REPORT OF THE STATE’S ATTORNEY OF THE JUDICIAL DISTRICT OF NEW LONDON CONCERNING THE USE OF DEADLY PHYSICAL FORCE BY A NEW LONDON POLICE OFFICER ON AUGUST 24, 2011, IN THE CITY OF NEW LONDON
Section 51-277a of the General Statutes provides that, whenever a peace officer in the performance of his or her duties, uses deadly physical force upon another person and such person dies as a result thereof, the Division of Criminal Justice shall cause an investigation to be made and shall determine whether the use of deadly physical force was appropriate under section 53a-22 of the General Statutes.
On August 24, 2011, a New London police officer used deadly force resulting in serious physical injury to Curtis Cunningham in the City of New London.
Supervisory Inspector Philip Fazzino was notified after the shooting and inspectors immediately went to the scene. The Connecticut State Police Eastern District Major Crime Squad conducted the investigation in conjunction with inspectors from this office. It should be noted that this investigation was unduly delayed by attorneys for the New London and Town of Groton police unions, who refused to allow investigators to interview police witnesses on the date of the shooting.
It is the conclusion of the undersigned that we cannot prove beyond a reasonable doubt that a crime occurred. Accordingly, no further action will be taken by the Division of Criminal Justice.
CIRCUMSTANCES OF THE INCIDENT
On Wednesday August 24, 2011, at about noon, Curtis Cunningham (DOB 09-08-83) arrived at the residence of Shauntay Ellis, 206 Shaw Street, New London, CT. Ellis told investigators that she and Cunningham had been in a dating relationship since 2004. Ellis stated she and Curtis began to argue about Curtis’ drug habit. They had been arguing about it on a daily basis because it was getting worse. She related that Curtis uses "PCP" daily. Curtis left her apartment at approximately 3:30 p.m. It appeared to Ellis that he was under the influence of something prior to leaving. Curtis told her he was not, but she did not believe him. She advised investigators that she and Curtis continued to argue while texting over the phone. Cellular phone records for Cunningham confirmed that his final outgoing call on August 24, 2011 was at 4:13 p.m. to Ellis.
On August 24, 2011, at approximately 4:30 p.m., Luis Rivera and Jeffrey Ashman were delivering ice to the Montauk Package Store located on the corner of Montauk Avenue and Willetts Avenue in New London. Rivera and Ashman, who were employed by the Crystal Ice Company, left the company truck, a 2002 International Freezer box truck, parked and running on Willetts Avenue, as they went inside the store. Upon exiting the store to unload and deliver the ice, Rivera and Ashman observed the truck being driven west on Willetts Avenue. They chased the truck and watched it turn right on Ocean Avenue heading north.
On August 24, 2011 at approximately 4:37 p.m., the New London Police Department received a 911 call from Luis Rivera reporting that his delivery truck was stolen. A description of the stolen truck was broadcast to all units and a number of officers began to respond toward the area. Officer Thomas Northup was at the CVS Pharmacy located at the intersections of Jefferson Avenue, Ocean Avenue and Bank Street, when he observed the stolen truck on Ocean Avenue.
