The Burlington police officer
who fatally shot a mentally unstable man outside his family’s New North End
home this month after investigators say the man threatened him with a shovel
was a defendant in a lawsuit that alleged police brutality.
Documents on file at U.S.
District Court in Burlington show that Cpl. Ethan Thibault and a second
officer, Cpl. David Clements, were sued for unlawful trespass, battery and
false imprisonment in connection with their handling of a Nov. 29, 2005, report
of a man and woman fighting.
The city of Burlington agreed
to settle the case in early 2010 for an undisclosed amount of money, according
to court records and to an interview with one of the attorneys in the case.
“The amount of the settlement
was confidential, but I can tell you my clients were well pleased with the
resolution,” Steven Adler, the St. Johnsbury attorney for the plaintiffs, said
Friday.
Attempts to reach the
plaintiffs, Kevin J. Cobbs, 29, and Marlana M. Fichtner, 34, were unsuccessful.
Thibault did not respond to a
request for comment.
Burlington Police Chief Michael
Schirling, in response to an inquiry by the Burlington Free Press, reviewed the
2005 case Friday and said it appeared that Thibault was not responsible for the
portion of the lawsuit that alleged excessive force.
“That component was not
relative to Cpl. Thibault’s actions,” Schirling said. He said neither Thibault
nor Clements were found to have violated police procedures and were not
disciplined.
Thibault is under investigation
by Burlington police and by the Vermont State Police over his decision to fire
four shots at Wayne J. Brunette outside his Randy Lane home Nov. 6. Brunette
was pronounced dead 40 minutes later at Fletcher Allen Health Care.
Thibault and another officer
had gone to the home after police received a call from Brunette’s parents, who
said Brunette was destroying property and acting irrationally.
According to police records,
Brunette was shot within 2 minutes and 31 seconds after Thibault and the other
officer, Cpl. Brent Navari, arrived on the scene. The authorities have said
Brunette was wielding a long-handled spade-type shovel.
In an affidavit from the 2005
incident authored by Thibault, he said he and Cpl. Clements went to a King
Street apartment after a caller told the police about seeing a man strike a
woman in the apartment and then close the apartment’s window shades.
Cobbs, a sometime amateur
boxer, refused to tell the arriving officers who he was, the affidavit stated.
Cobbs also told the officers to leave the apartment and, when they refused to
do so, became belligerent and tried to strike Thibault.
“Cobbs swung his arms in a
punching motion and struck me in the nose,” Thibault wrote in the affidavit. “I
then attempted to strike back to defend myself and regain control of Cobbs.”
At one point, Cobbs and
Clements fell to the floor during the scuffle as Clements tried to get Cobbs in
a neck restraint. Cobbs then tried to kick Thibault, who wrote that he “struck
Cobbs in the face with a front punch to defend Officer Clements and myself.”
Fichtner meanwhile tried
repeatedly to get between Cobbs and the two officers throughout the episode,
the affidavit stated.
Cobbs and Fichtner were
arrested and charged, but their cases were dismissed after Judge Michael
Kupersmith ruled in 2006 that the officers lacked the legal authority to be in
the apartment the pair occupied.
“It was quickly apparent that
there was no emergency and no need for their assistance,” Kupersmith wrote in a
27-page decision. “The court concludes that the officers’ warrantless entry
into the defendants’ home was unlawful.”
Kupersmith said he was
dismissing all charges against the couple because “it seems unreasonable to
punish someone who impedes a police officer or resists or hinders an arrest
without using unreasonable force, when the person accurately perceives that the
police entry into the home is unlawful.”
The lawsuit
The lawsuit by Cobbs and
Fichtner against the two offices followed. It was filed initially at Chittenden
Superior Court and later was transferred to federal court.
Thibault was dropped as a
defendant in the lawsuit in September 2009 when federal Judge J. Garvan Murtha
ruled that the lawyers for the plaintiffs had missed a court-imposed deadline
for serving the policeman with notice of the lawsuit.
Murtha ruled that the lawyers
wrongly claimed they couldn’t serve Thibault with court papers by the deadline
because he was serving with the Vermont Air National Guard in Iraq. Thibault
was actually on duty at the Burlington Police Department at the time, Murtha
wrote.
Records on file at Vermont
Superior Court in Burlington show that, in 2007, Cobbs was convicted of three
counts of domestic assault involving a confrontation with Fichtner at a South
Burlngton apartment.
Cobbs was sentenced to 4-12
months in jail, all suspended, and was placed on probation.
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