew his style. He knew mine. We heard the call. I was
comfortable going there with him. I think he was comfortable
going there with me. There's plans that are already laid
into a dispatch that kind of go unspoken. For example, [the
primary officer is] . . . the person whose radio number is
Thibault estimated that he had responded to twenty or thirty
"mental health calls" with Corporal Navari, but
that he had also responded to "hundreds of calls"
with Corporal Navari that had a "mental health component
to it." (Doc. 95-9 at 13, 14.) Prior to this call,
neither officer had previously responded to a call or
complaint from 85 Randy Lane, and neither officer was
familiar with Wayne Brunette. BPD had not interacted with
Wayne Brunette since 2003.
day of the incident, Corporal Thibault was equipped with a
pistol, a baton, pepper spray, a flashlight, and two sets of
handcuffs. Neither Corporal Thibault nor Corporal Navari had
been issued a Taser. Although BPD had Tasers at the time, it
had not fully deployed them "primarily due to
cost[.]" (Doc. 116-2 at 3.)
officers approached 85 Randy Lane in their cruisers, they did
not activate their lights and sirens. Corporal Thibault arrived at
the property first. He described the scene as
"calm," although he noticed the "destroyed
trees" on the front lawn. (Doc. 99-7 at 32.) Ruthine and
Lawrence Brunette came out of the house to speak with him.
Corporal Thibault described their demeanor as "remotely
calm[.]" Id. Corporal Navari arrived moments
later and approached the house by way of the driveway.
Thibault asked Lawrence Brunette if his son was under the
care of a particular doctor; if he was on any medications; if
he was seeing anyone from the Howard Center for Human
Services (the "Howard Center"); and if Wayne
Brunette had any weapons or firearms. Lawrence Brunette
responded that his son was not on any medications and was not
receiving any medical care.
after his arrival at 85 Randy Lane, Corporal Navari observed
an individual, who he later determined was Wayne Brunette,
standing just inside the open garage. Wayne Brunette then
disappeared from view and reappeared on the landing above the
garage on the upper floor of the house. Corporal Navari asked
Wayne Brunette to come down from the landing to talk to him.
Wayne Brunette slammed the metal screen door on the landing,
but did not appear to go inside.
Thibault did not know in advance that Corporal Navari planned
to call out to Wayne Brunette and ask him to come downstairs.
If he had known that Corporal Navari intended to interact
with Wayne Brunette in this manner, he would have asked
Corporal Navari to "hold off." (Doc. 99-7 at 34.)
Corporal Thibault, however, did not "think [it was]
inappropriate" for Corporal Navari to ask Wayne
Brunette to come down because the decision to engage him was
"a matter of style." Id. While Corporal
Thibault stated that it would have "been [his] style to
leave [Wayne Brunette] up there[, ]" he noted that
Corporal Navari had "always been very successful at
talking to people[, ]" and that "maybe [Corporal
Navari was] overly confident, because there is a chance every
once in a while things don't go well." Id.
Wayne Brunette left the landing, he reappeared in the garage,
holding a shovel. The shovel was a four-foot, ten-inch long
garden spade with a wooden handle and a pointed metal head.
Plaintiffs concede that the shovel could be used as a
dangerous weapon and was capable of inflicting serious bodily
injury or death. Corporal Navari immediately felt threatened
by the manner in which Wayne Brunette was holding the shovel
and asked him to put it down twice.
Wayne Brunette exited the garage, Corporal Thibault was
standing by the house's front steps, speaking with
Ruthine and Lawrence Brunette. Observing the incident at 86
Randy Lane from across the street, Mary Little described
Corporal Navari's position at the time as in front of the
sidewalk and "further up the grass area[, ]" closer
to the garage. (Doc. 99-10 at 9.)
the record is unclear with regard to how Wayne Brunette
exited the garage, at some point, he began to quickly advance
towards Corporal Navari, who began to back up the driveway
towards the sidewalk and the street. As he was retreating,
Corporal Navari drew his firearm and yelled "drop
it" at least six or seven times. (Doc. 95-11 at 21.)
Wayne Brunette pointed the head of the shovel at Corporal
Navari and "charged" (Doc. 95-7 at 4) and
"lunged" (Doc. 95-15 at 6) at him while making
"swinging[, ]" (Doc. 95-21 at 3) "poking[,
]"and "jousting" (Doc. 108 at 3) motions with
"backing up as fast as [he]" could, Corporal Navari
recalled Wayne Brunette "gaining on [him]." (Doc.
