CSAO: Report of the State's Attorney for the Judicial District of New Haven Concerning the Shooting Death of Tyshan Napoleon in New Haven on March 11, 2005.

Report of the State's Attorney for the Judicial District of New Haven Concerning the Shooting Death of Tyshan Napoleon in New Haven on March 11, 2005
 
 
 
The following report concerning the shooting death in the late morning of March 11, 2005, of Tyshan Napoleon, date of birth December 24, 1977, is prepared and submitted by Michael Dearington, State's Attorney, Judicial District of New Haven, pursuant to Section 51-277a, of the Connecticut General Statutes. The lethal shots were fired by members of the New Haven Police Department in a parking lot behind the Columbus Elementary School at 255 Blatchley Avenue in the city of New Haven. The report and conclusions are based upon the investigation conducted by the Central District Major Crime Squad of the Connecticut State Police in conjunction with the Department of Public Safety Forensic Science Laboratory and the Office of the State Medical Examiner. This report and conclusions are based upon the interview of witnesses, observation, collection and examination of evidence from the scene and the post mortem examination performed on Mr. Napoleon.
 
The investigation conducted by the Central District Major Crime Squad and its report was, as always, exceptionally thorough and highly professional.
 
Also, the Forensic Crime Laboratory, as always, expertly and professionally conducted a challenging and time consuming examination of an overwhelming amount of evidence.
 
Moreover, the Office of the Chief Medical Examiner expertly examined the deceased.
 
 
On March 11, 2005, at about 10:40 a.m., Tyshan Napoleon of New Haven, CT was shot in the Columbus Elementary School parking lot, 225 Blatchley Avenue, New Haven, by members of the New Haven Police Department. He was pronounced dead at Yale New Haven Hospital at 11:09 a.m.
 
Mr. Napoleon was twenty-eight years old and a resident of New Haven.
 
Mr. Napoleon, based upon interviews conducted by the Major Crime Squad with his mother, Rosie Buie, and his girlfriend, Amika Collins, had sometime back been diagnosed with Bipolar (formerly called manic-depressive) disorder. Both indicate that Mr. Napoleon had not been taking his prescribed medication for the disorder for some time. Ms. Buie indicated that her son had discontinued taking the medication when he moved from her home to that of Ms. Collins around September 2004.
 
Ms. Buie indicated she had noticed that "Tyshan had become hostile, short tempered and was talking bizarre" and was concerned about him becoming violent. Ms. Collins indicated he had begun to hallucinate and show signs of paranoia since not taking his medication.
 
Ms. Buie and Ms. Collins knew that Mr. Napoleon was wanted by police. He told his mother that he would shoot police officers to avoid going back to jail.
 
On March 11, 2005, at 12:30 a.m., according to Ms. Collins, a "bounty hunter" came to the apartment looking for Mr. Napoleon and did not find him. On that day at about 8:30 a.m., Mr. Napoleon, who was in an angry mood, returned to Ms. Collins' apartment and asked her if she wanted him to kill her. He threatened her by swinging his belt at her and then left the apartment. Ms. Collins was so concerned for her safety that she packed her clothing. She called Ms. Buie and, with her children, received a ride from Ms. Buie to a gas station. Ms. Buie at about 9:29 a.m., called the New Haven Police Department and reported the conduct of her son Tyshan. Police shortly thereafter interviewed Ms. Buie and Ms. Collins at the intersection of Whalley and Sherman Avenues. Ms. Buie told police that her son was experiencing a mental disorder, had threatened his girlfriend, was in possession of shotgun, mini-bat and two knives and was extremely dangerous. She also described the 1988 black Ford Explorer he was driving. Ms. Collins related similar information. The Explorer belonged to Ms. Collins.
 
The New Haven Police Department broadcast to its personnel and those of surrounding towns all of the above information as well as the fact that Mr. Napoleon was wanted for the charge of Threatening.
 
After the broadcast various New Haven officers during the period from about 9:29 a.m. - 10:40 a.m., spotted and followed the black Explorer at different locations in the Westville and Hill areas of New Haven. During such period, West Haven police officers also spotted the vehicle traveling in the area of Forest Road in West Haven. West Haven Police followed the vehicle and it re-entered New Haven. As Mr. Napoleon traveled Eastbound on the Oak Street Connector (Route 34) in the area of Church Street, there were several New Haven Police vehicles following it. The Explorer entered I-91 northbound and exited to the left at the Willow Street exit (Exit 6). He proceeded down Ferry Street traveling south. Mr. Napoleon took a right onto Grand Avenue. He proceeded two blocks and was confronted by a stationary police vehicle occupied by Officers Brian Donnelly and Wendy Plowman blocking Grand Avenue.
 
