Editor’s note: This article by Jordan Cuddemi was first published in the Valley News on Oct. 29, 2016.
[W]HITE RIVER JUNCTION — Former Windsor police officer Ryan Palmer wants a judge to dismiss charges lodged against him after he shot a driver who allegedly was trying to flee a drug sting, arguing that instructions given to the grand jury were flawed.
Palmer resigned from the Windsor force in July, citing personal reasons, Police Chief Bill Sampson said on Friday.
Palmer, through his attorney, Dan Sedon, claims the judge and prosecutors gave the jury the wrong legal standard to apply when deciding whether Palmer’s use of force when he shot and wounded Jorge Burgos in 2014 was “reasonable.”
The defense argues that a federal standard that assesses a police officer’s behavior in a use-of-force situation separately from an average person’s behavior should have been applied, but wasn’t.
“These instructions fail to properly define critical terms and articulate the proper standard by which Det. Palmer’s actions should have been judged,” the defense wrote in its motion to dismiss, which was filed in Windsor Superior Court in June. “He is entitled to a remedy — dismissal of the faulty indictments.”
However, the state Attorney General’s Office, which is prosecuting the case, says the jury was properly instructed on what standard to apply: the “reasonable person” standard. That standard is what current Vermont law instructs prosecutors to apply in all cases when use of deadly force is used in self-defense, according to the state’s response to the defense’s motion, filed in Windsor Superior Court in August.
“All of the legal instructions and comments by prosecutors to the grand jurors were entirely consistent with Vermont’s law on self-defense,” prosecutors wrote. “The defendant claims error by arguing that an entirely different legal standard applies.”
Palmer is charged with a felony count of aggravated assault with a deadly weapon and misdemeanor reckless endangerment.
Windsor Superior Court Judge Theresa DiMauro has yet to rule on the motion or set a hearing to discuss the matter further.
Palmer, now 30, was indicted by a grand jury in July 2015 on charges that he acted unlawfully when he shot Burgos during a drug sting in November 2014.
Palmer fired his duty weapon at Burgos three times in the parking lot of Ferguson’s Auto on Route 5 in Windsor, striking him twice in the arm. The incident was caught on surveillance video by a camera at the repair shop, court records indicate.
Palmer contends he shot Burgos in self-defense as Burgos backed up his car in the parking lot and then accelerated toward him.
Prosecutors, however, say Palmer unnecessarily shot Burgos as he fled the parking lot and led police on a chase to Claremont.
Not long after the incident, police charged Burgos, then of White River Junction, with aggravated assault, alleging he attempted to run Palmer down. However, not long after the incident, the Windsor County State’s Attorney’s Office dropped the charge against Burgos without explanation.
Palmer was indicted eight months later.
In a telephone interview this week, Sedon, Palmer’s attorney, said he feels the state made a “mistake” when presenting information to the grand jury, and prosecutors now are backtracking.
He said the federal standard — established in the Supreme Court decision of Graham v. Connor — would have forced the jury to analyze “reasonableness” from an “officer’s point of view” and would have prohibited jurors from judging Palmer’s actions from “20/20 hindsight.”
“Far from being deferential to the officer’s unique position, risk and training in considering his use of force, the court asked the grand jury to judge him as it would any other citizen,” the defense wrote in its motion.
Sedon said an officer can’t be judged by the same standard as an average person for several reasons, including that an officer’s use of force on a daily basis often would be characterized as an assault for an average person.
Sedon also said the judge, who was not named, used the word “reasonable” several times throughout the grand jury proceedings in Woodstock, but never provided a clear definition of “reasonableness.”
In addition, he said, police officers at the Vermont Police Academy are trained on the Graham standard.
“Train them and judge them by the same standard,” Sedon said.
Assistant Attorney General John Treadwell, one of two lead prosecutors in the case, said even if that were the case, the academy doesn’t set the standards for use of force — the Legislature does.
He said the standard the defense is applying is a “federal civil rights lawsuit standard,” one that is not applied in Vermont criminal cases like this one.
Treadwell said Palmer’s defense should approach the Legislature with their concerns regarding what standard should be applied to the Legislature. Though many states have adopted statutes that “more explicitly” address use of force by an officer, Vermont hasn’t and isn’t mandated to, he said.
There is only one other officer-involved shooting case where criminal charges were filed and a similar argument was raised by the defense, Treadwell said. A Winooski police officer fatally shot another man this year, but he pleaded out before the matter was addressed, Treadwell said.
“Vermont law is very clear and sets the standard under which a person may use deadly force to protect themselves,” Treadwell said. “Mr. Sedon is seeking a change in Vermont law and the appropriate place to seek a change in law is the Legislature, not the courts.”
Palmer remained employed by the Windsor Police Department up until his resignation this summer, said Sampson, the police chief. His duties were reduced after the shooting incident, and he wasn’t allowed to possess his duty weapon.
