CSAO: Report of the State’s Attorney for the Judicial District of Hartford Concerning the Officer-Involved Shooting of Gregory Bendas in Farmington on December 12, 2013

Report of the State’s Attorney for the Judicial District of Hartford Concerning the Officer-Involved Shooting of Gregory Bendas in Farmington on December 12, 2013

Introduction | Circumstances of the Incident | Connecticut State Police | Post-Mortem Examination | Recovered Evidence | Gregory Bendas | Other Witnesses | Officer Kyle Mortensen | Applicable Law and Analysis | Conclusion

INTRODUCTION

This report concerns a December 12, 2013, incident in which a Farmington police officer shot and fatally wounded a person in the course of responding to a violent domestic disturbance.

Connecticut law, as in effect at the time of this incident, required that whenever a police officer uses deadly physical force upon a person and such person dies as a result,  the Division of Criminal Justice “shall cause an investigation to be made and shall have the responsibility of determining whether the use of deadly physical force by the peace officer was appropriate under section 53a-22.” Conn. Gen. Stat. Ann. § 51-277a(a). Upon the conclusion of the investigation of the incident, the Division “shall file a report with the Chief State's Attorney which shall contain the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate under section 53a-22, and (3) any future action to be taken by the Division of Criminal Justice as a result of the incident.” Conn. Gen. Stat. Ann. § 51-277a(c).

On December 12, 2013, Michael Pozniak called 911 and told the emergency operator that his adult stepson, Gregory Bendas, had assaulted him in their home on Butternut Drive in Farmington. While en route to the residence, responding Officers Kyle Mortensen and Edward Moehringer heard over police dispatch that Mr. Bendas might have a firearm. In the course of responding to the call, the officers encountered Mr. Bendas in the roadway of Butternut Drive. Mr. Bendas approached Officer Mortensen’s cruiser and began to reach toward the area near his waistband. After ignoring Officer Mortensen’s repeated orders to show his hands, Mr. Bendas produced what appeared to be a black semi-automatic handgun. Mr. Bendas refused to drop the gun and instead pointed it in the direction of Officer Mortensen, who fired three rounds at Mr. Bendas. As a result, one of the rounds stuck Mr. Bendas in the chest and fatally wounded him. Mr. Bendas received medical assistance but was pronounced deceased at the scene.

At the request of the Hartford’s State’s Attorney, the Central District Major Crime Squad of the Connecticut State Police processed the scene and a conducted an investigation of the incident. The undersigned State’s Attorney hereby releases the findings of this investigation.

CIRCUMSTANCES OF THE INCIDENT

On December 12, 2013, at approximately 10:42 p.m., Michael Pozniak called 911 and reported that his adult stepson, Gregory Bendas, had assaulted him in their home in Farmington. Mr. Pozniak later provided State Police with a written statement that related the following information. Earlier on the night of December 12, 2013, Mr. Pozniak had been visiting his wife — who was also Mr. Bendas’s mother — in hospice care. Mrs. Pozniak died while Mr. Pozniak was visiting her. When Mr. Pozniak returned home at around 9:00 p.m., he found Mr. Bendas and Mr. Bendas’s girlfriend in the house. According to Mr. Pozniak, Mr. Bendas appeared to be sleeping in his bed. Mr. Pozniak spoke briefly with the girlfriend who told Mr. Pozniak that she had given Mr. Bendas beer and hard liquor and that they had been consuming alcohol together in the home. Mr. Pozniak argued with the girlfriend about Mr. Bendas’s drinking problem and told her that she knows better than to give Mr. Bendas alcohol due to his tendency to act violently when he is drunk.  He also told her that Mr. Bendas’s mother passed away earlier that night. According to the girlfriend, although Mr. Bendas appeared to be sleeping, he was actually pretending and heard Mr. Pozniak say that his mother died. The girlfriend and Mr. Pozniak continued to argue about whether Mr. Pozniak should tell Mr. Bendas about his mother passing away. Mr. Pozniak eventually drove the girlfriend to her home in Bristol and returned to his home at approximately 10:30 p.m.

At approximately 10:30 p.m., when he returned home from driving the girlfriend home, Mr. Pozniak woke Mr. Bendas up and argued with him about his drinking. Mr. Bendas then told Mr. Pozniak that he overheard him say that his mother died and that he wanted to know why Mr. Pozniak did not tell him earlier. At this point, the argument escalated, and Mr. Bendas began behaving erratically. Mr. Pozniak reported that Mr. Bendas punched a hole in the dining room wall and smashed a light switch, a closet door, and a telephone. Mr. Bendas then grabbed Mr. Pozniak by the throat, pushed him up against a wall and squeezed his neck with both hands. Mr. Pozniak was able to break free and grab a telephone. Mr. Pozniak exited the home and called 911 as he walked across the street to the home of his brother, John Pozniak . When Mr. Pozniak reached his brother’s house, his brother let him in and locked the front door. The last thing Mr. Pozniak saw as he walked into the house was Mr. Bendas walking down the driveway of their home toward the home of John Pozniak.  

