Circumstances of the Incident | Applicable Law | Conclusion
Section 51-277a of the General Statutes provides that, whenever a peace officer in the performance of his or her duties, uses deadly physical force upon another person and such person dies as a result thereof, the Division of Criminal Justice shall cause an investigation to be made and shall determine whether the use of deadly physical force was appropriate under section 53a-22 of the General Statutes.
On February 7, 2012, a Norwich police officer used deadly force resulting in serious physical injury to Fernando Velasquez in the City of Norwich.
Supervisory Inspector Philip Fazzino was notified after the shooting and inspectors immediately went to the scene. The Connecticut State Police Eastern District Major Crime Squad conducted the investigation in conjunction with inspectors from this office. Detective Daniel Cargill submitted the completed investigatory case book, which this writer has incorporated into the instant report. It should be noted that this investigation was unduly delayed by attorneys for the City of Norwich police union, who refused to allow investigators to interview police witnesses on the night of the shooting and hampered investigators’ efforts to obtain signed incident reports from the same police witnesses.
It is the conclusion of the undersigned that we cannot prove beyond a reasonable doubt that a crime occurred. Accordingly, no further action will be taken by the Division of Criminal Justice.
CIRCUMSTANCES OF THE INCIDENT
On February 7, 2012, at approximately 8:48 p.m., the Norwich police received several 911 calls reporting a disturbance outside 89 Oneco Street in the City of Norwich, involving six to eight individuals who appeared to be fighting. One caller indicated the disturbance may involve knives.
Norwich police Officer Chase Chiangi stated in his written report that at approximately 8:30 p.m. he was dispatched along with other officers to a reported fight involving knives in the area of 85 Oneco Street. Officer Chiangi was the first officer to arrive on the scene. He stated he observed approximately five males fighting in the middle of the street. As he ordered the individuals to get on the ground, one of the individuals, later identified as Fernando Velasquez, refused to obey the orders and approached Officer Chiangi in an aggressive manner flailing his hands and shouting obscenities. Officer Chiangi stated that he removed his OC spray and pointed it at Fernando Velasquez. Fernando Velasquez continued to disregard Officer Chiangi’s commands and aggressively approached him while removing his outer clothing and shirt. Fernando Velasquez told Officer Chiangi that Officer Chiangi was going to have to kill him because he was not going back to jail. At this point, Fernando Velasquez lunged at Officer Chiangi and began striking Officer Chiangi’s head and upper body with his closed fists. Officer Chiangi stated that he was unable to use his OC spray because Fernando Velasquez was already too close to use the spray without contaminating himself. As Officer Chiangi struggled with Fernando Velasquez, they both ended up on the ground. Officer Chiangi stated that he shouted to any other officer at the scene for help and to get Fernando Velasquez off of him. Fernando Velasquez was gouging Officer Chiangi’s eyes to the point where he believed he was about to lose consciousness. Officer Chiangi stated that he then heard a gunshot and Fernando Velasquez said he had been shot. Initially, Officer Chiangi did not realize that Fernando Velasquez had been shot by a Norwich police officer because he was dazed as a result of his struggle with Fernando Velasquez.
Officer Chiangi was transported to William W. Backus Hospital where he was treated for his injuries. He suffered a left hip strain, a scratch on the cornea of his right eye and abrasions and bruises to his left shoulder and left waist area.
