Justin Crowley-Smilek chased Farmington Police Officer Ryan Rosie around a police cruiser Nov. 19, 2011, as Crowley-Smilek repeatedly told Rosie to shoot him. Rosie ultimately did, killing the troubled Army Ranger veteran on Nov. 19, 2011.

Those details are revealed in a motion filed by an attorney representing Farmington, Rosie and Police Chief Jack Peck in answer to Crowley-Smilek’s family’s wrongful death suit.

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Justin Crowley-Smilek Contributed photo

Lawyers on both sides of the fatal shooting of the 28-year-old Farmington man have filed motions in federal court offering different takes of the confrontation, and are asking for summary judgment in the lawsuit filed a year ago by Crowley-Smilek’s parents. In a summary judgment, a judge rules which facts are not in dispute by either side in an attempt to avoid a trial. The presiding judge in the case can issue different judgments on each count of a complaint and can send some or all of the case on to trial.

Crowley-Smilek’s parents contend Rosie, who joined the force full time that June, wasn’t adequately trained to deal with someone with their son’s issues, and their lawyer, in his motion, says the cruiser shielded Rosie from danger, and he stepped out from behind it to shoot Crowley-Smilek.

The former Army Ranger, who had been diagnosed with post-traumatic stress syndrome, was shot outside Farmington Town Hall that Saturday morning in 2011 after calling the police department from outside, asking to speak to an officer, then allegedly threatening officer Rosie with a knife.

Boston attorney Douglas Louison, representing Farmington and the police, contends Crowley-Smilek wielded a 13-inch knife over his head, leading Rosie to the conclusion that Crowley-Smilek was a threat to his safety.

Louison wrote in his motion that Crowley-Smilek repeatedly told Rosie to kill him, including his final words to the officer — “kill me” — which he spoke while lying on the ground after he was shot.

The original exchange came while Crowley-Smilek held out a knife and chased the officer around a police cruiser, the documents say.

However, attorney Hunter Tzovarras, of Bangor, representing Crowley-Smilek’s family, says that Rosie moved around the cruiser “keeping it between himself and (Crowley-Smilek) and chose to step away” from the cruiser and take up a firing position.

Tzovarras questioned whether Rosie stopped shooting after Crowley-Smilek was subdued.

He said Leon Heckbert, who was working at an auto service station nearby, said he looked down the street and saw Rosie fire a shot downward at Crowley-Smilek on a slight delay after he heard the first shots fired.

Rosie testified he stopped firing after Crowley-Smilek stopped moving forward.

An autopsy from the Office of Chief Medical Examiner determined Crowley-Smilek had seven gunshot wounds, and one was from his back right shoulder and exited in the front of Crowley-Smilek’s chest.

Louison wrote in his court documents that all shots were fired while Crowley-Smilek was moving forward with the knife and expert testimony would uphold that “the shots that struck Mr. Crowley-Smilek correspond with Mr. Crowley-Smilek falling forward and ending up face prone on his stomach.”

Tzovarras’ list of facts include a diagram that the knife was found about 30 feet from the blood marking Crowley-Smilek left on the pavement.

SUIT FILED A YEAR AGO

The civil suit was filed a year ago by Ruth Crowley, of Milwaukie, Ore., and Michael Smilek, of Farmington, Crowley-Smilek’s parents. The lawsuit alleges Rosie used unreasonable force and was not trained sufficiently to respond to people with mental illnesses. Crowley-Smilek was diagnosed with from post-traumatic stress disorder and other mental illnesses, according to the lawsuit and interviews with his family after he was killed. Shortly after the shooting, his father told the Morning Sentinel he came home from Afghanistan with severe combat stress and his girlfriend said his mental health issues were escalating at the time of the shooting.

Crowley-Smilek, who lived in Farmington, had some run-ins with Farmington police after he returned from combat in 2007.

Motions from both sides were filed Tuesday in U.S. District Court and the attorneys have until Jan. 16 to respond to each others’ arguments.

Louison argued in the court documents on behalf of the town that Rosie reacted with a split-second decision the way any seasoned officer would have in the situation, which threatened his life and public safety. Rosie’s actions were protected by “qualified immunity,” a doctrine that shields officers from liability if their actions do not violate someone’s constitutional rights.

“While Mr. Crowley-Smilek’s death is tragic, defendant Rosie acted reasonably under the circumstances he was confronted with on Nov. 19, 2011,” wrote Louison.

