The Deeper Dig is a weekly podcast from the VTDigger newsroom. Listen below, and subscribe on Apple Podcasts, Google Play, Spotify or anywhere you listen to podcasts.
Seventeen people were killed by police in the 2010s, a sharp increase from previous decades. Now, lawmakers, advocates and law enforcement officials are looking at how to curb the trend of rising deaths.
VTDigger’s analysis is based on 50 years of police data initially compiled by former ACLU Vermont director Allen Gilbert. Gilbert said he realized in 2014 that no single government entity was keeping track of lethal police incidents.
“Somebody has to make sure that there is a record, so that anybody can go back and look at that at any one time and ask questions,” Gilbert said. “And I think the central question for most people, if we keep doing what Vermont’s been doing for the last 50 years, is: Why are there more killings every year? Every decade, why have there been substantially more? We don’t have an answer to that question, and we should find one.”
The trend has prompted some lawmakers to push for a stricter standard for what constitutes a justified use of lethal force. H.808, based on a similar measure passed last year in California, would establish that police can only use deadly force when no other options are available.
Rep. Anne Donahue, R-Northfield, is the bill’s sponsor. She said the public deserves more transparency about why the Attorney General’s Office consistently rules that these incidents are justified — especially when so many of the victims are dealing with mental health conditions.
“If you don’t have a statute, you don’t have a place to look,” Donahue said. “So all you hear is the attorney general’s press conference, and you say, ‘But wait. There was more to it than that.'”
Top law enforcement officials have expressed skepticism about the measure. But they, too, want to see solutions for how to better train and equip their departments to deal with Vermonters facing mental health crises.
On this week’s podcast, Allen Gilbert talks about why the public needs to reckon with the idea of lethal force. Montpelier Police Chief Tony Facos describes his department’s response to two fatal incidents in the past two years. Rep. Anne Donahue describes how her bill could make police more accountable. And VTDigger’s Erin Petenko discusses her reporting on the rising trend of deadly encounters.
**Podcast transcript**
This week: Fatal police encounters are on the rise in Vermont, according to a new analysis of fifty years of police data. Now, lawmakers, advocates and police themselves are looking at how to curb the trend of rising deaths.
One of the most recent incidents took place in Montpelier last August.
Petenko: This is according to the investigation and what came out later. With hindsight comes some wisdom that people might not have had on the ground.
Sure.
Petenko: It was early in the morning, like 5 a.m. when the cops got a call that someone was breaking into, or trying to break into, an apartment in Montpelier. That person was Mark Johnson. He lived in that apartment building, actually. And it’s unclear — it appears that he might have mistakenly thought that place was his apartment and he was trying to get in after he locked himself out. Or he could have had some other problem or misunderstanding.
Johnson was described by his neighbors as kind of a quiet guy, and a lot of them after the fact said that they were surprised that he had gotten involved in this, although some said that he did appear to have some sort of mental health condition. He’s not really around to tell us his thoughts.
What we do know is that the police arrived and Johnson ended up running away from them onto the Spring Street Bridge, and officers noticed that he had what appeared to be a gun. They talked to him a little bit, they said, basically, come with us, we can help you, just drop the gun. But they didn’t seem to convince him. This all happened pretty quickly, over just a few minutes. Eventually, he seemed like he was pointing the gun at them and one of them shot him. He was still standing, so one shot him again.
It later turned out that he was armed with a pellet gun. You know, it’s not clear if they could have figured that out. Pellet guns look like regular guns. But it does kind of add another layer to the case of, the justification for the shooting is ‘we thought that he was going to shoot at us,’ but he wasn’t armed with a fatal weapon.
You talked to Montpelier Police Chief Tony Facos about this recently. What did he tell you about that incident?
Petenko: Well, he said that it was unfortunate, of course, that his officers were obviously affected by that shooting and the other fatal shooting that had taken place just over a year before that.
Facos: We do a lot here to make sure we focus on our officers and dispatchers in terms of mental resilience and support, in any traumatic event. Certainly those two were very significant for the officers involved.
