PORTLAND – A federal judge ruled last week that a civil case relating to the shooting death of a veteran by a police officer in front of the Farmington Municipal Building will proceed to trial on two counts of excessive force.
As part of that same decision, the court granted summary judgements in favor of the officer, police chief and town in relation to seven of the nine counts.
On Nov. 19, 2011, Justin Crowley-Smilek, 28, of Farmington, died in front of the Farmington Municipal Building, where the police station was formerly located on Farmington Falls Road, after he was shot by Farmington police Officer Ryan Rosie following a confrontation. His family said Crowley-Smilek was suffering from post-traumatic stress disorder after having served as a U.S. Army Ranger in Afghanistan and Iraq.
In May of 2012, the Maine Attorney General’s Office ruled the shooting of Crowley-Smilek was justified under Maine self-defense law. Ruth Crowley of Milwaukie, Oregon and Michael Smilek of Farmington filed a lawsuit for the “unlawful use of excessive and deadly force” on Nov. 13, 2013. An amended complaint was then submitted on June 4, 2014, alleging nine counts against Rosie, Police Chief Jack Peck and the town of Farmington.
Counts one and two allege that Rosie utilized excessive force and therefore violated Crowley-Smilek’s federal and state constitutional rights, respectively. Count three alleges that Rosie assaulted Crowley-Smilek.
Counts four and five allege excessive force on the part of Peck and the town, with the plaintiffs claiming that both defendants “failed to properly train Officer Rosie on the use of reasonable force, use of deadly force, and how to interact with individuals with mental illness or in a crisis situation.” Count four relates to excessive force being a violation of Crowley-Smilek’s federal constitutional rights, while count five relates to the Maine constitution. Counts six and seven were additional excessive force complaints alleged against the town, with the plaintiffs claiming that Farmington did not properly train its police officers in the use deadly force or to deal with mental health-related crises.
Count eight was a wrongful death complaint alleged against all three defendants, while count nine alleged that Crowley-Smilek “suffered a period of conscious pain and suffering after being shot by the Defendant, Officer Rosie, and before his death.” The plaintiffs are seeking compensatory and punitive damages, as well as court and legal fees.
Attorneys on behalf of the plaintiffs and the defendants submitted motions for summary judgements, requesting the court rule in their clients’ favor prior to the case proceeding to trial. U.S. Magistrate Judge John Rich III issued a memorandum on the cross-motions on Sept. 30.
In the memorandum, Rich said that he was unable to determine if Rosie was protected by qualified immunity, which protects government officials from civil liability relating to the violation of an individual’s constitutional rights, when he shot Crowley-Smilek. The plaintiffs argue that Rosie had been successfully circling a cruiser to stay away from Crowley-Smilek after he produced an 8-inch knife and that the officer anticipated backup arriving due to a radio call he made for assistance. Therefore, the plaintiffs argue, Crowley-Smilek did not pose an immediate threat to Rosie when he was shot.
In a list of facts that Rich utilized when making his ruling, he noted that “[w]hen Crowley-Smilek was at the back end of the cruiser, Rosie chose to move out away from the cruiser to take up a firing position.” At that point, the factual background indicates, “Crowley-Smilek began sprinting toward Rosie.” The officer then fired repeatedly at Crowley-Smilek.
“So long as the cruiser remained between Rosie and Crowley-Smilek,” Rich wrote in the memorandum, “this standard might have kept Rosie from invoking the protection of the doctrine of qualified immunity. However, the undisputed fact in this case is that, after Rosie stepped away from the protection of the cruiser, Crowley-Smilek began sprinting toward him.”
“In the instant case, 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 went on to write. “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. On the current record, I cannot determine whether Rosie’s action so contributed to the danger he faced that qualified immunity is unavailable.”
Rich concluded that he was unable to determine whether Rosie was protected by qualified immunity with the facts on record. Other disputed material facts include an assertion by the plaintiffs that Crowley-Smilek had discarded the knife and was therefore unarmed at the time of the shooting.
