New ruling revisits police immunity in 2012 Groton standoff, suicide
Less than a week after Gov. Ned Lamont signed a new law limiting qualified immunity for police officers, the state Appellate Court has agreed to reconsider its June 9 ruling that immunity should prevent the family of Timothy Devine from suing state troopers involved in an armed standoff with Devine on July 24, 2012.
The Appellate Court ordered attorneys for the Devine estate and the state to file briefs further analyzing their positions on standing case law by Sept. 4.
Public Act 6004, the new law concerning police accountability, does not take effect until July 1, 2021, and applies to incidents committed on or after that date.
But attorney Hubert J. Santos, who with partner Trent LaLima represents Devine's parents, said this week that the Devine case is "right on the money as to why to reform the law."
"Here's a guy who's mentally ill with a gun to his head," Santos said. "They shoot him with rubber bullets and he shoots himself."
Santos and LaLima contend the state police should have waited it out.
Devine's estate, administered by his father, Michael Devine, claims state police provoked the 30-year-old firefighter and CrossFit gym owner to shoot himself by pelting him with rubber bullets while he stood near the shore with a gun at the University of Connecticut's Avery Point campus in Groton.
The day before his death, a Groton Town police detective called Devine and asked him to come in for questioning, according to court documents. Several teenage boys had provided statements accusing Devine, who owned Crossfit gym in Groton City, of touching them in a sexually inappropriate manner.
Within hours, Devine withdrew $12,000 from the bank to cover his funeral, wrote a suicide note and went to the Avery Point campus, where he had attended school, according to The Day archives.
Devine spoke with negotiators for several hours, but killed himself after troopers shot him with rubber bullets about 3:30 a.m., according to court documents.
Devine's father has sued four state troopers from the emergency services tactical unit who were handling the case in the early morning hours: Louis Fusaro Jr., Steven Rief, Michael Avery and Kevin Cook.
Fusaro, now retired from the state police, is chief of the Groton Town Police Department. Rief also retired and became a police officer at Mohegan Sun.
Assistant Attorney General Stephen R. Finucane is representing the defendants and did not respond to voicemail and email messages Thursday. Elizabeth Benton, director of communications for the Attorney General's Office, said in an email that the office could not comment on pending litigation.
To date, federal and state judges have granted motions to dismiss the case based on the doctrine of qualified immunity, which grants immunity to government officials performing discretionary functions on behalf of the state, protecting them from civil suits, unless the plaintiff shows that the officials violated "clearly established statutory or constitutional rights of which a reasonable person would have known."
The new law, which police say could result in mass retirements, difficulty recruiting new officers, officers hesitating to act in emergency situations and costly insurance burdens for cities and towns, would permit more civil lawsuits against police, and officers could be held financially responsible if there's a judgment against them for "a malicious, wanton or willful act."
Thus far, judges have determined the troopers acted reasonably, on behalf of the state, in the Devine matter.
In January 2016, U.S. District Judge Jeffrey A. Meyer dismissed the Devine estate's federal lawsuit claiming the officers used excessive force and violated Devine's civil rights.
According to court documents, Devine never pointed the gun at officers or any third person, but police negotiators could not convince him to give up the gun. Five hours into the standoff, at 3 a.m., members of the unit decided to surprise Devine by detonating flash grenades and shooting him with hard rubber batons.
The judge said it was debatable whether the troopers acted wisely when they decided to fire the batons at the time and in the manner they did. In his decision, the judge questioned whether it was a sound decision for the troopers to reload and continue shooting Devine after he said, "You guys are going to make me do this."
It was at that point that Devine shot himself in the head, according to court documents.
In 2017, the Devine estate filed a lawsuit in state Superior Court claiming the troopers had acted with recklessness and gross negligence. Trial Judge Kimberly Knox dismissed the case in a ruling that indicated the court had no jurisdiction over the issue because of sovereign immunity opinion.
The estate appealed, and on June 9, June 2020, the Appellate Court ruled that the trial court correctly dismissed the case as barred by sovereign immunity and for lack of subject-matter jurisdiction.
Santos said he is prepared to take the case to the state Supreme Court, but decided to seek reconsideration from the Appellate Court.
He said in the federal case, the estate had retained an expert witness who was ready to testify that the troopers knew Devine was mentally ill and should have stood down and waited him out. In state court, the plaintiffs haven't been able to conduct discovery based on the judge's dismissal.
Santos argues the troopers thought less of Devine based on the allegations against him, and that Devine was less of a threat as time went by.
"If this were a congressman, or a councilman of the Town of Groton or a successful businessman, this never would have happened," Santos said.
In a July 7 filing opposing the Devine estate's motion for consideration, attorney Finucane from the Attorney General's Office wrote on behalf of the defendants that the motion was "meritless" and that the Devine estate was attempting to "circumvent decades of jurisdictional jurisprudence and a longstanding, deeprooted immunity doctrine" by claiming the officers had acted in their individual capacities.
Attorney Dan Barrett, the ACLU of Connecticut's legal director, said in an email, "It would certainly be a positive change if the appellate court decides to recognize the change in Connecticut's thinking about unchecked police violence, as illustrated by the legislature's passage of a law that begins to reform governmental immunity, and considers whether the doctrine has any place at all in our case law."
Barrett referred to a dissenting opinion by Justice Stephen D. Ecker in a state Supreme Court ruling in June that Seymour police are immune from liability in a high-speed pursuit that ended in the death of a teenage passenger. An officer had pulled over the car because it was using illegal undercarriage lights and chased it at high speed when the driver fled, according to news accounts. The car struck an embankment and flipped onto its roof, killing 15-year-old Brandon Giordano of Oxford.
"As Justice Ecker noted in his dissent earlier this summer, the judge-made doctrine of governmental immunity has mushroomed into a broad impediment to holding public employees accountable in Connecticut's courts," Barrett wrote.