Officer in Burlington shooting previously sued over police brutality claim




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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