Michael Pozniak related the aforementioned details of the incident to the emergency operator. He also informed the operator that Mr. Bendas said, “You were going to hear gunshots in the driveway” if Mr. Pozniak called the police. Mr. Pozniak said, “I didn’t think he had a gun[,] but he said he had a gun.”

At approximately 10:48 p.m., Farmington Police Officers Kyle Mortensen and Edward Moehringer responded to Buttenut Drive in separate police cruisers. Both officers subsequently provided State Police with written incident reports that conveyed the following information. While en route, the officers heard the following information over police dispatch. Dispatch reported that there was an active violent domestic disturbance involving a son and father. Dispatch also reported that: (i) the father stated that the son might have a gun, although he was not entirely sure; (ii) there was a history of domestic violence at the residence; and (iii) the father had walked to another house across the street, locked himself inside that home, and last saw his son walking down the driveway of their home toward the house across the street.

Officer Mortensen reported that as he was driving north on Butternut Drive toward the Michael Pozniak residence, he observed Mr. Bendas walking down a driveway into the street and directly in front of Officer Mortensen’s police cruiser. Officer Mortensen stopped his cruiser, illuminated Mr. Bendas with his spotlight and exited his cruiser. As Officer Mortensen exited his cruiser, he observed Mr. Bendas reach with his right hand toward his lower back in the area near his waistband. Officer Mortensen reported that he then stood behind his cruiser’s driver’s side door and yelled at Mr. Bendas several times to “Show me your hands.”

Officer Moehringer reported that he had been following directly behind Officer Mortensen and recalled Officer Mortensen stopping in the area of John Pozniak’s residence. Officer Moehringer observed Officer Mortensen exit his cruiser and stand behind the driver’s side door. As Officer Moehringer exited his cruiser, he observed Mr. Bendas walking from the area of John Pozniak’s residence and toward the front of Officer Mortensen’s cruiser. Officer Moehringer observed that as Mr. Bendas approached Officer Mortensen’s cruiser, Mr. Bendas had both of his hands behind his back. Officer Moehringer heard Officer Mortensen yell at Mr. Bendas to “Let me see your hands.”

Both officers reported that Mr. Bendas failed to comply with Officer Mortensen’s order to show his hands. Instead, Officer Mortensen observed Mr. Bendas continue to reach for his waistband. At this point, Officer Mortensen reported drawing his service firearm and retreating for cover toward the rear of the driver’s side of his cruiser. As Officer Mortensen retreated to this position, he observed Mr. Bendas produce a “black semiautomatic handgun” and hold it at his right side in his right hand. Officer Mortensen recalled pointing his service firearm at Mr. Bendas’s chest and communicating into his police radio that Mr. Bendas had a firearm. He reported that he yelled at Mr. Bendas to “drop the gun” several times.

As Officer Mortensen retreated toward the rear of his cruiser, Officer Moehringer began walking toward the front of his cruiser, which was parked approximately eight feet behind Officer Mortensen’s parked cruiser. At this point, Officer Moehringer reported hearing Officer Mortensen say, “He’s got a gun.” Officer Moehringer then observed Mr. Bendas put both his right and left hands out to his sides and stop walking. Officer Moehringer reported seeing Mr. Bendas hold a “black automatic handgun” in right hand and point it down toward the ground. Officer Moehringer then moved to the rear of the passenger side of Officer Mortensen’s cruiser to take cover and began yelling at Mr. Bendas to “drop the gun.”

Both officers reported that Mr. Bendas ignored their orders to drop the gun. Mr. Bendas reportedly did not reply to or otherwise communicate with the officers in any manner. Instead, as reported by both officers, Mr. Bendas raised the gun in his right hand and pointed it in the direction of Officer Mortensen. State Police investigators would later estimate that the distance between Officer Mortensen and Mr. Bendas at this point was approximately 42 feet and 5 inches. Officer Moehringer squatted down to reduce the amount of his body visible to Mr. Bendas. Both officers continued to yell at Mr. Bendas to drop the gun. Officer Mortensen reported that because he was afraid that Mr. Bendas was about to shoot him, he fired three rounds at Mr. Bendas with his service firearm.

Both officers observed Mr. Bendas fall to the ground in the middle of the roadway when he was struck by the rounds that Officer Mortensen fired. Officer Moehringer reported that he then proceeded along the passenger side of Officer Mortensen’s cruiser and observed Mr. Bendas lying in the road with his arms above his head. As Officer Moehringer approached Mr. Bendas, Officer Mortensen maintained cover for Officer Moehringer. Officer Moehringer reported seeing a “black handgun” in Mr. Bendas’s right hand and then kicking the handgun out of Mr. Bendas’s hand. After observing Officer Moehringer kick the handgun out of Mr. Bendas’s hand, Officer Mortensen also approached Mr. Bendas. Officer Mortensen searched Mr. Bendas for other weapons and did not find any. He also observed that Mr. Bendas had sustained a gunshot wound to his chest. Both officers reported that Mr. Bendas was gasping for air and unconscious. The officers then retrieved medical equipment from their cruisers and administered oxygen and CPR to Mr. Bendas. AMR arrived on the scene several minutes later and rendered medical aid to Mr. Bendas. AMR personnel observed that Mr. Bendas had sustained two gunshot wounds — one to the chest just below the left nipple and one to the left forearm. They placed Mr. Bendas on a stretcher and moved him to an ambulance. Medical personnel from UConn Health Center arrived shortly thereafter and unavailingly attempted further life-saving measures. At approximately 11:10 p.m., UConn Health personnel pronounced Mr. Bendas deceased at the scene.