Officer Northup was interviewed by investigators on October 21, 2011 in the presence of union attorney, Richard Gudis, at which time he provided a written statement. Officer Northup stated that, on August 24, 2011, at approximately 4:40 p.m., he parked his cruiser at the CVS store on the corner of Jefferson Avenue and Bank Street to speak to a complainant when he heard dispatch reporting that a black male wearing a t-shirt and a hooded a sweatshirt had just stolen an ice truck. Officer Northup observed a "Crystal Ice" truck stopped at the traffic signal on Ocean Avenue. He contacted dispatch and verified that it was a "Crystal Ice" truck that had been stolen. As Officer Northup approached the truck, traffic started to move. He yelled to the driver to stop and Officer Northup raised his left hand the operator, later identified as Curtis Cunningham, looked directly at him. Officer Northup stated the truck then passed about 5 feet to his left and drove quickly towards Jefferson Avenue, whereupon Officer Northup informed dispatch that the suspect was fleeing and started back towards his cruiser. The truck flipped over onto its passenger side as it turned onto Jefferson Avenue from Bank Street. As he ran to the front of the truck, Officer Northup drew his weapon to a low ready position. He found the operator trying to pull himself out by using the steering wheel. Officer Northup ordered the operator to show his hands, which he did very slowly. Officer Northup asked the operator if he could hear him and the operator nodded yes. The operator did not appear injured and was moving around the inside of the cab. Officer Northup stated the operator kept lowering his hands towards his waist as he ordered the operator repeatedly to show his hands. Officer Northup stated that the refrigerator unit then blew out black smoke, so he moved toward the windshield. The windshield was cracked, but he clearly could see the operator. As the operator continued to reach towards his waist, Officer Northup repeated his commands for the operator to show his hands. Officer Jeffrey Nichols arrived and began to climb on to the top of the truck, Officer Northup ordered the operator to put his hands high above his head, which he did. The operator was looking at the ground as though he was looking for something. Officer Northup stated the operator kept looking up, then back at him approximately three or four times and started lowering his hands. Officer Northup yelled for the operator to keep his hands up, but the operator ignored him. He observed the operator lock eyes with him, turn to his right, and bury his hands in his right waistband as he turned away. Officer Northup stated he knew that it was common for someone to conceal a handgun in their waistband. He yelled to the suspect, "don’t do it." The operator then began turning towards him with his shirt protruding in an outline that Officer Northup believed could have been a gun. Officer Northup believed the operator’s motion was consistent with the operator getting a gun from his waistband. Officer Northup stated he perceived an imminent threat of deadly force, and he fired two rounds at the operator to defend himself and the public. Officer Northup yelled, "drop the weapon," but the operator continued turning towards him with both hands concealed by his sweatshirt. The operator’s shirt was still protruding with what Officer Northup believed was a gun. Officer Northup stated he believed an imminent threat still existed, so he fired three more rounds toward the operator, who fell to the bottom of the inside the truck. He continued to order the operator to show his hands. Sgt. Pickett and other officers removed the operator from the truck and placed him into custody.
On September 22, 2011, while accompanied by union attorney Gudis, Officer Jeffrey Nichols provided a written statement to investigators. Officer Nichols stated that on 8/24/11 at approximately 4:00 p.m., he was on routine patrol when he heard the dispatch regarding a stolen truck, He then heard over the radio that Officer Northup had observed the truck at the intersection of Bank Street and Ocean Avenue. Officer Nichols responded to Officer Northup’s location. When Officer Nichols arrived, he observed Officer Northup at the windshield of the truck. Officer Nichols stated Officer Northup had his duty weapon drawn and pointed at the windshield as he was yelling for the occupant to keep his hands where Officer Northup could see them. He heard Officer Northup repeat the order for the occupant to show his hands. Officer Nichols approached the windshield of the truck, looked inside and observed a black male standing and looking out the windshield. Officer Northup told Officer Nichols he wanted to try to get the male out of the vehicle. Officer Nichols stated that the occupant was cooperative and listening to Officer Northup’s commands. Officer Nichols stated Officer Northup seemed calm and told Officer Nichols that the occupant was compliant. They decided to try to get the male out of the driver’s side window which was facing up. Officer Nichols climbed onto the driver side fender of the truck. As Officer Nichols was climbing to the fender, he heard Officer Northup yelling multiple times at the occupant to "keep your hands where I can see them." As he got to the fender, he heard Officer Northup yell, "keep your hands where I can see them, keep your hands where I can see them, if you don’t I’ll have to shoot you" Officer Nichols could not see into the cab, but heard two shots at which time he drew his duty weapon. Officer Northup stated he was alright, and Officer Nichols radioed "shots fired." Officer Nichols stated that he continued to hear Officer Northup repeatedly yelling at the occupant to keep his hands where he could see them. Officer Nichols stated he then heard two more shots. Sgt. Robert Pickett then arrived, and Officer Nichols got down from the truck.