Officer Mark Dean of the Norwich Police Department stated in his written report that on February 7, 2012, he was on patrol riding along with Officer Greg McDonald, when they were dispatched at approximately 8:48 pm., along with other officers, to 89 Oneco Avenue for a report of a fight involving knives. When they arrived at the scene, Officer Chiangi was already present. Officer McDonald exited the cruiser before it came to a complete stop. Officer Dean stated that as he exited his cruiser he observed Officer Chiangi and Officer McDonald on the ground with Fernando Velasquez, who was actively resisting and fighting the two officers. As Officer McDonald and Officer Chiangi were attempting to restrain Fernando Velasquez, Officer Dean observed Fernando Velasquez’s son, Anthony Velasquez, approach. Officer Dean stated that Officer McDonald then pointed his duty weapon at Anthony Velasquez and ordered him to stop. Anthony Velasquez continued to approach and Officer Dean ordered him to stop. As Officer Dean attempted to place Anthony Velasquez under arrest he heard a gun discharge. Officer Dean stated he turned around and observed Officer McDonald holding his duty weapon in his right hand. Officer Chiangi then came to assist Officer Dean in his attempt to control Anthony Velasquez. At this point Daniel Rivera attempted to interfere with Officer Dean and Officer Chiangi. Eventually both Anthony Velasquez and Rivera were placed under arrest.
Officer Dean was transported to William W. Backus Hospital where he was treated for his injuries. He suffered abrasions to both knees, a small laceration to his right middle finger and a small cut to his forehead.
Officer Greg McDonald of the Norwich Police Department stated in his written report that on February 7, 2012, he and Officer Dean were dispatched to the area of 85 Oneco Street for the report of an active fight possibly involving knives. Officer Chiangi notified dispatch as he arrived at the scene that the fight was still active. Officer McDonald stated that he and Officer Dean arrived and he observed two males standing in the area of 85 Oneco Street and Fernando Velasquez standing in the middle of the road flailing his arms and yelling in the direction of Officer Chiangi, who was on the sidewalk across from 89 Oneco Street. Officer McDonald stated:
“I immediately exited the cruiser, ran towards Velasquez, and jumped at him, attempting to collar him about the head and neck, but he ducked out of the way and threw me to the ground, causing me to fall on my knees. As I started to get off the ground, Officer Chiangi tackled Velasquez and I saw them both go airborne, with Velasquez landing on top of Officer Chiangi as they hit the ground in front of 89 Oneco Street. Officer Chiangi was on his back at this time and Velasquez was lying on top of him, positioned face to face with Officer Chiangi. I ran towards both Officer Chiangi and Velasquez and jumped on Velasquez and jumped on Velasquez’s back. I then observed Officer Dean run into the fray and begin to strike Velasquez, who was still fighting and resisting our efforts to get him under control. Officer Dean, Officer Chiangi, and myself continued to yell at Velasquez to stop resisting, but he refused to comply.
I continued to strike Velasquez on his backside, which caused him to turn to this left, exposing his right side to me. Officer Chiangi kept yelling at Velasquez to stop resisting, but he continued to flail his arms wildly about, attempting to strike each of us. Another male, this one shirtless, and later identified as Daniel Rivera, walked towards Officer Dean and was yelling at Velasquez to calm down. Officer Dean yelled at Rivera to get back, but Rivera would not comply and continued to yell at Velasquez.
Velasquez continued resisting and as I was on top of him, I observed out of the corner of my eye, another male subject, later identified as Velasquez’s son, Anthony, run out from behind a black SUV, which was parked in the driveway of 89 Oneco Street. Anthony ran towards us, and as he moved closer, I saw that he had his fists clenched. The lighting in the area was dim, and with the information we were initially given regarding subjects with knives and the situation being so chaotic, I was not able to know if Anthony had a weapon anywhere on his person, so I drew my service weapon from its holster, pointed it at him, and told Anthony to get “the fuck” back. Anthony was yelling, “Fuck you, that’s my father! Get the fuck off him!” I continued to yell at Anthony to back away, but he refused to comply, moving closer to me. I then heard Officer Chiangi’s voice become “panicky,” yelling for someone to “hit him,” meaning Velasquez, who was still lying on top of him and still fighting. I head Officer Chiangi keep repeating for someone to hit Velasquez, and as I turned my attention towards Officer Chiangi and Velasquez, I observed that Velasquez was “stretched out,” slightly turned on his left side, and had outstretched his arms over his own head, making impossible for me to observe Velasquez’s hands anymore. I could tell Velasquez had his hands buried beneath him, within the area where Officer Chiangi’s head was positioned on the ground. As soon as Velasquez’s hands were no longer in view, the pitch in Officer Chiangi’s voice became more elevated at this time.
