CSAO: Report of the State's Attorney for the Judicial District of Fairfield Concerning the Death of Frederick Devon McAllister in Bridgeport on January 31, 2008.

Report of the State's Attorney for the Judicial District of Fairfield Concerning the Death of Frederick Devon McAllister in Bridgeport on January 31, 2008.

July 15, 2008

Investigation | Background | Sergeant Brian Fitzgerald | Decedent | Autopsy | Scene | Witnesses | Observations and Conclusion

I. INVESTIGATION

Shortly after 11:00 pm, January 31, 2008, on the grounds of the Success Village Apartments, Frederick Devon McAllister was fatally shot by a Bridgeport police officer. Pursuant to state law, the undersigned, as State’s Attorney for the Judicial District of Fairfield, has conducted an investigation into this matter.

Connecticut General Statute 51-277a requires the prosecuting authority to conduct an investigation whenever a peace officer, in the performance of his duties, uses deadly physical force upon another person and such person dies. Such an investigation is conducted for the limited purpose of determining whether the use of deadly force was appropriate under section 53a-22 which restricts the use of such force by a peace officer to situations where he reasonably believes that it is necessary to "(1) defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent an escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force."

Pursuant to Division of Criminal Justice protocols, Inspectors from the State’s Attorney’s Office were immediately summoned to the scene to monitor the investigation. The investigative activities of the Bridgeport Police Department were limited to cordoning off the shooting scene until the arrival of specialists from: (a) Connecticut State Police Major Crime Squad, Western District, who processed the scene and collected all evidence; and (b) detectives from CSP Troop G who conducted interviews of police and civilian witnesses.

Thereafter, the autopsy investigation was conducted by the Office of the Chief Medical Examiner in Farmington and all other forensic procedures were performed by the State Police Forensic Science Laboratory in Meriden.

II. BACKGROUND

In the Bridgeport Police Department it is customary to provide at the lineup that commences each patrol shift any intelligence information that may be pertinent to the officers’ ensuing duties. One piece of information that was imparted at the January 31 lineups for both the "C" (2:30 pm to 10:30 pm) and "A" (10:30 pm to 6:30 am) shifts was to be on the lookout for one Justin Dewitt Ellerby. A flyer with Ellerby’s photograph stating that he was wanted on active felony arrest warrants from the State of South Carolina was passed out. Local intelligence gathering further indicated that he was armed with a "Desert Eagle" which is a large caliber (50.cal) and extremely deadly handgun. He was also said to be operating a red/burgundy Chevrolet Tahoe (referred to by some witnesses as Suburban) SUV. Subsequent investigation would reveal that Mr. Ellerby was the decedent’s cousin and that the motor vehicle, which would figure strongly in the night’s events, belonged to the decedent’s girlfriend.

At approximately 8:30 pm, Bridgeport’s Tactical Narcotics Team (TNT) received a radio dispatch from headquarters that an unidentified informant had just called in the fact that Justin Ellerby, armed with a silver .50cal. Desert Eagle hand gun, had just parked a maroon colored Chevy Tahoe bearing a specific registration number on Hewitt Street and had then entered a residence. Both patrol and TNT personnel responded to the Hewitt Street area and set up a perimeter in hopes that Ellerby would soon exit onto the street. After nothing had occurred over the next hour, the perimeter was disbanded and officers returned to other duties. One undercover officer, William Reilly, was left to maintain a surveillance.

Shortly before 11:00 pm Officer Reilly observed two African-American males exit a home on Hewitt Street and walk to the Chevy Tahoe. There, after conversing briefly, one entered the vehicle on the drivers side and proceeded to move off toward Stratford Avenue. From his vantage point Reilly couldn’t tell whether the second male entered the car or not. The officer called the foregoing into his supervisor and began to tail the SUV. As Reilly followed, patrol cars replaced him and, with sirens blaring and overhead lights flashing, attempted to detain the Chevy Tahoe. With this, the operator increased speed dramatically coursing briefly up Bishop Avenue, onto Cross Street and then up Willow Street to Boston Avenue. There, at an extremely busy intersection, he drove across Boston without slowing or stopping and proceeded through the CVS parking lot and onto Carriage Avenue. By this point, the SUV had shaken (albeit briefly) all of the pursuit except Sergeant Brian Fitzgerald who maintained contact up Carriage , across Granfield Avenue and into the Success Village playground as will be described below.

