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Lawsuit claims excessive force by police prompted suicidal Groton man to kill himself

Groton — A lawsuit in federal court claims that state police provoked a suicidal Poquonnock Bridge firefighter to kill himself in 2012 by repeatedly firing nonlethal ammunition at him.

The estate of Timothy Devine has accused four troopers — Louis Fusaro Jr., Steven Rief, Michael Avery and Kevin Cook — of using excessive force and violating Devine’s civil rights, in effect “causing” his wrongful death. Michael Devine, Timothy Devine’s father, is the administrator of the estate.

Fusaro, now a major and known by the initials L.J., is a front runner for the police chief’s job in the Town of Groton. Town Manager Mark Oefinger, who is in charge of naming a chief, said in an email he would answer questions when he announces who the next chief is.

The Town Council had a potential executive session scheduled during its meeting Tuesday night in the Town Hall Annex to hear an update on the chief's job.

The attorney general's office, in response to the suit filed July 16, 2014, in U.S. District Court in New Haven said the four troopers cannot be sued because they were acting in their official capacities.

Devine was suicidal and "there was no duty upon the defendant police officers to assure the survival of Timothy Devine," wrote Matthew B. Beizer, assistant attorney general.

The case has not gone before a jury. The attorney general's office filed a motion on June 11 for summary judgment. Devine’s attorneys, Hubert J. Santos and Jessica M. Santos of Hartford, have until July 2 to respond. Hubert Santos did not return calls seeking comment. Judge Jeffrey A. Meyer is hearing the case.

The day before Devine's death on July 24, 2012, on the University of Connecticut campus at Avery Point, several teenage boys gave police statements accusing Devine, who owned Crossfit gym in Groton City, of touching them in a sexually inappropriate manner, court papers said. Groton City and Groton Town police were investigating the allegations, and an officer had called Devine to talk about the investigation, according to court documents.

At first, Devine said he’d come in, the documents said. Then he called the officer back and said he wouldn’t, that he would kill himself. Police later found Devine by the water at Avery Point holding a gun to his head.

“The officers were trying to save Devine’s life,” Beizer said Friday. “Devine was trying to kill himself, so the officers made, I think, an entirely appropriate decision to try to intervene, and the result was Devine shot himself, and that is no blame on the police officers.”

Officers are entitled to “qualified immunity” based on a U.S. Supreme Court decision that gives state or municipal employees the benefit of the doubt when they make difficult decisions in close calls, Beizer said.

Harry Boardsen, a family friend, retired spokesman for the Connecticut state police, and former Groton town police officer, said Friday the level of force was unjustified.

“He had no hostage, he was not threatening the police. Whatever happened to waiting it out? The Coast Guard was there with a gunboat with a machine gun on it. Where’s Tim going?” Boardsen said. “School was out, he’s on the rocks, he’s not threatening the police. That’s all the more reason for them to pull back and wait. And wait. He never committed a crime, was never arrested. Nothing did he do that warranted the amount of force that was inflicted upon him.”

Boardsen said the family would not speak to the press yet. Michael Devine did not return a call to his home.

On the day before his death Tim Devine called Jeffrey Douchette, his friend and supervisor at the Poquonnock Bridge Fire Department, three times. The second time, at 7:15 p.m., Devine told him something was going on, though he didn’t say what, and that “he had always done the right thing and always tried to help people,” Douchette’s statement to police said.

At 9:25 p.m., Devine called again and said he had said goodbye to his parents and would hide $12,000 in cash to pay for his funeral, the statement said. He also asked his friend where he should put the gun to his head so it wouldn’t hurt, Douchette said. He called a Groton town police officer.

Police found Devine’s black Jeep at UConn-Avery Point about 9:55 p.m. They found him near the water, holding his 9mm pistol to his head.

Officers from Groton Town, Groton City, Ledyard and Stonington surrounded him, using shields and cover as protection, the lawsuit said.

Devine talked to two negotiators for more than three hours, but wouldn’t put down the gun. He said his job as a firefighter and gym owner were through, that no one would believe him and that one of his accusers was the son of a judge, court records said. He said he placed his hands on the boys to position their bodies correctly, actions he said the boys misconstrued.

At about midnight, then-Groton City police Capt. Thomas Davoren, who is now chief, called for the state police Emergency Services Unit; 24 troopers responded, the records said. The campus was on lockdown at the time.

