On December 21, 2017

Prosecutors clear troopers in fatal shooting of man pointing BB gun

By Alan Keays, VTDigger

Prosecutors have cleared five state police troopers of criminal wrongdoing in a fatal shooting that followed a lengthy standoff in Poultney.

A big factor in that decision, according to the prosecutors, was the misleading appearance of a weapon Michael Battles pointed down at troopers from a second-floor window of his home. Officers saw what looked like a silver revolver. It was later determined to be a BB gun.

“This clearly looks like a pistol,” Rutland County State’s Attorney Rose Kennedy said of the BB gun during a recent news conference at the state police barracks in Rutland.

“The fact that Mr. Battles was armed with a BB gun, not a powerful weapon, does not change the reasonableness of the officers’ perception,” she said. “The BB gun was indistinguishable from a more powerful handgun.”

The Vermont attorney general’s office also conducted an independent review of the shooting following an investigation by state police, which is standard procedure in trooper-involved shootings.

Both prosecutors’ offices announced they had reached the same conclusion: The use of deadly force was justified.

Police said that as they tried to arrest Battles, 32, on a warrant for aggravated domestic assault, he repeatedly refused to come out of his home. Early on the morning of Sept. 1, hours after the standoff began, according to police, Battles pointed what appeared to be a silver revolver at them.

That prompted the troopers to open fire, shooting 28 rounds, according to information released Tuesday. Battles was killed by a single gunshot to his head.

“The killing of Michael Battles was justifiable homicide under the law,” Kennedy said Tuesday. “The officers’ decision to use deadly force was also reasonable.”
The real nature of the weapon Battles held didn’t prevent that conclusion, Kennedy said.

The prosecutor added, “Here, the troopers who shot clearly articulated a concern that their own lives were in jeopardy or that their actions were necessary to prevent a shooting of one of their fellow troopers.”

The attorney general’s office agreed. “We support the decision made by State’s Attorney Kennedy and share in that view,” Assistant Attorney General Rory Thibault said at the news conference.

Kennedy said the shooting was not captured on police video, either from body cameras or dashcams inside cruisers. Troopers, she said, do not wear body cameras, and the dashcams were too far away to capture the shooting.

She added that deputies from the Rutland County Sheriff’s Department do wear body cams, but they were also too far away to capture the shooting.

“They were not really significant,” the prosecutor said.

The standoff began on the afternoon of Aug. 31 when a Rutland County sheriff’s deputy was called to Battles’ residence on a report of domestic assault. Police tried to get Battles to come out of his home, according to Kennedy. The officers were told there were firearms in the residence, and Battles was making several threats, referencing an “arsenal” and “something about a .357,” Kennedy said.

“These statements alerted the officers that Mr. Battles may indeed be armed and that he may attempt to use a weapon on himself or on police,” the prosecutor added.

The state police crisis negotiation unit was called to the scene, and additional officers from state police and other nearby departments arrived.

Kennedy said Battles’ behavior became “increasingly erratic and aggressive.” After midnight on Sept. 1, troopers received approval from a judge for warrants to search the residence and arrest Battles on the aggravated domestic assault charge, she said.

As Battles continued to refuse to come out, a tactical vehicle called a Bearcat “breached” the front door of the home, Kennedy said. Battles came out briefly but did not comply with orders from the troopers, telling them, “Guess you will have to shoot,” or words to that effect, the prosecutor said.

He then went back inside and reappeared in the second-floor window with what looked like a silver revolver, appearing to take aim at the troopers below, according to Kennedy.

Four of the troopers below opened fire, as did a fifth, Trooper Eric Vitali, who was 66 yards away lying on the ground in a “sniper” position, according to the prosecutor. A round fired by Vitali, who shot first, was the one that killed Battles, Kennedy said.

Battles was found dead with a BB gun in his hand and another BB gun in his holster, police said. Also in the room, according to police, they found a loaded .22-caliber rifle and a muzzleloader.

Asked why so many shots were fired by the troopers but only one hit Battles, Col. Matthew Birmingham, director of the Vermont State Police, responded, “[Battles] was likely already going down as those rounds were going into the building. Therefore they did not hit him.”

He also said an internal investigation will now take place to determine if any department policies had been violated in the incident.

Birmingham said he welcomed the review by the two prosecutors.

“We must be scrutinized by the public on this. This is why there is an independent review by elected officials on these shootings, and that is an important part of the process,” he said. “But we also need to look where we can change training, where we can change policy, where we can improve on tactics.”

Asked if he believed anything should have been done differently, Birmingham backed the actions of the troopers.
“It’s a matter of the troopers either going to be shot at and killed, or they are going to defend themselves,” he said. “At that point in time, they made the decision they made, and they made the right decision.”

The five troopers identified as firing shots are:
Sgt. Lyle Decker, St. Johnsbury barracks, hired July 12, 2004.
Trooper Matthew Cannon, St. Albans barracks, hired Jan. 16, 2012.
Trooper Eric Vitali, Westminster barracks, hired July 11, 2005.
Trooper Christopher Brown, Middlesex barracks, hired Jan. 16, 2012.
Trooper Michael Anderson, St. Albans barracks, hired June 15, 2011.

Kennedy also said toxicology testing revealed that at the time Battles was fatally shot he had “multiple substances” in his system. Those included sertraline, an antidepressant; alprazolam, used to treat anxiety; benzodiazepines; and cannabinoids. The prosecutor added that she wasn’t sure if he had a prescription for any of those.

VTDigger had twice previously asked the Vermont Department of Public Safety for any audio or video of the incident and been refused because of the pending criminal investigation.

Asked Tuesday if her office and police would now release any video and audio, including of the time leading up to the shooting, Kennedy said they would review any requests.

“We are all on the same page that we’ll certainly look at any [Freedom of Information Act] requests that are made and we will process the requests as they come in,” she said, later adding that she “anticipated” that the recordings would be released shortly.

Pointing to the conclusion of the criminal probe, Birmingham encouraged reporters at the news conference to submit new public records requests for audio and video, saying the situation has changed.

VTDigger submitted requests Tuesday after the news conference to Kennedy’s office as well as the Department of Public Safety and the Rutland County Sheriff’s Department. The requests remained pending late Tuesday afternoon.
Attempts to reach Battles’ family members Tuesday were not successful.

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