III. SERGEANT BRIAN FITZGERALD

On January 31, 2008, Fitzgerald’s duties were those of a patrol supervisor on the "C" (2:30 pm to 10:30 pm) shift. Consequently, he was present at the lineup when the intelligence information regarding Justin Dewitt Ellerby was passed out. Additionally, it was his squad, assigned to the city’s East Side, that responded to the 8:30 pm call that Ellerby had driven to Hewitt Street, in a red/burgundy Chevy Tahoe and was carrying a Desert Eagle handgun. After the initial stakeout at Hewitt Street was disbanded, Fitzgerald and his squad resumed their normal sector duties until the end of shift. At that point the sergeant proceeded to an overtime assignment at Barnum Avenue and Hallet Street, still on the city’s East Side.

At approximately 11:00 pm, Sergeant Fitzgerald heard the police radio transmission that Officer Reilly had reported that the Chevy Tahoe had departed Hewitt Street and was, at that point, heading up Bishop Avenue. Fitzgerald, intending to intercept, drove east on Barnum Avenue. As he approached the intersection of Barnum and Willow Street, he observed the SUV driving straight at his vehicle, causing him to swerve away to avoid a collision. The SUV then proceeded at a high rate of speed north on Willow. Fitzgerald, with sirens and overhead lights activated, joined the chase as the closest pursuing police vehicle.

When the SUV reached Boston Avenue, it drove directly across that busy thoroughfare, without either slowing or stopping, and then into the CVS parking lot located at the intersection of Boston and Carriage Avenues. There, still pursued by Fitzgerald, the SUV drove over a curb, onto Carriage and, still at high speed, several blocks up to the intersection of Granfield Avenue which serves as the southern boundary of Success Village.

Carriage Avenue forms a "T" intersection with Granfield. The operator of the SUV drove through the intersection, sideswiped a tree, and crashed through a four foot high page link fence. He then continued approximately seventy-five yards into an open play area where he struck another tree head-on ( doing massive damage to the vehicle’s front end) and finally came to a stop thirty feet from the tree and pointed back toward his point of entry on Granfield Avenue. Sergeant Fitzgerald followed through the hole in the fence, brought his patrol car to a stop about thirty feet away from and at a ninety degree angle to the SUV. .The park area was illuminated by the headlights of both automobiles as well as the police vehicle’s overhead strobe lights. Because the SUV was pointed toward Fitzgerald and it was otherwise dark in the park, his initial ability to see what was happening behind the SUV; e.g. the occupants, was somewhat impaired. On the other hand, when the officer had earlier reported to an overtime outdoor worksite, he had reversed his uniform jacket to the yellow night-glow side and now stood out dramatically.

Using the front end of his vehicle, as a partial shield, Fitzgerald scanned the area and saw that the operator had exited the SUV and was advancing toward him. Noticing that the man appeared to be reaching to his front waistband, Fitzgerald drew his service weapon and commanded the approaching individual to stop, drop the gun and show his hands. In response, the man yelled get the ‘_______’ away from me." and appeared to be aiming a weapon at the officer. At this point, fearing for his life, Fitzgerald fired three rounds at the individual, none apparently striking him. As the man then turned sideways toward him the officer heard a gunshot and responded by firing three more shots. The man then dropped to one knee, stood up, threw something to the ground and jogged away from Fitzgerald on a northerly tack parallel to Success Village Apartments. While the foregoing altercation was occurring, Fitzgerald had sighted a second individual just outside of the SUV. His attention, however had been focused on the operator who he believed was shooting at him.

Thinking his second series of shots had injured the SUV operator, Sergeant Fitzgerald took chase. While doing so, he was attempting to keep other responding officers apprised of his situation but had forgotten that, while engaged in the earlier vehicular pursuit, he had turned off his hand-held radio because it created interference. The pursuit proceeded northward for approximately one hundred yards along the parking area of buildings nos. 22 and 21. At the end of building no. 21 the man abruptly turned to his right (east) and entered a narrow walkway that runs between buildings nos. 19 and 20. This walkway is bound on either side by a four foot high page link fence. While running in this direction, the pursued individual appeared to be again reaching into his front waistband. Fitzgerald, now only ten to fifteen yards to the rear, again yelled , "stop, show your hands!" The individual continued to run and then abruptly stopped and, reaching into his waistband with his right hand, turned partly toward the officer. Fitzgerald, thinking the man might be reaching for a second weapon, again ordered him to show his hands. When he failed to comply, the officer fired one single shot, which he thought missed because his target showed no immediate reaction. However, the man then raised his hands and turned facing the officer who, noting a large bloodstain, on the man’s chest, ordered him to the ground. This was approximately fifty yards into the narrow walkway and a total of one hundred-fifty yards from the site of the initial shooting. At this point other pursuing officers arrived.

EMTs were summoned and took the injured man to Bridgeport Hospital where he later expired. There was no handgun on the individual’s person where he fell. The object that Sgt Fitzgerald had observed the man throw to the ground back at the site of the original confrontation was a Blackberry PDA registered in the name of Fred Brown.