CONNECTICUT STATE POLICE

In light of the use of deadly physical force by a Farmington police officer, the Hartford State’s Attorney’s Office was notified and the decision was made to contact the Connecticut State Police Western District Major Crime Unit to process the scene and investigate the incident.

POST-MORTEM EXAMINATION

Connecticut’s Chief Medical Examiner conducted an examination of Mr. Bendas’s body and indicated the following. Mr. Bendas sustained two gunshot wounds — one penetrating wound to the chest just below the left nipple and one perforating wound to the left forearm. The projectile wounding the chest entered the thoracic cavity and perforated the left ventricle and aorta of the heart. The projectile traveled from front to back without significant deviation and was lodged in the mid-thoracic vertebral column.

The medical examiner also performed a toxicological analysis that indicated that Mr. Bendas had a blood alcohol content (BAC) of .260 and that his blood tested positive for the presence of Levetiracetam, a drug used to treat epilepsy. (It is noted that pursuant to Connecticut state law an adult with a BAC of .08 percent or greater is deemed to be legally intoxicated and thus unfit to operate a motor vehicle.)

The medical examiner ruled the final cause of death to be a “Gunshot Wound of Trunk” and the final manner of death to be “Suicide (Deliberately Provoked Police to Shoot).”

RECOVERED EVIDENCE

As part of their investigation into this incident, Connecticut State Police processed the scene and photographed and seized evidence that was recovered.

In addition to the written reports that Officers Mortensen and Moehringer prepared, Connecticut State Police reviewed a videotape of the incident that was captured by a camera mounted on the dashboard of Officer Moehringer’s cruiser. The tape showed the following: At 10:48 p.m., Officer Moehringer’s cruiser arrives on scene in the area of Michael Pozniak’s residence and is parked behind Officer Mortensen’s vehicle. About ten seconds later, the tape shows Officer Mortensen encountering a white male who was walking in the middle of the roadway and who subsequently stopped in front of Officer Mortensen’s cruiser. Officer Mortensen then exits his cruiser. And within approximately eight seconds thereafter, Officer Mortensen is shown drawing his weapon and retreating to the rear driver’s side of his cruiser. Officer Mortensen can be heard giving Mr. Bendas several commands to “Let me see your hands.” Eight seconds later, Officer Moehringer exits his vehicle and walks past Officer Mortensen to the passenger’s side of Officer Mortensen’s cruiser. As Officer Moehringer walked past Officer Mortensen, he can be heard saying, “He’s got a pellet gun.” For the next four seconds, both Officers yell for Mr. Bendas to “drop it” and “drop the gun.” At this point, Mr. Bendas can be seen through Officer Mortensen’s front windshield raising his right hand in the direction of Officer Mortensen. Officer Mortensen fires two rounds at Mr. Bendas; he then fires a third round as both officers crouch down to take cover behind Officer Mortensen’s police vehicle. Shortly thereafter, the officers slowly move toward Mr. Bendas to evaluate the situation. About ten seconds later, the officers can be heard moving Mr. Bendas’s gun on the ground. Last, the officers are shown rendering medical aid and CPR to Mr. Bendas for several minutes until paramedics arrive.    

On December 13, 2013, at the request of investigators, Officers Mortensen and Moehringer watched the videotape and prepared supplemental reports concerning the contents of the tape. Officer Moehringer reported that the video showed him, at some point, walking in front of his cruiser and “mutter[ing]” that “he’s got a pellet gun.” Officer Moehringer reported that he did not remember saying this and believed that he might have said it as “a hypothetical question in my mind of whether [Mr. Bendas] was in possession of a pellet gun or a real gun.” Officer Moehringer also stated that “handgun” in Mr. Bendas’s right hand was “black” and “consistent with a semiautomatic handgun.” Officer Moehringer added that he “reacted to [Mr. Bendas’s] threat, believing at all times that he was holding a handgun,” including crouching behind Officer Mortensen’s cruiser when Mr. Bendas raised the handgun in Officer Mortensen’s direction and removing his service weapon from his holster.