On September 7, 2011, Officer Matthew Rousseau of the Groton Town Police Department, while accompanied by union attorney Daniel Esposito, provided a written statement to investigators. Officer Rousseau stated that on August 24, 2011 at approximately 4:30 p.m., he was driving his cruiser to L&M Hospital in New London. While on Bank Street, he observed a New London Police Department cruiser pass him with lights and sirens. As he neared Ocean Avenue, he observed an overturned box truck and New London police officers approaching the truck with guns drawn. Officer Rousseau stopped and approached the truck to see if the New London officers needed assistance. As he approached the truck, he observed one officer with his gun drawn and pointed down talking to another officer and telling him to get on the truck to try to pull the occupant out. Officer Rousseau then saw the officer in front of the truck point his gun towards the occupant and start yelling, "show me your hands, show me your hands." The officer in front of the truck appeared to be alarmed by something. Officer Rousseau was by the top of the truck, near the cab, when he looked into the cab to see the occupant. The occupant was moving all around inside the truck, his eyes were wide, he was shaking and sweating, and was not listening to the officer directing him to show his hands. Officer Rousseau could see the occupant’s eyes moving back and forth as if he was trying to plan his escape. He then saw the occupant turn his shoulder, and reach his hand into his waistband. Officer Rousseau believed the occupant was reaching for a gun, and that he was about to be shot. At this point, the officer in front of the truck was still yelling, "show me your hands" over and over. Officer Rousseau retreated to a safer location, behind the officer in front of the truck. He could clearly see the occupant from where he was standing. Officer Rousseau saw the occupant again reach into his waistband. Officer Rousseau believed the occupant was again reaching for a gun, and that the officer in front of the truck was going to be shot. The officer in front of the truck yelled, "he’s not showing me his hands. I think he has a gun!" Officer Rousseau observed the officer fire two or three rounds into the windshield as he was yelling, "show me your hands!" The occupant was still standing, and moving all around the inside of the truck at which time the officer fired another two or three rounds and retreated for cover. Officer Rousseau stated the occupant was no longer standing, but still moving around on the ground inside the truck. Other New London officers were on scene, at which time Officer Rousseau holstered his weapon, and backed away from the immediate scene.
On August 24, 2011, Lisa-Marie C. Zangetti provided a written statement to investigators. At approximately 4:00 p.m., she was stopped at the intersection of Bank Street by CVS. Zangetti observed a box truck come down Bank Street and flip over onto its side on Jefferson Avenue. She parked her car by the truck and saw an officer running down Bank Street with his gun drawn, yelling "put your hands where I can see them" about four times before he stood by the windshield of the truck. Zanghetti saw another officer get on to the front driver side wheel well of the truck with his gun drawn. She heard the first officer say, "I want you to stand up with your hands in front of you and put them up through the window." She then heard him say, "do not put your hand behind your back I am warning you." Zanghetti stated he said this about four times. The second officer was backing away as the first officer was yelling. Zanghetti remembered a third officer was backing away as the first officer was yelling. Zanghetti heard the first officer fire into the windshield of the truck, she heard at least three shots. Zanghetti did not see the person inside the truck.
On August 24, 2011, Timothy A. Martin, a staff photo journalist for the New London Day newspaper, provided investigators with a written statement. At approximately 4:30 p.m., Martin, while driving on Bank Street heard a police transmission on his scanner regarding a stolen truck headed toward Bank Street. Martin then heard a frantic transmission stating that the truck had overturned at Bank Street and Jefferson Avenue. Martin headed to the intersection of Jefferson Avenue and Bank Street where he saw two New London police officers and what he believed was a Waterford police officer on scene. He observed the officers approach the truck with their guns drawn with the two New London officers closer to the truck and the other officer off to the side. He then heard one of the New London officers shouting to the cab, "he’s reaching into his jacket!" and "drop the gun!" Martin stated he heard the officers shouting clearly, "drop the gun!" at least five times. Martin then heard at least two or three more gunshots. He was taking photographs during the entire incident. After the shooting stopped several more officers arrived on scene and Martin was escorted away. Martin advised investigators that he took between three and four hundred digital images of the shooting. Martin was asked to turn over copies of the images to investigators, however, his supervisor told Martin not to comply with the request. The supervisor advised investigators that The Day would be compromising its journalistic integrity if it provided any information and told the investigators they could purchase eleven of the photographs online. At the request of this office, the Day agreed to preserve the photos.
