For Immediate Release
August 27, 2008
Senior Assistant Attorney General Jane E. Young
Assistant Attorney General James T. Boffetti
New Hampshire Attorney General Kelly A. Ayotte announces that the Attorney General's Office has made a preliminary determination that State Trooper First Class Philip Gaiser's discharge of his firearm in a camper located in the yard at 60 Summer Street in Charlestown, New Hampshire on July 26, 2008, which resulted in the death of Anthony Jarvis, was a justifiable use of deadly force by Trooper Gaiser. In addition, Springfield Police Chief Timothy Julian was likewise justified in using deadly force when he fired his weapon in the direction of Anthony Jarvis as he feared for Trooper Gaiser's life.
I. Factual Background
On Saturday, July 26, 2008, at approximately 7:25 p.m., members of the Western New Hampshire Special Operations Unit (SOU), along with members of the Claremont and Charlestown Police Departments, the New Hampshire State Police, Sullivan County Attorney Marc Hathaway and Assistant Sullivan County Attorney John Bell went to 60 Summer Street in Charlestown to execute arrest warrants for Jesse Jarvis [age 26] and Desiree Wright [age 25]. Jesse Jarvis was wanted for burglary, receiving stolen property, criminal mischief, resisting arrest or detention and receiving stolen property. In addition, he was wanted for a parole violation. Desiree Wright was wanted for forgery. The police had a search warrant to search for Jesse Jarvis and Desiree Wright in all of the buildings and vehicles located at 60 Summer Street, which included a house, barn, horse trailer and camper. Anthony Jarvis, father of Jesse Jarvis, was known to reside in the camper.
Based on previous encounters with Jesse Jarvis, the police suspected that Jarvis was likely to flee and could be armed, violent, or both, which was the reason that the SOU was mobilized. When the police got to the Summer Street address, they learned from the owner of the house that there were weapons in the house. However, the owner was unsure if Jesse Jarvis knew about the weapons, or if there was ammunition in the house.
Upon arriving at 60 Summer Street, members of the SOU worked to secure the scene, by removing people from the property and locating officers on the perimeter. The officers determined that the camper was occupied and directed the occupants to exit the camper. One individual, Daniel Allain [age 26], exited the camper and was taken into custody. The other occupant, Anthony Jarvis, remained inside. Claremont Sergeant Stan Andrewski stood outside the camper, along with Trooper Alex Lee, who had his service dog. Trooper Lee announced several times, "State Police canine. Come out now or I will send in the dog." Sergeant Andrewski attempted to persuade Anthony Jarvis to leave the camper, explaining that they had a search warrant. However, Anthony Jarvis refused to comply. He was screaming things such as I didn't do anything wrong, you are not going to take me alive, I'm not going without a fight, I'm not going back to prison, and if you send this dog in, I'm going to kill it. Sergeant Andrewski thought that Anthony Jarvis was either drunk or on drugs because his conduct went through quick changes of being enraged, calm, and unresponsive.
Almost immediately upon their arrival, the police located Desiree Wright and took her into custody. Officers then attempted to locate Jesse Jarvis and determined that he was in a room on the second floor of the house. Jesse Jarvis subsequently surrendered and was taken into custody without incident.
The police then focused their attention on Anthony Jarvis, who continued to refuse to come out of the camper. County Attorney Hathaway and a few of the police officers who were present learned from Desiree Wright, following her arrest, that there was a gun in the camper. County Attorney Hathaway also knew that Anthony Jarvis was a convicted felon and that he had been convicted for being a felon in possession of a dangerous weapon. As discussed below, there are differing accounts about whether the information about the gun was communicated to Chief Julian, the commander of the SOU, or Trooper Gaiser.
Chief Julian decided that an SOU member would throw a diversionary device commonly known as a "flashbang", a non-lethal device used for distraction purposes, into the camper. Thereafter, Trooper Gaiser would enter the camper with his Taser, a non-lethal weapon that uses an electrical shock to temporarily disable a person resisting arrest.
After the diversionary device was deployed, Trooper Gaiser entered the camper with his Taser drawn, Chief Julian was close behind, outside the doorway. Immediately upon entering, Trooper Gaiser saw a muzzle flash and felt a bullet pass close by his head. Trooper Gaiser fired his Taser and, at the same moment, was fired on again by Anthony Jarvis. A bullet struck Trooper Gaiser in the upper right thigh and he fell to the floor. Trooper Gaiser was subsequently hit in the finger and right leg by additional gun fire as he was attempting to gain cover. The Trooper then positioned his body in a corner of the camper in an attempt to take cover from Anthony Jarvis's repeated gunfire. Once he realized that he had been shot and that the shooting continued, Trooper Gaiser took out his firearm (.45 caliber) and returned fire. A large number of shots were exchanged between the men. Anthony Jarvis fired between 8 and 16 shots at the Trooper. Trooper Gaiser fired his firearm 16 times.