95-11 at 21-22.) Using a tree on the grassy median between
the sidewalk and street "to create some type of
distance[, ]" he placed his finger on the trigger of his
gun. Id. at 21. Corporal Navari described the tree
as "small[, ]" but sufficient to "create
something between" them, so that Wayne Brunette
"would have to come on one side or the other[.]"
(Doc. 99-11 at 7.) He determined that if Wayne Brunette
"comes [around] one side of the tree or the other"
he was "going to be the one shooting." (Doc. 95-11
at 21.) When the shooting occurred, Corporal Navari recalled
Wayne Brunette standing on the sidewalk, while he stood just
off the curb on the street.
as soon as Wayne Brunette began advancing on Corporal Navari,
Corporal Thibault ran from his position at the front steps,
around a felled tree limb, down the walkway, and towards the
sidewalk. He drew his firearm to provide assistance and told
Wayne Brunette multiple times to drop the shovel out of fear
that Wayne Brunette would strike him or Corporal Navari.
the parties dispute whether Wayne Brunette redirected his
attention to Corporal Thibault and advanced towards him, it
is undisputed that Corporal Thibault fired two shots that
struck Wayne Brunette. Seconds later, he fired two more shots
in quick succession that also struck him. Wayne Brunette fell
to the ground with his feet lying on the sidewalk near the
driveway and with the handle of the shovel by his head. When
he fell, he was alive and moving. Corporal Thibault tried to
calm him, but neither officer administered first
At 4:26 p.m., Corporal Thibault radioed that shots had been
fired and requested an ambulance. The duration of the
incident, beginning with the radio dispatch call and ending
with Corporal Thibault radioing that shots had been fired,
was just over seven minutes.
to Corporal Navari, Wayne Brunette advanced to within eight
to ten feet of him. Based on Corporal Navari's estimate
and because Wayne Brunette pointed the four-foot, ten-inch
shovel at Corporal Navari, Plaintiffs' expert, Ken
Katsaris, opined that the tip of the shovel was "maybe
four to . . . six feet" from the officer. (Doc. 95-13
of the eyewitnesses similarly reported that Wayne Brunette
advanced to within several feet of Corporal Navari. Ruthine
Brunette testified that the sidewalk divided Wayne Brunette
from Corporal Navari. She did not "know if [Wayne
Brunette] would have hit [Corporal Navari] [with the
shovel][, ]" but "[h]e probably would have."
(Doc. 95-2 at 7.) Lawrence Brunette estimated that, at some
point, the blade of Wayne Brunette's shovel was
approximately a foot-and-a-half away from Corporal Navari.
Agreeing that it was reasonable for the officers to defend
themselves, Lawrence Brunette further opined that
"[t]hey could have done what they did; whatever they had
to do. He is a big man, with a spade like that, coming at
you, or poking at you, or whatever. One swipe, it could have
been bad news." (Doc. 95-5 at 6.)
Little stated that Wayne Brunette was close enough to
Corporal Navari that he "could have hit [him] with the
shovel, if he really wanted to." (Doc. 108-12 at 6.) She
expressed "surprise" that Wayne Brunette
"didn't hit the cop. It was that close." (Doc.
95-15 at 8.) Ray Little testified that Wayne Brunette was
approximately two feet from Corporal Navari when Corporal
Thibault fired his weapon. The Littles' children, Jl and
J2, also witnessed the incident. Jl estimated that the end of
the shovel was "[p]robably like half a foot, 12
inches" from Corporal Navari. (Doc. 95-20 at 5.) J2
indicated that if Wayne Brunette "had gotten a couple
inches more of reach then" he could have "hit
[Corporal Navari] in the face." (Doc. 95-19 at 4.)
the incident from 71 Randy Lane, Kelly Medlar stated that
after Wayne Brunette was shot, he "drop[ped] to a knee
on the sidewalk." (Doc. 95-21 at 7.) She averred that
Corporal Navari had retreated from the sidewalk onto the
grassy median and ultimately ended up on the street. At their
closest point, she believed Wayne Brunette "was within
one or two feet of [Corporal Navari]." (Doc. 95-22 at
3.) Her father, Marcus Medlar, believed that Wayne Brunette
"damn near got [Corporal Navari]" and was within
"the vicinity of about 3 feet" of the officer.
