ANSONIA-MILFORD STATE’S ATTORNEY’S REPORT ON THE USE OF DEADLY FORCE BY WATERBURY POLICE OFFICER JAMES McMAHON ON MARCH 9, 2017.

Submitted by:

KEVIN D. LAWLOR
State’s Attorney
Judicial District of Ansonia-Milford

August 4, 2017

Introduction | Factual Background | Connecticut State Police Investigation | Law Concerning the Use of Deadly Physical Force by a Police Officer | Conclusion

Introduction

The Connecticut State Police Central District Major Crime Squad, acting at the request of the Ansonia-Milford State’s Attorney’s Office investigated the police involved shooting of Rashamel Rogers which took place in the City of Waterbury on March 9, 2017. Connecticut General Statutes §51-277a(a) requires the Division of Criminal Justice to conduct an investigation, utilizing appropriate law enforcement agencies, whenever a peace officer, in the performance of his duties, uses physical force upon another person and such person dies as a result. Connecticut General Statutes §51-277a(b) requires the Chief State’s Attorney to designate a State’s Attorney from another Judicial District to conduct the investigation. General Statutes §51-277a(c) requires the designated State's Attorney to determine, upon completion of the investigation, the circumstances of the incident and whether deadly force was appropriate under General Statutes §53a-22.

In this instance, on March 9, 2017, Maureen Platt, State’s Attorney for the Waterbury Judicial District notified Chief State’s Attorney Kevin Kane that a Waterbury police officer had used deadly force in the apprehension of a suspect. Pursuant to Division of Criminal Justice policy, she informed Attorney Kane that the Connecticut State Police would assume jurisdiction over the investigation. She further indicated that the suspect, Rashamel Rogers, was hospitalized and in critical condition. Chief State’s Attorney Kane then designated State’s Attorney Kevin Lawlor of the Ansonia-Milford Judicial District to conduct the use of force investigation into the incident. Thankfully, Mr. Rogers recovered from his injuries. State’s Attorney Lawlor retained authority over the investigation.

The State Police investigation has been reviewed by State’s Attorney Kevin D. Lawlor. As part of the review, State’s Attorney Lawlor has reviewed all police reports generated, all witness statements taken, examined all photos and videotapes of the scene, examined the reports from the State of Connecticut DESPP Forensic Science Laboratory, medical records for both the suspect and the officer as well as the conclusions of an independent medical expert. The following are the findings and legal conclusions of State’s Attorney Lawlor regarding the incident.

The State Police investigation into the police-involved shooting of Rashamel Rogers revealed the following:

On March 9, 2017 at approximately 4:00 p.m., members of the Waterbury Police Department (WPD) spotted a Red Lexus RX 350 SUV which had been reported stolen out of Old Greenwich, CT. WPD officers in a clearly marked police cruiser attempted to stop the vehicle by activating its overhead lights and sirens. The operator increased speed and attempted to evade the officers. The officers then ceased the pursuit for safety concerns.

A short time later, uniformed WPD Officer David Andrzejewski spotted the Lexus while working an extra-duty job in the area of Wall and Shelley Streets. Officer Andrzejewski attempted to stop the vehicle by yelling verbal commands and using hand gestures from the roadway. The operator of the Lexus did not respond and continued toward Officer Andrzejewski at a high rate of speed. The officer quickly removed his sidearm out of fear for his safety and that of other pedestrians and workers and ordered the Lexus to stop. Officer Andrzejewski reported the operator hunched down and sped through the Eversource Energy construction zone. The officer radioed the incident location and the vehicle’s direction of travel to the communications center and indicated the vehicle attempted to strike him. Officer Andrzejewski did not discharge his firearm. Officer Andrzejewski’s report to dispatch was heard by WPD Officer James McMahon and he drove his vehicle to the area of Orange and Wood Streets in an effort to intercept the Lexus.

Moments later, WPD Sergeant Robert Raad followed the Lexus onto Wood Street. The Lexus SUV encountered three other vehicles at the intersection of Orange and Wood Street and attempted to pull into the on-coming traffic lane. A vehicle in the intersection blocked the path of travel of the Lexus SUV. At the same time, Officer McMahon exited his clearly marked patrol vehicle at the intersection of Wood and Orange Street. The Lexus then drove in reverse down Wood Street towards Vine Street, struck Sgt. Raad’s marked Chevy Tahoe SUV and then struck a utility pole. By this point, Officer McMahon approached the driver’s side window of the Lexus, weapon drawn and demanded the operator stop the car and exit the vehicle. Officer McMahon was immediately next to the vehicle and only a few feet from the rear tires.