Petenko: But he did say that his officers did follow the training. He said that the officers tried to talk Johnson down, and that he was still armed, or he appeared to be, and when someone is armed, it creates this extra additional situation that kind of heightens the tension.
Petenko: Yeah, I mean, when you look at that, are you proud of your officers for following that training?
Facos: I’m very proud of my officers for how they did the best they could with a horrible set of circumstances that morning.
I don’t know exactly what all the motivations were for Mr. Johnson to do what he did that morning. But going back to how our officers are trained — I’m also glad I didn’t bury a police officer in any of those events.
Petenko: When someone is in crisis, and you’re trying to help them, versus when they’re in crisis and they have the potential to use fatal force against you, the calculus kind of changes.
Facos: The most important, effective tool that we have is just our brains and how we communicate with people. And that works 99% of the time.
Petenko: Still, some did question whether the officers could have spent more time trying to de-escalate the situation, in other words, try to calm him down, try to talk to him, negotiate with him. But still, again, this is hindsight.
Where does this incident fit into the broader picture of police using lethal force in Vermont in the past several years?
Petenko: So 2019 was an unusual year in some ways. It was the most fatal year for police shootings in Vermont since 1970. But when you look at it as part of the decade, it stands out even more, because this decade is also the deadliest decade for police shootings and killings in 50 years. Seventeen people died from police fatal encounters in Vermont from 2010 to 2019, compared to only nine in the 2000s, four in the 1990s, three in the 1980s, and five in the 1970s. So when you go from nine to 17, people start asking, why is this happening? And why does it seem that there are suddenly so many cases of fatal force in Vermont?
Tell me about where these numbers are coming from.
Petenko: November was when Allen Gilbert, the former director of the ACLU, approached VTDigger and said, ‘you know, I’ve been looking at this for a while, and I just started to kind of keep track of whenever someone was killed by police in Vermont, and this year, I said, wow, the number of cases has been rising dramatically. Maybe it’s time for this database to go public.’
Gilbert: I realized it’s just one study trend from the 1970s, up through the 2010s, of more and more people being killed by police. And I think that’s something that should make all of us pause and ask a lot of questions.
Petenko: He had originally gotten the numbers from the Attorney General’s Office back in 2014. And since then, he just been, you know, writing down all the details that he could find for every shooting that happened since then. And then VTDigger went through and confirmed what we can and analyzed the data to find out that yeah, there had been a massive rise in the number of fatal encounters.
For someone like Allen Gilbert, what’s the significance of all this? Why go to the effort of putting all this information together?
Petenko: Well, he definitely mentioned that it doesn’t appear that anyone else is tracking this, at least not in the public eye. And he told me that if we’re not tracking this, how do we know what is going to work and what is going to not work when preventing these shootings or other fatal encounters?
Gilbert: When can the state kill somebody? It’s a question that comes up whenever somebody dies because of an action that the state, which is all of us, took. And I think if that means all of us, then we should all have some understanding of why it’s happening and if it’s necessary.
Petenko: We do actually track taser use in Vermont. I spoke to Disability Rights Vermont about this, and they said since we started tracking taser usage in Vermont, they think it’s gotten a lot better, in terms of the number of incidents and the way that police are using their tasers. But we don’t track that for shootings and general use of fatal force. And we don’t track that for other types of uses of force that might lead to injuries or hospitalizations. Which kind of makes it difficult to say, is this trend in shootings part of a broader trend of force rising? Are these shootings part of a high percentage of cases? Or are they an extremely low percentage of cases?
Gilbert: You can’t believe you’re ever going to forget some of the details of these specific killings. But then there’s another one, and it has its own details and its own strange, awful story connected with it. And these things start to blend together, you lose the emotional and the intellectual clarity you had about one specific shooting. Instead, they’re just this whole mound of awfulness that you get very discouraged by.
So I think somebody has to make sure that there is a record so that anybody can go back and look at that at any one time and ask questions. And I think the central question always, for most people, if we keep doing what Vermont’s been doing for the last 50 years, is: why are there more killings every year? Every decade, why have there been substantially more? We don’t have an answer to that question, and we should find one.
