BURLINGTON — Fourteen days after a federal agent and a state trooper shot and killed a man in his Elmwood Avenue apartment, the public has little more information about the circumstances of the killing than it did in the immediate aftermath.
The shooting, Vermont’s only deadly officer involved shooting last year, occurred during a raid led by the federal Drug Enforcement Administration. Its target, Kenneth Stephens, 56, died from multiple gunshot wounds to the head and torso, according to his death certificate.
Elected officials are concerned that the raid placed neighbors in serious danger and have asked whether deadly force could have been avoided. Some have questioned the use of a warrant that did not require police to knock before entering.
The Vermont State Police are investigating the Elmwood Avenue shooting, and prosecutors will review whether there was any wrongdoing. That investigation is not complete, and state police won’t comment beyond statements released in the days following the shooting.
The agent and the trooper who were first to enter Stephens’ apartment just after 7 p.m. on Dec. 22, a Wednesday, fired 13 shots. Several of those bullets passed through the apartment’s walls and one nearly struck a neighbor in his home.
“I am very concerned that bullets from the law enforcement operation left Mr. Stephens’ apartment and strayed into another home,” said Mayor Miro Weinberger in a statement released the day after the shooting.
“It’s important to know what protocols are in place, if any, to make sure neighbors or innocent bystanders are not placed at high risk when a raid is conducted,” said Sen. Tim Ashe, D/P-Chittenden, a member of the Senate Judiciary Committee. “I’m grateful the neighbor wasn’t accidentally killed, but he came within inches of being killed.”
Burlington has an old and mostly wooden housing stock and, in areas like where the shooting occurred, it’s densely populated. Those are factors that Burlington police are “acutely aware of” when planning operations, said Burlington Police Chief Brandon del Pozo.
City Councilor Selene Colburn, P-Eastern District, said the episode left her wondering if law enforcement is targeting drug dealers “at the top of the food chain,” or if it’s possible large operations like the Dec. 22 raid are being aimed at small time dealers who themselves might be drug addicts.
Search warrant returns show police recovered what they believe to be heroin, crack cocaine and marijuana from Stephens’ home. U.S. Attorney Eric Miller said Stephens had $2,600 worth of heroin, or 260 $10 bags. The crack cocaine was a “distribution amount,” he added.
Miller said he could not comment on whether Stephens was a high priority target for law enforcement, saying it would be inappropriate to do so while the matter is being investigated.
The majority of federal heroin distribution cases highlighted in news releases by Miller’s office deal with greater quantities than the 260 bags found in Stephens’ home.
No-knock warrants are a controversial police tactic
The U.S. District Court in Vermont issued 136 search warrants in 2015. Only three, including the one used to execute the Dec. 22 raid, were no-knock warrants. All three were signed by U.S. Magistrate Judge John Conroy.
In all three cases where federal agents obtained no-knock warrants, the targets were suspected drug dealers who officers had reason to believe would be armed. All three warrants were to search apartments in Burlington.
“Federal law enforcement has sought no-knock warrants in only a tiny fraction of cases in which they have needed search warrants,” Miller said. “The affidavits used to obtain the no-knock warrants are all supported by a volatile combination of drugs, guns and histories of violence.”
Another common thread reflected in the three affidavits is the potential for suspects to dispose of or destroy evidence of their drug dealing.
Stephens had a violent criminal past, and a confidential informant told DEA agents he owned a muzzleloader rifle and would keep it loaded. He served more than 15 years on a federal firearms conviction that stemmed from an incident where he shot a man.
In another case where police obtained a no-knock warrant, the subject was arrested on the street outside his house, Miller said. In that case officers searched the Hyde Street apartment of Ryan Demange, finding 660 bags of heroin and an AR-15 assault rifle.
Demange, who was recently indicted by a grand jury for selling heroin, was stopped by police with a .20 caliber Glock pistol prior to the raid on his home.
No-knock warrants give police the discretion to enter without knocking, but do not require that they do. Miller was not able to say if police entered without knocking in the third case where a no-knock warrant was issued.
In that case the subjects were several men implicated in an armed robbery. A person co-operating with police said the men were part of a crew that brought guns and drugs back and forth between Brooklyn, New York, and Burlington.
When the men’s Church Street apartment was searched, police found a ski mask and 9 millimeter ammunition. It does not appear that any criminal complaint was filed or an indictment returned in that case.
“The use of no-knock raids is very controversial precisely because of the potential to escalate a situation,” said Ashe.
Ashe acknowledged not having all the facts in the Stephens case, but in light of the deadly incident he said the permissible use of no-knock search warrants should be “better formed.”
Available facts on the deadly Dec. 22 raid
Officers were told about the muzzleloader and Stephens’ criminal history during a briefing prior to the raid. Agents and the informant did not know if Stephens owned a “primer” that would allow him to shoot the muzzleloader.
Sixteen officers from the DEA, Vermont State Police and the Burlington and Essex police departments conducted the raid. They approached the apartment in a line or “stack” formation. An agent broke the door open with a battering ram.
The first person through the door was State Trooper Matthew Cannon, who yelled “police.” Cannon heard yelling from inside and saw Stephens sitting in a chair. Cannon then saw Stephens stand and point a rifle at him, according to a state police statement.
Cannon “began yelling commands at (Stephens) and discharged multiple rounds from his patrol rifle.” At the same time, the next person to enter the apartment, Special Agent Tim Hoffman, shot at Stephens multiple times with his “patrol rifle,” state police said. They fired 13 times between the two of them. Stephens did not fire a shot, though his rifle was loaded.
Judge Conroy signed the warrant on Dec. 21. Officers had until Jan. 4 to execute the search. The raid happened the following day. State police and the Burlington Police Department have declined to say when the DEA first notified them about the operation.
One Burlington police officer who participated in the raid was wearing a body camera that captured footage, del Pozo said, but the officer was in the back of the stack formation and would not have captured the shooting on video.
State troopers don’t wear body cameras. The DEA would not respond to questions about whether its agents were wearing body cameras.
Little information forthcoming from state police
State police investigating the officer involved shooting will provide a report to the Chittenden County State’s Attorney and the Attorney General. Those prosecuting offices will determine if the shooting was justified.
State’s Attorney TJ Donovan said he has not received the state police’s investigation report, and said he would not comment until he had.
The DEA will do its own investigation to see if the use of deadly force fits the scope of what’s allowed by federal law, according to its statement.
State police spokesman Scott Waterman said he was not authorized to say what type of weapon his agency meant by “patrol rifle,” however several sources close to law enforcement said it’s likely the trooper and agent had the AR-15, a semi-automatic assault rifle commonly used by police.
The Burlington police officers who were recently cleared of wrongdoing in the October shooting of a Colchester man were armed with the AR-15. The AR-15 is effective at up to 600 meters, a range that far exceeds any situation officers could have confronted in the confines of Stephens’ apartment.
After state police refused to identify the weapon used by trooper Cannon, VTDigger submitted a public records request for records generated as part of the state police investigation.
That request was denied on the grounds that records met two exemptions in Vermont’s public records law: first that their release “could reasonably be expected to interfere with enforcement proceedings,” and second that their release “would deprive a person of a right to a fair trial or impartial adjudication.”
The records state police are withholding include police reports, witness statements, photographs, medical records, forms, interviews and “other records related to this investigation,” they said.
State police have not given a timeframe for when they expect their investigation will be complete, or when more information will be released to the public.