The other seven counts were summarily dismissed, in accordance with the request for summary judgement filed by the attorney representing all three defendants.
Count three, alleging assault, was dismissed with prejudice by Rich after the plaintiffs indicated they did not intend to proceed with the tort claim. As claims cannot be voluntary dismissed in the post-summery judgement stage of a case, the judge himself dismissed it instead.
Counts eight and nine, alleging the defendants wrongfully caused the death of Crowley-Smilek, were dismissed for all three defendants. The plaintiffs failed to address the basis for Peck’s liability, the town of Farmington was immune to wrongful death claims through the Maine Tort Act, and Rosie’s use of force “was subject to absolute immunity absent conduct so egregious as to clearly exceed any discretion the officer could have possessed under the circumstances,” Rich wrote, citing language from a case brought against Waldoboro.
Count four and five both alleged that Peck and the town of Farmington were also liable for employing excessive force against Crowley-Smilek for their “failure to train and supervise Rosie properly ….” The plaintiffs argued that Rosie had not, as of November 2011, taken the Basic Law Enforcement Training Program at the Maine Criminal Justice Academy, had not received training on dealing with emotionally disturbed persons, and had showed “a history of subpar training performances.”
The judge wrote that Peck would have had to have shown “deliberate indifference” for the constitutional rights of people police came into contact with in order for inadequate training to be the basis for liability.
“The plaintiffs recite the ways in which they believe Rosie was inadequately trained,” the judge wrote, “but that is not enough.” Additionally, the memorandum states: “The plaintiffs have not shown that Rosie’s ‘subpar training performance’ was not disciplined or corrected during his training.”
As the court dismissed counts four and five against Peck, it also dismissed those counts against the town of Farmington. The plaintiffs had alleged the town was liable “[b]ecause Chief Peck is liable as a matter of law,” but the judge determined Peck was in fact not liable.
Counts six and seven, alleging that the town’s policies and training regarding the use of deadly force and dealing with people facing mental health-related crises had made them liable for excessive force used against Crowley-Smilek, were also dismissed by the judge.
As a result of the ruling, the plaintiff’s motion for summary judgement was denied and the defendant’s motion was granted in regards to Peck, the town of Farmington and counts eight and nine alleged against Rosie. Counts one and two against Rosie will proceed to trial.
Sad, but it was definitely not the officers fault. The father needs to move on and become a useful force with the police to help mentally disturbed instead of placing blame on the police. The father of faced with the same situation and he had a firearm would have done the same exact thing. Protected himself from death. Sad when anyone dies, especially a veteran.
I am very sorry that the Crowley-Smilek family lost their son and hope that they can find some comfort but I don’t believe that bringing a civil case against the officer, his direct supervisor, and the town of Farmington is the answer.
No amount of “training” can prepare someone to react perfectly to someone else. It is very obvious from the reports that this young man Justin was an unstable person, so to me, no amount of court time or law suits will ever change what happened — sad as it is. All who are involved personally have suffered and will continue to suffer for a very long time.
I personally think that the Farmington Police do an outstanding job facing day to day issues that the general public know nothing about. I can’t even begin to imagine what they see in today’s world, but I want them to know that they do have supporters out here. Please don’t get discouraged in doing your jobs each day. Tragedies like this one will come, but I for one am very thankful that there are men (& women) out there willing to risk their lives to protect us.
Maybe if the people bringing the lawsuit had been more involved before this incident it wouldn’t have happened. Ridiculous to go after the officer; he did not cause this to happen.
This is a sad situation all around but if the the family did not get him help and expected everyone else to do it for them. Now it seems like ether they want to continue to pass the blame or cash in. Shame on them!! The police were just doing there job and given the situation what else could had been done. Frankly if he showed up at your house with a knife what would you had done? Frankly his family should feel lucky this lose cannon did not kill an innocent person, “oh he almost did” or one of them.
