Courts & Corrections

Burlington Police Commission rejects calls for independent inquiry on July protest response

Burlington Police Chief Michael Schirling. VTD/Josh Larkin
Burlington Police Chief Michael Schirling. VTD File Photo/Josh Larkin

After two contentious meetings, the Burlington Police Commission has voted unanimously to tell the City Council that no further investigation of a July 29 showdown in which police used pepper balls, rubber pellets and pepper spray “would be constructive.”

In an August letter to Mayor Miro Weinberger and the commission following the incident, four council members joined local activists and civil libertarians in calling for an independent investigation to answer lingering questions and “help build public trust in our police force.” Among the questions was whether all means of dialogue had been exhausted, and why rubber bullets and pepper spray were used if no arrests were made.

In response the commission called for more information. Only three responses arrived via email in a month. However, last Thursday more testimony was provided in person by about a dozen residents, including several who were present at or directly involved in the protests during a conference of New England and Eastern Canadian leaders at the Hilton Hotel. Many who spoke reiterated the call for an independent investigation.

Police Commission Chair Jerome O’Neill suggested “what happened that day was an unfortunate combination of circumstances.” But he also assigned some of the blame to a small group “who wanted to cause trouble.”

The commissioners agreed that the department should look into relevant policies in comparable communities and continue to encourage “peaceful protests.” But they felt that any further investigation would not be “helpful” or yield much new information.

As O’Neill and four other commissioners labored over the wording of a statement that is likely to reach the City Council at its Oct. 15 meeting, more than 20 people expressed their dissatisfaction with the process by walking out. Lingering outside police headquarters, councilors, protesters and dissatisfied residents expressed their dismay about the official response.

A key objection presented in public testimony is that the after-action report offered by the department in August was not accurate or inclusive. Critics have pointed out that no interviews or comments from anyone outside the department were sought or incorporate into that document.

At the most recent commission session Robert Appel, director of the Vermont Human Rights Commission, expressed a widely voiced view that “without a true independent, dispassionate review of what occurred that day” trust in the police will be undermined.

On the other hand several people, including representatives from the Burlington Business Association and Church Street Marketplace, also spoke up to defend the reputation of local police at a moment when they face serious criticism. Although the department’s supporters did not address the protest or subsequent report, they expressed the view that many residents have not lost trust in the police.

Appel pointed to an unresolved issue: why officers were deployed in what has been described as “riot gear.” Police Chief Michael Schirling has stated that the decision to use officers equipped with shields, batons, pepper spray and 37mm rubber pellet launchers was made by Lt. Arthur Cyr, who leads the department’s crisis negotiation unit. This “crowd control team” was on duty inside the Hilton for hours before the confrontation.

The situation escalated when Cyr attempted to arrest a protester. He claims that in the process someone attempted to touch his duty belt, one of several details that has been difficult to confirm. Unable to complete the arrest, Cyr held onto three protesters who had linked arms. When the person he wanted to arrest got away, Cyr was pulled along, the police report states.

Meanwhile Officer Nathan Harvey, reportedly struggling with Jonathan Leavitt and another protester he wanted to arrest, tripped on a sign and fell over. Harvey’s helmet came off and his pellet launcher hit the ground. Seeing a fellow officer fall and his launcher in the open, Officer Tyler Badeau fired a rubber pellet round at Leavitt. Leavitt says he was already walking away with his hands raised.

Despite confusion about what actually happened, Appel noted that within days of the incident both Schirling and Weinberger “issued public statements which at least I had perceived to be saying the police acted reasonably. I don’t know how you square that with an after the fact review that is internal.”

Leavitt expressed growing skeptical about the commission’s response. On Thursday he presented a petition with more than 200 signatures requesting an independent investigation and asked “that our civil liberties not be deliberated by the same police department which shot us.”

Three City Council members were in the audience. Progressive Rachel Siegel asked the commission “to go the extra mile and request an independent investigation.” Independent Sharon Bushor agreed, and still wanted to know more about why the response “deviated from past practices.”

Council President Joan Shannon did not speak during the meeting, but subsequently explained that the commission does not see a meaningful focus for further action. She added that it would continue to review relevant policies.

In explaining his decision, Commissioner William Bryant pointed out that various efforts to communicate with demonstrators prior to the incident were rebuffed. Although he admitted that those protesting had no obligation to share information, he nevertheless suggested that “the burden was on the protesters to have better communication.” Bryant also felt that “any show of authority might have escalated the problem.”

Philip LaVigne suggested that the protesters had broken an unwritten “deal to get along with the cops” during civil disobedience actions. Commissioner LaVigne said he was also “troubled that no arrests were made.”

