[B]URLINGTON — The attorney general and Chittenden County state’s attorney have cleared two Burlington police officers of any wrongdoing in the shooting of a Colchester man in September, officials said Monday.
Cpl. Ric Volp and Sgt. Brian LaBarge shot 20-year-old James Hemingway in the abdomen and foot after responding to a standoff at the Woodland Shores mobile home park in the early hours of Sept. 20.
The two officers fired a total of 15 shots, in what prosecutors say was a justified use of force, as it was “reasonable” for them to believe Hemingway posed an “imminent” threat of death or serious injury to them or other officers — the legal standard for the use of lethal force.
A family member called police and said Hemingway was drunk and threatening suicide at approximately 3:30 a.m. After police arrived at the mobile home park, Hemingway made multiple threats to shoot police and was observed with what appeared to be a long-barreled hunting or assault rifle, according to law enforcement officials.
“It’s going to be a long (expletive) night. Somebody’s going to get shot. Leave me the (expletive) alone,” Hemingway reportedly told officers over the phone.
Colchester police called for backup and officers from Burlington and Winooski responded to the scene, including a crisis negotiator and Volp and LeBarge. Officers set up a perimeter around Hemingway’s mobile home and set up a temporary command center blocking the park’s exit.
Hemingway left his home with the weapon, which turned out to be a high-powered air rifle, and was pacing in the driveway holding it as “a hunter would if they were looking for prey,” State’s Attorney T.J. Donovan said at a Monday news conference.
Officers turned off their body cameras during the standoff because they were concerned that the red lights on the Axon Taser cameras would give away their positions to Hemingway if he were to begin shooting.
The red lights are there so the public knows they are being recorded and to remind officers that the cameras are on, but in this case law enforcement officials said recording would have placed officers in danger during the standoff in the dark.
Vermont Public Radio reported Monday that, according to the device’s owner’s manual, the light on the body cameras can be turned off while still recording. Donovan told VPR reporter Taylor Dobbs that he would investigate that claim.
Body cameras are generally an effective tool for transparency, Donovan said, and all members of law enforcement present at the news conference said they support their use in most circumstances.
“It’s not very often that the police officers are being hunted by the person they are recording,” Colchester Police Chief Jennifer Morrison said.
“The fact of the matter is these cameras were turned off for a very good reason. I commend the officers for having the presence of mind to turn their cameras off,” Donovan said.
Burlington Deputy Chief Bruce Bovat said the department has communicated its concerns to Taser, one of the largest manufacturers of police body cameras in the U.S., and they are looking at possible solutions going forward.
Bovat later issued a news release saying that officers may have been unaware of the camera’s technical options and that the department would cooperate with any investigation into why those officers may have believed the lights could not be turned off.
In response to the VPR story, Bovat said the investigation shows “that the department’s eagerness to field body cameras for the sake of increased accountability outpaced officers’ knowledge about how to use them.”
“These deficiencies will be remedied in the coming weeks,” Bovat said. “The State Attorney’s concern that certain members of the Department may have given the State Police investigators inaccurate information about the capabilities of the camera deserves further review. The Department will fully cooperate with any investigation aimed at clarifying what was relayed to investigators and why.”
Attorney Ben Luna, who is representing Hemingway in a potential civil proceeding, said after the news conference that it was “unfortunate” police were not recording with their body cameras during the incident.
Luna said Hemingway has a very different version of events, and without video evidence it will be his client’s word against those of law enforcement.
Hemingway was not “hunting” police officers, as law enforcement suggested during the news conference, Luna said, and according to Hemingway’s version of events, he surrendered before he was shot.
Luna said Hemingway is considering bringing an excessive use of force case against the Burlington Police Department in federal court. Hemingway is “traumatized” by the incident, but has recovered enough to return to work, Luna said.
After leaving the mobile home, Hemingway, who had admitted to officers that he was drunk, then got into his vehicle and started driving toward the police command post. That’s when Volp fired three shots at Hemingway’s car. Volp later told investigators he believed Hemingway was going to the command post to shoot officers, Donovan said.
Hemingway stopped the car, and began walking toward Volp and LaBarge. At that time LaBarge turned on a flashlight attached to his AR-15 service rifle, so he could see Hemingway, but did not turn on his body camera.
Hemingway ignored repeated commands from Volp and LaBarge to stop and show his hands, which were heard by other officers. Hemingway then reached into his waistband and the officers saw a “light reflecting off a metallic object” they believed to be a gun, but was later discovered to be salad tongs.
Both officers began firing at LaBarge. Hearing the shots, Burlington police officer and crisis negotiator Krystal Wrinn turned on her body camera and raced to the location. When she arrived, Hemingway was on the ground. He was cuffed and first aid was administered, according to investigators. After shooting, LaBarge also turned on his camera.
Wrinn had turned off her body camera when she was on the phone with Hemingway because she worried that a beeping sound emitted by the camera would hurt her rapport with Hemingway, according to Donovan. VPR’s report notes that the camera’s manual says the noise can be turned off as well.
Law enforcement officials said they did not call in a mobile crisis unit, mental health workers trained to help law enforcement de-escalate situations, because they did not believe it was safe to do so. The state has invested in mobile crisis units for precisely those situations where people who may suffer from mental illness come in contact with law enforcement.
Chief Morrison said that crisis teams are generally effective, but “we can’t put those workers in harm’s way,” and in this instance it was not deemed appropriate to call on them.
Luna, Hemingway’s civil attorney, questioned whether that was the case, saying again that Hemingway told him he was not acting in the threatening manner described by police. As a former prosecutor in Caledonia County, Luna said he had seen how effective the mobile crisis units are in de-escalating confrontations with police.
Luna would not say if Hemingway has a history of mental illness, but he did say that his client was having a “mental episode.”
Volp and LaBarge, who were on paid administrative leave during the investigation of the shooting, are expected to return to active duty this week, according to Bovat.
Hemingway faces two counts of simple assault on a police officer and aggravated disorderly conduct and is expected to be arraigned in Chittenden County Superior Court on Tuesday.