At this point, I feared for Officer Chiangi’s life and believed he was in grave danger, with Velasquez possibly causing serious injury to him, so I used my service weapon as an impact weapon swinging my right hand in a downward motion, striking Velasquez in his right side. As I made contact with Velasquez’s right side, my service weapon discharged. Velasquez stopped fighting and rolled onto his right side, making a “moaning” sound, and then rolled onto his left side. It was then I noticed Velasquez had been shot. Officer Chiangi was able to get off the ground at this time, and when I looked at him, he appeared to be in extreme pain.
Velasquez was yelling, “You shot me nigga! Ah nigga, you shot me! I gotta good lawyer Nigga! I’m callin’ the Bulletin! Hold my hand nigga, hold my hand!” I immediately radioed to Dispatch a subject had been shot and to “roll” medics. Velasquez attempted to get up off the ground, but I told him to relax and lie still until help arrived. Velasquez’s son, Anthony, was still being combative and he began moving towards his father and myself after the shot was fired. I told Anthony to back away, but he refused to comply, so I sprayed Anthony with my CapStun. Officer Dean then got Anthony to the ground and handcuffed him. I again radioed Dispatch, asking them if the medics were on the way.”
Officer McDonald was transported to William W. Backus Hospital where he was treated for his injuries. He suffered abrasions and bruises to his right knee.
Neighbors who lived on Oneco Street were interviewed by investigators to determine if they had witnessed the incident. At approximately 2248 hours Linda Allen provided a written statement. She stated she was in her house at approximately 8:45 p.m. when she and her husband, Richard Allen, heard yelling from outside. Linda Allen stated she called 911 and explained to the police that there were 6 or 7 men pushing and shoving each other in the street and thought it was evolving into a dangerous situation. Mrs. Allen stated one police officer arrived first and parked in front of her house. She stated the officer yelled to the individuals that she saw fighting to get on the ground as he walked down the side of the street. Mrs. Allen stated one male approached the officer, removing his shirt in a defiant manner, yelling at the officer. Mrs. Allen stated based on the male’s actions she assumed the guy was intoxicated. Mrs. Allen stated she observed a younger second male in front of the house and neither of the males was following the commands given by the officer. Mrs. Allen stated about 15 or 20 seconds later two more police officers arrived. She stated the second officer grabbed the older male from behind and then the other two officers assisted in bringing the man to the ground. She continued to state it appeared the older guy was face down on the ground and one officer had his weapon drawn. She stated the officer was possibly kneeling on the male with his weapon possibly against the guy. Mrs. Allen stated one officer instructed the second male to get on the ground or he was “going to shoot him” and maybe 5 or 10 seconds later she heard a gunshot. Allen further stated that she only heard one gunshot and she did not know who fired the shot but assumed it was the officer giving the verbal commands with his gun drawn. Mrs. Allen stated after the gunshot she observed one officer walk away into the street and he appeared to be injured or had hurt his side. She stated the EMT’s arrived and tended to the older guy who continued to act defiant and continued to yell at everyone. Mrs. Allen stated she wanted to clarify what she said earlier in her statement. She explained, the officer who had his gun drawn and was giving verbal commands to the older guy, told the younger guy who was standing to get on the ground or he was going to shoot the older man he was kneeling on.