Sandy Baird, a Burlington attorney who supports the call for an outside review, had the same question but a different analysis.

“Why weren’t they arrested?” Baird asked. “What’s the deal? Why is nobody answering that question?” The department claims that shooting with less lethal weapons was lawful, she points out, but “they didn’t mention one violent act on the part of the protesters because there was none. My question remains, why weren’t they arrested?”

For Commissioner Paul Hochenadel, the main issue facing them was, “What would we discover that we haven’t heard” if an outside investigate was pursued? Commissioner Sarah Kenney felt the same, adding that she “can’t imagine who could do an independent investigation. What new information would they find? I don’t think that’s the best use of time.”

Genese Grill, a writer and critical thinking teacher, offered her own answers in a thoughtful statement presented to the commission. “The value of an objective analysis and the value of a legal investigation is that the spin of a particular narrative can be examined from other sides by gathering evidence and counter evidence, and allegations can be examined for their truth value,” she argued.

“In the case of this (after action) report, we have a narrative that attempts to paint a small group of protesters as a dangerous group who planned ahead of time to use aggressive and violent tactics on the police,” Grill said. She then challenged several assertions embedded in the official narrative.

After the public finished O’Neill led the commissioners in wordcrafting for its response to the City Council. He also addressed those involved in the incident. “You didn’t make their (police) job any easier,” O’Neill said, with the added warning that the state’s attorney could still look into the matter.

Blogger Dylan Kelley concludes on Vermont Commons that the message to activists is that “peaceful dissent and disobedience will be put down with violence and brutality. Anybody getting in the way of the Weinberger, Shumlin, or any other powers that be, has only themselves to blame.”

In their Aug. 21 letter to the mayor and commission Bushor and Siegel, along with Councilors Vince Brennan and Max Tracy pointed out that they have requested Chief Schirling’s presence at a council meeting to answer questions about the incident. “Unfortunately, neither he nor any representative from the Police Department attended” the only August meeting, they noted.

Some questions raised in August have been answered since then. A few have led to recommendations for policy changes. But the deadline has passed on the letter’s request for a council presentation in September. On Sept. 24, an annual report from the Police Commission by O’Neill was dropped from the agenda at the last minute.

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Greg Guma

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  • Once again the official response is “policy changes”, and not one elected official or police force member has taken any action to protect the public from police brutality – aka Shumlin and the killing of Macadam.

  • Jim Busch

    Here is some questions that I have not heard the press ask nor anyone answer:
    1) What would an independent investigation prove or do?

    2) Who would make up the independent team that would make both sides happy regardless of their opinion/outcome?

    3) If fault was found on either side, what could/would be done?

    What is the end goal?

    I heard this answer from 3 attorneys and 2 judges: None or Nothing(the short answer boiled down) to all 3 questions with the resultant would be a “policy change” and money spent. That is all.

    The police commission is already stated that is what is going to happen, a “policy change”. So it seems they are being “pro-active”.

    The only change that would be the best has to be done at state level by our inept Attorney General….oh wait..he has his own problems. Oh-well it is election season, find an AG that will do their job.

  • Tiki Archambeau

    “In response the commission called for more information. Only three responses arrived via email in a month.”
    Um, the commissions’ email addresses are not publicly listed.

    Couple of problems with how all of this is going down:

    1) The police department’s report is clearly biased and factually inaccurate (just wait until you see how much “threatening” milk shows up at the next protest). While having Schirling and the mayor remain loyal to their employees is admirable, it comes at the expense of future cooperation.

    2) The commission appointees are cozier with the police department than with the community they serve. It’s even questionable if their mission includes oversight. They serve infinite terms based solely on political networking, a recipe for cronyism.

    Rather than put heat on the commission, the real question must be asked of Mayor Weinberger and Council President Shannon: What are you doing about this problem?

    • Jim Busch

      Tiki,says..”Um, the commissions’ email addresses are not publicly listed.”

      There is another invention that predates email….US Postal Service and a Telephone.

      The Burlington Police Commission’s contact information is right on the Burlington Police Dept’s Website. Also, Jerry O’neil, Commish chair, can reached at his practice.

      Here is the link to their contact .doc

      “2) The commission appointees are cozier with the police department than with the community they serve. It’s even questionable if their mission includes oversight. They serve infinite terms based solely on political networking, a recipe for cronyism.”

      The Commission is made up of a personal injury lawyer, 2 community activists and a victims rights advocate? Please tell us they like to be “in bed” with the police? ALL appointed by a “Progressive” party councilor and one Democrat and Mayor(Bob Kiss) at the time. Hmmmmmm.. Sounds like a conspiracy to me?.

