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Affidavit: Troopers fired on suicidal Groton man as he spoke to crisis negotiator

A suicidal Groton firefighter was still talking to a crisis negotiator when state troopers began firing non-lethal munitions at him during a standoff in 2012, according to an affidavit filed July 2 in federal court.

The estate of Timothy Devine has accused four troopers — Louis Fusaro Jr., Steven Rief, Michael Avery and Kevin Cook — of provoking Devine to take his own life by using excessive force, in effect “causing” his wrongful death.

Michael Devine, Timothy Devine’s father, is the administrator of the estate.

The lawsuit filed July 16, 2014, in U.S. District Court in New Haven, also claims in newly filed documents that Devine offered to give up his gun to a friend.

The filing says police fired blunt-force munitions at Devine, and when a trooper reported him down but not incapacitated, the troopers reloaded.

The case has not gone to trial. Matthew B. Beizer, assistant attorney general representing the troopers, has said they cannot be sued because they were acting in their official capacities. He filed a motion on June 11 for summary judgment, which seeks to have a judge decide the case without trial.

Beizer could not be reached to comment Tuesday but said last month that the troopers were trying to save Devine's life. Fusaro, now a major and known by the initials L.J., is a frontrunner for the police chief's job in the Town of Groton.

Beizer said the officers are entitled to qualified immunity, which is based on a U.S. Supreme Court decision that gives state or municipal employees the benefit of the doubt when they make difficult decisions, Beizer said.

The attorney for the estate, Hubert J. Santos, responded on July 2 to Beizer's request for summary judgment, saying qualified immunity protects law enforcement officers "only insofar as their actions were objectively reasonable." 

The day before Devine's death in the early hours of July 24, 2012, on the University of Connecticut campus at Avery Point, several teenage boys gave police statements accusing Devine, who owned a Crossfit gym in Groton city, of touching them in a sexually inappropriate manner, court papers said.

"Distraught by the allegations, Mr. Devine suffered a breakdown, acting irrationally and threatening suicide," Santos wrote. At about 10 p.m. on the same day as the accusations, police found Devine by the shore on the campus, holding a gun to his head.

Santos said police surrounded Devine and an armed U.S. Coast Guard boat waited offshore.

Jeffrey Douchette, Devine’s friend and supervisor at the Poquonnock Bridge Fire Department, said he was at the campus that night and never saw Devine point the gun at anyone but himself.

At one point, Douchette offered to sit on the rocks with Devine, according to Douchette's affidavit, a written statement given under oath.

Devine said he wanted his friend to sit with him; when Douchette told Devine that police wouldn’t allow it because Devine had a gun, Devine told him, “I’ll give you the gun,” Douchette's affidavit said.

“The officers still would not allow me to go sit with him even though I informed them that there was no way he would ever hurt me,” Douchette’s affidavit said.

When state troopers arrived about an hour and a half after the standoff started, they replaced one of the town police department's crisis negotiators, who had reached a rapport with Devine, Douchette’s affidavit said. The negotiator, Officer Laura Fippinger, objected that replacing her went against what she was taught.

Devine continued to talk to the new negotiator, who was yelling, Douchette said. Santos said in his brief that Devine was speaking to police for hours, never threatening violence toward them or others and even conversing with them about the merits of CrossFit training and long-distance running, because the new negotiator was a distance runner.

"Mr. Devine's actions demonstrated a clear desire to live and figure a way out of his nightmare; hours passed after his initial threat of suicide, and yet by 3:30 a.m., on July 24th, he had still not acted on his threat and had continued to maintain communications with the police in a light-hearted manner," Santos wrote.

After state police took over the scene, Douchette said, he was near the command post and heard the officers discuss ways to disarm Devine, his affidavit states. The officers said they had Devine “contained” and a tactical officer whom Douchette identified as Rief said, "If he shoots himself it would be an acceptable outcome and it won’t be on us,” the affidavit said.

The officers decided to fire non-lethal plastic impact batons at close range to get Devine to give up in pain, Santos wrote.

Police used an ARWEN 37 mm launcher that fires batons that can reach 100 meters (about 328 feet) and fire at an initial average speed of 74 meters per second (about 165 miles an hour), according to the product description.

After the first round, which court papers say broke Devine's finger on his right hand among other injuries, Douchette said he heard a tactical team member say, “He’s down but not incapacitated,” his affidavit said.

Trooper Rief instructed the team to hit Devine again, and when the troopers said they were out of rounds, Rief told them to go to the truck and get more, a process that took several minutes, Douchette's affidavit said.

After the second round of firing, Devine shot himself, Santos said.

Michael Shane Devine, Tim Devine’s brother, and his parents repeatedly asked to speak to Tim Devine but were not allowed to, Shane Devine's affidavit said. The officer assigned to them denied or ignored their requests, his affidavit said.

Later, the family was told Tim Devine had been injured and would be taken to Lawrence + Memorial Hospital for treatment, the affidavit said.

On their way to the hospital, they were called back to the campus, escorted to a police building and told Tim Devine was dead, Shane Devine's affidavit said.

Santos said qualified immunity protects police officers from liability for damages only if their actions were reasonable and assessed in light of the legal rules at the time.

The Supreme Court has held that in claims of excessive force, officers’ conduct should be looked at in light of the total circumstances, including severity of the crime, whether the suspect posed an immediate threat, was actively resisting arrest or trying to flee, Santos wrote.

Other factors include, “whether it should have been apparent to officers that the person they used force against was emotionally disturbed,” Santos wrote in citing case law.

Twitter: @DStraszheim

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