I saw Justin the day before this happened. He had his dog with him that he loved, and had with him very frequently. When I asked him about his dog, he very abruptly said it wasn’t his. Justin did not seem to be himself that day, and I thought it was strange. I was saddened at what happened, but I think this should be used as a lesson, not just to a police officer or his family, but if you know somebody and can tell something is not right, maybe we should take the incentive to call an authority or anther family member to get the person help.
I agree that Justins family should have done more to get their son the needed help for his mental health issue instead of blaming all the problems on the police especially Officer Rosie. I My prayers for Officer Rosie to be cleared of all the charges. It makes me wonder if Justins family is just trying to make a few bucks.
@ Marge— Having met all of the principles of this sad event. (including Justin), I doubt the Smilek’s are doing this to try to cash in on their son’s tragic end.
My read on it, is that they are understandably distraught at the events, and are trying desperately to make sense of it all. What they have been told of the events of that day, just doesn’t match up with what they knew of Justin. And since it doesn’t make sense to them, they are trying to find a reason for those horrible events….and since they cannot understand/accept the “Official” narrative, they feel that there must have been something done wrong that cost Justin his life.
I also don’t think they are doing this in an attempt to “punish” Officer Rosie. Rather, from what I understand, they are seeking to push not only the Farmington PD to better/more completely train their officers in dealing with mental health crisis situations, but to send a message across the board, to other municipalities. Unfortunately, the system being what it is, they are forced into the civil courts in order to seek remedy for what they see as a failure of the system.
My support is for the Farmington Police Department and Officer Rosie. End of story.
Statistically, 22 Veterans a day die by Suicide.
It seems that because their sons life was taken they want to ruin the life of the one that took it. How long did they expect the officer to circle the car, the situation could have changed in a heartbeat and we would have had a dead officer, would the parents then be taking their child to court for killing an officer, highly doubtful.
Justin had a huge support group through the V.A and group therapy in Farmington with other veterans he had plenty of people he could call and talk to he chose not to pick up the phone.
Until one walks in an officer’s shoes, one should not judge their actions. Quite often police officers have a split second to decide on an action that may well end the life of someone else, or end in their own loss of life. Everyone else gets all the time in the world to rehash what happens afterwards. Was the officer supposed to continue running around the car? If so, for how long? What happens if he slips and falls? Would we then be looking at a dead officer? What if another person shows up at the same place and becomes an innocent victim? Would everyone scream the officer should have acted faster? At some point the situation needed to be addressed. It is too bad it happened this way, but Justin’s actions were the cause of the end result, not the officer’s. If his parents want change, and not money, then that can be done by speaking out, holding rallies, etc. The fact they seek money through a civil suit does not tend to show they are seeking change in training, as stated, but rather money for their loss. Nobody “forced” them into a lawsuit. They chose to take that action, as their son chose his actions that day.
My thoughts and prayers are with the officer, and all officers as they continue to do a great job in tough times.
Sometimes you can’t help the veteran with mental issues, sometimes you can. The only thing you can do is rest assure yourself that you indeed do all you can do to help, no one knows for sure how much help the family tried to get for Justin, no one knows what was done for him. I do agree that going after officer Rosie is not the answer for the family, its not going to bring him back or give you the comfort of his death. Sometimes you have to just let go and move forward.
Police are charged and tried for “excessive force” all the time everywhere.
Shootings, choke holds, beatings, rough handling, etc. Let the Law take a look at this case against one of its own.
As a fellow Veteran, I understand what “Another Veteran” means as far as the parents mindset. But I also believe that’s not the only recourse. A voice of awareness is a higher road than a civil suit. Nobody wins in this situation.
I support the PD and I think that if they want to blame someone else- look at the VA if their son was not receiving the help he needed and used suicide by cop as his way out. Money won’t bring him back but it will help them with their addictions or revengful way of life. It is tough to get serives from the VA, that is getting better. Have they ever heard of an intervention? I agree with R, I think they would like to see their son in jail and Officer Rosie’s family greiving.