      • Christian Noll

        Jim sure I’d be glad to tell you what you’ve asked for in your above post.

        No “conspiracy” here, just badly needed change.

        The “Vicitim’s” Advocate IS a burlington police officer and for you to present it as such to the public here on vtdigger is ALMOST a case and point example of how dishonest the Burlington Police are allowed to be.

        I am compelled to forever document such misrepresentations of “Advocacy” for any “Victim” in any town, let alone the one I live in.

        I think Mayor Miro should follow Anaheim’s Mayor Tom Tait’s example. Time to morve forward Miro.

        The Burlington police have repeatedly lied, swindled and committed gross acts of civil injustice while hiding behind an antiquated and self serving model in our city.

        You cannot escape the fact that it is only fair and just to have an unaffiliated, separate and independant civilian oversight committee to counter such numerous acts of brutality by our own police.

        Separate and Real Oversight, Now.

        • Jim Busch


          Please point out who the “police officer” is that is a member of the commission:

          Jerry O’Neill, Chair
          Bill Bryant, Vice-Chair
          Sarah Kenney
          Paul Hochanadel
          Philip LaVigne


          To the best of knowledge, ALL were nominated by a mayor and appointed by the city council. And none of them have ever been a police officer.

          And in your mind what would “your” commission have done differently????


          The most that is allowed by state statute is fire or change policy. That is all.

          Now a better point would be, Why is does not the State AG do anything?
          Answer;Election season, elect a new one. Then something can be down.

          • Christian Noll

            “And in your mind what would “your” commission have differently???”

            You know Jim with each post of yours I see nothing but proof of either you being mislead or misinformed, OR your attempts at misleading others.

            Do I have a “commission?” Nope sorry again, you must be thinking of someone else. Marry Macallaster was the “Vicitims Advocate” when I needed help and her office is or was AT THE POLICE STATION. And yes, she was a Burlington police officer.

            Naming the individuals above is pointless as long as they’ve done absolutely NOTHING to help me. Your commission is only as good as the results of it. The Proof is in the Pudding. I can bet you not one of the memebers of “your” commission even knows my name.

            Yes the Vermont Attorny General has fallen into an ethically downward spiral. I think you get to a certain age and it degenerates your vision a little. This happens to all of us.

            In 1988 I completed my then undergraduate internship at the BPD under the leadership of then Police Chief Kevin Skully, who was probably one of our better Chiefs of Police in Burlington. But with our new “Post 9/11” battle cry, things have changed for the worse. Much worse.

            I am not alone when I tell you that, in the past few years there have been nothing but problems with the Burlington Police and we are peaceful law abiding tax payers.

            SHAME ON YOU for being so ill informed and NOT knowing who your peaceful community memebers are.

            I will write about this for the rest of my life Mr Busch.

            Christian Noll
            BS/MS criminal justice

        • Jim Busch

          “Then something can be done. ”

          Also, Christian, the “conspiracy” comment is called sarcasm.

          • Jim Busch

            Christian Noll,

            It seems you do not comprehend what is being discussed, nor what is written in the article.

            Who is Mary MaCallaster?
            I do not see her listed as a member of the 2012 Burlington Police Commission. Nor do I see where she is relevant to the article.

          • Christian Noll

            Mr Busch,

            “It seems you do not comprehend what is being discussed, nor what is written in the article.”

            It must me then. I probably just don’t understand or can’t comprehend it.

            Ms MaCallaser was the “Victim’s” Advocate at the Burlington Police Station in 2008 and 2009. Is she gone? Is there someone new now? It is “relevant” because YOU ASKED.

            The point being our current commission to provide objective, unbiased and fair oversight has failed. Its failed with me and hundreds of other peaceful Burlington residents.

            It needs to be changed. Additionally there needs to be consequences for officers not telling the public the truth about the proper avenue for filing a complaint against a Burlington Police officer. Lt Stubbing gently ushered me out the door (so that her adminstrative colleagues wouldn’t hear her) to tell me that she knew nothing of “any process” for filing a complaint against a Burlington Police Officer. Yet liturature produced and distributed by the BPD itself says that you may (as an option) go to the station and “They will assist you.”

            I understand the article Mr Busch.

            I understand the public’s frustration with your “commission.”

            I understand that you’ve been misinformed and are in turn, misinforming others.

            Anyone planning a peaceful protest should from this point forth have several videographers to video tape everything. Not that this would save them because as we’ve seen; even in the face of compelling video footage, you’ll still defend unlawful actions by the police.