Mr. Napoleon made an abrupt right turn onto Fillmore Street going the wrong way on a one-way street. Officer Thomas Herbert, who was following directly behind the Explorer, indicated in his statement "that the vehicle was approaching a more populated area, with deteriorating road conditions with snow and ice nearby, I saw an opportunity to end the pursuit by making contact with this vehicle with my vehicle and this caused the Ford Explorer to slide into a fire hydrant." Officer Herbert stated that the operator (Mr. Napoleon) exited the Explorer and "pulled out a large weapon from the front seat." Officer Herbert exited his vehicle and assumed a "weaver" stance with his weapon drawn. At such time the officer slipped on the ice and fell on his back. Simultaneously he heard a "bang" and observed Mr. Napoleon holding a shotgun. (It is estimated that the distance between Officer Herbert and Mr. Napoleon at such time was less than 30 feet).
 
Officers Plowman and Donnelly and others assumed that Officer Herbert had been shot. Officer Herbert then sat up and fired several shots at the suspect.
 
Mr. Napoleon ran north on Fillmore Street looking back and then fired a second shot at officers in the area of the Explorer.
 
Detectives Ontoniel Reyes and Keith Wortz, who were involved in the pursuit, were driving south on Fillmore Street and observed Mr. Napoleon approaching them.
 
Mr. Napoleon was at the time being pursued by Sergeant Anthony Duff followed by Officers Plowman and Donnelly.
 
Mr. Napoleon then ran to the left across the street to the north end of the parking lot. He disappeared between two parked cars and reappeared in the parking lot holding the shotgun. During such time, as corroborated by civilian and police witnesses, police were yelling at him to drop the gun.
 
Officer Donnelly positioned himself at the south east corner of the lot behind a 4 foot high cement wall which ran along the eastern perimeter of the lot. Officer Plowman and Sergeant Duff positioned themselves behind the wall at the northeast corner of the lot. Detectives Reyes and Wortz ran into the field at the center northern end of the lot.
 
Each of the officers observed the suspect rack a shell into the chambers and fire in the direction of Sergeant Duff and Officer Plowman, who were about 15 yards from the suspect at the time. Each officer returned fire, whereupon the suspect fell to the ground and again racked another round and fired. Officers returned what were the final shots.
 
Detective Reyes approached the suspect and secured the shotgun while Officer Ortiz handcuffed Mr. Napoleon. Paramedics arrived momentarily and Mr. Napoleon was taken to and arrived at Yale New Haven Hospital. He was pronounced dead at 11:09 a.m.
 
The Major Crime Squad, as part of its investigation in addition to taking statements from police personnel, interviewed nine additional civilian witnesses who witnessed some or all of the sequence of events starting with the stopping of the Explorer up to the shooting of Tyshan Napoleon. None of such statements in any way materially factually deviate from the consistent accounts given by the interviewed police officers.
 
 
The Central District Major Crime Squad, at the request of the State's Attorney's Office for the Judicial District of New Haven, arrived at 255 Blatchley Avenue on March 11, 2005, at about 12:10 p.m. After being briefed, it commenced crime scene processing at 1:45 p.m. Such processing concluded on March 12, 2005, at 8:15 a.m.
 
The scene had been immediately secured by police after Mr. Napoleon was removed from the scene by medical personnel.
 
The processing of the scene included the photographing and videotaping of the area and evidence at the scene; the collection, documentation and examination of evidence; and interviewing of police and civilian witnesses.
 
All of such activity was succinctly and professionally memorialized in reports which were submitted to the State's Attorney's Office.
 
Certain evidence was forwarded to the Department of Public Safety Forensic and Science Laboratory for examination, testing and analysis.
 
