Attorney General Charity Clark has declined to prosecute Fair Haven Police Detective Shaun Hewitt for charges related to the use of deadly force in a shooting incident involving Kenneth Barber, Jr. on June 19, 2023. The Rutland County State’s Attorney’s Office also declined to prosecute the case after completing its own independent review.
Based on the facts and circumstances and consistent with Vermont law, Attorney General Clark concluded that the use of force by Hewitt was objectively reasonable and justified. Under the totality of the circumstances, Hewitt reasonably believed that he was in imminent danger of being killed or suffering great bodily harm at the hands of Barber , and he used necessary and appropriate force to defend himself. In reaching this decision, the Attorney General’s Office reviewed all materials provided by the Vermont State Police, who conducted the investigation, as well as a report from a use-of-force expert.
On June 19, 2023, Hewitt responded to a call for assistance involving a man, later identified as Barber , who was assaulting his neighbor. When Hewitt arrived on scene, three neighbors were attempting to restrain Barber on the ground. One of the neighbors immediately notified Hewitt that Barber had a gun. As Hewitt assisted in restraining Barber, one of the neighbors was able to remove the firearm from Barber’s waist. Barber refused Hewitt’s commands to put his hands behind his back, instead fleeing to his nearby vehicle.
Hewitt followed Barber to the vehicle and attempted to use non-lethal OC spray, commonly known as “pepper spray,” to subdue Barber , but the OC spray did not deploy properly. Barber subsequently got into the driver’s seat of the vehicle, turned on the ignition and put the car in reverse as Hewitt was standing in the “V” between the open driver’s door and the car frame. Barber ignored Hewitt’s orders, “Don’t do it,” and “Stop,” and accelerated the vehicle in reverse. Hewitt, still wedged in the open door frame, had trouble keeping pace with the accelerating vehicle, and fired one round striking Barber ’s torso.
The vehicle continued in reverse a short distance before coming to a stop and Barber fell out of the open door onto the ground. Hewitt and a nurse who was in the area rendered aid until medics arrived. Barber died in the emergency room shortly after arrival due to the torso wound he sustained in the shooting.
Hewitt reasonably believed that he was in imminent danger of being killed or suffering great bodily harm and was, therefore, justified in using deadly force to defend himself.
Under Vermont law, an officer may use deadly force to repel an imminent threat to cause death or serious bodily injury when the officer objectively and reasonably believes that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury. Furthermore, the use of deadly force is deemed necessary when, given the totality of the circumstances, an objectively reasonable officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the officer or another person.
Under the totality of these circumstances, during and leading up to the shooting, an objectively reasonable officer in Hewitt’s position would have concluded that there was no other reasonable alternative to the use of deadly force to prevent his death or serious bodily injury.
Submitted