At this point, the vehicle was put into drive by the operator, he suddenly turned the steering wheel in the direction of Officer McMahon and accelerated forward and toward the officer. Officer McMahon moved several feet alongside the SUV with his weapon pointed at the driver. The vehicle’s turn radius toward the officer gave him little room to maneuver in these critical seconds. Officer McMahon then discharged his weapon two times at the driver and the bullets struck the operator in the arm and chest. The Lexus’ tire then ran over Officer McMahon’s foot and he fell to the ground in pain. The Lexus travelled a short distance and came to rest near the intersection of Orange and Wood Streets. Sergeant Raad called in officer down and shots fired. He then exited his vehicle and apprehended the wounded operator, subsequently identified as Rashamel Rogers, and placed him under arrest. Officers quickly arrived on scene and provided medical attention to both Mr. Rogers and Officer McMahon. Officer McMahon was transported to Waterbury Hospital. Mr. Rogers was transported to St. Mary’s Hospital. Mr. Rogers’ injuries subsequently required he be transferred via Lifestar to St. Francis Hospital in Hartford. While at the hospital, Mr. Rogers expressed remorse for the incident and told WPD Detective Shea "please tell the Officer I’m sorry I hit him." He further indicated to State Police Detectives that he was "on the run" for a few weeks after he had cut off his juvenile probation bracelet. He also said he had "rented" the Lexus from a local drug dealer in exchange for crack cocaine and did not know the vehicle was stolen.

The entire incident on Wood Street was recorded on a video surveillance system on a nearby house. The video reveals that the entire incident, from the time the Lexus appears on the video until the suspect is apprehended, took 56 seconds. This video was enhanced by the DESPP Forensic Lab and clearly shows the front tires turn toward Officer McMahon as the vehicle moves forward. It does not clearly show the moment the shots were fired by Officer McMahon. Officer McMahon is beside the SUV for approximately 6 seconds prior to falling to the sidewalk. He indicated at the hospital that the Lexus ran over his right foot during the incident.

Once Mr. Rogers was secured and transported to the hospital via ambulance, WPD secured the scene. Upon the advice of Waterbury State’s Attorney Maureen Platt, the Connecticut State Police Central District Major Crime Squad was called in to investigate the matter. The Milford State’s Attorney’s Office assumed jurisdiction at 5:30 p.m.

The Connecticut State Police Central District Major Crime Squad with assistance from Inspectors from the Ansonia-Milford State’s Attorney’s Office conducted the investigation in this matter.

The Connecticut State Police interviewed 36 individuals including Officer McMahon, Sergeant Raad and other involved members of the Waterbury Police Department. They interviewed all the members of the Eversource Energy work crew who observed Mr. Rogers recklessly drive the SUV at Officer Andrzejewski. They also interviewed multiple people from the Wood Street neighborhood who witnessed parts of the incident and its immediate aftermath. None of these individuals reported being an eyewitness to the shooting itself. Lastly, the State Police interviewed Mr. Rogers who relayed his version of the events leading to the shooting.

The State Police obtained various pieces of evidence from the scene. They seized and searched the police vehicle involved and the stolen SUV operated by Mr. Rogers. State Police recovered 43 items including two shell casings from Officer McMahon’s duty weapon, two bullet projectiles, Officer McMahon’s MP .40 caliber Smith & Wesson duty weapon, clothing and various scientific samples. Many of these items were sent to the Connecticut DESPP Forensic Science Laboratory for testing. The State Police also obtained the surveillance video from a home on Wood Street. This surveillance video was also sent to the State Laboratory for enhancement.

The Forensic Laboratory found that the casings recovered at the scene matched Officer McMahon’s duty weapon. These casings matched cartridges recovered from the weapon. State Police determined two shots had been fired from Officer McMahon’s service weapon. Officer McMahon’s clothing and boots were submitted for analysis; however, no meaningful results were obtained. The surveillance video was submitted to the Multimedia Image Enhancement Section for analysis and enhancement. Various still images were obtained from the video which show the tires of the stolen SUV are turning in the direction of Officer McMahon as the vehicle moves forward when the shots were fired.