Troopers set up an armored vehicle about 25 yards from Devine. They also put up a “command post” of police vehicles on the lawn.

State police Sgt. Chris Bartolatta, a crisis negotiator for 19 years, stepped in. Devine told him, among his statements, “You don’t know what is going on,” “They are never going to look at me the same,” and “I want the pain to end,” Bartolatta said in an affidavit.

Devine said he was sorry for embarrassing his fellow firefighters and parents. He mentioned “suicide by cop” saying something like, “I know that if I point this gun at your guys, you will shoot me,” the affidavit said.

“My greatest concern throughout this incident was that Mr. Devine may direct his gun at a police officer and provoke or initiate a deadly exchange,” Fusaro said in an affidavit. He also worried about others becoming involved, he said.

Boardsen disputes that Devine ever threatened police and said the family has witnesses to support that.

Devine's brother, Shane Devine, and father, Michael Devine, arrived separately at the campus, but according to the father's statement they were not allowed to speak with Timothy Devine.

“I believe that I could have made a difference if I was allowed to talk to Timothy. I believe I could have talked him down,” Michael Devine said in his statement. He said his son was “pushed to the edge” by the allegations, and that "he would stretch kids, clients out, nothing inappropriate. He was licensed and knew what he was doing. The allegation was just that.”

Friends and gym co-workers told police they never saw Timothy Devine inappropriately touch minors.

Bartolatta said Devine became agitated upon learning his parents were there, so Bartolatta didn't raise the issue of Devine's parents again. Police became concerned because negotiations weren’t working, court documents said. Rief, the state police tactical unit east team leader, was concerned that a bystander might become involved, his affidavit states.

About 3 a.m., they decided on a plan to disarm Devine: Strike him with munitions when he had the gun down, so he would drop it or give up in pain.

“I felt that there was a high probability that it would work,” Fusaro’s affidavit said.

Police used an ARWEN 37 mm launcher that fires plastic impact batons to use “pain compliance” to get a subject to surrender, according to expert witness testimony in the case. The batons can reach 100 meters (about 328 feet) and fire at an initial speed of 74 meters per second (about 165 miles an hour) on average, according to the product description.

Brian Kirkey, president of Police Ordnance Company Inc., which manufactures the ARWEN, said officers are trained to hit extremities like arms and legs, and the weapon is intended to be used until the person surrenders or the threat is gone.

“The system is designed to try to save lives,” Kirkey said, adding that officers had to make a judgment about how long to let someone hold a loaded gun, and no one else was in their shoes.

The suit alleges troopers fired three “barrages” at Devine, starting at 3:31 a.m., and hit him eight times. The troopers also deployed flash bang devices that create light, sound and pressure to disorient a person, an expert witness said in court papers.

At 3:31 a.m. Fusaro, the state police tactical unit commander, “commanded members of the tactical team to begin using ‘less lethal’ ammunition on Devine” and Avery and Cook fired at Devine, striking him, the lawsuit said.

Rief instructed the troopers to fire a second time; Avery and Cook fired, hitting Devine again, the suit said.

“Following the second barrage, Devine placed his gun to his head . . . Devine said to defendant Rief, ‘Don’t make me do this,’” the suit recounted. Devine lowered his gun to chest level, then Rief told the troopers to fire again. Avery and Cook fired a third time, hitting him five times, the suit said. Devine raised the gun to his head and shot himself, the suit said.

The lawsuit said the troopers are not entitled to immunity and the actions “were unreasonable, excessive and unnecessary.”

“Any reasonable, properly trained law enforcement officer would not have engaged in such conduct,” the complaint said. The four troopers failed to prevent the excessive force by another, “although they were aware that each other’s actions constituted unreasonable or excessive force” and have a sworn duty to prevent it, the complaint said.

An autopsy found deep tissue bruising on Devine’s right buttocks, where three batons hit, more deep bruising on his right outer thigh where another struck, and a broken ring finger, where another hit him. He was also struck on his right inner thigh and twice on his left calf, a police report said.

In his right front shorts pocket, Devine left a note, that read, in part:

“This is probably the best for everyone. I just want to ask that no one judge me for my actions. No matter how many good deeds I tried to accomplish through firefighting or exposing people to the world of fitness, nothing erased the demons that I had to face every day inside. Over time, it just became more obvious that I was going to be forever void of being truly happy."

d.straszheim@theday.com

Twitter: @DStraszheim

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