PORTLAND, Maine — A federal judge has ruled that an excessive force lawsuit over the death of a troubled Army veteran may go forward but only against the officer, not the police chief or the town of Farmington.
The parents of a veteran suffering from post-traumatic stress disorder who was shot and killed nearly four years ago in front of the Farmington police station filed a wrongful death and civil rights lawsuit in 2013 against the town, Police Chief Jack Peck, and Ryan Rosie, the officer who shot and killed Justin Michael Crowley-Smilek on Nov. 19, 2011.
The Maine attorney general’s office in May 2012 found that Rosie was justified in shooting Crowley-Smilek, 26, of Farmington. The report said that Rosie took cover behind a police cruiser after Crowley-Smilek ignored demands that he take his hands out of his pockets. Rosie fired after the veteran took a butcher knife out of his pocket and charged at the officer.
The lawsuit, filed in November 2013 in federal court in Portland by Hunter Tzovarras, the Bangor attorney representing Crowley-Smilek’s parents, claimed that the veteran went to the Farmington police station the day he was killed to ask for help “regarding mental health services.”
Motions for summary judgment were filed late last year by Tzovarras and Douglas Ian Louison, the Boston attorney representing Rosie, Peck and the town. Magistrate Judge John Rich III issued his 28-page written ruling Sept. 30.
Rich found that the town and Peck cannot be sued under the state’s qualified immunity law. Such statutes protect government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right, such as using excessive force in the case of a police officer.
Rich said he could not determine if Rosie is protected by qualified immunity until after evidence is presented at a trial.
“It appears that Crowley-Smilek was already moving around the cruiser, as was Rosie, before Rosie chose to ‘move out away from the cruiser to take up a firing position,’” the judge wrote. “Rosie’s reasons for doing so are not recounted in the record and appear to me to be significant with respect to the qualified immunity calculus.
“The amount of time spent circling the cruiser, and the time elapsed since Rosie’s call for backup, before Rosie moved away from the cruiser are also relevant but missing facts,” Rich continued. “On the current record, I cannot determine whether Rosie’s action so contributed to the danger he faced that qualified immunity is unavailable.”
A date for a trial, when Rich could hear testimony about “the missing facts,” has not been set.
“We are very pleased the court correctly dismissed the town and the police chief from the lawsuit,” Louison said Tuesday. “The judge’s decision concerning Officer Rosie is not unexpected, given the controverted facts in the case.”
Efforts to reach Tzovarras on Tuesday were unsuccessful.
Crowley-Smilek, who served in Afghanistan, suffered from combat stress and physical injuries from service and had been ordered to seek treatment shortly before the confrontation with police, according to a previously published report.
The bill that created the Maine Veterans Court, which is paired with the state’s mental health court, was submitted in memory of Crowley-Smilek. Signed into law by Gov. Paul LePage, it requires courts to screen veterans who enter the system and to coordinate with administrators at the Togus Veterans Affairs office to ensure veterans know about treatment programs.