Officer Mortensen reported that videotape showed him taking cover behind the rear driver’s side of his cruiser and pointing his firearm at Mr. Bendas and shouting at Mr. Bendas to drop the gun. Officer Mortensen reported that tape also showed Officer Moehringer at this point walk toward the front of his cruiser and say “he’s got a pellet gun” as he walked past Officer Mortensen. Officer Mortensen maintained that he did not recall hearing Officer Moehringer make this statement or any other statement as he walked by him. Officer Mortensen was also given an opportunity to review the police dispatch recordings pertinent to the incident. After reviewing the dispatch recordings, Officer Mortensen reported that at the exact moment at which he was making the radio transmission that Mr. Bendas had a firearm; Officer Moehringer was simultaneously walking by Officer Mortensen and making the pellet gun comment.

State Police investigators also recovered the following evidence in the course of their investigation. In the area of the roadway near 1 Butternut Drive, investigators seized three Federal brand .45 caliber expended bullet shell casings. All three casings were located behind the rear of Officer Mortensen’s cruiser. State Police retrieved from Officer Mortensen his service Glock .45-caliber handgun, which still had nine rounds in the loaded magazine and one round loaded in the chamber. State Police seized one bullet projectile that the medical examiner extracted from the body of Mr. Bendas. State Police determined that the other two rounds that Officer Mortensen fired struck his police cruiser. One projectile struck his cruiser near the driver’s side B-pillar, and the other projectile struck the driver’s side exterior spotlight. A ballistics analysis confirmed that all three bullet casings were fired from Officer Mortensen’s service handgun.  

In the area of the roadway near Michael Pozniak’s residence, State Police seized a black Pulse P50 facsimile handgun. It was located in close proximity to a bloodstain on the pavement where Mr. Bendas fell after being struck by Officer Mortensen’s gunfire. Although the facsimile handgun is made of plastic and fires “airsoft” BBs, State Police reported that it is a “visual replica of a real handgun.” Furthermore, State Police indicated that the orange safety-tip on the barrel of the gun had been painted black “in an attempt to make the Pulse facsimile handgun appear real.”

With the consent of Mr. Pozniak, investigators performed a cursory search of his residence. As they walked through the home, investigators observed a broken cordless phone, a broken light switch, a broken closet door and a hole in the wall consistent with the size and shape of a fist. Additionally, investigators identified several items of interest in Mr. Bendas’s bedroom, including: (i) two empty and one opened “Natty Daddy” 24-ounce beer cans; (ii)  four empty Jim Beam 1.7-ounce “nips;” (iii) a file box containing 14 rounds of 9 mm ammunition; (iv) four pill bottles — one containing Levetiracetam (a prescription medication used to treat epilepsy that may cause the side effect of suicidal behavior), one containing Risperidone (a prescription medication used to treat schizophrenia and bipolar disorder), one containing Naproxen (used to treat pain and inflammation), and one containing folic acid; (v) an ammunition box containing a black leather holster, a child safety lock, a .45 caliber round, and 12-gauge shotgun shells; and (vi) a tackle box containing gun cleaning items, ear protection, a holster, a pocket knife and numerous rounds of live ammunition.

GREGORY BENDAS

Mr. Bendas was a 43-year-old white male. State Police later performed a search of Mr. Bendas’s criminal history, which indicated that Mr. Bendas was on supervised pretrial probation. Furthermore, between October 2012 and August 2013, Mr. Bendas had been charged with Assault, Strangulation, Unlawful Restraint, Violation of Probation, Violation of a Protective Order, Evading Responsibility, Operating Under Suspension and Breach of Peace. Farmington Police records also indicated that Michael Pozniak’s residence had a history of domestic disturbance calls, including one incident that resulted in Mr. Bendas being arrested for Breach of Peace in the 2nd Degree. Mr. Bendas had previously registered three firearms — two long guns and one handgun — with the State. He also was in possession of an unregistered long gun. Prior to the incident, the State had revoked Mr. Bendas’s Connecticut Firearms Permit. According to Farmington police records, Mr. Bendas transferred his firearms to a friend in 2011.   

Investigators were unable to take a statement from Mr. Bendas before he passed away, but they were able to gather background on Mr. Bendas from his stepfather, girlfriend and friend. Mr. Bendas’s stepfather, Michael Pozniak, told investigators that he had married Mr. Bendas’s mother when Mr. Bendas was two. He further reported that Mr. Bendas had been struggling with substance abuse for several years and was addicted to Oxycodone and alcohol. According to Mr. Pozniak, over the past several years Mr. Bendas had entered several detox facilities, received treatment for seizures at hospitals and took medication for anxiety and seizures. Mr. Bendas had been living with Mr. and Mrs. Pozniak on and off for the past four or five years. In the fall of 2013, Mr. Pozniak had kicked Mr. Bendas out of the house for approximately a month. And around October 2013, Mr. and Mrs. Pozniak allowed Mr. Bendas to move back in the home after he completed a detox program. Mr. Pozniak reported that although prior to the incident Mr. Bendas never assaulted Mr. Pozniak or his wife, he would become very angry and violent when he drank and had been arrested for previous domestic incidents. Mr. Pozniak stated that over the past two years when Mr. Bendas was drunk, he would make comments about wanting to kill himself. Mr. Bendas reportedly told Mr. Pozniak that when his mother died, he would die, too. Mr. Pozniak believed that Mr. Bendas was bluffing to get attention, and he was not aware of any actual suicide attempts by Mr. Bendas.