In the argument on behalf of Crowley-Smilek’s family, Tzovarras says that Rosie’s actions are not protected by qualified immunity because he did not tell Crowley-Smilek to drop the knife, did not confirm that Crowley-Smilek was holding the knife before the shooting and he was not in immediate danger because he was able to keep the cruiser between himself and Crowley-Smilek.

“No reasonable officer would have stepped away from the safety of the police cruiser, or fired several shots at a person without first using verbal commands and confirming the person was still armed,” Tzovarras wrote.

The two sides also made differing claims about the training provided to Farmington officers and Rosie’s performance during training.

Tzovarras says that Rosie “struggled through his field training” with the Farmington Police Department.

FATAL CONFRONTATION

In a deposition given by Rosie — sworn testimony given before a trial — the incident started Nov. 19, 2011, with a call to dispatch at 11:01 a.m. The caller refused to give his name.

The Morning Sentinel reported at the time that Crowley-Smilek called the station from in front of the building, asking to speak to a police officer.

Rosie, in his deposition, said he looked for the person outside the police department, eventually seeing a man walking toward U.S. Route 2 near the University of Maine-Farmington sign.

Rosie said he called out multiple times. He said Crowley-Smilek ignored him at first, but then turned around and walked toward Rosie, saying nothing.

When Crowley-Smilek didn’t answer, Rosie ordered him to remove his hands from his pockets, but he did not.

Rosie in his deposition described the Crowley-Smilek’s expression as blank and said he started walking faster toward Rosie.

According to his testimony, Rosie said at this point he positioned behind a cruiser and Crowley-Smilek, who pulled a knife with an eight-inch blade and a five-inch handle and held it over his head.

Rosie said he pulled out his gun and Crowley-Smilek said, “You better kill me now.”

After a moment, Crowley-Smilek started running toward Rosie around the cruiser. The chase continued with them switching directions of the chase several times and Crowley-Smilek repeatedly saying that Rosie better kill him.

After calling in the radio code for an officer needing assistance, Rosie drew his Taser but then “immediately disregarded it as being an option.”

Rosie ran slightly away from the cruiser, got into a shooting position, fired and testified that he “stopped firing when Mr. Crowley-Smilek stopped his forward momentum,” according to court documents.

After Crowley-Smilek was on the ground on his stomach after being shot, he told Rosie “Kill me.”

Rosie told a dispatcher by radio that an ambulance was needed. He testified that the whole incident happened in minutes.

TRAINING QUESTIONED

The argument on behalf of Farmington cites court precedent affirming that even if an officer has another way to subdue a person, such as a Taser, it does not mean an officer’s actions can be considered to be unreasonable.

Louison argued in support of his motions that a Taser should be fired with 15 feet “and preferably within 10 feet” of the person the officer wants to stun. Louison said that Tasers have about a 30 percent failure rate in Maine usage and “a lack of any safety margin.” Attempts by the Morning Sentinel to confirm that statistic Friday and Saturday were not successful.

“The gravity of the consequences — serious injury or death of the officer or others — makes it unreasonable to willingly accept any diminution of chance that the threat can be ended or averted,” Louison said in his memorandum to the court.

Among the evidence submitted by Louison was a report by the Farmington Police Department’s incident review team that concluded that Rosie responded the same way that a veteran police officer would have.

The family’s attorney, Tzovarras, argued however that the situation would not have been a fatal encounter if Rosie had better training. He wrote that during training, Rosie had been rated “not acceptable” in dealing with stressful situations and using voice commands during several daily observation reports.

“His field training had to be extended by two weeks. The field training officers raised concerns about Officer Rosie’s communication skills in the field to Chief Peck,” said Tzovarras.

Tzovarras argues Peck and the town are liable for failing to properly train Rosie and that the town “did not provide Officer Rosie with any specific training for dealing with emotionally disturbed person.”

Documents filed by Louison argue that the Farmington Police Department’s training policies exceed those required by the state and require candidates for the department to take the Alert Test, a 100-hour pre-service school and a physical agility test with the Maine Criminal Justice Academy, along with eight weeks of field training.

During depositions — questioning of witnesses before trial under oath — Crowley-Smilek’s father, Michael Smilek, said Peck told him that if Rosie was a seasoned officer the fatal shooting would not have happened.

Peck, in his testimony, said he did not recall saying that to Smilek.

In a ruling issued in May 2012, Attorney General William Schneider concluded that the shooting death of Crowley-Smilek was justified use of force.

Kaitlin Schroeder — 861-9252

kschroeder@centralmaine.com

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