(Doc. 95-25 at 3.)
Post-Incident Autopsy and Investigation.
Brunette was alive when he was transported to the emergency
room at the University of Vermont Medical Center. At 5:05
p.m., Dr. Ken Sartorelli, M.D. pronounced him deceased. The
cause of death was identified as gunshot wounds to the torso
with the manner of death characterized as homicide.
Medical Examiner Steven L. Shapiro, M.D. and Deputy Chief
Medical Examiner Elizabeth A. Bundock, M.D., Ph.D. provided a
report based on an autopsy performed by Dr. Bundock on
November 7, 2013. Dr. Bundock pointed out that she received
Wayne Brunette's body unclad and that she did not examine
his clothing, as she typically would in the case of a gunshot
victim. She concluded that Wayne Brunette died from gunshot
wounds to his torso. Her autopsy report notes that his blood
alcohol concentration was 0.081 and that his blood was
positive for cannabinoids, although neither was a cause of
Bundock could not determine the sequence in which Bullets A,
C, D, and E entered Wayne Brunette's body. Bullet A
entered the upper left abdomen and moved slightly upward to
the right side of his body, puncturing Mr. Brunette's
liver and stomach. This trajectory indicated that the left
side of the body was facing the shooter more than the right
side. Dr. Bundock opined that Bullet A would cause bleeding,
pain, and "[i]n and of itself, . . . could lead to
death, if untreated[, ]" but that Wayne Brunette
"would not have been made immobile or die immediately
from this wound." (Doc. 99-19 at 12.)
C entered Wayne Brunette's left side near his hip and
traveled to the right, moving from the back of his body
towards the front, again indicating that his left side was
facing Corporal Thibault. Bullet C fractured Wayne
Brunette's hip bone and pelvis and "[went] through
the abdominal wall musculature and fat so it [did not]
perforate any [vital] internal organs[.]" Id.
at 18. Because Bullet C did not compromise the joint with the
femur, it was "not likely to have had a huge effect on
[Wayne Brunette's] mobility[, ]" such that Dr.
Bundock expected "that he could still reasonably
walk" and "move his legs" after that injury.
D entered and exited Wayne Brunette's upper arm first
before re-entering his chest, close to the armpit. Dr.
Bundock opined that this bullet would "have essentially
torn up his bicep in the left arm[, ]" making it
"hard to hold something after that[.]" Id.
at 19. Specifically, she stated that "[i]t would be hard
to have your arm flexed up and bearing weight" after
suffering the injury caused by Bullet D. Id. at 20.
Although she agreed that Wayne Brunette would have lost
control of flexing the musculature in his left arm, she
testified that he could possibly hold the shovel after being
shot by Bullet D, but it was unlikely that he could poke with
the shovel or hold it over his head.
entering Wayne Brunette's chest, Bullet D passed through
his heart, diaphragm, and the left lobe of his liver,
traveling from almost six inches to five-and-a-half inches
downward. A "reasonably fair interpretation" of
this trajectory is that, at some point, Wayne Brunette was at
a lower level than Corporal Thibault. Id. at 26.
However, "[t]he most [Dr. Bundock] can say is that
[Bullet D's trajectory] suggests that there was a
position change between [Bullet D] and the other three
fired[, ]" supporting a conclusion that "somebody
moved," although she cannot determine who. Id.
at 23. Although Bullet D caused a fatal wound to the heart
and lung, an individual could "continue to walk"
and "cover large amounts of distance, even with a hole
in their heart[.]" Id. at 28.
E entered the left side of Wayne Brunette's back below
his shoulder blade and closer to the center of his body,
"transect[ing] the spinal cord." Id. at
32. Bullet E rendered Mr. Brunette unable to move his legs,
making it more likely that he would fall. Although the bullet
entered through Wayne Brunette's back, Dr. Bundock
testified that his "back was not predominantly facing
the gun." (Doc. 116-9 at 14.) Instead, "[h]e was
presenting more of his left torso[, ]" resulting in an
injury that was not "a directly front to back type [of]
Bundock observed that "[i]t is much more useful to take
the [bullet] trajectories and use them to confirm or refute
observations, than to take them and try to conjure up a
scene." Id. at 11. She cannot conclude, to a
reasonable degree of medical certainty, "how [Wayne
Brunette and Corporal Thibault] are positioned, with respect
to the surroundings." Id. After reviewing the
bullet trajectories of Bullets A, B, and D, however, Dr.