The State Police also obtained Mr. Rogers medical records as well as the medical records for Officer McMahon. Mr. Rogers’ medical records show he received gunshot wounds to the arm and torso which required emergency surgery. Mr. Rogers required hospitalization for eight days. Officer McMahon also received medical attention for injuries received during the incident. Officer McMahon indicated the SUV operated by Mr. Rogers drove over his right foot as Rogers attempted to flee the scene. The record indicates Officer McMahon sustained a crush injury to his right foot and tenderness to the dorsum of the right midfoot. Vascularity and sensation were intact. No acute fracture or subluxation were present. Officer McMahon’s medical records were reviewed by an independent medical expert at the request of the State’s Attorney. The State’s expert concluded that the mechanism of injury (vehicle wheel driving over dorsum of the foot) could result in the injury as described by Officer McMahon. The expert further concluded that this type of injury can occur without an obvious fracture to the foot.

General Statutes § 53a-22 (c) (1) provides: "A peace officer . . . is justified in using deadly physical force upon another person . . . only when he or she reasonably believes such to be necessary to . . . [d]efend himself or herself or a third person from the use or imminent use of deadly physical force." "Self-defense is raised by way of justification, and when such defense is asserted ‘the state shall have the burden of disproving such defense beyond a reasonable doubt.’" State v. Gelormino , 24 Conn. App. 556, 561 (1991) (quoting General Statutes § 53a-12 (a)). "Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence." State v. Hallowell , 61 Conn. App. 463, 470 (2001).

"[T]he reasonableness of [an officer’s] belief under § 53a–22 should be evaluated pursuant to [a] subjective-objective formulation. Under that test, the jury must first determine whether, on the basis of all the evidence, the [officer] in fact honestly believed that deadly force, rather than some lesser degree of force, was necessary to repel the victim's alleged attack. . . . If the jury determines that the [officer] honestly believed that deadly force was necessary, it then turns to the second, or ‘objective,’ part of the test. Here, the jury's inquiry requires it to determine whether the [officer’s] honest belief was reasonable." State v. Smith , 73 Conn. App. 173, 185, (2002).

With regard to the objective part of the test, "[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor , 490 U.S. 386, 396 (1989). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396-97. "[T]he question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. Although Graham v. Connor analyzes the Fourth Amendment’s "objective reasonableness" standard in a civil action under 42 U.S.C. § 1983, the standard has been applied in cases arising from a state’s prosecution of an on-duty police officer for excessive use of force. See id. at 395 (" all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard" [emphasis in original]); see also, e.g. , State v. Mantelli , 42 P.3d 272, 277 (N.M. Ct. App. 2002) (reviewing uniformed officer’s convictions of voluntary manslaughter, aggravated assault with a deadly weapon, and shooting at a motor vehicle resulting in injury); Pagotto v. State , 732 A.2d 920, 961 (Md. App. 1999) (reversing officer’s conviction of involuntary manslaughter in connection with shooting death of motorist; citing Graham v. Connor as "[t]he landmark case establishing the standard for measuring claims that an officer used excessive force"); but see People v. Mehserle , 206 Cal.App.4th 1125, 1145-48 (2012) (concluding that, under California law, higher intent standard does not apply to involuntary manslaughter committed by on-duty police officer; rejecting defendant’s reliance on § 1983 cases like Graham v. Connor because "civil rights cases involve standards different from those of the general criminal law").

In State v. Smith , our Appellate Court defined the subjective-objective test for evaluating self-defense under General Statutes § 53a-22. 73 Conn. App. at 185-86. Consistent with the rule of Graham v. Connor , the Court held that "in addressing the objective part of the test . . . , the standard is that of a reasonable peace officer ." Id. at 185 n.5. After applying that standard, the Court further held that the state had presented sufficient evidence to disprove the justification defense put forth by the defendant, a New Milford police officer who had fatally shot an apprehended person. Id. at 186. "The defendant's attempt to show that his belief that deadly force was necessary and therefore reasonable depend[ed] in large part on his testimony that the victim refused to show his hands. The jury was, however, entitled to believe other testimony contradicting the defendant's account of the incident." (Footnote omitted.) Id. at 186-87. Nevertheless, the Court reversed the defendant’s manslaughter conviction and remanded the case for a new trial because the trial court had improperly excluded expert testimony on the use of force by a police officer. Id. at 199-202.

In Plumhoff v. Rickard , 134 S.Ct. 2012 (2014), the U.S. Supreme Court held that officers acted reasonably in using deadly force to terminate a dangerous high-speed chase. Id. at 2022. "Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road." Id. In Scott v. Harris , 550 U.S. 372 (2007), the Court held that the respondent county deputy acted reasonably when he terminated a chase by ramming his vehicle into the vehicle of a fleeing motorist. Id. at 386. "Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." Id. at 383-84.

