Taser Death in Vermont Raises Questions of Reasonable Use

Vermont Attorney General William Sorrell // Photo: Valley News - Theophil Syslo Vermont Attorney General William Sorrell // Photo: Valley News – Theophil Syslo[/caption]

When the Attorney General of Vermont decided not to prosecute a Vermont State trooper who used a taser to kill an unarmed, 39-year-old epileptic artist, few Vermonters were surprised, most of the Vermont media managed to get the story partly wrong, and none of the media took note of clear falsification in the AG’s press release describing his decision.

Attorney General William Sorrell, 65, issued a carefully written release on Friday, January 25, announcing that “criminal charges should not be filed” against Trooper David Shaffer, 29, who allegedly used his taser to kill Macadam Mason, 39, on June 20, 2012, at his home in Thetford. Sorrell’s press release indicated that he and a county prosecutor had “completed independent reviews” of the fatal “incident,” but it did not explain their conclusion beyond saying, in summary:

“The review was solely to determine whether criminal charges should be pursued against Trooper David Shaffer…In a criminal case, the State bears the burden of proving beyond a reasonable doubt that the officer’s use of force was unreasonable under the facts and circumstances of the case.”

Although the reviews were done by the prosecutors’ separate offices, the actual investigation of the Vermont State trooper was done by the Vermont State Police itself. There has been no independent investigation by any other official entity.

No Formal Finding of “Reasonable Fear for Safety”

The press release noted that, under Vermont law, the killing might be justified if the officer was found to be in reasonable fear for his safety or the safety of others. The release is clear that neither prosecutor has formally made that finding, only that they have agreed they would have a hard time proving the use of force was unreasonable under the circumstances.

Most of the release goes on to give the Attorney General’s version of the events of June 20, 2012, an account that is largely consistent with the public record, but with significant omissions that contribute to the creation of an overall false impression.

Although previous reports by the State Police and media refer to only one phone call, the report describes the start of the chain of events leading to Mason’s death this way:

“The [State Police] investigation determined that after 3:00 pm on June 20, 2012, the Vermont State Police barracks in Bradford received two calls from personnel at the Dartmouth Hitchcock Medical Center requesting a welfare check at an address in Thetford, Vermont. Dispatch was told that an unidentified male at the address, who sounded intoxicated, had stated that he was suicidal and homicidal, that he had access to weapons and that he hoped the police would shoot him.”

To date, the caller or callers from the hospital have not been publicly identified and transcripts of the call or calls have not been made public. The initial State Police “press statement” on June 21 indicated a single phone call from an “Intake Crisis Technician” at 1511 hours – but made no reference to “a welfare check” or to Mason’s expressing any hope the police would shoot him. Since the Attorney General’s report itself is still secret, it’s hard to know where those variations come from, but they do tend to denigrate the victim to the benefit of the police who killed him.

Unidentified Troopers Told to Leave Premises 

The press release describes troopers finding Mason inside his house, where he refused to come out or to let them in. The police then contacted the homeowner, Mason’s partner, Theresa Davidonis, who soon arrived at the scene. She found the house empty, but found Mason in the woods behind the house, where she talked with him for awhile, or as the press release characterizes it:

“Ms. Davidonis subsequently found the unidentified male – Macadam Mason – in the woods near the house and could be heard arguing with him. Ms. Davidonis asked the troopers to leave because she said that their presence was aggravating Mason. She also said that she would take custody of Mason.”

The troopers then left. Although the press release doesn’t describe the troopers’ interaction with Ms. Davidonis any further, there failure to complete the “welfare check” in some fashion could be seen as somewhat questionable. However, in any event, they had been implicitly if not explicitly reassured as to Mason’s welfare. Additionally, they knew they had been asked to leave private property, they knew they had no indication of criminal activity, and they had no warrant.

After Ms. Davidonis left to go back to work, the troopers surreptitiously returned to the property some time later. These events were developing slowly, more than three hours would pass from the initial hospital phone call to the fatal tasering.

The AG’s press release omits any timeline of events, and whether deliberate or not, this convolutes intentions and legalities of the troopers’ actions.

Motivation of Troopers’ Return is Unexplained 

When the troopers left the property, they had no apparent reason to think Mason was anything but all right, according to the AG’s press release, which goes on:

“After the troopers left her home she [Ms Davidonis] went back to work. In light of the requested welfare check and the information provided, the troopers returned to the residence to personally confirm that Mason was okay. Trooper David Shaffer was directed to assist with setting up a perimeter in the woods near the house. Tpr. Shaffer was not aware of reports that Mason had a history of seizures.”

This account not only fails to explain why the troopers thought they needed to trespass on Ms Davidonis’s property against her expressed will, it fails to explain why they thought they should take a quasi-military approach to an apparently peaceful situation by setting up “a perimeter” around the house – especially when they had reason to know there was a possibility Mason was still in the woods. And they had been told that their presence was “aggravating him.”

The press release does not say what else Ms. Davidonis told them, but if the troopers acted with reasonable professionalism, they had learned the basic outline of Mason’s condition: that he was epileptic, that he had had a seizure the night before, that his present state of mind was part of a pattern familiar to Ms. Davidonis.