IV. DECEDENT

Investigation determined that the individual who Sgt. Fitzgerald had shot was not, in fact, Justin Ellerby. Found in the Chevy Tahoe was a South Carolina motor vehicle I.D. card with the decedent’s photograph bearing the name Frederick Devon McAllister and date of birth of 11/11/72. Investigation of the motor vehicle led to its owner, a Bridgeport resident and the girlfriend of McAllister who she knew as "Fred Brown." Any questions as to identity were resolved by a fingerprint investigation utilizing the FBI’s AFIS system. There, McAllister’s prints were matched to corrections records from South Carolina where he had incurred a number of criminal convictions including one where he had, in 2000, received a sentence of eight years for narcotics trafficking.

Through the girlfriend it was also learned that McAllister/Brown was a cousin of Justin Ellerby who was then residing somewhere in Bridgeport. In decedent’s shirt pocket were found five grams of a substance that tested positive for cocaine. Located in a CD case in the SUV, was a fully loaded unregistered .38 special revolver. Possession of both the cocaine and unregistered handgun are felonies under Connecticut law. Approximately seven weeks after McAllister’s death, his girlfriend was arrested for sale of crack-cocaine. From her it was then learned that McAllister had been dealing crack during their relationship and periodically using her apartment and motor vehicle in connection with those activities.

V. AUTOPSY

The autopsy was conducted at the facilities of the State’s Chief Medical examiner in Farmington on 2/1/08 by Deputy Chief Medical Examiner Dr. Edward T. McDonough III.

Dr. McDonough found an entry gunshot wound in the upper back inside the lower right shoulder blade with a corresponding exit wound near the midline of the upper chest. (upwards, back to front, right to left). Cause of death was categorized as gunshot wound to the chest attributable primarily to massive loss of blood. There were no other injuries of significance. Toxicology analysis conducted on samples recovered at the autopsy revealed an alcohol level of .09%, slightly over the state’s motor vehicle law legal limit.

In view of the fact that the foot pursuit had covered a total distance of approximately one hundred and fifty yards, inquiry was made as to decedent’s ability to run that whole distance after having received an injury such as here. Dr. McDonough was of the opinion that McAllister could have engaged in "purposeful activity" (flight) over that distance. It is therefore conceivable that the fatal injury was inflicted, as Sgt. Fitzgerald believes, during his second three shot series, when decedent had turned sideways to him or had, perhaps begun to flee.. However it appears at least as likely, given the fact that the officer’s last shot was fired as he chased McAllister down the narrow walkway, that the fatal shot came at that point. In any case, there is no evidence of a contact or close range shot.

VI. SCENE

State Police Major Crime Squad, Western District processed the scene. The Burgundy Chevrolet Tahoe was searched. In it were located a small digital scale commonly used in the distribution of narcotics and a fully loaded five shot 38 Special Inter Arms revolver. Near the vehicle, in the location where Sergeant Fitzgerald had observed McAllister drop something to the ground, was a Blackberry PDA subsequently learned to be registered in the name of Fred Brown, the name decedent was more commonly known by in Connecticut.

The Tahoe was located approximately half-way across the field, which would place it equidistant between the apartments’ parking area and the vantage point of witness #1 (see below). Seven expended .40 cal. cartridge cases were collected. Six were found in a group near the front right side of Sergeant Fitzgerald’s police vehicle where he relates that he fired two three-shot groups at McAllister. The seventh was found to the right of the narrow walkway that runs between buildings nos. 19 and 20, approximately one hundred and twenty feet short of the large bloodstain located at the point where the decedent ultimately went to the ground. All cartridge cases were ejected from Fitzgerald’s service weapon.

VII. WITNESSES

State Police investigators canvassed the Granfield Avenue - Success Village area and spoke to over forty persons, a number of whom offered pertinent information.

Witness #1, not a resident of the immediate area, was with a companion, standing near a dumpster located to the west of the Success Village playground, when he/she observed an SUV enter the park from Granfield Avenue pursued by a police vehicle. He/she observed the truck crash into a tree and then saw the passenger stick his arm out of the window and fire at the police car. As the police officer exited his car both the driver and passenger got out of the SUV. The passenger fired one more shot and ran off toward the Success Village buildings. The police officer was returning fire at the driver who then also turned to run off with the officer taking chase and still firing. It appeared to the witness that the policeman was fully focused on the driver and hadn’t even noticed the passenger.

The witness described the SUV passenger as being light-skinned, either Hispanic or Caucasian and wearing jeans and a gray hoody.

Witness #2, a resident of Granfield Avenue, was watching television in his home at about 11:00pm when he/she heard gunshots across the street. He/she heard a total of between seven and nine which "sounded like they were spaced out like two people were exchanging gunfire."