Did the officer have to shoot him several times and cause his death? What happened to talking someone down or restraining them, or even shooting them in an area to injure not kill? I understand the officer felt threatened, but clearly he was the authority in this situation and I feel that he should have handled this situation differently. It doesn’t fill me with confidence that our police force are well trained for the positions they may be put in. I do have respect for police officers and the dangers they are put in. I know I’ll get reamed for these remarks but this is my opinion and I’m sticking to it. I feel sorry for the parents and would want an investigation and answers as well, sure their son needed help..the help he is unable to get now.
What is missing here are provable facts.
Almost two decades ago, I wore a digital recorder about the size of a cellphone on my belt with a tie-clip microphone. It recorded audio of my entire 12 hour shifts on memory cards.
Technology has progressed drastically since the late 90s. Today, we have inexpensive devices that can store WEEKS worth of audio. I can not imagine putting on the uniform for a shift without some way to prove the facts of my interactions with people. And I can not imagine being a police administrator with no way to prove my officers’ actions.
Frankly, I feel the judge in this case erred in questioning qualified immunity based on a scramble around a car. That reasoning fails both legally and practically…but judges have that power. — but, if the officer in this case were wearing ANY kind of recording device, the timeline would be established as fact instead of open to interpretation.
I hope that steps have been taken at FPD to provide officers with such tools, and if not I hope policies are in place that allow officers to provide and use their own devices to document their encounters.
A permanent solution to a temporary problem. I fee and pray for all parties involved . But money will not solve the problem unless it is put to use helping others.
@the question – My thoughts parallel yours. I do believe Officer Rosie felt threatened but I can’t help but wonder why he couldn’t have contained the situation with non lethal shots. As to the comments being made about the family failing Justin, the VA failing Justin – how easy it is to speculate while sitting behind a keyboard. None of us REALLY know what/how much support this young man received. Furthermore, while in a PTSD crisis he might very well have refused assistance. We just don’t know. Nor does the family know why Officer Rosie fired his weapon in a lethal way. Maybe he was justified; hopefully that’s what this trial will determine. At the end of the day it’s a sad situation for everyone. I can’t imagine being in Officer Rosie’s shoes that day nor can I imagine the family’s grief at having lost their son.
Prayers for Officer Rosie and his family
anybody with any knowledge of law enforcement knows that officers are trained to stop a threat. not to do trick shots that you see on t.v. or in the movies. I would welcome anyone who thinks the officer should have shot him in a non-lethal place to go to the range and see how hard it is to hit a small area, especially on a moving target. add to it the fact someone has a knife AND is chasing you AND has the intent to do you harm. or better yet, stand next to someone with a knife who wants to harm you and try to talk them down. that is not reality.
unless any money received from a civil suit is donated towards getting other veterans help, this case looks like nothing more than monetary justice.
I was going to comment on the idea of non-lethal shots by the police but I think “resident” stated it pretty well. Is someone expected to try a few shots at his legs as he’s running toward them — then go for lethal if it doesn’t work? When you’re talking of the distances around a car, time is VERY short. The assailant could be on you in 2 seconds.
In addition to what Resident posted, Tazers are not functional in a situation like this. I have seen other stories and other comments saying a Tazer should have been used. In Tazer training, they tell officers to only use them in combination with lethal force backup if the person has a weapon. This means two officers have to be present. Tazers have two hooks that have to attach on a person. If one misses it does not work. If the person is at a distance, there is an obstruction (like a car), or if the person is moving erratically the chance of a successful deployment is low. A person with a knife can deliver a lethal blow in 2 seconds or less if they are within 21 feet. The average reaction time for an officer to draw a firearm and deliver accurate shots is around 2 secs. A person can continue to fight and stab for several seconds after a fatal gun shot wound. A debilitating non-lethal shot is not realistic. A person shot in the hand, knee, leg, foot, etc can continue to fight and people in the military and law enforcement receive training about how to continue to fight after being shot or injured.