Bundock opined that they were not "consistent with
[Wayne Brunette's] torso facing the gun." (Doc.
99-19 at 25.) Rather, they were consistent with Wayne
Brunette's left side facing the shooter, who was
potentially holding the firearm out to his side as he was
shooting. Dr. Bundock concurred with Vermont State Police
("VSP") Detective Annis's conclusion that
"the location of the entrance wounds in the left to
right travel and all bullets could be a result of [Wayne
Brunette] possibly advancing with his left foot forward and
torso turned toward his right." (Doc. 116-9 at 19)
(internal quotation marks omitted).
the shooting, BPD and VSP investigated the scene and took
tape-recorded statements from ten individuals who witnessed
the shooting, including Corporal Thibault and Corporal
Navari. At the time of the incident, BPD vehicles were not
equipped with cameras. VSP's Crime Scene Search Team
recovered three of the four bullet casings ejected from
Corporal Thibault's firearm. The fourth bullet casing was
Corporal Thibault's and Corporal Navari's Training
of Force Training.
incident at 85 Randy Lane was the first officer-involved
shooting or use of deadly force in Burlington, Vermont since
1997. Neither Corporal Thibault nor Corporal Navari had
previously fired their weapons in the line of duty.
1998, Corporal Thibault graduated from the Vermont Police
Academy. He was employed by BPD on a full-time basis from
2001-2016, aside from two deployments as part of the Vermont
Army National Guard, one lasting approximately ninety days,
the other spanning seven months, as well as a one-year
military contract. He is no longer employed by BPD.
2003, Corporal Navari graduated from the Vermont Police
Academy and joined BPD where he has been employed on a
continuous, full-time basis. He was promoted to the rank of
Corporal in 2009.
Vermont Police Academy, all BPD officers, including Corporal
Thibault and Corporal Navari, receive annual use of force
training during which they are trained in artificial decision
points for applying force, as well as changing the manner of
force. When the incident took place, BPD had a Department
Directive Policy, entitled "DD05 Response to
Resistance/Use of Force" (the "Directive"),
which states in relevant part:
Officers are agents of the state authorized to use various
degrees offeree to effect arrests or ensure the public
safety. Officers employ objectively reasonable force
necessary to accomplish a legal purpose. Officers should use
only the force that is necessary and appropriate for
compliance to control of a suspect and only until compliance
or control has been achieved.
(Doc. 95-27 at 2.)
to the Directive, "[a]n 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." Id. at 3.
"Imminent" is defined as "impending or about
to happen." Id. The Directive further states
that the officer "may continue [the] application [of
lethal force] until the subject surrenders or no longer poses
an imminent danger." Id. at 8. After using
lethal force, an officer, if able, "shall immediately
call for an ambulance and render appropriate first aid until
the arrival of rescue personnel." Id. In
determining the appropriate amount of force, an officer
considers the absence of a safe alternative, including the
availability of cover. "An Officer in a position of
cover may gain additional time to assess the need to use
lethal force without incurring significant risks."
Id. at 10.
the incident occurred, Corporal Thibault was a certified Use
of Force instructor for BPD. He was also certified as an
instructor in (a) "Rape Aggression
Defense'/Self-Defense; (b) firearms; (c) control and
restraint; and (d) Monadnock Defensive Tactic Systems
("MDTS"), which includes instruction on policy,
case law, and de-escalation techniques. Both Corporal
Thibault and Corporal Navari had received training in
de-escalation techniques. Corporal Thibault instructed or
received training on the use of force ten times between 2002
and the incident, while Corporal Navari was trained on the
use of force six times between 2005 and the incident.