            I’m thinking that I “understand” very well Mr Busch.

            It really doesn’t matter who’s on the commission. If the results are so unfair and subjectively in favor of the police, then we want it changed.

            Separate and Real Oversight Now.

  • Christian Noll

    The police “investigating” the police. hummmm.

    What’s wrong with this picture?

    The police are allowed to not tell the truth as long as the public allows them to do so.

    If we are supplying the police with all sorts of military munitions, equipment and training, at some point they will be used regardless of how appropriate.

  • Tom Karov

    They, BPD and Weinberger hope this will all (just go away)
    I hope the People of Burlington will refuse to allow this.The whole thing stinks..

  • jim busch

    Mr. Noll,

    You are still rambling and ranting on about this Ms. McCallaster who is NOT a member of the commission which is the subject of Mr Guma’s article and their decision.
    If you can discuss the current commission then this discussion is over.

    Now back to the article, the only avenue in VT for the protestors now is to get our inept State AG to do something.( Don’t hold your breath) Well being an election year, maybe we need a new AG?

    • Christian Noll

      What’s the matter?

      Cat got your tongue?

      The meeting at City Hall was cancelled due to the horrific storm we had.

      When is the resechedule date Mr Busch?

  • Christian Noll

    Mr. Busch,

    Your exact words were:

    “If you can discuss the current commission then this discussion is over.”

    Nice Freudian Slip Jim.

    At least you’re able to show your true colors.

    While I agree that there is still an election for the AG, the militarization of the police under the guise of “Homeland Security” is troubling and my remarks above have everything to do with the article.

    There is no “ramble” nor “rant” here. There is no “conspiracy.” Just someone who’s studied the police a little bit more than your self.

    Its interesting to note that someone on a “commission” which is supposed to provide “oversight” would condemn or disregard someone’s remarks so pejoritively. If there is an ounce of oversight on “your commisssion” you would have responded more appropriately.

    You asked:

    “What would an independant investigation do or prove?”

    It would provide and unbiased and separate study into why such brute force was used against peaceful protestors and protect our peaceful tax payers from falling victim this this again in the future. The police are here to protect our First Amendement rights, not intimidate or destroy them.
    It would also help restore public confidence and credibility with the Burlington Police Departement.

    You asked:

    “Who would make up the independant team that would make both sides happy regardless of their opinion / outcome?”

    This is a retorical question because rarely will the police ever support an oversight committee or “commission” which is there to uncover their wrong doing, ie. in this case their unlawful use of force against peaceful protestors.
    The “team” could be made up of individuals best suited to provide real oversight to the police. This wouldn’t have any police officers on it nor should it have any relatives nor aquaintances of victims of police misconduct, something thats becoming more and more difficult to do apparantly.

    You asked”

    “If fault would be found on either side, what could be done?”

    Since were trying to provide oversight to police brutality, I see an effort to prevent it from happening again in the future and also encouraging peaceful tax payers in excercising their rights to lawful protest instead of threatening them or inhibiting from doing so. This is the basis our our founding father’s Bill of Rights. Its what we excaped from during our war of independance. The protestors were lawful and peaceful, the police were not.

    You asked:

    “What’s the end goal?”

    There are several goals here. One is to as above mentioned, encourage our community members to excercise their constitutional rights. Also to restore public confidence in knowing that the police are not above the law and that our city has an effective, non biased, separate and non politically motivated oversight mechanism in place to evalate and discuss any police action which would be complained about by the public.

    In closing I am surprised that someone who’s supposed to be a part of a “commission” looking into an obvious act of police brutality, so blaitantly disregard someone’s attempts to answer the questions they themselves have asked.

    No “Rant” nor “Ramble” here Mr Busch, just the answers to the questions you yourself have asked. For the record, my answers for the purpose of this forum (which is open mind you) were the short version. I’d be glad to provide any concerned individuals with a public plan to provide real oversight to both police and the public should they be so interested.

    My true feeling here is that this is really a political mechanism designed for political purposes rather than providing real oversight to the police.

    I think its time to fullfil your civic duty Mr Busch and come clean.

    Stick to what you know please.

  • Christian Noll

    Greg Guma you’ve done an outstanding job in covering this.

    Please stick with it.

    If both meetings were that contentious, you know you’re on to something.

    Nice work and please keep at it.