Regarding this incident, Mr. Pozniak reported that at approximately 9:00 p.m. he returned to his home at 3 Butternut Drive from visiting his wife, who had passed away that night after a two-year battle with cancer. He encountered Mr. Bendas — who appeared to be sleeping — and Mr. Bendas’s girlfriend in the house. Mr. Pozniak and the girlfriend argued about Mr. Bendas’s drinking problem after she admitted to giving alcohol to Mr. Bendas and consuming alcohol with him earlier that night. Mr. Pozniak claimed to have previously banned the girlfriend from his home and warned her that she should not give alcohol to Mr. Bendas because he acts violently when he drinks. Mr. Pozniak and the girlfriend also argued about Mr. Pozniak’s refusal to tell Mr. Bendas that his mother had passed away that night. Mr. Pozniak then drove the girlfriend to her home and reported returning home around 10:30 p.m., at which point Mr. Bendas awoke and began arguing with him. Mr. Pozniak warned Mr. Bendas that he would have to find another place to live if he did not stop drinking. Mr. Pozniak reported that the argument escalated when Mr. Bendas asked him why he did not tell him that his mother had passed away. Mr. Bendas reportedly “snapped” and began to yell and break things. Mr. Pozniak reported that Mr. Bendas then punched a hole in the dining room wall, smashed a light switch and pushed a closet door off its track. Mr. Pozniak pushed Mr. Bendas away from the closet door and warned Mr. Bendas that if he did not stop he would call the police. Mr. Pozniak reported that as he picked up a cordless phone to call the police, Mr. Bendas grabbed the phone and threw it into the floor, causing it to smash into pieces. Mr. Bendas then pushed Mr. Pozniak in the chest so that Mr. Pozniak’s head struck the front door. Mr. Pozniak attempted to move away and told Mr. Bendas not to touch him, but Mr. Bendas pushed him against the door again. Mr. Pozniak and Mr. Bendas moved into the kitchen, where Mr. Bendas began punching cabinets. Mr. Pozniak again tried calming Mr. Bendas down and grabbed him by the arm. Mr. Pozniak reported that Mr. Bendas grabbed him by the throat with both hands and squeezed his neck for several seconds. Mr. Pozniak was able to get away, grab another cordless phone and walk outside. As he walked across the street toward his brother John’s home, Mr. Pozniak told the emergency operator that Mr. Bendas assaulted him, that Mr. Bendas warned there would be gunshots if he called the police, and that he was unsure if Mr. Bendas actually had a gun. As Mr. Pozniak entered his brother’s home, he looked back and saw Mr. Bendas proceeding down the driveway toward the brother’s home, but he could not tell if Mr. Bendas was carrying something in his hand. Once in his brother’s house, Mr. Pozniak sat down in the living room for one or two minutes and then heard multiple gunshots. Immediately before the gunshots, Mr. Pozniak could hear a police officer yelling, “Let me see your hands” and “drop the gun” numerous times. Mr. Pozniak did not witness the shooting itself; his brother looked out the window after hearing the shots and told him that the police were administering CPR to Mr. Bendas.

Mr. Bendas’s girlfriend also provided investigators with a statement. Mr. Bendas and his girlfriend had known each other for two years at the time of the incident. The girlfriend reported that during their relationship, Mr. Bendas was an alcoholic and addicted to pain medications. She also reported that Mr. Bendas had been hospitalized and participated in detox programs and was prescribed anti-seizure medications. According to the girlfriend, during the entire time she knew Mr. Bendas his mother had been ill. She claimed that Mr. Bendas was very upset over her illness and had a difficult time getting along with his stepfather. The girlfriend recalled that Mr. Bendas told her of a recent incident in which Mr. Pozniak and Mr. Bendas had a heated argument and Mr. Pozniak poked Mr. Bendas in the chest. Moreover, Mr. Bendas seemed “depressed” to the girlfriend, especially since his mother entered hospice care. On one particular occasion approximately three to four weeks before the incident, she recalled that Mr. Bendas and she were in his bedroom when he produced what he called a “toy gun.” Mr. Bendas said to her that if the gun were real he would shoot himself. He also reportedly said that “if I waved this at a cop[,] I could get them to shoot me.”