At approximately 2239 hours Richard Allen provided a written statement. Mr. Allen stated he was in his house with his wife Linda at about 8:45 p.m. when he heard a commotion coming from outside at the residence across the street. Mr. Allen stated he saw what he thought were 6 men and 1 woman who were fighting each other. He stated his wife Linda called 911 to report the disturbance. Mr. Allen stated after she called 911 he told her to call again and to tell them to send more than one cop because it was getting bad. He stated within a minute or so at least two or three men got into a small car which was low to the ground and drove towards Backus Hospital. Mr. Allen stated the first Norwich officer arrived and told the guys who were there, “Get down on the ground! Get down on the ground!” and at that point he saw one of the men start to engage the officer. Mr. Allen stated it was the guy who he knows lives at that house and that guy was being belligerent to the officer, yelling, “Fuck you!” as he ripped off his shirt. Mr. Allen stated the guy was completely defiant towards the officer, not doing what he was told. Mr. Allen stated that two other officers arrived and the three officers wrestled the guy to the ground. Mr. Allen stated the defiant guy continued to attempt to free himself from the officers. He stated it was obvious to him that the defiant guy wanted a fight. The officers were yelling to him, “Stop struggling, stay down! Stop it, stay down, stay down!” Mr. Allen stated the defiant guy had plenty of chances to stop and listen to the officers. He thought one of the officers yelled something about staying down and something about a shot. He stated he is not clear about what the officer said specifically, but he took it to be a command. Mr. Allen stated about a minute after that he heard what he thought was a gunshot. Mr. Allen stated after hearing the shot the defiant guy was still trying to get up, and was still yelling at the cops when the ambulance arrived. Mr. Allan recalled seeing the defiant guy behave like this on about a half dozen occasions in the past. That night the defiant guy was screaming, “Fuck you! Fuck you!” in the ambulance as he was being treated.
Investigators interviewed participants in the fight and their acquaintances. Daniel Rivera provided a written statement to police. Rivera was under arrest at the Norwich Police Department and voluntarily waived his rights and provided the following written statement. Rivera stated, on February 7, 2012 in the early evening, he was visiting his friend Anthony Velasquez at Anthony’s house located at 89 Oneco Street in Norwich. Rivera explained that he was drinking vodka with Anthony and Anthony’s father, Fernando “Tony” Velazquez. Rivera stated during the evening they were outside Anthony’s house when Anthony and his father, Tony, began to argue. Rivera stated he tried to break up the argument between Tony and Anthony when he was thrown to the ground by Tony. Rivera continued to state Tony then bit his finger as he and Tony were wrestling. Rivera stated he was able to get away from Tony and he sat in his friend, Letiesha Jackson’s car, which was parked in the driveway when Norwich Police officers began arriving. Rivera stated he never saw a fight with the police, but admitted that Tony is violent when he drinks. Rivera stated he never heard a gunshot and never saw any police officer with his gun drawn. River stated after the police arrived he went up to both Anthony and Tony and told them to relax and to stop struggling with the police and that is when he was arrested.
Anthony Velasquez provided a written statement to police. Anthony was under arrest at the Norwich Police Department and voluntarily waived his right and provided the following written statement. Anthony stated that his friend Danny Rivera was at his house on February 7, 2012 drinking vodka. Anthony continued to state that sometime during the evening his friend Kristin Giambattista, and her two friends, that he knows as Chris and Boog, stopped at his house. They were all in the house drinking, getting buzzed. Anthony said his father, Fernando “Tony” Velasquez, was upstairs, drinking malt liquor. Anthony stated that Kristin, Chris, and Boog were leaving when Chris and Danny were involved in an altercation. The altercation occurred outside by Kristin’s white Mistubishi Eclipse, parked directly in front of the house. Chris and Danny were involved in a pushing match, which resulted in them wrestling on the ground. Anthony further stated that his dad came downstairs and saw Chris and Danny getting into it. Anthony, along with his father were trying to break up the fight between Danny and Chris. Anthony stated at some point, for some unknown reason, Danny and his father started fighting. There was a lot of yelling and swearing that definitely alarmed the neighbors. The cops then showed up. Anthony remembers being at the edge of the driveway when he heard a gunshot. He turned around and saw his father on the ground. He believed his father’s shirt was pulled up and saw the wound on his lower back. Anthony did not see who fired the shot, only heard it. Anthony further stated that he yelled, “That’s my father,” and started walking towards him. At least one, maybe two cops, were near his father, possibly over him, but not attempting to subdue him. Anthony stated the police then maced him as he was walking toward his father. Anthony further stated he was arrested and placed, sitting down on the ground, near his father.