  • Amy Preston

    The reason police officers are allowed to assault/abuse innocent members of the general public without fear of consequence is that Bill Sorrell, Vermont’s long running Attorney General THAT MOST EVERYONE IN THE STATE JUST RE-ELECTED, has a long-standing stance AGAINST CRIMINAL PROSECUTION OF POLICE OFFICERS DEMONSTRATING UNNECESSARY FORCE. Just Google the phrase, “Bill Sorrell Police Misconduct” and see what you come up with. THERE IS NO REGULATORY AGENCY RESPONSIBLE FOR ADDRESSING/RESOLVING POLICE MISCONDUCT. The State’s Attorney General won’t touch these cases and this sets a precedent around the state. Other attorneys will not prosecute them either and THE LEGISLATURE WILL NOT GET INVOLVED. If a person is victim of police misconduct, their only option is to hire a private attorney who will take the case at high personal cost. Very few judges have issued judgements against police officers. Why? Because they overwhelmingly rely on their “professional testimony” in so many cases and have so much support behind them. Money is lost in legal fees and victims are victimized by the system further.


  • Charles Samsonow

    Dear Mr. Noll
    I like your common sense approach on resolving our lacking law enforcement policies – when the law – enforcers – cross there own line.

    We do need an independent group or organization specifically over looking and regulating police behavior only. There records should never be expunged as to track there mental path.
    You definitely have the educational background for it – have you considered starting something yourself?
    Maybe we as average citizens could see light at the end of the injustice tunnel and police would be able to hold there head up again !
    Its a tough job without a doubt and I know I couldn’t do it – but those who apply need a greater – psychological presence and frame of mind – definitely not quick at the stick – I would think – since we are in the information age – if you got a drivers license and live in town – cops can find you – no matter what – why do we have to beat people up at that moment and haul them in ?
    We as citizens are human and we do make mistakes – I’m again talking about the average hard working blue collar worker – only. Not the career criminal.
    We do not deserve being abused – beaten – crapped on – and then lied to in court – and made out as the criminal. We can’t do that to any of you – in law and law enforcement – on duty or off duty – why would you feel you can do it to us?
    I heard a statement before like- Evil prevails when good people do nothing !
    Well ask the average kid that is unbiased and not worldy – who in society is considered good ?
    I bet there answer will be a – Cop !
    Why is that not – still so ?
    Why is an ex- lying cop or lying lawyer allowed to bend your mind into doing something you shouldn’t ?
    Why can’t you be there like a fire fighter and be there willing to help ?
    Instead of abuse people who have faltered !
    Why is it your so admant about the law and protecting it and yet you seek,
    work on your buildings or property for moneys under the table or seek it cheaper and you know the guy or person is a criminal to start with ! Why do you support evil and deviant people by purchasing there services and then turn a blind eye when they treat other people wrong that are good to start with.
    Thanks for your time and energy

    • Christian Noll

      Mr Samsonow thank you for your remarks.

      “have you considered starting something yourself?”

      I can only report police misconduct myself.

      For there to be a real, independent, unaffiliated police oversight committee, there needs to real investigatory powers vested to the group which would allow for unobstructed investigation and discovery. The committee must also have the ability to recommend disciplinary action should the case so warrant.

      The police will fight tooth and nail to prevent this. What does that tell you?

      The current police in Burlington don’t even adhere to Vermont’s Access to Public Record laws.

      I asked to purchase copies of reports the police had that I was allowed to see,(just one and two page police reports) and they tried charging me $20/ per report which amounts to $10/ per page and in some cases $20/ per page when the report is just one page or a half a page.

      I have this in writing from them.

      This is a clear violation of Vermont’s Access to Public Records legislation and most notably V.S.A. 316 (a),(b),(c) AND importantly (D) which very clearly states that the amount charged for copies of reports MUST REFLECT the “ACTUAL COST.”

      Below is a link to my records request for parking tickets which the Burlington Police Department tried charging me twice for.

      Did you know that the Burlington Police Department and the City of Burlington (According to the City Attorney’s secretary) does not have to adhere to the Statute of Limitations for parking tickets or fines?

      They can say you didn’t pay for a ticket (Which you know you paid) and try to collect on it a second time 12 or 22 years later? Can you believe this? Its almost too hard for me to believe.

      When you live in a town where the police are allowed to just completely disregard our own laws because they feel like it, you know its time to act.

      This changed with 9/11 and the new American Battle Cry:
      “Post 9/11” which signifies the stimuli to the police, correctional and military industrial complexes.

      The police are allowed to lie in Burlington, Vermont. I mean the chief of police himself lied to me flagrantly.

      There is this mentality that their job (the police) is hard, so because of that, we should just “Let them do their job.”

      If they only would do their job we wouldn’t be having this conversation.

      Thank you again for your kind words.