The rest of the official press release creates the utterly false impression that Trooper Shaffer and Mason were in a one-on-one face-off with no one else around. The release says that Shaffer realized that Mason was unarmed and, in reaction, shouldered his M-4 rifle, but that Mason moved toward him and that he “ told investigators that he believed that Mason was going to physically assault him….”

AG Press Release Riddled with Misleading Omissions

The press release does not mention that there were at least three other State Police troopers and a police dog on the scene and that one or more of the troopers witnessed the killing.

The press release does not mention that Ms. Davidonis had returned to the scene with her son, and that they both witnessed the killing.

The press release does not mention that Ms. Davidonis shouted warnings that Mason was in a vulnerable condition.

The press release does not mention that the autopsy, which was performed in New Hampshire, attributed the cause of death to the taser. The autopsy report remains secret.

The press release does not address the question of why, when there was no identifiable emergency, at least four troopers and a police dog decided they needed to enter property they’d been told to stay off and then created a situation in which one of them killed an unarmed man over the shouted warnings of Ms Davidonis.

Most of the state’s media misses these details and has been reporting that the Attorney General had determined that the police behaved appropriately. Although William Sorrell apparently said something to that effect in a news conference, the press release indicates the conclusions made by the reviews are more ambiguous. Here are some of the ways some of the media misinformed their audiences – each is wrong:

No Public Statement on Negligence or Reprimand 

Getting it right was WCAX-TV, with the headline, “AG: trooper will not face charges in taser death” and further clarification in its story: “Sorrell repeatedly stressed that Shaffer’s actions were not criminal, but he wouldn’t say if he acted negligently or if he’s been reprimanded by state police. Those internal investigations are secret.”

Trooper Shaffer remains on paid administrative leave, as he has been for most of the time since Mason’s death.

Perhaps the most extreme misrepresentation of the events of June 20 came from the State Police, when Col. Tom L’Esperance, director of the State Police, said, “The actions of our troopers helped protect citizens in a highly dangerous and life threatening event.” This does not square with the reality in Thetford that day, when the only person seriously threatened was the one the police killed.

Last July, Ms. Davidonis filed a civil suit in the Superior Court in Orange County, where she lives, seeking unspecified damages for police conduct that her complaint calls “malicious, wanton, willful, and outrageous.” That case is pending.

In mid-January, Superior Judge Timothy Tomasi gave the Attorney General’s office two weeks to explain its investigation into Trooper Shaffer’s actions.

Responding to the AG’s press release on January 25, Ms. Davidonis’s attorney, Thomas Costello told the Valley News:

“History of seizures or not, they were up there for hours before it happened. Theresa told them he was emotionally disturbed…. The crisis was created by Shaffer going onto their property, contrary to Theresa’s commands and what the police had been doing for two hours. There is violence and there is a shooting and there is a death. Who is doing the shooting? Law enforcement. An emotionally disturbed person is killed by violence by law enforcement. That demands leadership.”

On the same day, attorney Edward Van Dorn announced that he would be filing a federal lawsuit seeking monetary damages from the State Police on behalf of Mason’s mother, Rhonda Taylor, who lives in New Hampshire. The attorney indicated that the state’s withholding of so much evidence made the suit necessary.

ACLU Questions State’s Commitment to Justice

Among those questioning AG Sorrell’s willingness ever to bring an enforcement action against a Vermont police officer involved in a lethal event, the executive director of the American Civil Liberties Union (ACLU) in Vermont, Allen Gilbert, commented that “It’s hard to know when, if ever, criminal charges might be brought in a law enforcement shooting death.” The ACLU issued a statement signed by Gilbert, saying in part:

“The Vermont Attorney General’s Office has declined to bring any charges in the fatal Macadam Mason Taser shooting last June, leaving open the question of who bears responsibility for the death of an innocent Vermonter. The stark facts of the case are these: A state trooper fired a weapon that killed a man. The weapon was used in a way contrary to guidelines from the weapon’s manufacturer, Taser International….

“We will continue to work on ways to bring about greater police accountability. We support the establishment of a professional licensing system for police, as there is for most other Vermont professions. Both the public and police suffer when officers’ conduct is not reviewed by an independent state board that makes sure all officers are aware of and meet professional standards.”

Soon after Mason’s taser death, the ACLU, Vermont Legal Aid, mental health advocacy groups, and others called for a state moratorium on tasers at least until all police armed with tasers were fully trained in appropriate taser use. Vermont Governor Peter Shumlin, a Democrats, together with Attorney General Sorrell and state police officials, all rejected the idea of a moratorium out of hand, without giving it much deliberation. An online petition supporting a moratorium had 1,217 signatures as of January 29, including that of former Vermont Governor Madeleine Kunin, also a Democrat.

Nobody said it would be easy to get justice for a dead man, especially a poor dead man, especially a poor dead artist with epilepsy who was potentially tasered to death by a Vermont State trooper in June 2012, but it seems that the Vermont authorities are making it difficult to uncover the accurate details of the events that day.