Petenko: What many people are saying appears to be a major factor in a lot of the shootings is the rise of mental health-related incidents in Vermont. People who are in crisis who might have a mental health condition, a disability, an addiction, different things like that, are increasingly encountering police officers, and increasingly, rather than going into treatment are relying on the police as kind of the first barrier when they are having some sort of struggle with their mental health. And those situations tend to be very dramatic and more tense than someone who’s going to a therapist or going to a psychiatrist or seeking treatment with professionals. And police are saying, police told me, they don’t want to have to do this. You know, they think that social workers and other people like that are more qualified to be helping these people than police are.
Facos: Our responsibility is how to make sure that the situation is safe. And we have to do that anyway, as best we can, before we can even introduce a screener. In an ideal world, we would have the screener respond simultaneously with us for that very reason.
Most of these calls, they need a social worker, they don’t need a police officer.
Petenko: But, we don’t really have an adequate system to guide those people into treatment.
So mental health is definitely one factor. Are there others?
Petenko: Well, a lot of other people have questioned how we investigate and evaluate these fatal force incidents. Every one of these fatal incidents have been investigated by the Attorney General since 1977. And every single one, the officers had been cleared of wrongdoing. And in many cases, I’m not going to say that those evaluations were wrong, but it does kind of make you wonder what could even trigger the Attorney General to rule differently.
Attorney General T.J. Donovan: I come to this conversation in my role as a prosecutor who reviews officer-involved shootings. And the vast majority are justified. Those are my rulings, based on the facts and based on the legal standard. But I don’t think anybody thinks that an outcome that results in the death of somebody is a good outcome. And that’s our challenge.
Petenko: Well, it turns out that the attorney general doesn’t really have strict guidelines on whether an officer acted wrongly or not. It’s just a question of would a reasonable person have been afraid for their life. And now, at least a few legislators are starting to talk about maybe we should have a real hard legal standard for use of fatal force in Vermont. We do for tasers at the moment, but not for shootings or other types of fatal force.
So what would that entail, from the standpoint of an actual bill going through the Legislature and establishing a standard like that?
Petenko: So Rep. Anne Donahue just put out a bill that would change the standard, to make it so that they would only use force if they thought it was necessary. And that “necessary” phrase is brand new in Vermont.
Donahue: We ought to have a standard that’s a little bit broader in terms of context than just thumbs up, thumbs down. You know, in the last split second of deciding to use lethal force it was justified in that second.
Petenko: It’s loosely based on a new California law that does pretty much the same thing, although some people have said that it’s still very early for that California law and said maybe we should take a little longer to see how it turns out before we adopt that particular standard or a similar one. But I think Donahue’s intention, and the Attorney General seems to agree with this, is to get the conversation going, to start talking about, well, what standard should we be using? And you know, maybe this could be an improvement.
Donahue: A lot of it’s about public transparency. There’s no place where somebody can go and look and say, ‘well, what is our state law on what is considered justified use or not?’ If you don’t have a statute, you don’t you don’t have a place to look. And so all you hear is the Attorney General’s press conference and you say, ‘but wait, there was more to it than that.’
Petenko: Donahue is a psychiatric crisis survivor herself. So she talked to me a lot about how she’s personally seen kind of how mental health issues can rebound and really hit hard on certain Vermonters and she also talked a lot about the circumstances of the cases are really heightened by that mental health problem to the point where, you know, even if officers were technically using force appropriately in the exact moment that they used it, perhaps there were other issues with how they approached the case in general in the first place.
The example that some people talked to me about was Phil Grenon, a case in 2016, where the police officers kind of invaded the apartment of a man with schizophrenia because he was being evicted. And that led to this lengthy standoff in Grenon’s bathroom, where he was very much agitated and threatening the officers with a knife. Eventually the officers tasered him. That was not effective. So they shot him.
