Decision Date29 December 2009
Docket NumberFile No. 1:07-CV-143.
Citation681 F. Supp.2d 528
CourtU.S. District Court — District of Vermont
PartiesRobert A. FORTUNATI, Administrator of the Estate of Joseph Fortunati, Robert A. Fortunati, Susan Fortunati, and Mark Fortunati, Plaintiffs, v. Andrew CAMPAGNE, Marc Thomas, Jeremy Hill, Todd Protzman, Rob Snetsinger, Karl Gardner, Hugh O'Donnell, Mike Dudley, and Walter Goodell, Defendants.

George E. Spaneas, Clauson Atwood & Spaneas, Hanover, NH, for Plaintiffs.

David R. Groff, Kate G. Duffy, Vermont Office of the Attorney General, Montpelier, VT, for Defendants.


J. GARVAN MURTHA, Senior District Judge.

This case arises out of events on June 24, 2006, when Vermont State Police troopers shot Joseph Fortunati to death in Corinth, Vermont. Plaintiffs, all members of Mr. Fortunati's family, filed suit in federal court on behalf of the estate of Joseph Fortunati, as well as in their personal capacities. Defendants moved to dismiss the case shortly after it was filed; this Court granted the motion in part and denied it in part. Paper 19. After one year of discovery, Defendants now move for summary judgment. Paper 85.

I. Factual Background
A. The Shooting of Joseph

Most of the evidence describing the lead-up to Joseph's shooting comes from Vermont State Police sources, as does all of the evidence describing the shooting itself. Plaintiffs "dispute" many facts to avoid conceding them,1see Paper 87-3, but they offer little evidence contradicting the police account. Because Plaintiffs rely on the same officer testimony, post-incident reports, and other police records as the Defendants, the following facts are effectively undisputed.

On June 23, 2006, the Vermont State Police received a call from environmental workers attempting to take water samples in the area of Copper Mine Road, a rural dirt road in Corinth, Vermont. Paper 85-3 at AG737. The environmental workers described two encounters with a man camped on the road, blocking their path. Id. On one occasion the man's behavior was described as "agitated," and one of the workers felt "unsure if he would get violent," and on the other occasion, the man ran off into the woods. Id. The environmental workers reported that a neighbor apparently had also encountered the man and changed her jogging route to avoid him. Id. State Police troopers met the environmental workers in the Corinth Town Hall. Id. While there, the troopers saw Susan Fortunati, who noted that the man on Copper Mine Road was her stepson, Joseph Fortunati. Id.

Later on June 23, Joseph's father, Robert Fortunati, came to the State Police barracks to speak about Joseph. Id. Robert told troopers that Joseph was bipolar and schizophrenic, had not been taking his medication, and was in possession of a handgun. Id. Robert also told troopers that he and his family were available to help with Joseph, as was a mental health worker from the Clara Martin Center, who had dealt with Joseph in the past. Id.

On the morning of June 24, 2006, Robert and Susan Fortunati, along with Joseph's brother, Robert Jr., went to Joseph's campsite on Copper Mine Road to convince him to move to a more isolated location. Paper 85-5. The family met Joseph and spoke with him, but they were unsuccessful. Id. Joseph removed a handgun from his belt, aimed it at his brother, threatened to kill him, and told his family to leave. Paper 85-6; Paper 85-5. Robert Fortunati called the State Police and informed them of what happened. Id. Robert asked to work with the police in formulating a plan to take Joseph in and "restrain" him. Id.

Shortly after Robert called the State Police barracks, shift commander Sergeant Todd Protzman contacted his superior officer, Captain Walter Goodell. Paper 85-9 at AG 866-67. Protzman briefed Goodell on the situation with Joseph Fortunati, and requested activation of the State Police's Tactical Services Unit (TSU). Paper 85-24 at 59-61. The TSU is a specialized, SWAT-type unit within the Vermont State Police, used for dangerous or high-stress situations. Id. at 67. Goodell asked his superiors for activation of the TSU, and received permission. Id. at 62-63.

Either before or after activating the TSU, the State Police investigated Joseph's background and learned he had previously been in a car chase with police in which he displayed a firearm. See Paper 85-35 at 107-08 (demonstrating that police had this information by the time TSU members were later deployed). Investigating officers also learned that Joseph had struggled with state troopers as they attempted to bring him into custody, resulting in injury to one trooper's hand. See id. (same).

Upon authorization of the TSU, team members gathered at the Bradford barracks for a briefing. Id. at 83-85. No particular instruction was given on how to approach Joseph in light of his mental illness. Paper 85-36 at 35-36; Paper 85-30 at 158-59. The goal was to "take him into custody." Paper 85-30 at 158.