This man was a highly trained military vet, with a large knife (this knife was illegally carried), who had a prior history of violence against local residents. He had also brought a firearm into a UMF basketball game in March 2010 (I recommend you read the story and look at the comments.) This person was not in a position to be reasoned with and he would have been violent if not stopped. An experienced officer may have been able to do something different in this situation. Experience is a wonderful thing that has to be earned, and ever officer has to start somewhere. Talking down a homicidal or suicidal person is not something training can replicate because people are unpredictable. He could have said all the right things, tried to move away, tried to wait for backup and it could have ended up the same way.
It is not fair to Officer Rosie, or law enforcement in general, to expect them to be able disarm people safely. I have a lot of training and still would not feel comfortable disarming someone, especially this person. Knifes are especially dangerous in close quarters. In knife defense training the common rule is run first, then use something to get between you and the knife, and finally try to remove the knife if that is the LAST option. They say plan on getting cut or stabbed in the process and hope its your arms , hands, or other non-vital areas.
This is information for those who do have the education about these topics. I have taught gun and knife defense courses for martial arts and was a police officer in Maine. I am sad someone died. However, Officer Rosie’s life was also impacted negatively after this incident and I feel bad he will continue to have to fight for his reputation in court. I am just glad someone didn’t have to go tell his young children their father was killed by an unstable person with a knife. People need to drop the unrealistic expectations for police officers and stop trying to find someone to blame for everything. A tragedy occurred and we lost a military vet, lets just remember this situation and try to help people in the future. FPD has added body cameras, gotten a safer headquarters, and all the officers in the area have access to better training on dealing with people in crisis. The lawsuit is unnecessary and will only harm Officer Rosie’s already difficult life. We should feel lucky FPD and Farmington didn’t get dragged into a trial. This would have only set back the progress already made and the future work the area could make in responding to these situations.
https://dailybulldog.com/news/man-arrested-after-allegedly-bringing-pistol-to-umf-conference-title-game/
The link to the story.
Please, let’s not blame the family. A hallmark of mental illness is poor judgement. The man was over 18 – not a child. We shouldn’t assume that he would have taken the outstretched hand if it was offered. Anyone who has dealt with this in their family knows how difficult it is to convince a struggling person to get help. The days of having people “committed” were over decades ago. Give the family a break. They’re in pain.
I have one more comment that I hope people read and take a moment to reflect upon. I’ve read over 20 comments under this article where a variety of opinions have been expressed, a few without tact. Everyone is entitled to their opinion. What I take umbrage with are the opinions that criticize the family; saying they failed to help him or that they’re out for a payday. I ask that you put the shoe on the other foot for one moment before you make such negative comments in a public forum. Justin Crowley-Smilek was a person. He was a U.S. veteran of military combat. He was a much loved son, brother, nephew and boyfriend. He had a dog Ranger whom he loved as much as Ranger loved him. Justin also has PTSD which unfortunately affected him terribly. All of these things made Justin human – just like each and every one of us. Think how you would feel if your loved one was killed (whether justified or not). Most of us would leave no stone unturned in our quest for understanding because unfortunately, when a sudden and traumatic death occurs those left behind struggle to find closure. Having strangers publicly speculate on your parenting and motives has got to be hurtful. And is that what we’ve become? A society of faceless names behind a keyboard being unkind to family/friends who have lost a loved one? I sincerely hope we all have more compassion than that.
I have respect for all law enforcement personal as well as for U.S. soldiers and our veterans.I am alarmed however, as is “The question.” Perhaps, rookies should an experienced officer at their sides until they have some real life experience under their belts.
The following is from an article posted shortly after this incident: *** “I hear one shot then three more; four shots total,” he said. Looking over at the municipal building he could see an officer standing there. Heckbert ran across Maple Avenue to his old auto repair shop and saw the officer pointing his gun down at something.
“I thought it was an animal or maybe it was training, I didn’t know. Then I saw him lying there. Another officer came out the front door,” he said. Crowley-Smilek “was lying on his belly with his head turned to the left looking down Route 27. There was a blood trail coming from his head area. ***
Another question I have would be whether or not the officer even bother to administer any type of life saving procedures.