During the encounter, Trooper Gaiser yelled that he had been shot. Upon hearing that, Chief Julian entered the camper and fired at least three shots from his weapon (.223 caliber semi-automatic rifle) in the direction of Anthony Jarvis, who was positioned at the rear of the camper.
When Trooper Gaiser heard the gunfire stop, he holstered his weapon. Sergeant Andrewski removed Trooper Gaiser, who was incapacitated, from the camper. All of the shots fired were from within the camper. No officers outside of the camper fired their weapons.
Once the officers determined that it was safe to re-enter the camper, they did so and determined that Anthony Jarvis was dead. At Jarvis's feet was a 9mm Ruger with an attached laser. The Ruger was locked back and the laser sighting system was activated. The police also found four fully loaded magazines for the Ruger near Mr. Jarvis's body. Investigators interviewed Desiree Wright following the shooting. She said that she had been in the camper the previous night and saw a 9 mm pistol between Anthony Jarvis's legs.
An autopsy performed by the Deputy Chief Medical Examiner Jennie V. Duval, M.D., determined that Anthony Jarvis was shot and killed by bullets from a .45 caliber gun. Toxicology results revealed that, at the time of death, Anthony Jarvis had a blood alcohol concentration of .324. There were a total of 15 gunshot wounds on Anthony Jarvis's body, including graze wounds and superficial injuries. Anthony Jarvis sustained 2 fatal wounds to his trunk.
Investigators determined that Trooper Gaiser's injuries were consistent with those from a 9mm weapon. They retrieved a 9mm bullet from a compartment area in the camper, immediately behind where Trooper Gaiser was standing when he entered the camper, and above the height where his head would have been.
II. Legal Analysis
A. Use of Deadly Force by Law Enforcement, RSA 627:5
The Attorney General's Office conducts an investigation whenever a law enforcement officer fires a gun in the course of his duties, which results in injury to another. The purpose of the investigation is limited to determining whether in firing the gun, the officer's action was justified under RSA 627:5.
RSA 627:5, II (a), provides that a law enforcement officer is justified in using deadly force only when he reasonably believes such force is necessary to defend himself or a third person from what he reasonably believes is the imminent use of deadly force. "Deadly force" means any assault which the person commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury. Purposely firing a firearm capable of causing serious bodily injury or death in the direction of another person constitutes deadly force. RSA 627:9, II.
Based on the events that transpired in the camper, it has been preliminarily determined that the actions of both Trooper Gaiser and Chief Julian were justified under the law. Trooper Gaiser entered the camper after a non-lethal diversionary device was deployed to distract Anthony Jarvis. The Trooper intended to use his Taser to immobilize Anthony Jarvis, so that Jarvis could be removed from the camper. However, Anthony Jarvis immediately fired at Trooper Gaiser, and continued to fire despite Trooper Gaiser's effort to Taser him. After Jarvis fired at him, Trooper Gaiser had a reasonable belief that deadly force was being used against him and was therefore legally justified in defending himself by firing his gun. Chief Julian fired his weapon after hearing Trooper Gaiser yell that he had been shot and hearing continued gunfire. At that point, the Chief was legally justified in believing that it was necessary to use deadly force to defend Trooper Gaiser and others in close proximity to the camper from the continued use of deadly force.
B. Entry into Anthony Jarvis's Camper
There were differing accounts among the law enforcement members present as to the specific legal basis and purpose for entry into Anthony Jarvis's camper. County Attorney Hathaway told investigators that Desiree Wright informed him, after her arrest, that there was a gun in the camper. He did not specifically communicate this information to the police, but thought that the information about the gun was widely held at that juncture. He recalled having a discussion about whether or not Anthony Jarvis needed to be dealt with that night. He believed there was probable cause to arrest Anthony Jarvis for several crimes, including felon in possession of a firearm, hindering apprehension and disorderly conduct. He did not feel the police could leave Anthony Jarvis there. He believed that there were exigent circumstances, specifically a present risk to others in the neighborhood, sufficient to justify entering the camper to seize Anthony Jarvis without a warrant. He did not recall speaking to Chief Julian, but believes that information about the legal basis to seize Anthony Jarvis was relayed to the Chief.