requires officers to complete a "use of force"
report whenever officers use force that exceeds the
handcuffing of a compliant individual. Prior to the incident,
Corporal Thibault accumulated fifty-nine use of force reports
over ten years of BPD employment. Corporal Navari had
fourteen use of force reports during this same time
submitted a list of Corporal Thibault's fifty-nine use of
force reports as well as nine use of force report summaries
written by Corporal Thibault that describe the incidents in
question. There is no evidence before the court with regard
to the precise nature of the other fifty use offeree
incidents. For each of the reports before the court,
a BPD supervisor checked a box indicating that he or she had
"reviewed this incident" and "concluded that
[Corporal Thibault's] actions were in compliance with
[BPD's] Use of Force Policy." (Doc. 99-34 at 2.) The
BPD supervisors who checked the boxes do not include former
Chief Schirling. In the excerpts of his deposition provided
to the court, former Chief Schirling was not asked if he
reviewed any of the fifty-nine use of force reports for
Corporal Thibault. Because of the important role they play in
determining supervisory liability, the court quotes the nine
use of force reports submitted to the court verbatim.
[A]t approx. 1600 hours, I was in City Hall park with Cpl.
Glynn and Ofc. Longevin investigating a report of an
intoxicated juvenile. While the other officers were
investigating, I observed the Defendant lying down on a park
bench facing the back rest. I approached the subject and
said, "Sir, Sir[.]" The subject's eyes were
closed and he did not respond. I announced again stating,
"Sir, are you ok?" I stated this once more time
while shaking his left shoulder.
At that time, the Defendant jumped and began yelling but I
wasn't sure what he was saying. I immediately detected a
strong odor of intoxicants. He began walking quickly from me,
turning around, and pacing back and forth. I asked [him] if
he was okay and requested him to come speak to me. He
continued yelling something about sleep[.] I asked Cpl. Glynn
if he knew the subject and he advised he knew him as
[redacted.] I asked the Defendant to relax and to come
speak with me. He had ignored me and walked to another park
bench and began speaking with several other subjects. The
Defendant was unbalanced and swayed while he was standing
still. He continued to yell and raise his arms shaking them
I advised Ofc. Longevin that we would be taking the Defendant
into protective custody. I then advised the Defendant that we
would be placing him into protective custody. He then yelled
something about jail. Ofc. Longevin then began to explain to
hi[m] something about protective custody. I then advised the
Defendant that he was now in protective custody. Ofc.
Longevin ordered the Defendant to turn around twice. The
Defendant ignored the officer and fumbled with a bag of
cigarette tobacco. I then ordered the Defendant to drop the
bag and to turn around and place his hands behind his back.
The Defendant ignored my order. I then pointed a bottle of OC
spray toward the Defendant and ordered him to turn around
again. The Defendant yelled, "Go ahead and mace
me." I ordered the Defendant to turn around one last
time. The Defendant didn't move. I then sprayed the
Defendant's face with OC. I then secured the Defendant
right arm and placed it behind his back. Ofc. Longevin then
took control of the Defendant's left arm and placed him
Ofc. Longevin and I then began to escort the Defendant toward
the intersection of College St. and St. Paul St. where Cpl.
Glynn had parked our patrol vehicle. I stopped the Defendant
in the northwest corner of the park where I search[ed] him
for weapons. All throughout the process, and the process of
escorting the Defendant, he yelled attracting the attention
of multiple park patrons. The Defendant yelled things such
as, "Fuck you, you fucking faggot, who fucking maced me,
fuck you, I'll have your fucking job, call my fucking
lawyer [.]" After searching the Defendant, we began to
escort him across the sidewalk to the patrol vehicle. Once
stepping onto the concrete, the Defendant collapsed toward
the ground. I told him to get up and I attempted to pull him
upward. He then yelled, "my fucking knee, I have a bad
knee." I allowed the Defendant to stay where he was and
Cpl. Glynn contacted rescue at my request. The Defendant
continued to yell, "Fuck you, fuck you, I'll have
your job[.]" On two occasions, the Defendant began to
kick but did not strike anyone. The Defendant also spat
multiple time in between yelling. While on the ground, Cpl.
Glynn poured water on the Defendant's face in an attempt
to decontaminate him. Cpl. Glynn also read the Defendant the
OC spray administrative warning. Burlington Fire Dept.
personnel responded to the scene. The Defendant continued to
yell at rescue personnel demanding to know who the "tall
blond faggot" was who "maced" him. After
approximately five minutes of rescue personnel trying to
reason with the Defendant, the Defendant compl[i]ed enough to
be placed in an ambulance and transported to the emergency
At approximately 1800 hours, the Defendant was issued a
citation for disorderly conduct by Ofc. Cousins.