Kristin Giambattista provided a written statement. Giambattista stated that she went to Anthony Velasquez’s house on Oneco Street in Norwich on Tuesday, February 7, 2012. With her at that time was Chris Green and Sherrard Mizell. Giambattista stated that when she arrived Anthony, Danny Rivera, and Anthony’s father, who she knows as “Tony,” were drinking and were really drunk. After a while they decided it was time to leave. Giambattista stated she, Chris and Sherrard were in her car, ready to leave when Danny came over to the car and began an argument with Chris. Giambattista stated Chris got out of the car and he and Danny got into a short physical altercation, which ended with them on the ground. Giambattista stated she got out of the car to break it up when Tony came over to her and got in her face swearing and yelling at her. Giambattista stated Tony then pushed her. Anthony stepped in-between her and his father and Tony threw Anthony to the ground and got in her face again. Giambattista stated Anthony again came over as she walked away from Tony. Giambattista stated Anthony and Tony then got into a physical fight, pushing, punching each other and rolling around on the ground. Giambattista stated that she decided to drive off with Sherrard and Chris and as she was driving she saw numerous police cars with their lights on, driving towards Anthony’s house. Giambattista stated that both Anthony and his father, Tony, were very drunk and belligerent.
Christopher Green provided a written statement. Green stated that he went to Anthony’s house on Oneco Street in Norwich on February 7, 2012 at about 8:00 p.m. with Kristin Giambattista and Sharrard. Green stated that Anthony, Danny Rivera, and Anthony’s father were at the house drinking vodka. Green stated Anthony’s dad was hanging out with them and everything was cool when a female friend of Danny’s, named Letiesha, arrived. Green stated it was time to leave and everyone went outside. Green stated that for some reason, Danny started arguing with him. Green stated he got out of the car and he and Danny started getting loud. Danny threw a punch at him and he threw a punch back. Green stated the two of them then began to wrestle when everyone broke them up. Green further stated that everyone was yelling and he knew the whole block heard them. Green stated he said let’s get out of here before the cops come and he and Sharrard got back in Kristen’s car and the three of them left. Green stated as they were leaving, he saw Anthony and his father in each other’s face, arguing.
Letiesha Jackson provided a written statement. Jackson stated that she went to Anthony Velasquez’s house on Oneco Street in Norwich to pick up Danny Rivera. While she was there, waiting outside the house, Danny and Anthony had an altercation with Anthony’s father outside in the front yard. Jackson stated that Anthony’s father was “belligerent drunk” and she and Anthony tried pulling Anthony’s father off Danny. Jackson stated the police arrived and after several attempts at calming Anthony’s father down the police tackled Anthony’s father and were holding him down. Jackson stated Anthony’s father was fighting with the police as they tried to get control of him and one of the officers was telling Anthony’s father that if he didn’t stop he would shoot him. Jackson stated the officer said this several times as he tried to gain control. Jackson stated she recalled seeing the officer that was straddling Anthony’s father try to pull his gun out of the holster and moments later she heard a shot as she was standing behind her car that was parked in the driveway of Anthony’s house.