Assistant County Attorney Jack Bell said that after Jesse Jarvis's arrest, he, Attorney Hathaway and Captain Casey had a discussion about Anthony Jarvis. They decided that given Anthony Jarvis's refusal to comply with officers' requests, his level of agitation, and the possibility that he had a gun, the police could not leave without dealing with Jarvis. It was decided that Anthony Jarvis should be removed from the camper and arrested for interfering with the execution of a search warrant, in violation of RSA 642:1, and, if a weapon was found in the camper, for being a felon in possession. Assistant County Attorney Bell did not recall how this decision was relayed to the other officers.
Claremont Captain Colby Casey explained to investigators that he learned from Newport Officer Gregory Belisle that Anthony Jarvis might have a gun in the camper, and they spread the word. He passed that information on to Trooper Gaiser, in person, because there was some difficulty with radio communication. He conveyed the information to other officers as well. He had a discussion with Officer Belisle, County Attorney Hathaway, and Assistant County Attorney Jack Bell about how to deal with Anthony Jarvis given that Jarvis was a felon, possibly had a gun, was in an agitated state and continued to refuse to leave the camper. It was decided that they would get a search warrant for the gun. However, they did not want to leave Anthony Jarvis in the camper while a warrant was being obtained because it was everyone's belief that Anthony Jarvis at any moment could come out. Captain Casey recalled that County Attorney Hathaway instructed the police to remove Anthony Jarvis from the camper, arrest him for interference with the service of a warrant and then secure a search warrant. As this decision was being made, Chief Julian called him and asked how they were to proceed. County Attorney Hathaway repeated the instructions, which Captain Casey conveyed to Chief Julian – get Anthony Jarvis out of the camper, arrest him, secure the camper, and they would come back with a search warrant.
Claremont Captain Mark Chase recalled that Captain Casey told him that there was information that Anthony Jarvis was a felon and had a gun, so they needed to deal with him.
Chief Julian told investigators that he never saw the search warrant that was being executed, nor was he briefed about its contents. He assumed the warrant was for Jesse Jarvis and perhaps for a gun that Jesse had possibly taken. It was his decision to forcibly enter the camper. At the time, he did not know that Anthony Jarvis was a felon or that he might have a gun. He decided to enter the camper because the police were there to execute a search warrant of the house and outbuildings and they could not do so safely while Anthony Jarvis remained a threat. County Attorney Marc Hathaway had told him prior to arriving at the scene that anyone who interfered with the execution of a search warrant could be arrested and charged with obstruction of governmental operations. Chief Julian did not recall having any discussion with either Captain Casey or County Attorney Hathaway about whether there was legal authority to enter the camper or possible criminal charges.
Trooper Gaiser told investigators that after Jesse Jarvis was arrested, he thought that the purpose of the search warrant had been accomplished and the police could leave the area. He then went over to speak to Trooper Lee and Sergeant Andrewski, who were standing next to the camper. Sergeant Andrewski told him that the search warrant had not been fully executed because it included the camper and there was second individual named in the warrant who was believed to be on the property. At that point, Chief Julian approached Trooper Gaiser and had a conversation about entering the camper. Chief Julian asked if he had any experience with flashbangs and whether he would be willing to enter the camper to take the individual inside into custody. He agreed and suggested that he use his Taser. Trooper Gaiser assumed that the individual in the camper was going to be arrested for interfering with the execution of a search warrant. Based on the conversations he had overheard between that individual and Sergeant Andrewski, he viewed the situation as non-lethal; one involving the removal of a belligerent, intoxicated and non-compliant individual. He had been given information earlier that there may be a weapon in the camper but it was not clear that the individual knew the weapon was there. Sergeant Andrewski told him that he could see the man inside the camper and that he was not armed. He and Chief Julian did not discuss the possibility of a gun. When he entered the camper he did not know that Anthony Jarvis was a felon or that he was suspected of being in possession of a weapon.
Sergeant Stan Andrewski said that he was standing adjacent to the camper at the time of the entry, but was not involved in the decision to enter. He recalled hearing someone say that they had permission to go in and get Anthony Jarvis, but does not remember who said that. He also remembered County Attorney Hathaway's name being mentioned as the one giving permission. He was not aware of any meeting to discuss the decision to enter, nor was he involved in any decision-making process concerning the tactics to be used. He was under the impression that there were arrest warrants for two people and only one had been taken into custody. He recalled that while he was trying to convince Anthony Jarvis to come out, he heard from someone that there was a gun in the camper.
