Chittenden County State’s Attorney TJ Donovan announced Monday morning that two police officers have been cleared of any criminal wrongdoing in the shooting of a Colchester man in September. He said at the announcement that the officers were cleared without any body camera video of the incident.
The body cameras were turned off, he said, because officers didn’t want the cameras’ red recording lights or audible recording beeps to jeopardize their safety.
After VPR reported Monday afternoon that the lights and sounds on the body cameras can be turned off while the camera continues recording, Donovan said he planned to open an investigation into whether Burlington police misled Vermont State Police detectives as they investigated the shooting.
“We will investigate whether members of the Burlington Police Department gave inaccurate statements to the Vermont State Police regarding the capability of the camera,” Donovan said.
When asked if it would be a criminal investigation, Donovan said: “Possibly.”
Original Post 2:46 p.m. Donovan said James Hemingway was drunk in a mobile home in the early morning hours of Sept. 20 when a relative asked police to check on him. Donovan said Hemingway was threatening to shoot officers outside the mobile home and had what appeared to be a hunting rifle or other type of long gun. Hemingway also allegedly told police that he had a Mac-11 submachine gun. Ultimately, police said their investigation showed that Hemingway was armed with an air rifle and had a hunting bow and a paintball gun in his home.
Donovan said that after a standoff, Hemingway got into a car and drove down the road toward the police command center for the incident. Burlington Detective Ric Volp shot at the car, Donovan said, after which Hemingway got out and reached into his waistband. Donovan said officers reported having seen a shiny object, and Volp as well as Sgt. Brian Labarge fired at Hemingway more.
Hemingway was injured in the shooting, but recovered after medical treatment. He’s been cited on charges of simple assault on a police officer and aggravated disorderly conduct, Donovan said.
But Hemingway’s defense and the state’s prosecution will lack a key piece of evidence: video from the scene, collected from the body cameras that Burlington’s entire uniformed police force now wears as policy.
Donovan said that police stopped their cameras from recording on the night of the incident because it was dark and the cameras, when recording, have a red light on them that police feared would make them targets for Hemingway.
Donovan’s prepared remarks stated that “for tactical and strategic reasons the cameras were not on during the majority of this incident. Sgt. Labarge and Cpl. Martin turned their cameras off upon arrival at the scene because the cameras have a red light that appears at all times that could make the officers’ locations known to Mr. Hemingway. Officer Wrinn turned her camera off because the cameras periodically make an audible beeping sound to remind officers that the camera is recording.”
Because officers turned the cameras off to avoid the red light and audible beeps, authorities said none of the five body cameras and one cruiser camera on the scene recorded video of officers shooting Hemingway.
Burlington Deputy Police Chief Bruce Bovat said the department hadn’t predicted a situation in which the lights or the sound would be a problem, so officers turned off the cameras for their own safety.
But according to the users’ manual for the Taser AXON body camera that the Burlington Police Department uses, the officers could have continued recording the incident as it unfolded without the cameras making any noise or having any lights on.
On page 13 of the body camera’s manual, Taser describes how volume buttons on the camera can be used to turn off the sound on the camera.
The next section is called “Turning off the Camera LEDs,” and it begins: “For some situations, you may wish to turn off the lights on your camera.”
Then the manual describes that by holding down the "battery" button on the camera for 10 seconds, officers can turn off the camera’s lights. Holding the button for 10 seconds again will return the lights to normal, the manual says.
Bovat, when asked about this after the news conference, said he wasn’t familiar with the department’s training with the body cameras and offered to try to find someone more familiar to be interviewed by a reporter.
“So the media has me on the phone and they say they have the manual for the Taser AXON. That’s the one we have right?” he said to someone after asking a reporter to hold. Bovat relayed the information about the contents of the manual to someone, then said:
“Holy mother of [expletive deleted]. Are you saying that all we have to do is hold the button for 10 [expletive deleted] seconds and it goes to stealth mode, but we can hold it again for 10 seconds and it’ll come back?”
The phone line went silent before Bovat returned to ask for more time, then returned to say he would call back later.
Update 5:07 p.m. Burlington Police Chief Brandon del Pozo said Monday afternoon that officers’ lack of familiarity with the equipment shows a need for additional training.
“Obviously this shows that although we led the state in the deployment of body cameras - that we're the biggest agency and every cop has one - apparently we have a lot of work to do to make sure we have a policy that captures the type of footage we need to capture, especially during a firearms discharge,” he said.
Del Pozo said he plans to work with a consultant from New York who is working with police there on body camera policy. He said changes to Burlington’s body camera policy are coming in a matter of weeks.
“Definitely by the end of the year,” he said. “I’d like to have something in place that anybody could look at, from me to my cops to the press to the public, that just shows that we’ve done it right.”
Donovan, in a statement Monday afternoon, said his office plans to investigate how much Burlington police knew about the cameras.
“It’s become clear throughout the course of the day that we may have received inaccurate information from members of the Burlington Police Department,” Donovan said in his statement. “We relied on the report regarding the officer-involved shooting of James Hemingway by the Vermont state police that relied on interviews from members of the Burlington police department. Those interviews may have contained inaccuracies regarding the capability of the camera. We will now investigate these inaccuracies by members of the Burlington Police Department.”
Update 7:08 p.m. Burlington Deputy Police Chief Bruce Bovat released the following statement:
The investigation into the recent Colchester police-involved shooting shows that the department’s eagerness to field body cameras for the sake of increased accountability outpaced officers’ knowledge about how to use them and the creation of comprehensive policies and training for their deployment. These deficiencies will be remedied in the coming weeks.
The State Attorney’s concern that certain members of the Department may have given the State Police investigators inaccurate information about the capabilities of the camera deserves further review. The Department will fully cooperate with any investigation aimed at clarifying what was relayed to investigators and why.
The Burlington Police Department remains committed to its partnership with the region’s law enforcement agencies and will take great pains to maintain relationships of mutual trust.