Some, but not all of the evidentiary items collected by the Major Crime Squad were pertinent to the reconstruction of events leading up to the shooting, and such items include:
  1. The obtaining of, among other things, the service weapons and magazines and articles of clothing, equipment and gunshot residue kits from Officers Plowman, Donnelly, Herbert, Sergeant Duff and Detectives Reyes and Wortz.
  2. Forty-two shell casings were seized at the scene which were, according to laboratory findings, ejected from five of the six weapons taken by the Major Crime Squad from the involved officers. The following number of casings were found and were identified by the Forensic Lab as having been fired from the weapons possessed by: Officer Herbert, 9; Officer Donnelly, 14; Officer Plowman, 8; Sergeant Duff, 5; Detective Reyes, 6.
  3. Nine fragments of bullets were seized at the scene.
  4. Additional fragmented bullets were found in and around the building at 273 Grand Avenue located on the southeast corner of Fillmore Street and Grand Avenue. Seven bullets struck the structure.
  5. Mossberg Model 500 pump-action12 gauge shotgun with sawed-off wood stock containing three 12 gauge live shells located next to Mr. Napoleon in the parking lot.
  6. Two Remington-Peters expended shotgun shells and one live round found next to Mr. Napoleon. Although up to four shots were fired by Mr. Napoleon at police, only two expended casings were located. The remaining two would probably be on Fillmore Street and may have been undiscoverable due to the covering of snow and ice or may have fallen into a nearby catch basin.
  7. Eight copper jacket projectiles and various bullet fragments seized at the autopsy.
  8. A knife, baseball bat and duffle bag, among other items located in the black Ford Explorer.
Firearms Section
 
The following items, among others, were submitted to the laboratory:
  1. Six Glock 9 .mm firearms with magazines and rounds
  2. Forty-two Winchester fired 9 .mm Luger cartridge casing
  3. Various bullet fragments from the scene
  4. Mossberg Model 500 pump-action 12 gauge shotgun
  5. 2 expended shotgun shells and one live shotgun shells
  6. Copper jacketed projectiles and fragments from the autopsy
The laboratory concluded that the forty-two casings located at the scene were fired from five of the Glock 9 .mm firearms submitted by the Major Crime Squad. (See Forensic Processing of Shooting Scene Section)
 
The laboratory was unable to identify from which weapon the bullets striking Mr. Napoleon were fired due to the condition of the ballistics evidence and the fact that this type of weapon does not lend itself to such testing.
 
The 12 gauge shotgun was test-fired and did not malfunction.
 
 
A postmortem examination was performed on Tyshan Napoleon at the Office of the Chief Medical Examiner, Farmington, Connecticut on March 12, 2005 commencing at 9:35 a.m. The procedure was attended by, among others, members of the Central District Major Crime Squad. The cause of death was determined to be "multiple gunshot wounds".
 
It was observed that Mr. Napoleon had twenty entry gunshot wounds and three exit wounds. Such wounds were in the area of the front chest, upper arm, hand, knee, thigh, back, buttocks and posterior neck. Seven copper jacketed bullets and six fragments of bullets were recovered from Mr. Napoleon during the autopsy. (Such evidence was not in sufficient condition to determine from which weapon they were fired). There was at least one wound which entered, exited and re-entered the body.
 
The pathologist found no soot gunpowder or stippling which would be indicative of the striking bullets being fired from a close distance.
 
A toxicological analysis disclosed the presence of nicotine, caffeine and cotinine (an ingredient of nicotine), in Mr. Napoleon's blood and/or urine and/or gastric contents.
 
All of the injuries were photographed by attending detectives.
 
 
Connecticut General Statutes Section 53a-22 authorizes the use of deadly physical force by a police officer under certain circumstances. Section 53a-22( c) provides, in pertinent part:
A peace officer or authorized official of the department of correction is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force;
The United States Supreme Court has sanctioned the use of fatal force in such self defense situation and found such use of force to be reasonable. See Tennessee v. Garner, 471 U.S. 1 (1985).
 
The United States Supreme Court has indicated:
The 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).
Also, in Graham, the Court stated that:
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. Supra, p. 396-397.
Also;
(T)he "reasonableness" inquiry in an excessive force case is an objective one: the 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. Supra p. 397.
Thus, the subjective intention of an officer whether "good" or "evil" is not the measure in analyzing the reasonableness of an officer's conduct.
 
Also, an officer's actions may be found reasonable even where "officers of reasonable competence would disagree" on the issue. Malley v. Briggs , 475 U.S. 335, 341 (1986).
 
As to the rules prescribed in Graham v. Connor:
Numerous courts have interpreted Graham as requiring substantial deference to the on-scene judgments made by police officers. Russo v. U.S., 37 F. Supp. 2d 450, 455 (E.D. Va. 1999).
In assessing the propriety of an officer's use of fatal force:
(M)ost courts limit the inquiry to the information known by the officer at the time of the shooting . . . and . . . to limit relevant evidence to police officer's actions "immediately prior to the shooting." Russo v. U.S. at p. 455.
Also, it has been held that an inquiry into an officer's actions is limited to whether the officer acted reasonably and not to whether the officer had a less intrusive or invasive alternative available.
Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment. State v. Henrich, 34 F. 3d. 1498 (9th Cir. 1994).
In the best of all worlds, because a human life is so precious, an officer ideally, when confronted with the threat of deadly force, should take the time to dispassionately analyze the parameters of the threat and measure his or her response to that a minimum amount of force is utilized and a minimum amount of injury is inflicted.
 
