Appeals Court Backs Police in 2006 Killing of Mentally Ill Vermont Man

The 2nd U.S. Circuit Court of Appeals, in a unanimous ruling, said there was not enough evidence of police wrongdoing to warrant a jury trial in the case, in which the family of Joseph Fortunati alleged that state troopers strayed from protocols when they shot and killed Fortunati during an arrest attempt in the Corinth woods. The appeals ruling upholds a lower court judge’s dismissal of the lawsuit.

“While we are fully cognizant of the tragic circumstances giving rise to this case, we find no error in the district court’s rulings on the issues before us,” the 2nd Circuit, based in Manhattan, wrote in a five-page decision.

Vermont state officials were quick to hail the decision.

“We’re obviously pleased with the decision. We think it justifies the troopers’ conduct in the case,” Assistant Vermont Attorney General David Groff said in an interview yesterday. “As we said all along, we think they took proper action in the face of a dangerous situation. It was a tragic situation ... but we think the law was clear that the officers have a right to protect themselves.”

During oral arguments in the appeal in October, the 2nd Circuit judges sharply questioned Vermont authorities and repeatedly questioned the necessity of the Vermont State Police Tactical Service Unit’s decision to use force against Fortunati.

But in their written ruling, judges said they found no fault with the decision to fire both non-lethal beanbag shotgun rounds, and, eventually, live ammunition at Fortunati as he ran from them and allegedly brandished a firearm.

The Fortunatis’ attorney, George Spaneas, of Lebanon, said the family still believes that Fortunati did not, as some officers testified, pull a handgun from his waistband in a threatening manner. The family cited an account provided by Trooper Jeremy Hill, who said that he never saw Fortunati point his gun at troopers.

The family also argued that Fortunati may have grabbed a gun from his waistband only because the same troopers who shot him to death had been yelling him to surrender his gun.

“We started this case because the family and I believe that what the police did was wrong and against the law,” Spaneas said in an interview. “We still believe that today.”

Technically, the Fortunati family could ask the U.S. Supreme Court to consider an appeal of the 2nd Circuit’s ruling. But the Supreme Court accepts only a miniscule percentage of such petitions, and usually only when the case involves a broad legal issue, or whether it centers on an issue that various appeals courts have issued differing opinions.

In 2006, environmental workers called police to report that Fortunati, who suffered from schizophrenia and bipolar disorder, had confronted them while they worked near Copper Mine Road.

The TSU, armed with assault rifles and dressed in camouflage, approached the woods, where Fortunati had made a camp. TSU members said they tried to arrest him, but that he ignored commands to surrender, ran away and, after they had surrounded him, drew a handgun. They opened fire.

The entire encounter lasted 12 minutes.

Fortunati’s parents, Susan and Robert, sued nine members of the Vermont State Police on his behalf, alleging that “they showed excessive, cruel, terrorizing and unconstitutional conduct.” They also alleged that family members were illegally arrested after they drove to the scene three hours later and were handcuffed and held at rifle point.

Vermont District Court Judge J. Garvan Murtha dismissed in 2009 the wrongful death lawsuit, citing a lack of evidence.

The wrongful arrest claims made it to a jury trial, but the jury dismissed some of those claims and failed to reach a verdict on another.

Susan Fortunati declined to comment when reached at home yesterday.

The 2nd Circuit appeal centered on a narrow legal issue: Whether Murtha erred when he dismissed the wrongful death case.

To dismiss a civil case, a judge must conclude that the plaintiffs have not presented enough of a factual dispute to warrant holding a trial.

The Fortunatis argued that differing accounts provided by TSU members about Fortunati’s actions in the moments before he was killed provided enough of a factual dispute to merit a trial.

But the 2nd Circuit said those statements amounted only to “small differences,” and backed Murtha’s ruling.

“Some officers were able only to see Joseph reach for his waist, but small differences in testimony simply do not rise to the level at which a reasonable jury could find the officers’ credibility damaged,” the 2nd Circuit wrote. “The district court was therefore correct to conclude that there was no genuine dispute of material fact as to the credibility of the officers.”

Spaneas decried that conclusion, saying the family deserved to have a jury evaluate its case.

“You have in this country a system of justice that allows people to have a jury trial when they have a dispute, and our goal was to have a jury trial in front of people who would be impartial, listen to the evidence, judge the credibility of the state’s case and our case, and issue a fair decision,” Spaneas said. “We never had the opportunity to do that for Joe. We wish we had our chance.”

Mark Davis can be reached at .