Id. at 3-4.
I responded to the parking lot next to the Daily Planet to a
report of an "aggressive acting" male subject who
was intoxicated. I checked the parking lot and observed no
one. I then checked the alley connecting the lot and College
St. I heard a subject yelling/singing out loud but
couldn't understand [him]. I then observed [the
individual] walking west on college St. [He] struck 4-5
newspaper boxes as he walked by them[.] [He] also had a pint
bottle of Vodka protruding from a jacket pocket. I asked
[him] to stop and asked him what he was doing. His speech was
slurred but he insisted, again and again, that he had been
doing nothing wrong.
[The individual's] speech was slurred and he swayed while
standing. I advised [him] that I would be placing him into
protective custody. I asked [him] to remove his backpack
which he began to do. When he held the pack by the strap with
one hand he said, "No." I then ordered [him] to
turn around and place his hands behind his back[.] [He]
refused and continued to hold the pack by one of its straps.
I ordered him to turn around once more but he continued to
passively resist. At that time I sprayed [his] face with OC
spray which was not completely effective because the delivery
failed due to lack of pressure. I was able to handcuff [the
individual] in a standing position. He was transported to ACT
1 by Ofc. Erwin.
Id. at 8.
I responded to Battery Park to assist Ofc. Clements with an
open container violation. In the center of the park, I
observed [the individual] sitting on a bench with an open
container of Steel Reserve. Ofc. Clements spoke with [the
individual] who[se] speech was very slurred. Ofc. Clements
ordered [the individual] to stand, turn around and place his
hands behind his back. [The individual] initially acquiesced
but after ordered again, he st[ood] up. I instructed [the
individual] to turn around and place his hands behind his
back once more but he quickly stepped forward, toward me,
with his arms extended. To defend myself, I sprayed [the
individual's] face with OC spray and ordered him not to
resist and to comply with our orders. Ofc. Clements and I
were then able to handcuff [the individual] from a standing
position without further incident. Ofc. Clements transported
[the individual] to ACT 1 and then to corrections.
Id. at 6.
October 16, 2006:
[A]t approx., 1515 hours, Officer Clements and I observed the
Defendant sleeping on a bench swing in Battery Park. Upon
approaching the Defendant, I observed an open can of Bud
Light under the swing and a shopping cart filled with
multiple empty alcohol cans.
Upon waking the Defendant, he spoke with slurred speech and
denied owning any of the alcohol. The Defendant was very
intoxicated and appeared to have urinated in his pants. The
Defendant was issued a municipal ticket for an open container
violation. After issuing the ticket I asked the Defendant to
stand up. I had determined that he would be taken into
The Defendant did not stand up. I then ordered the Defendant,
at least three to four times, to stand up and place his hands
behind his back. The Defendant laughed until the fourth or
fifth order was given. He then began to stand but placed his
right hand inside a jacket after he had also been ordered to
keep his hands visible. Once the Defendant stood, he would
not place his hands behind his back, although he had been
ordered a number of times to do so. At that time I sprayed
the Defendant's face with O.C. spray to allow Officer
Clements and [me] to safely handcuff the Defendant. Officer
Clements then took control of one of the Defendant's arms
to attempt to handcuff him. The Defendant continued to resist
by not placing his other arm behind his back. Officer
Clements was then forced to perform an arm bar takedown. Once
the Defendant was on the ground he tucked his free arm under
his body forcing Officer Clements to pry his arm from under
him to safely handcuff him. After I had "pepper"
sprayed the Defendant I gave multiple orders (at least 10 to
15) for him to "stop resisting[.]" The Defendant
did not comply with these orders.
Id. at 10.
1. On 7-12-06 at approx. 1055 Hours Ofc. Clements and I were
patrolling the Church Street Marketplace. We were walking
southbound and nearing the intersection of College St. when I
observed two males sitting on a rock. The Defendant was
speaking loudly with another male discussing our bulletproof
vests. I heard the Defendant say, "Those fucking vests
must be fucking hot[.]" I then heard him say,
"Look at that one, he thinks he's fucking
cool." The Defendant was speaking loudly enough for me
to hear him clearly over 15 feet away. The Defendant was also
sitting approx. 3 feet away from a youth lemonade stand.