In Acosta v. City and County of San Francisco , 83 F.3d 1143 (9th Cir. 1996), an action under 42 U.S.C. § 1983 and California state law, the Court held that there was sufficient evidence to support the jury’s finding that the respondent officer had used excessive force. Id. at 1147. "On November 2, 1991 at 6:45 p.m., Yawczak, a San Francisco police officer who was off-duty and in plainclothes, was standing in front of his car in the Pacific Heights neighborhood of San Francisco when he heard a woman scream and saw two young men, Ernesto Pecson and Edwin Silva, running with what he believed to be a purse. Yawczak drew his gun, a .45 caliber semiautomatic pistol, and chased Pecson and Silva around the block. After Pecson and Silva got into a waiting car, Yawczak fired two shots into the car, the first of which killed the driver, Acosta." Id. at 1144. "On the basis of the evidence presented at trial, the jury could have reasonably concluded that a reasonable officer, who had positioned himself facing the driver so that he was standing closer to the side than the dead-center of the car, would have recognized that he could avoid being injured when the car moved slowly, by simply stepping to the side. In short, a juror could have reasonably reached the conclusion at which the jury appears to have arrived: that the car did move prior to Yawczak's shooting Acosta but that it was moving or rolling sufficiently slowly that a reasonable officer in Yawczak's position would not have perceived himself to be in danger of serious bodily harm." Id. at 1146-47.

In Swann v. City of Richmond , 498 F.Supp.2d 847 (E.D. Va. 2007), a U.S. District Court in Virginia characterized Acosta as "stand[ing] for the unremarkable proposition that officers cannot use deadly force if they are not faced with death or serious injury." Id. at 863. The Court then distinguished the facts at issue and granted summary judgment for all of three officers who had shot at the plaintiff, wounding him shortly after he ended a foot chase by jumping into the passenger seat of a vehicle. Id. at 874-75. "[A]ll three defendants acted objectively reasonably, and in their own self-defense, when they shot at the Nissan." Id. at 874. An officer was "not required to take advantage of ‘reasonable alternatives’ before employing deadly force if, in fact, the vehicle that Swann was in was moving toward him in a way that threatened him with imminent death or bodily harm, a set of facts that is clearly established by this record." Id. at 863. See also U.S. v. Aceves-Rosales , 832 F.2d 1155, 1157 (9th Cir. 1987) ("It is indisputable that an automobile can inflict deadly force on a person and that it can be used as a deadly weapon."); see also Pittman v. Nelms , 87 F.3d 116, 120 (4th Cir. 1996) (respondent officer entitled to qualified immunity where "[u]nder these circumstances, an objectively reasonable officer certainly could have believed that his decision to fire was legally justified;" respondent fired and struck a back seat passenger at a time when his partner’s arm had been momentarily caught in the window of the fleeing suspect’s vehicle); Fraire v. City of Arlington , 957 F.3d 1268, 1277 (5th Cir. 1992) (respondent officer entitled to qualified immunity; "eye-witness accounts confirm that [Officer] Lowery was in mortal danger of being run over by Fraire's pickup, and that Lowery waited to fire until the last second when the truck was dangerously close"); Townsell v. Lewis , 938 Fed. Supp. 728, 729 (D. Kansas 1996) (plaintiff’s motion for judgment as a matter of law denied; "jury could reasonably conclude that defendant objectively feared for his life and acted appropriately under the circumstances;" "[a] reasonable juror could infer that defendant was standing in front of plaintiff's car when plaintiff started accelerating rapidly in his direction").

In Connecticut, under the federal and state constitutions, "[a] person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained. . . . The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." State v. Edmonds , 323 Conn. 34, 50 (2016). An officer’s pursuit of an individual does not constitute a seizure in the absence of a purposeful and effective show of authority. See State v. Burroughs , 288 Conn. 836, 849-50 (2008) ("the mere approach by a police officer, either in a police car or on foot, does not alone constitute a show of authority sufficient to cause the subject of the officer's attention reasonably to believe that he or she is not free to leave"); State v. Lewis , 173 Conn. App. 827, 841 (2017) ("defendant was not seized when [officer] called to him from the police cruiser"); see also Brower v. County of Inyo , 489 U.S. 593, 596-97 (1989) ("a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement . . . , nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement . . . , but only when there is a governmental termination of freedom of movement through means intentionally applied ").