Regarding this incident, the girlfriend reported that three days before the incident Mr. Bendas told her that he had said his “good-byes” to his mother. According to her, he seemed depressed and told her that he was drinking. On the morning of December 12, Mr. Bendas called his girlfriend and told her that he was going to spend the day helping a friend clean out his garage. The two talked again later that afternoon when Mr. Bendas told his girlfriend that his friend gave him beers, that she should come over to his house and that she should bring him more alcohol. The girlfriend arrived at 3 Butternut Drive at approximately 6:00 p.m. and brought five cans of beer and three “nippers” of liquor. She reported that Mr. Bendas and she listened to music for several hours and consumed the alcohol. Mr. Bendas reportedly drank one beer and three “nippers.” The girlfriend recalled that Mr. Pozniak returned home around 9:45 p.m., at which point Mr. Bendas was, according to her, pretending to be asleep in order to avoid a confrontation with Mr. Pozniak. Mr. Pozniak and the girlfriend argued for several minutes about the fact that she had been banned from the home and that she had given Mr. Bendas alcohol even though he had a drinking problem. The girlfriend reported that at some point Mr. Pozniak “blurted” out: “I don’t need this[;] I just lost my wife two hours ago.” Even though Mr. Bendas appeared to be sleeping, he, according to his girlfriend, heard Mr. Pozniak. Mr. Pozniak and the girlfriend continued to argue over whether Mr. Pozniak should have told Mr. Bendas about his mother’s passing earlier. Mr. Pozniak then threatened to call the police, but he eventually offered to drive the girlfriend home. She and Mr. Pozniak left the house around 10:00 p.m. and arrived at her home around 10:30 p.m.. She then tried to call Mr. Bendas, but he did not pick up. She was not present for the shooting and was not aware of the incident until Farmington Police went to her home at 2:00 a.m. on December 13.

One of Mr. Bendas’s friends also provided State Police investigators with a statement. The friend indicated that he and Mr. Bendas were cleaning out the friend’s garage in Plainville during the morning and afternoon of December 12. According to the friend, Mr. Bendas was acting “really funny” and did not “seem right” while they were together that day. Mr. Bendas reportedly talked “about dying” with the friend some 15 or 20 times that day. More specifically, according to the friend, Mr. Bendas said that he should be dying instead of his mother, that he deserves to die because of all the bad things he has done and that he had thought about committing suicide in the past. The friend also thought it was “funny” that after he drove Mr. Bendas home, Mr. Bendas hugged him and gave him a photograph of them from when they were children. The friend also reported that Mr. Bendas had been depressed about his mother’s illness, that Mr. Bendas would drink and would get “aggressive” and “mean,” and that Mr. Bendas and his stepfather had prior arguments. Mr. Bendas’s friend did not witness the shooting and only learned about it after investigators informed him of it.

OTHER WITNESSES

A third Farmington police officer, Sergeant Stephen Egan, arrived on scene at approximately 10:49 p.m. While en route to the scene, Sergeant Egan had heard police dispatch report that (i) there was a violent physical domestic between a father and son; (ii) the son had attacked the father; (iii) the son may have access to a firearm, although the father was unsure; (iv) the father had fled the residence for his safety; and (v) the son could be seen in the street walking toward a neighbor’s house. Sergeant Egan reported that upon arrival he parked his cruiser directly behind Officer Moehringer’s vehicle, which he observed to be directly behind Officer Mortensen’s cruiser. Sergeant Egan could see Officer Moehringer positioned between Officer Moehringer’s cruiser and Officer Mortensen’s cruiser, toward the rear passenger’s side of Officer Mortensen’s cruiser. But Sergeant Egan reported that he could not see Officer Mortensen or Mr. Bendas. As Sergeant Egan exited his vehicle, he could hear Officers Mortensen and Moehringer loudly yell for Mr. Bendas to “drop the gun” several times. At this point, Sergeant Egan reported that he paused and began to walk toward his vehicle’s vault to retrieve his patrol rifle. Before he could so, he heard several rounds of gunfire and heard the other officers report that Mr. Bendas was down. Sergeant Egan then approached Mr. Bendas to confirm that he was shot, inquired into whether the other officers were harmed, and requested a medical response via his police radio. Sergeant Egan watched as the other officers rendered medical aid to Mr. Bendas and noted that Mr. Bendas suffered one bullet wound to his upper left chest and one bullet wound to his left forearm. Sergeant Egan observed paramedics administer medical assistance to Mr. Bendas until UConn Health personnel pronounced Mr. Bendas deceased. Sergeant Egan remained on scene to secure it and to protect evidence.

Sergeant Egan also took statements from Officers Mortensen and Moehringer at the scene. Sergeant Egan reported that Officer Mortensen told him that (i) as he exited his vehicle, he observed Mr. Bendas in the street with his hands behind his back; (ii) he ordered Mr. Bendas to show him his hands and observed a black firearm in Mr. Bendas’s right hand; (iii) he began to retreat to the rear left side of his vehicle for cover while yelling at Mr. Bendas to drop the weapon; and (iv) he fired at least two rounds at Mr. Bendas when Mr. Bendas raised the firearm. Sergeant Egan reported that Officer Moehringer told him that (i) upon arrival, he parked behind Officer Mortensen; (ii) he observed Officer Mortensen positioned to driver’s side of Officer Mortensen’s vehicle; (iii) he observed Mr. Bendas carrying a black automatic handgun in his right hand and heard Officer Mortensen repeatedly yell for Mr. Bendas to drop the weapon; and (iv) when he moved toward the rear passenger’s side of Officer Mortensen ‘s vehicle, he heard several gunshots.