Shortly before 7:00 p.m. on June 24, 2006, the TSU was deployed near Joseph's campsite on Copper Mine Road. Paper 85-9 at AG 867. Other units stood back for support, including a canine unit, id., and a hostage negotiations unit, Paper 85-24 at 97. Seven TSU members advanced toward Joseph's campsite. Paper 85-36 at 58. They carried assault rifles, tasers, and shotguns with beanbag ammunition, and wore camouflage uniforms with face paint. Id. at 66; Paper 85-30 at 95. As they approached the wooded site, the troopers split into two groups. Paper 85-36 at 59-61.

Joseph was standing on a hill in the road and saw one trooper, Sergeant Robert Snetsinger, approaching. Paper 85-35 at 29. Joseph waved to Snetsinger, who identified himself as police and asked Joseph to come down the hill to talk. Id. at 29-31. Joseph responded that instead Snetsinger could come up to where he was standing. Id. at 34. After exchanging a few more words, Joseph began to walk away from Snetsinger, up the hill toward his campsite. Id. at 35. Moments later, Joseph saw the other group of troopers who were approaching from a different direction. Paper 85-30 at 38. Sergeant Marc Thomas told Joseph to show his hands and stay where he was, but Joseph turned and moved back in the direction he had come. Id. at 42; Paper 85-36 at 91-92.

Shortly thereafter, Sergeant Jeremy Hill fired a shotgun beanbag round at Joseph. Paper 85-30 at 49; Paper 85-26 at 30-31. The round missed and Joseph ran into the woods. Paper 85-26 at 34. Troopers ran into the woods after Joseph, but he avoided them and circled around to his car, which was parked in the road. Paper 85-36 at 102-05; Paper 85-30 at 54-63. Joseph opened the driver's side door of the car. Paper 85-26 at 49. Hill fired another beanbag round at him, which missed and smashed in the car's rear window. Id. Joseph leaned inside the car, apparently rummaging around the floorboard or center console area. Id. at 50; Paper 85-30 at 65. Then Joseph straightened up and walked away from his car toward Hill. Paper 85-26 at 53-54. Hill fired two more beanbag rounds at Joseph, hitting him twice in the stomach area. Id. at 54. Joseph turned and began moving into an open field adjacent to the road, and as he moved away, Hill fired a final beanbag round, hitting him in the back. Id. at 57-60. Throughout this time, troopers were giving Joseph orders to stop and put his hands up. See, e.g., id. at 45.

Joseph entered the field and stopped, facing Sgt. Thomas, who was already there. Paper 85-36 at 110. Thomas observed a handgun in Joseph's right hand, pointed down toward the ground. Id. Thomas notified the other troopers that Joseph had a gun, and ordered him to put the gun down. Id. at 110-11. Agitated, Joseph yelled that Thomas should just shoot him in the head, then slowly put the gun in his waistband. Id. at 111-13.

Joseph turned away from Thomas and moved to a cluster of two or three trees on the edge of the field, putting the trees between himself and the troopers. Id. at 117; Paper 85-35 at 51. The troopers converged on Joseph's location, approaching the cluster of trees from different angles. Paper 94-11 at 75-77. Troopers yelled commands at Joseph, telling him to show his hands and step out from behind the trees; they may have ordered him to drop his weapon. Paper 85-36 at 122; Paper 85-35 at 77. The troopers also communicated more generally with Joseph, telling him to be reasonable and that nobody needed to get hurt. Paper 94-11 at 83; Paper 85-36 at 122.

Joseph moved from side to side, looking around the cluster of trees, Paper 94-11 at 91; Paper 85-26 at 72; Paper 85-36 at 122-23, and he may have stepped away from the trees briefly, or showed his hands for a few moments. See Paper 85-30 at 94 (recalling Joseph moving out from the trees to wave at a helicopter, then moving behind the trees again); Paper 85-14 at AG907 ("Joseph raised and lowered his hands a couple of times. His hands would only be up for a second then he would lower them back down to his side or grasp the tree and peer around it."). But see Paper 85-36 at 122-23 (one trooper's memory that Joseph did not move out from behind the trees). Joseph was agitated and moved erratically. Paper 85-30 at 93. Because Joseph was behind the cluster of trees, troopers' views of him were partially or fully obstructed at times, depending on his movement. See, e.g., Paper 85-26 at 72, 78; Paper 85-36 at 123.

Sgt. Snetsinger moved around to one side and fired a beanbag round, hitting Joseph in the back. Paper 85-35 at 83. Joseph started to turn toward Snetsinger, and reached for the gun in his waistband. Paper 85-30 at 96; Paper 85-36 at 124; Paper 87-8 at 86; Paper 85-20 at 64; Paper 85-14 at 3. Joseph pulled the gun out,2 at which point troopers Campagne and Thomas fired three shots. Paper 85-36 at 126; Paper 85-30 at 101-02. Two bullets hit Joseph, killing him. Paper 85-34 at 10-11.

As these events unfolded, two State Police troopers were at...

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