However, police officers are trained that in reality, the ideal situation rarely, if ever, exists.
(S)tatistics reveal that about 90 percent of shooting incidents take place within a three-second time frame. Within this time frame, a police officer takes appropriate steps to stop the threat and rarely, if ever, engages in a decision making process about his intent or the degree of injury that will be inflicted. The realistic motivation is primarily reactive and designed to stop the threat or the aggressive behavior.
 
Attempts to shoot to wound or to injure are unrealistic and because of high-miss rates and poor stopping effectiveness can prove dangerous for police officers and others. International Association of Chiefs of Police National Law Enforcement Policy Center., "Use of Force", Concepts and Issue Paper, February 1, 1989. P. 4.
 
Accordingly, our law only requires that a police officer must only react reasonably under quickly evolving circumstances.
 
The events leading up to and resulting in the death of Mr. Napoleon are not in dispute. The accounts given by numerous police officers and civilian witnesses are consistent. The findings and conclusions of the Office of the State Medical Examiner and Department of Public Safety Forensic Laboratory are also consistent with the eyewitness account of events.
 
Mr. Napoleon had a history of more than fifteen arrest and convictions, including felonies, and many which included crimes of violence.
 
Around March, 2005, apparently at least in part due to a mental disorder, he was deeply agitated, hostile and threatening. He had been carrying a shotgun in a bag for around the last week. He told his mother he would shoot a police officer before going back to jail. Moreover, he threatened his girlfriend and shortly before the incident he asked her if she wanted him to kill her.
 
Within ten hours of the incident the prospect of jail was more imminent when a "bounty hunter" came to his girlfriend's apartment looking for him.
 
Both Ms. Collins and Ms. Buie felt that Mr. Napoleon was so threatening and capable of violence that it was Ms. Buie's courageous call to police which triggered the events leading up to events at Grand Avenue and Fillmore Street.
 
Mr. Napoleon, for over an hour, refused to stop for pursuing police officers.
 
At around 10:40 a.m., he was forcefully stopped because as stated by a pursuing officer "the vehicle was approaching a more populated area, with deteriorating road conditions with snow and ice nearby, I saw an opportunity to end the pursuit by making contact with the vehicle with my vehicle and this caused the Ford Explorer to slide in to a fire hydrant."
 
It is not without significance that the Columbus Elementary School was in session.
 
The police over the period of more than an hour had exhibited tremendous restraint in the pursuit.
 
Upon the Explorer striking the hydrant, Mr. Napoleon jumped out of the Explorer and without provocation fired a shot at Office Herbert with an extremely destructive and deadly weapon at close range.
 
At this point police had a right to respond with deadly force for their own protection and the protection of the community.
 
Mr. Napoleon fired a second shot and fled into the parking lot.
 
After Mr. Napoleon entered the parking lot, police implored him to drop his weapon. He refused and fired a third shot, then a fourth shot. Police justifiably returned fire after each shot.
 
Two civilian witnesses indicated their admiration for the degree of restraint exhibited by police.
 
Based upon the amount of restraint exhibited by police and Mr. Napoleon's overwhelming response, it could be concluded he was bent upon his own demise. He had numerous opportunities to lay down his weapon. However, irrespective of his own intent, it is unquestionably clear that the officers who fired at Mr. Napoleon had absolutely no alternative means of minimizing the threat posed by Mr. Napoleon to officers and civilians.
 
Significantly, Mr. Napoleon had three rounds remaining in the weapon and if given the opportunity, he would have likely fired such rounds at police.
 
The officers involved in this exchange of fire should be highly commended for their professional conduct. Those who courageously put themselves in harm's way and were involved in the exchange of fire should receive the accolades of the community.
 
It is little less than a miracle that no officers were themselves victims.
 
Moreover, it is hard for one not to reflect on the unfortunate short and long term emotional and psychological stress undoubtedly experienced by such officers when confronted with such a life threatening situation, through no fault of their own, while protecting others and which results in the loss of human life.
 
Although the loss of human life even under these circumstances is a tragedy, it is legally concluded that the officers' use of deadly force in causing the death of Tyshan Napoleon was both reasonable and justified pursuant to Section 53a-22 of the Connecticut General Statutes.
 
RESPECTFULLY SUBMITTED
STATE OF CONNECTICUT
BY
MICHAEL DEARINGTON
STATE'S ATTORNEY
September 30, 2005


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