Butternut Drive is in a residential neighborhood comprised of single-family homes in the Unionville section of Farmington. State Police investigators conducted a canvass of the neighborhood for parties who witnessed the incident. Several residents gave statements regarding their observations.

Michael Pozniak’s brother, John Pozniak, resides across the street from his brother. John recalled that between 10:45 and 11:00 p.m. on December 12, his brother Michael rang John’s doorbell and told him “Gregory attacked me.” John allowed Michael to enter the house, and Michael asked John to close the door. Michael then told John that his wife had passed away earlier that night, that he suspected Mr. Bendas was drinking and that when he confronted Mr. Bendas about his drinking, Mr. Bendas grabbed him by the neck and pushed him against the wall. Michael also informed John that he had called the police as he walked over to John’s house. John stated that Michael then sat down in the living room. John recalled that the police arrived shortly thereafter, as he could see the flashing lights of police cars. John then heard a male voice say “Put it down” several times, followed by the sound of two consecutive gunshots. As John looked out his living room window, he saw a police officer walking towards a person lying in the roadway. He reported that two more police cars arrived and that some police officers administered CPR to the person lying in the road. John assumed the person lying in the road to be Mr. Bendas. When Michael asked John if Mr. Bendas was the person who was shot, he said yes. According to John, Michael was “in shock and numb.” John stated that Michael never looked out the window or went outside. John did not witness the shooting itself.

A person who lives at next door to John Pozniak was in his basement with a friend at the time of the incident when he and the friend heard “approximately four gunshots.” The resident’s friend went outside and observed a man lying on the ground and a police officer walking toward the man with his gun drawn. The resident also went outside and observed a person lying in the road and several police officers. A police officer, who had his gun drawn, ran by the witnesses and told them to get back in the house. Once back in the basement, the witnesses observed three police officers administer CPR to the person in the road until an ambulance arrived.

A minor who lives next door on the other side of John Pozniak’s house was on a phone in her living room at the time of the incident when she heard yelling occurring outside her house. She specifically recalled hearing someone yell, “Drop the gun.” Shortly thereafter, she heard what she thought was “four repeated gunshots.” The witness reported that she did not immediately look outside but instead ran into her mother’s room and told her mother to call the police. When the witness eventually looked outside, she observed three police officers rendering medical aid to a person lying on the ground until an ambulance arrived.  

A nearby resident was walking his dog on Coppermine Road at the time of the incident. Butternut Drive is a side street off Coppermine Road. When the witness was approximately 100 yards from Butternut Drive, he saw two police vehicles — a sedan followed by an SUV — drive past him and turn onto Butternut Drive. Within a minute or so, the witness heard someone yell, “Show me your hands,” three or four times, which was followed immediately by the sound of three gunshots. As the witness approached Butternut Drive, the police did not allow him to enter the street. But from his vantage point, the witness observed a person on the ground and two people on their knees by that person. 

Several other witnesses in the neighborhood told investigators that they heard several gunshots around the time of the incident but that they did not otherwise observe anything.

OFFICER KYLE MORTENSEN

Officer Mortensen graduated from the Connecticut Police Academy in May of 2009. State Police obtained a copy of Officer Mortensen’s training records, which indicated that Officer Mortensen successfully completed the State of Connecticut Police Officer Standards and Training (POST) Council Firearms course at the academy. Officer Mortensen’s training records also indicated that he completed many other firearms courses, consisting of numerous training hours, through the Farmington Police Department during the period of 2009 to 2013. On August 21, 2013, Officer Mortensen successfully completed a POST firearms review course. As of December 12, 2013, Officer Mortensen did not have any disciplinary history or complaints in his personnel file.

State Police also obtained a copy of the Farmington Police Department’s Use of Force Policy. The Farmington Police Department authorizes its officers to use deadly force when an officer “reasonably believes that the action is in defense of human life, including the officer’s own life, or in defense of any person in immediate danger of serious physical injury or death.” But the use of force by an officer “will, whenever possible, be progressive in nature, as follows: verbal encounter; use of Taser or OC spray when aggression is shown through actions or words; physical encounter; use of the Monadnock baton; use of less lethal shotgun; use of deadly force.” Officers may only use force “which is necessary and reasonable to control a situation, effect an arrest, overcome resistance to an arrest, or defend themselves from harm.” When force is necessary, an officer should use a degree of force that is “in direct relationship to the amount of resistance offered or the immediate threat to the officer or others.”

APPLICABLE LAW AND ANALYSIS

Use of Deadly Force

Connecticut General Statutes Section 53a-22(c) provides in relevant part that “a peace officer is justified in using deadly physical force 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.”

Officer Mortensen’s discharge of his service firearm, which fatally wounded Mr. Bendas, constituted the use of deadly physical force. Thus, Conn. Gen. Stat § 53a-22(c) controls whether Officer Mortensen’s use of his firearm was justified.