On August 24, 2011, New London Police Officer Deanna M. Nott was on patrol when she responded to Bank Street and Jefferson Avenue to assist with the shooting investigation. Upon her arrival, she was assigned to travel to Yale-New Haven Hospital to interview Cunningham. Cunningham had been transported to L&M Hospital in New London, but was subsequently transported to Yale-New Haven Hospital for treatment. Officer Nott stated in her report that, " I asked the accused what his name was and if he knew where he was and why. The accused stated that his name was Curtis Cunningham and that he was shot in New London. I asked the accused who shot him and he said that the cops shot him. I asked why the cops shot him and he stated that he did not know; that he was tripping on PCP. The accused stated that he was shot while he was in a truck, but was unable to say where and how he got the truck. The accused stated that the cop was yelling at him to drop the gun. The accused stated that he did not have a gun, but was unable to say if he told the cop he did not have a gun."
On August 31, 2011, investigators attempted to interview Cunningham at Yale-New Haven Hospital. Cunningham refused to speak to the investigators and advised them he had hired Attorney Michael Dolan. Eventually arrangements were made with Attorney Dolan to interview Cunningham on September 20, 2012. On the date of the interview, Attorney Dolan advised investigators that Cunningham could not be questioned about events that occurred prior to Cunningham flipping the ice truck over on Jefferson Avenue. Cunningham was interviewed at Yale-New Haven Hospital, with Attorney Dolan present. Cunningham provided a written statement to the investigators.
Curtis Cunningham stated, that on August 24, 2011, he was driving a box truck in New London by CVS. He remembered seeing a police officer in the CVS parking lot in front of him. He turned right, and then left onto Jefferson Avenue at which time the truck flipped onto its passenger side. Cunningham stated he did not have a seatbelt on, but he landed on something inside the truck which stopped him from falling onto the passenger door. He was suspended on something inside the truck and could not move. Cunningham said he was all folded up, but he did not remember which way he was facing. The next thing he remembered was being shot, first in the left arm, and then in the spine. Cunningham stated he did not hear the shots, or see who was shooting him, because after the truck flipped he did not hear anything. He remembered officers kicking the glass and being dragged out of the truck. He said he kept blacking out and waking up at New London Hospital, on the helicopter and at Yale New Haven Hospital. Cunningham stated he was shot four times; as a result he lost some feeling in his hands and was paralyzed from the waist down. He denied being under the influence of any drugs or alcohol.
During the course of the interview, investigators obtained medical releases from Cunningham for his treatment at L&M Hospital and Yale-New Haven Hospital. The records obtained from Yale revealed that upon admission a chemical analysis of his urine tested positive for Phencyclidine (PCP). PCP is classified by the State of Connecticut as a schedule 2 controlled substance and is further described as a hallucinogen. Cunningham later admitted to medical personnel that he has a long history of using PCP and other illegal street drugs. Emergency room records at Yale indicated that two days earlier, on August 22, 2011, at approximately 10:30 p.m., Cunningham was treated for acute PCP ingestion. The records reported that he was discharged on August 23, 2011, with the last treatment notation being 6:00 a.m.
On 08-24-11 the scene at Jefferson Avenue and Bank Street was processed by detectives assigned to the Eastern District Major Crime Squad, the Criminal Investigation Unit at Troop D and the Criminal Investigative Unit at Troop E. During the search, a number of items of evidence were located, documented, and seized regarding this investigation. During processing, no weapon was found. An examination of the windshield of the overturned box truck revealed five bullet defects in the center portion of the windshield, approximately 4'1" to 4'4" from the ground. Information gathered during the investigation revealed that during the incident, Officer Northup discharged his duty weapon five times towards Cunningham, striking him four times. Cunningham was struck in the left arm, right arm, and lower left and right back. While processing the scene, Kenneth Zercie, Director of the Connecticut State Police Forensic Laboratory, responded to the Bank Street scene with an anatomically correct mannequin. The mannequin was placed in the cab of the turned over truck in an upright stance on the passenger side door facing the front of the truck. Trajectory rods were inserted through two of the defects in the windshield and into the defects in the backrest of the center seat. The rods presented in a slight downward angle form the windshield to the backrest. The injuries sustained by Curtis Cunningham are generally consistent with the position of the standing mannequin which corroborated witnesses’ statements, and contradict Cunningham’s statement that he was not standing at the time of the shooting.