Bob: Thank you!
I am sorry for the family of Justin and the loss incured, I am additionally sorry to officer Rosie who had to deal with this distraught former soldier. I wish this was a article to raise awareness and not one of a civil suit I think Mr. Rosie has been through enough and I wish I had funds enough to provide him money to counter sue the family for all the hardships incurred until the suit is dropped. The damage is done on both ends let’s move fowards and advocate now not sue
I am curious if any of the comments blaming the family make those who posted them feel better.
I’m so sorry Officer Rosie is still having to go through this. Any of you who think things could have gone differently and are so quick to judge I urge you to watch this video on YouTube https://www.youtube.com/watch?v=yfi3Ndh3n-g
I hope it will open your eyes to the realty our officers face everyday and the split second decisions they have to make.
Heidi, I believe the officer did administer live saving procedure. He shot a man running at him and saved his OWN life. Facts are folks, if you run at an armed police officer with a knife, you will get shot. You will not get a warning shot, you will not get shot in the knee, no tazers. Officers are trained to put two slugs center mass. Period.
While I can’t answer for Justin, nor can Justin speak for himself now, I’d perceive that Justin’s actions might have been suicide by cop. It happens all the time in this country. Lets face it folks, veterans see and do things that we can’t even imagine. His service to his country in the time of war pretty much caused his death. One has too wonder what he might have become with out the specter of war that replayed over and over in his head. He was not the first and he’ll not be the last. War has many casualties. Justin, and what Officer Rosie was required to do, was a product of war…..
In the USA law enforcement is trained to shoot to kill. They are not trained to shoot to disable. They also are not trained to neutralize and disarm without deadly force. Cheapskate gun crazy Anerican s don’t want to fund the kind of training other western democracies provide law enforcement that is geared towards non deadly means of neutralizing an attacker with a weapon.
The recent case in NYC where three Swedish police men intervened on a subway and non violently subdued a violent individual, is an example of alternative police training. Also the US servicemen who subdued the gunman on the Chunnel train is an example.
I think it is appalling the way this community assumes the dead Veterans family is money grubbing and vindictive. They are being activists. Their case raises awareness, it poses questions, it serves a purpose beyond “winning” the suit.
In the USA you can’t just volunteer some time and play nicey nicey on your pet issues if you want to press for significant legal and policy changes. Policy is driven by legal precedent in the justice system. Activists continually have to bring cases that press for changes. Judges ruling and comments are what fuel policy change over time. But no change happens unless you bring the cases to the courts. Examples are, women’s right to vote, anti segregation, equal rights, civil liberties, handicap accessibility, reproductive rights, workplace protections….NONE of these protections we enjoy now, would ever have been passed into law were cases not brought to courts over and over arguing the ethical and legal reasons for support.
This families case is about raising a voice for change. All around the USA we are seeing great turmoil and tradgedy over police shootings. In many of these cases, under existing requirements, police are justified, they meet the criteria of their jurisdiction and state. But times change. Americans want change, Americans all around this country want to open the conversation: Is there a better way? Can we train police differently and move forward with more options for police when dealing with out of control citizens ?
If families like Justin’s don’t make some noise, bring cases, these important questions will not be asked.
I commend them for making use of the justice system as a medium for activism as is their right to do in a democratic justice system. I also, feel for the local law enforcement involved in this tragic case, I am certain none of them wanted to have a unwell Veteran end up dead on their doorstep. Everyone was acting within the parameters of their current protocol and training.
Terry and Raymond R make excellent points that should be read and re-read.
Why do the officer involved shootings always make the headlines? Of the 12 million violent crimes in the US last year only 400 resulted in so called excessive force complaints. Police are given firearms so they can best protect us and themselves then people sue them when the police when they use those guns. I just wonder if the guy had hurt or killed a civilian, would people still support him or be ready to have him drawn and quartered?
I agree that what happened was tragic and that it could have gone differently, but think if it had. If he had gone around that car one more time and slipped I might be fatherless right now.