The reasonableness of the officer’s belief that it was necessary to use deadly force is judged from both an objective and subjective standpoint. State v. Smith, 73 Conn. App. 173, 185–86, cert. denied, 262 Conn. 923 (2002) (citing State v. Prioleau, 235 Conn. 274, 286–87 (1995)). First, the officer must honestly believe that the use of deadly physical force is necessary to defend himself or another from the imminent use of deadly physical force. Id. Second, if the trier of fact determines that the officer honestly believed deadly force was necessary, the trier must then determine whether the officer’s belief was objectively reasonable. Id. Regarding the objective reasonableness of the officer’s belief, “the reasonableness is to be judged from the perspective of a reasonable police officer.” State v. Smith, 73 Conn. App. 173, 205 (2002).

The test is not whether it was actually necessary for the officer to use deadly physical force. Rather, it is whether the officer, based on the facts and circumstances known to the officer at the time, believed that such force, as opposed to a lesser degree of force, was necessary; and whether, from the perspective of a reasonable officer in his circumstances, such beliefs are objectively reasonable. See, e.g., State v. Adams, 52 Conn. App. 643, 651 (1999).

The United States Supreme Court has held that “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). In determining reasonableness, a trier must account 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.” Id. at 396-97.

The United States Supreme Court has identified several factors relevant in analyzing an officer’s reasonableness: “[(i)] the severity of the crime at issue, [(ii)] whether the suspect poses an immediate threat to the safety of the officers or others, [(iii)] and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

Officer Mortensen’s account of the incident is largely corroborated by the evidence and statements that State Police recovered in the course of their investigation, as well as by the dash-cam videotape of the incident. Therefore, the undersigned deems Officer Mortensen’s account to be credible.

Officer Mortensen knew of the following relevant facts and circumstances at the time he used deadly force against Mr. Bendas. Officer Mortensen was responding to the report of a violent domestic disturbance that involved a son who had assaulted his father. While en route to the residence, Officer Mortensen heard over police dispatch that the residence had a domestic violence history and that the son might have a gun. When he arrived on scene, Officer Mortensen encountered Mr. Bendas in the road and Mr. Bendas began to approach Officer Mortensen’s cruiser. As Mr. Bendas approached the cruiser, Officer Mortensen observed Mr. Bendas reach toward his waistband with his right hand. Police officers, through training and experience, are aware of the fact that criminals frequently keep weapons — including firearms — in their waistbands. Officer Mortensen gave Mr. Bendas several loud verbal commands to show his hands. When Mr. Bendas refused to comply and continued to reach toward his waistband, Officer Mortensen retreated to the rear of his cruiser and drew his service firearm. Officer Mortensen and Officer Moehringer then observed Mr. Bendas produce what they reasonably believed to be an actual semi-automatic handgun. From their vantage point, which was approximately 42 feet and 5 inches away from Mr. Bendas and unilluminated in the dark of the night, the officers could have reasonably believed Mr. Bendas had a real handgun. This is especially true in light of the fact that State Police later concluded that the gun had been modified to appear more like a real gun. Both officers proceeded to repeatedly yell at Mr. Bendas to drop the gun. But Mr. Bendas neither complied with the orders nor communicated with the officers. Instead, Mr. Bendas raised the gun and pointed it in the direction of Officer Mortensen. Only at this point, when Mr. Bendas pointed the gun directly at Officer Mortensen and Officer Mortensen feared that Mr. Bendas was going to shoot him, did Officer Mortensen resort to deadly force.

Although the review of the dispatch recording reveals that Officer Moehringer made reference to a pellet gun, neither Officer Moehringer remembered making the comment, nor did Officer Mortensen recall hearing it. Officer Mortensen recalled that at the exact moment he was making the radio transmission that Mr. Bendas had a firearm Officer Moehringer was simultaneously walking by him when the pellet gun comment was apparently made. As he fired the rounds, Officer Mortensen crouched further behind his cruiser for his cover and consequently shot his cruiser by accident. This fact further corroborates that Officer Mortensen perceived the threat of Mr. Bendas shooting him as imminent. Officer Mortensen honestly believed that he was going to imminently suffer deadly physical force as a result of Mr. Bendas firing an actual handgun at him from a distance well within the effective range of such a gun. In light of the foregoing facts and circumstances, such a belief was also objectively reasonable. Therefore, Officer Mortensen was justified in using deadly physical force against Mr. Bendas because he reasonably believed such force was necessary to defend himself from Mr. Bendas’s use of imminent deadly physical force.

CONCLUSION

Based upon all the facts and circumstances outlined above, I find that the actions of Officer Mortensen were therefore justified under Connecticut General Statutes Section 53a-22(c). The Division of Criminal Justice will not take any further action.

Respectfully Submitted,

Gail P. Hardy
State’s Attorney
Judicial District of Hartford



Content Last Modified on 6/26/2017 11:43:39 AM