The New London Police Department conducted an internal investigation of Officer Northup’s actions. The findings of the internal investigation were as follows:
"Violation #1: General Order 4.53 A.1.b- General Use of Force
1. Members of the department are authorized to use only the force necessary to accomplish lawful objectives, including:
a. To defend themselves or others from the use or imminent use of physical force;
Findings - Violation #1
The amount of force that Officer Northup used to defend himself from the use of or imminent physical force was excessive and unreasonable. No other determining factors were uncovered that would justify that Officer Northup was in any kind of imminent danger of having any type of physical force being used against him. Curtis Cunningham had no weapons that were observed by any of the officers or witnesses on scene and Curtis Cunningham was trapped within the confines of the cab of the truck restricting his access to physically assault or harm any officer or third party.
Violation #2: General Order 4.53 B.1.a. - Use of Deadly Force
1. Deadly physical force may be used:
a. To defend an officer or a third person from the use or imminent use of deadly physical force;
Findings - Violation #2
The review of this shooting found Officer Northup’s actions were in violation of this section of the department’s general orders. Officer Northup’s statements and belief that his life was in jeopardy from the imminent use of deadly force against him could not be sustained. No other determining factors were uncovered that Officer Northup was in any kind of imminent danger by Curtis Cunningham and his decision to use deadly force was not authorized under this order."
Officer Northup was terminated as a result of this investigation. The conclusion of this report does not necessarily conflict with the findings of the New London investigation. The focus of my inquiry was whether Officer Northup’s actions violated the criminal laws of the State of Connecticut and not whether he violated policies of the New London Police Department.
Section 53a-22 (c) of the General Statutes permits a police officer to use deadly physical force upon another person when he reasonably believes such to be necessary to defend himself or a third person from the use or imminent use of deadly physical force. The test to determine reasonableness is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself or another from the imminent use of deadly physical force. Second, the belief must be objectively reasonable. See State v. Smith , 73 Conn. App. 173, cert. denied, 262 Conn. 923 (2002). The burden is on the state to disprove beyond a reasonable doubt the elements of self-defense as set forth in §53a-22. State v. Smith, supra, 73 Conn. App. at 185-86.
The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed it was necessary to use deadly physical force and whether such belief was objectively reasonable, based on the facts and circumstances known to the police officer at the time the decision to use deadly force was made. See State v. Silveira, 198 Conn. 454 (1986), State v. Adams, 52 Conn. App. 643 (1999).
The United States Supreme Court has explained this test in a civil rights case.
"The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on scene rather than with the 20/20 vision of hindsight ... The calculus of reasonableness must embody allowance of the fact that police officers are often forced to make split-second decisions — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386 (1989).
"The appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them." Scott v. Henrich, 39 F.3d. 912, 915 (9th Cir. 1992).
Based upon the preceding facts and circumstance and the applicable law found in Connecticut General Statutes §53a-22 the undersigned finds that the state would be unable to disprove beyond a reasonable doubt that Officer Thomas Northup honestly believed that deadly force was necessary and that his honest belief was reasonable.
I would like to thank the Connecticut State Police Eastern District Major Crime Squad and the State Police Forensic Science Laboratory for their roles in this investigation. In addition, I would like to thank the New London Police Department for its assistance and cooperation.
No further action is to be taken by the Division of Criminal Justice as a result of this incident.
Dated at New London, Connecticut this 19th day of April, 2012.
MICHAEL L. REGAN
NEW LONDON JUDICIAL DISTRICT