On February 15, 2012 at approximately 0915 hours Fernando “Tony” Velasquez provided a written statement. Velasquez stated that on February 7, 2012 he arrived at his fiancé’s house at 89 Oneco Street at about noon. Velasquez stated that he stayed at the house during the afternoon of February 7, 2012 with his son, Anthony Velasquez, and Anthony’s friend Danny. Velasquez stated they were all drinking beer and that they all smoked marijuana. Velasquez stated that later in the afternoon, another of his son’s friends, Crystal arrived at the house with two black males. Velasquez stated they all hung out at the house drinking, eating, playing video games and smoking marijuana. Velasquez stated that sometime after dark, Crystal and the two black males were outside getting ready to leave when Danny began arguing with one of the males. Velasquez stated he then went outside and had to pull Danny out of Crystal’s car to try to stop him from fighting. Velasquez stated he held Danny on the ground until Crystal and the black males left. Velasquez stated that after Crystal left he began verbally arguing (“screaming and yelling”) with Danny and Anthony outside in front of the house. Velasquez stated that within seconds another of Danny’s friends pulled up in a dark colored car. Velasquez stated that at about the same time, three Norwich Police cruisers quickly pulled up to the house. Velasquez stated he recognized Officer Dean and Officer McDonald and stated that Officer Dean and Officer McDonald were coming towards him with their guns drawn. Velasquez stated that he was standing in the driveway to 89 Oneco Street. Velasquez stated that when Officer Dean and Officer McDonald were about 3-6 feet away from him he heard a shot. Velasquez stated he was standing, facing the officers, when he was shot in the center of his chest. Velasquez further stated that the bullet then exited his right side. Velasquez stated he did not know which officer shot him but he immediately dropped to the ground, passing out within seconds. Velasquez stated that at no point did he fight with any of the police officers, he was not intoxicated or high at the time, and that he did not resist. Velasquez stated he did not hear any orders being yelled by the police officers. Velasquez stated that after he passed out, the next thing he remembered was waking up at Yale New Haven Hospital two days later.
Fernando Velasquez was initially transported to William W. Backus Hospital for treatment of his injuries. He suffered abrasions to his right and left forearms, to his elbows, to the back of both hands, to both knees and to the right side of his head. Velasquez was diagnosed as suffering from a single gunshot wound with an apparent right flank entrance wound and an exit wound in the center of his chest. The entrance wound was described as a probable close contact wound as there was blast or burn injury measuring approximately 4 cm. across with an entrance wound of about 1 cm. Toxicology report indicated that the serum ethanol level of his blood was 241 mg/dl, which roughly translates to a blood alcohol content of .20. Velasquez was transferred to Yale New Haven Hospital for further evaluation and treatment.
Section 53a-22 (c) of the General Statutes permits a police officer to use deadly physical force upon another person when he reasonably believes such to be necessary to defend himself or a third person from the use or imminent use of deadly physical force. The test to determine reasonableness is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself or another from the imminent use of deadly physical force. Second, the belief must be objectively reasonable. See State v. Smith , 73 Conn. App. 173, cert. denied, 262 Conn. 923 (2002). The burden is on the state to disprove beyond a reasonable doubt the elements of self-defense as set forth in §53a-22. State v. Smith, supra, 73 Conn. App. at 185-86.
The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed it was necessary to use deadly physical force and whether such belief was objectively reasonable, based on the facts and circumstances known to the police officer at the time the decision to use deadly force was made. See State v. Silveira, 198 Conn. 454 (1986), State v. Adams, 52 Conn. App. 643 (1999).
The United States Supreme Court has explained this test in a civil rights case.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on scene rather than with the 20/20 vision of hindsight. . .The calculus of reasonableness must embody allowance of the fact that police officers are often forced to make split-second decisions - in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor , 490 U.S. 386 (1989).
“The appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them.” Scott v. Henrich, 39 F.3d. 912, 915 (9th Cir. 1992).
Based upon the preceding facts and circumstance and the applicable law found in Connecticut General Statutes §53a-22 the undersigned finds that the state would be unable to prove beyond a reasonable doubt that Officer Greg McDonald intentionally used deadly force on Fernando Velasquez. Fernando Velasquez’s version of the incident was not credible and was inconsistent with the statements of witnesses and the description of his injuries. More specifically, medical evidence indicated that Fernando Velasquez was involved in a violent altercation with the police and that the gunshot wound was a contact wound.
I would like to thank the Connecticut State Police Eastern District Major Crime Squad for their role in this investigation. In addition, I would like to thank the Norwich Police Department for its assistance and cooperation.
No further action is to be taken by the Division of Criminal Justice as a result of this incident as it relates to use of deadly force.
Dated at New London, Connecticut this 25th day of October, 2012.
MICHAEL L. REGAN
NEW LONDON JUDICIAL DISTRICT