The Attorney General ruled that their use of fatal force was justified because in that exact moment they were being threatened, their life was being threatened. But what he told me, and Donahue said something similar, is, maybe we should consider: Should they have invaded his home in the first place? Is there anything else they could have done to prevent the case from being brought to that degree of escalation?
Donovan: He was shot and killed, and I ruled that justified. And it was justified, in my opinion, under the current standard. But if we look at the totality of circumstances of when it is necessary, the question about what’s necessary — let’s be very clear, that’s not defined yet.
Donovan, in talking about this bill — he said that he’s open to having this conversation. He hasn’t exactly expressed support or rejected this idea outright, either.
Petenko: Yeah. I mean, he said to me that he would like to see some more testimony from people from California who are going through this right now. And he said that, yeah, he would like to fix this problem in general, but he didn’t have a specific thing that he said that he would like to adopt from legislation or not.
In the meantime, I know there’s a lot of talk about this idea of mental health professionals being embedded in police departments and possibly being able to assist with some of these situations so that they don’t necessarily escalate into something where an extreme use of force is required. Where do things stand with that conversation?
Petenko: Well, I spoke with mental health professionals. I spoke with police departments. I spoke with a bunch of different people who said we would love to get more mental health professionals working with police or for police, but there’s not a lot of money for it.
The state does have about a dozen embedded mental health professionals working in police departments who can respond to cases, can follow up with people, can spend time in the emergency room with people when they need it. But that is only a fraction of the total police departments in the state. A lot of the time what happens is the police departments can call in a separate mental health department that works nearby or has a partnership with the police department. But that’s not quite as close or easy a relationship, it makes it a little slower to respond. And those partners might simply not have enough personnel to show up to the scene if and when we would like to.
If we were to think about a case like the killing of Mark Johnson as an example, would more access to mental health resources have made a difference in a case like that, and maybe resulted in a different outcome?
Petenko: Well, it’s hard to say. Certainly part of the problem was that it was so early in the morning, and such a strange time that maybe Montpelier didn’t have a mental health professional available. But it also did unfold rather quickly. You know, these things, they’re very challenging. A police officer going to a scene doesn’t know that person has a mental health crisis going on, necessarily. That point is where you say, well, maybe that probably should have been caught by our healthcare system, by our society earlier and dealt with before that person even got into a crisis.
It sounds like each of these cases is fairly unique, and it’d be hard to devise one solution that would work for all of them.
Petenko: Mmhmm. I do also want to mention that maybe one thing that could have helped, although it’s not completely clear, is better training for the police officers themselves. Because in incidents where they do have to respond to the situation because there’s no alternative, they should have all the training they need to talk to someone with a disability and understand where they’re coming from, maybe use some tools to help calm them down. Montpelier has actually implemented a training model called Team Two. And that probably helped, but there’s plenty of other police departments that don’t have all their officers trained to deal with these situations.
Looking forward, knowing that this trend is happening, and at least as recently as last year, we’re seeing the trend continue to rise — it sounds like there are a number of different possible paths for decision-makers to take here. I guess I’m just curious, as somebody who spent a lot of time with this, what do you see happening next in terms of these conversations about what to do, how to move forward, after we’ve acknowledged that this is happening?
Petenko: I mean, the legislation, people have expressed to me different levels of confidence that it would pass this year or even go into consideration next year. I do hear that there is more hope coming for police departments who are working on getting mental health professionals embedded in their departments. But the crisis in the general mental health care system is really big and really hard to fix. Just in the past few days, legislators have been talking about how expensive it would be to add 25 mental health care beds to the Vermont hospital system. And we need these things, according to many of the people that I’ve talked to. But it’s such a big problem that it’s going to come with a big price tag.
And these two things are just so closely related that if we don’t work towards solutions with one, we’re probably not going to find one with the other.
Petenko: Even if every police officer in state was perfectly trained to deal with people in mental health crisis, there would still be people in mental health crisis, and there’s no 100% guarantee those people couldn’t end up in a fatal force incident again.
Thanks for taking the time out, Erin.
Petenko: Thanks for having me.
