"the only true surprise… that I’ve ever had in my life"

The New Hampshire Attorney General yesterday released a report concluding that Concord New Hampshire Police Sergeant Steven Smagula did not commit a crime when he shot Patrolman Joshua Levasseur during an unofficial and impromptu training exercise in the middle of the night in a building that was under construction. While I have no reason to dispute the report's conclusion that Sergeant Smagula did not commit a criminal offense, the report is illustrative of the differences between investigations of police officers and investigations by the police of the rest of us. The report also demonstrates the need for effective oversight of police activities - an issue that I will pursue in a later post.

The incident in question occurred on May 1, 2008. Sgt. Smagula, at the beginning of his shift, determined that he would try to arrange an impromptu building search training if it was a slow night. He had been informed of a new bank building that was unsecured and under construction and determined that the officers would use that building for the training. Smagula apparently did not obtain the owner's permission before using the building. The impromptu training occurred sometime after 2:50 a.m. and lasted until approximately 4:15 a.m.. At 4:22 a.m. Concord Police Headquarters was advised by Sgt. Smagula of the training accident.

Th Attorney General was notified of the shooting on May 1, 2008 and issued an preliminary report on May 12, 2008 preliminarily clearing Sgt. Smagula of any criminal wrongdoing. The final report was issued January 12, 2008.

At the outset the reader should understand that there is absolutely no evidence to support a claim that Smagula intentionally shot Off. Levasseur. He clearly did not intend to shoot his officer. The conclusion drawn by the Attorney General is based upon the lack of criminal intent. Nonetheless, it should be pointed out that most civilians involved with accidental discharges face far more immediate and serious consequences. While the state took 8 months to come to a final conclusion in this investigation of a policeman, civilians who accidentally discharge firearms are usually charged immediately.

In the Concord investigation every witness interview, including that of Sgt. Smagula, was recorded. Indeed policemen often claim that the recording of their statements at such inquiries is a right. However, this right is not afforded to the average citizen. Indeed, the New Hampshire Attorney General's Office and the New Hampshire Association of Chiefs of Police have steadfastly opposed legislation that would require the recording of such statements for average citizens. The New Hampshire Supreme Court has also found that no such right exists for the average citizen. See, State v. Barnett, 147 NH 334, 336 (2001)(rejecting the notion that due process requires the recording of custodial interrogations.)

Of course, it also appears as though these officers were trespassing on private property at the time of the accidental shooting. There is no mention of that small fact in the Attorney General's report.

The Attorney General's office also used a very liberal interpretation of the mental state required to commit the crimes of Reckless Conduct in violation of N.H.R.S.A. 631:3. I., and Simple Assault in violation of N.H.R.S.A. 631:2-a. The Attorney General opines that “the evidence supports the conclusion that Sergeant Smagula's conduct in firing the gun was an accident." The report goes on to state:

Although "accident" is not explicitly recognized as a defense in New Hampshire's Criminal Code, it is recognized in our criminal jury instructions and by case law as a defense that should be given at trial if the "theory is supported by some evidence." State v. Blackstone, [sic] 147 N.H. 791, 798 (2002). Here, there is ample evidence to support a claim that the shooting was the result of an "accident" and not criminal conduct.

How many times have defense lawyers and civilians, in general, heard from testifying police officers and state expert witnesses that "there is no such thing as an accidental discharge?" One need only consider the legion of hunting accident cases that result in charges of reckless conduct, simple assault and negligent homicide in this state to know that although we may get an "accident" jury instruction that theory has not stopped the state from bringing charges.
In 2002 I represented a young man, Andrew Kavanaugh, in the Hillsborough County Superior Court. Kavanaugh, believing that his firearm was unloaded, began to clean it and accidentally fired a shot through his apartment wall and into the shoulder of the octogenarian who lived in the next apartment. Clearly the discharge was accidental and there was copious circumstantial evidence of that fact. (More, I dare say, than in the Smagula case). Nonetheless, Kavanaugh was charged. He was ultimately acquitted by a jury but had to spend thousands of dollars to defend himself. Had the prosecutor used the Attorney General's interpretation of "accidental discharge" then, like Sgt. Smagula, Kavanuagh should not have been charged at all.

In the end, I am glad that Sgt. Smagula does not have to face criminal charges. He is a dedicated public servant who was just doing his job. I am sure that May 1, 2008, was, in fact, the "worst day of his life." The Attorney General's Office was right to spare him the agony of a criminal trial.

Hopefully, the same level of factual and legal analysis will be used in the future when civilians accidentally discharge firearms. Hopefully, police and prosecutors will use the same means to protect civilian rights that they used to protect the rights of Sgt. Smagula. Hopefully "equal justice under law" means that the same rules applied to Sgt. Smagula also apply to you and me.

(In my next post I will address the need for more effective oversight of police standards and procedures.)