"A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws." State v. Dukes , 209 Conn. 98, 121 (1988). "In analyzing the reasonableness of [a] stop, [a reviewing court] must look to the totality of the information available to the officers at the time to determine whether the officers possessed objective, particularized information—rather than a mere subjective hunch, however well-founded—upon which to base the seizure." State v. Benton , 304 Conn. 838, 847 (2012); see also State v. Lamme , 216 Conn. 172, 182 (1990) ("reasonably articulated suspicions justified the police in stopping the defendant's car and in detaining him for routine questions and observations"). "[A]n officer's subjective intent in pulling over a motorist is irrelevant to the question of whether the officer's conduct violates the constitution." State v. Burroughs , 288 Conn. at 852 (2008). However, "mere conclusory testimony that the officers were concerned for their safety does not constitute the sort of specific, articulable evidence necessary to justify a Terry stop." State v. Edmonds , 323 Conn. at 75-76; see also Terry v. Ohio , 392 U.S. 1, 21-22 (1968).

"The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave." State v. Jenkins , 298 Conn. 209, 236 (2010) (citing Arizona v. Johnson , 555 U.S. 323, 333 (2009)). An officer "‘prudently may prefer’ to ask that an occupant exit the vehicle; any intrusion upon an occupant's personal liberty in directing that action is de minimis because, on balance, it serves to protect the officer." State v. Dukes , 209 Conn. at 122. Under the circumstances of a particular stop, an officer’s decision to draw a weapon may be supported by an interest in his own protection. See Terry v. Ohio , 392 U.S. at 24 ("[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm"); State v. Holloman , 20 Conn. App. 521, 526 (1990) (permissible for officers to have revolvers drawn when ordering occupants out of car where report of occupants involved in armed robbery in which handgun stolen).

Based on the Connecticut State Police investigation, State’s Attorney Lawlor makes the following conclusions:

Based upon the preceding facts and circumstances as found by the Connecticut State Police and the applicable law found in Connecticut General Statutes §53a-22 (c), State’s Attorney Lawlor finds that the use of deadly force by Officer James McMahon while confronting Rashamel Rogers during the attempted apprehension of Mr. Rogers for Larceny in the Second Degree on March 9, 2017 was appropriate under General Statutes §53a-22. Officer McMahon was confronted with a motor vehicle that had almost struck a fellow officer, had endangered the Eversource work crew and other motor vehicles in the area, struck Sergeant Raad’s patrol vehicle and a utility pole, and then endangered Officer McMahon as he stood at the driver’s side window. The evidence shows that Mr. Rogers had several opportunities to pull over and peacefully end this pursuit yet continued to operate the vehicle in a dangerous and potentially deadly manner. The statement of Officer McMahon is consistent with the enhanced surveillance video which shows the SUV tires turn toward the officer and accelerate forward. This left Officer McMahon in a situation where he was reasonably in fear of being struck by the SUV. He then made a split second decision to use deadly force to defend himself, nearby civilians, and police from a suspect who had already endangered the lives of others in his attempts to elude the police. Based on the law as outlined above, these facts would not support a criminal charge. Accordingly, no further action will be taken by the Division of Criminal Justice.

This investigation spanned almost five months. During that time, the State Police, the State’s Attorney’s Office and the Laboratory worked continuously to complete the investigation. It is important to note that in order for those involved as well as the general public to have confidence in the result of this investigation, it must be conducted in a diligent and thorough manner. The use of deadly force by a police officer against a civilian is something we as a society must assure is investigated thoroughly and independently. As a prosecutor, State’s Attorney Lawlor must make decisions on whether or not to charge based on the law and the facts derived in the investigation. Although State’s Attorney Lawlor finds that Officer McMahon acted appropriately and legally given the circumstances of this incident, he would encourage police to continue to refine their training in these situations to minimize the use of deadly force while maximizing protection of the officer and the public.

Finally, State’s Attorney Lawlor thanks the Connecticut State Police Central District Major Crime Squad for their thorough investigation of this matter, Chief Vernon Riddick and the officers of the Waterbury Police Department, the Waterbury State’s Attorney’s Office for their initial investigation and cooperation and the Connecticut State Forensic Laboratory. This Office also wishes to thank all these agencies for working together to assure that the investigation was concluded in a timely, thorough, and complete manner.