2. At that time I walked over to the Defendant and asked him
if he was okay. The Defendant immediately grew angry and
advised he was fine. I advised the Defendant that he got my
attention by swearing loudly and speaking about me and my
police equipment. The Defendant stated, "I'm fucking
talking A to B." I again asked the Defendant if he was
okay but he yelled louder that, "It was fucking between
A and B[.]" The Defendant then pointed at me and
yelled "keep walking[.]" I advised the Defendant
that I would not be taking orders from him and requested he
3. The Defendant then stood up and raised his hands in the
air and shook them. In one hand he held a Power Aid bottle
and the other hand was held in a fist. The Defendant's
body convulsed and shook as he tensed his muscles. He yelled,
"Fine, fuck you." And turned quickly to walk north
on Church St. At this point pedestrian traffic along with
workers on Church St. had stopped what they were doing and
looked on as a result of the Defendant's loud and profane
4. At that time I requested the Defendant to stop but the
Defendant kept walking northbound, yelling "fuck you
[.]" I continued to follow the Defendant and continued
to request him to stop. The Defendant continued to yell,
"fuck you" causing other pedestrians to clear a way
as not to be near the disturbance. I advised the Defendant
that he had better not run and advised I would pepper spray
him if he didn't stop. The Defendant then turned toward
me and "squared off as he bladed his stance and held his
fists up in a fighting stance. I ordered the Defendant to
turn around and place his hands behind his back and informed
him he was under arrest for disorderly conduct. The Defendant
did not turn around although Ofc. Clements and I continued to
order him to turn around.
5. Due to Defendant's actions and his refusal to comply I
sprayed the Defendant with OC spray. As I sprayed the
Defendant he turned his head, avoiding most of the spray and
then turned around and placed his hands behind his back. I
moved forward to compliantly handcuff the Defendant with the
assistance of Ofc. Clements. I was able to secure both
handcuffs but the Defendant continued to yell. The
Defendant's face grew very red and he spit every time he
yelled. The Defendant also tensed up his entire body as we
attempted to maintain control of him. Although Officer
Clements and I ordered the Defendant to stop resisting and to
calm down, the Defendant continued to resist and scream. The
Defendant's actions forced Ofc. Clements and I to place
the Defendant on the ground to maintain control of him. While
on the ground the Defendant continued to struggle and yell
until an officer with a patrol vehicle responded to transport
the Defendant to police headquarters.
6. The Defendant's criminal record indicated that he had
failed to appear at a court proceeding.
Id. at 12-13.
[A]t approx. 110 hours, Officer Clements and I went to the
residence o[f an individual] to arrest her for a disorderly
conduct violation in accordance with a rule 3 failure to
appear exception. Upon knocking on her door[, she] answered
and opened the door. I advised her that I had some paperwork
for her and offered to show her the affidavit of probable
cause for her arrest. [She] asked [if] she was being arrested
and I advised her [that] she was. [She] then began to turn
away from Ofc. Clements and I and state, "I need my
shoes and vitamins[.]" I advised [her] that she was
"under arrest" and told her we needed to be with
her if she wanted to retrieve items.
Ofc. Clements and I escorted her to a table where she took
some vitamins. She then began to order me to sit down. I
again advised her that she was in my custody and was under
arrest. [She] stood up and went to a dark area in her kitchen
yelling at Ofc. Clements about him being a homosexual. Due to
concerns of sharp objects in the kitchen I illuminated the
area with my flashlight and advised her of my safety concerns
and again advised her that we needed to go. [She] came out of
the kitchen yelling about being a pacifist and calling Ofc.
Clements a homosexual. [She] then stepped toward Ofc. Clement
and stuck her arm out, index finger extended, pointing at
Ofc. Clements face, approx. 6" from his face.
At that [t]ime I sprayed [her] with O.C. spray. She ran from
Ofc. Clements and I toward the west end of her apartment.
There, both Ofc. Clements and I secured her arm[s], I
[secured] the left arm, and placed her in rear wristlock and
Id. at 15.
August 25, 2005:
While assisting Officer Dier while dealing with a juvenile
arrest in holding cell 1, 1 observed the male juvenile kick
Officer Dier's leg. The male had earlier advised me that
when he was out of handcuffs he was going to "knock me
out[.]" The subject also advised ...