Newport Corporal Patrick Zullo told investigators that after Jesse Jarvis was arrested Chief Julian asked him to go over near the camper because there was a search warrant for that area as well. Chief Julian was trying to organize the tactical team. The radio communication was difficult as some could hear while others could not hear. At some point, Chief Julian told them there was going to be a count-down, then a bang (the flashbang being deployed), and then the officers would form a stack and enter the camper. Corporal Zullo did not know how the plan was formulated or why Trooper Gaiser was the first to enter. Chief Julian told them that he had information that there was a firearm in the camper.
Newport Officer Gregory Belisle said that he learned from Desiree Wright that there was a gun in the camper. Because his radio was not working, he had to yell across the field to other police officers to give them that information, including to Trooper Lee, who was in the path to the door to the camper, Chief Julian and Sergeant Andrewski. He yelled a few times about the gun and was surprised that people were not moving back from the camper. Officer Belisle recalled that Captain Casey, County Attorney Hathaway, and Attorney Bell were discussing the gun, as well as whether the camper was included in the search warrant. They decided that Anthony Jarvis needed to be arrested for obstructing government administration. Captain Casey was able to communicate with Chief Julian by cell phone and relayed their decision about arresting Anthony Jarvis, although he did not know what was said.
Trooper Lee stated that while he standing by the camper, he heard someone yelling from the street that there was a gun in camper, but did not know who yelled it. Chief Julian told him that they were going to arrest the person in the camper for obstruction of the execution of a search warrant.
Some of the law enforcement officers believed there was a search warrant for the camper when they entered, while others believed there was exigency to enter the camper based on the information that Anthony Jarvis may be a felon in possession of a firearm and based on his behavior at the scene. Regardless of these differing beliefs, it is clear that Anthony Jarvis was informed of the police presence and their intent to enter the camper. Sergeant Andrewski told Anthony Jarvis that they had a warrant and asked Jarvis to come out of the camper and he would show Jarvis the warrant. Even if Anthony Jarvis believed that the officers had no authority to enter, he was not legally justified in using deadly force against Trooper Gaiser. The law provides that when an entry is unlawful or an arrest is made without a legal basis, the person must nonetheless acquiesce to the show of police authority and cannot commit additional crimes against the police. See RSA 642:2 (a person is guilty of a misdemeanor when he knowingly or purposely physically interferes with a person recognized to be a law enforcement official seeking to effect an arrest or detention of the person or another regardless of the legal basis for the arrest); State v. Panarello, ___ N.H. ____ (decided April 22, 2008) (declining to hold that after an unlawful entry, evidence of subsequent crimes against police officers must be suppressed as such a rule would produce intolerable results such as a person who correctly believed that his home had been unlawfully entered by the police could respond with unlimited force and, under the exclusionary rule, could be effectively immunized from criminal responsibility for any actions taken after that entry.)
The circumstances surrounding the entry into the camper, including the process by which the decision to enter was made and the tactics used throughout the incident, warrant further review. However, such review falls outside the limited scope of the Attorney General's investigation, which focuses only on the legal analysis of the use of deadly force. Accordingly, the Attorney General has referred this matter to the Police Standards and Training Council. The Police Standards and Training Council has been asked, and has agreed to conduct a thorough review of the police actions in this matter, the current training and model protocols made available for such teams, and to incorporate into future training for special operations units any additional training they determine to be necessary.
The Police Standards and Training Council consists of 12 members including two Chiefs of Police from towns, two chiefs of police from cities, two county sheriffs, two judges, the chancellor of the community college system of New Hampshire, the Director of the Division of State Police, the Attorney General, and the Commissioner of Corrections. RSA 188-F:24. The Council's duties include establishing curriculum requirements for advanced law enforcement training courses. The Council is also authorized to consult and cooperate with law enforcement concerning the development of police training and of standards and methodology for the voluntary accreditation of police departments in the State. RSA 188-F:26, V and VI.
The Police Standards and Training Council, made up of this broad cross section of the criminal justice system, is the appropriate authority to determine if the circumstances of this incident warrant changes to the standards, training, or accreditation of special operations units. Independent of her role in determining whether the specific use of deadly force that occurred here was legally justified, the Attorney General and members of her office will work with the other members of the Council to ensure that a further review of this incident is completed.
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