Witness #3, a resident of Success Avenue, was with two friends when they heard a gunshot. They went outside to investigate. As they walked down Success Avenue and reached Court A (the section of Success Village that parallels the area of the initial shooting), a young man walking out of Court A, went past them and then began to run north toward Court D. The witness describes this person as a young man, either white or light-skinned Hispanic wearing a sweatshirt with a hood over his head. The route of travel of this person corresponds with the direction of flight of the SUV passenger provided by Witness #1. A police tracking dog was employed to pursue this factor and was able to follow a trail up into Court D until losing the scent.

Witness #4, a resident of Granfield Avenue was at home when he/she heard sirens coming from a distance. He/she then heard a dragging noise (the SUV crashing through the fence?) And then heard five to seven gunshots. He/she then looked out the front window and saw an individual moving quickly from the park toward the buildings.( cf. Witnesses #1 and #3).

Witness #5 was in an apartment in building no. 20 which parallels the fenced walkway where the foot pursuit ended. He/she was awakened by the sound of voices yelling and looked out the window to see an African-American male running on the sidewalk while being chased by a police officer who was yelling "Stop!" Seconds later the officer fired, and the man fell. Then numerous other policemen arrived almost simultaneously. From his/her vantage point the witness could see that the black man had nothing in his hands.

Witness #6 was in his/her apartment in Success Village when, while working on his computer, he/she was alerted by the sound of approaching sirens. He/she then heard what sounded like a car crash and went to look out his/her window which offers a view into the park area. There he/she saw a dark car stopped in the field and, behind it, a police car. He/she then heard yelling (unintelligible) coming from what sounded like more than one person in the area of the two vehicles. He/she then heard, from the same direction, "certainly seven or more, but probably less than fifteen" gunshots.

While gunshots were still being fired, the witness saw a black male come running out of the darkness. He had nothing in his hands. As he ran he fell and quickly got up and continued to run, all the while holding his right hand to his right hip until he passed out of sight, (e.g. up the narrow, fenced-in walkway that parallels building no. 20). The witness then saw a police officer in pursuit. As the officer passed by and onto the walkway, the witness heard him say into his radio, "I probably hit him."

VII. OBSERVATIONS AND CONCLUSION

It is important to emphasize that the actual event, from the SUV exploding through the page link fence to McAllister’s ultimately going to the ground, was of extremely brief duration; certainly far less in time than it takes to read this report. In its entirety, it lasted only minutes. Consequently, while none of the accounts, that of Sergeant Fitzgerald or of the interviewed witnesses, completely mesh, this is an inevitable development in the investigation of any precipitous and violent nighttime occurrence. While Fitzgerald was mistaken as to who actually fired at him, that mistake was, under the circumstances, clearly reasonable. Two things, however, are abundantly clear. First, Frederick McAllister, upon exiting the SUV was not armed and fired no shots. Second, the police officer was fired upon by the passenger of McAllister’s vehicle; a light-skinned male wearing a gray hooded sweatshirt who ran off through Success Village.

The purpose of this investigation is to determine whether Sergeant Fitzgerald’s conduct was appropriate under Conn. Gen. Stat. 53a-22(c); e.g., in shooting at McAllister did the officer act under a reasonable belief that it was necessary to do so to either, "(1) defend himself.... from the use or imminent use of deadly physical force or (2) effect an arrest.... of a person whom he reasonably believes has committed.... a felony which involved the.... threatened infliction of serious physical injury." The answer on both counts is yes.

Given the intelligence information describing the high caliber-firearm Ellerby was reported to be carrying; given the otherwise inexplicable tumultuous high-speed motor vehicle chase; given the officer’s precarious visibility in a night-glow jacket; given his focus on the SUV operator who moved toward the officer, yelled at him and, instead of placing his hands in the air as commanded, reached to his waistline; Fitzgerald fired the first group of three shots under a reasonable belief that it was necessary to do so in order to defend himself. When he next actually heard a shot come from the SUV, he was even more clearly within his rights in returning fire with a second group of three shots. Further, once he heard that shot, the sergeant had a reasonable belief that he’d been shot at, an attempted assault and a felony involving the threatened infliction of serious physical injury against himself. At that point it was reasonable to believe that the use of deadly physical force was necessary to effect an arrest. That reasonable belief continued through the foot chase that culminated in McAllister’s being fatally shot. Through the entire chase, Sergeant Fitzgerald repeatedly yelled to McAllister to stop and place his hands in the air; instead, he continued to run and reach for his waistband.

Respectfully submitted,

Jonathan C. Benedict
State’s Attorney, Judicial District of Fairfield



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