Court dismisses suit against state, federal officers in fatal shooting of Cyr Plantation man

By Jen Lynds, BDN Staff
Posted July 03, 2012, at 7:41 p.m.

PORTLAND, Maine — A U.S. District Court judge has dismissed a lawsuit brought against state and federal agencies and law enforcement officers by the long-term partner of a Cyr Plantation man who was fatally shot by police in April 2010 in what the state attorney general’s office later deemed a justified shooting.

Neil Begin was shot by a Maine State Police trooper and a U.S. Border Patrol agent on April 23, 2010, inside the 54-year-old’s U.S. Route 1 mobile home. Sandra Parent, who was Begin’s live-in companion for 30 years and personal representative of his estate, alleged that Begin’s constitutional rights were violated, including his right to bear arms, his right to be free from unreasonable searches and seizures, and his right to be free from use of excessive force in the conduct of a search or seizure. She also alleged similar violations of the Maine Civil Rights Act and common law battery.

Parent, represented by attorney Peter Kelley of Caribou, brought the case to U.S. District Court last year. Defendants named were the state of Maine, U.S. Customs and Border Protection, Maine State Police Trooper Robert Flynn and border agents Robert Kipler and Rick Romann.

The defendants later filed a combined motion for summary judgment on all three counts and to dismiss the case. The court ruled in their favor with a 27-page ruling issued on Monday by U.S. District Judge George Singal.

The attorney general’s office had ruled in July 2010 that Flynn and Kipler were justified in shooting an intoxicated Begin after they were called to his home to investigate a complaint of criminal threatening with a dangerous weapon.

According to the attorney general’s report on the shooting, Begin ordered Parent to leave and take their 24-year-old son and the son’s girlfriend with her early on the morning of April 23. Begin threatened them repeatedly with a hunting rifle and while they were packing clothes to leave he allegedly grabbed his son by the throat, threw him against a wall and threatened to kill him, according to the report.

After a family member called police, Flynn interviewed witnesses and confirmed with the district attorney’s office in Caribou that he had probable cause to arrest Begin. Romann and Kipler, who were close by, drove to the location to offer Flynn assistance. The officers contended in court documents that this is common practice because of the limited number of state law enforcement personnel in the area. As federal law enforcement officers, they had attended federal law enforcement training academies and numerous training sessions. Kipler, as a federal law enforcement officer, was authorized to make arrests and use deadly force when necessary and appropriate.

Flynn, Kipler and Romann arrived at Begin’s home about 11 a.m. to arrest him on a charge of felony criminal threatening with a dangerous weapon.

Flynn went in an open porch, according to the report, and repeatedly told Begin through the door to show his hands and “leave the gun inside.” He saw Begin through a window running to the other end of the home with a gun in his hand. After breaking down the locked door, the officers saw Begin at the end of a hallway and heard him working the bolt action of a gun, according to the attorney general’s report.

Though the officers repeatedly ordered Begin to drop his rifle, the man refused and told the officers to get out of his house. According to the report, the officers saw Begin moving his left hand to the rifle and leveling it at waist level toward the officers.

“Believing that Begin was about to fire the rifle, Trooper Flynn fired his service pistol and Officer Kipler fired a patrol rifle at Begin,” the report states.

Begin fled behind a wall and a few seconds later reappeared in the hallway with the rifle still in his hands, according to the report. Flynn and Kipler fired again and Begin fell to the floor.

An autopsy later revealed that Begin was struck five times by gunfire and died from a gunshot wound to the abdomen the next day at a Bangor hospital. At the time of his hospitalization, Begin’s blood-alcohol level was 0.248 percent, according to the report.

Much of the attorney general’s investigation was based on an audio recording of the incident, which was captured on a microphone worn by Flynn. According to the recording, Flynn could be heard ordering Begin to drop the gun and telling Begin that he heard him “rack” the bolt action of the rifle. Seventy-two seconds later, Flynn told Begin not to move his hand or he would shoot, according to the attorney general’s report. Flynn and Kipler were heard commanding Begin to drop the rifle throughout the remainder of the audio.

Evidence taken from the mobile home included a bolt-action .30-06 rifle, a semiautomatic .22-caliber rifle and several marijuana plants.

The court found no basis for claims that any of Begin’s constitutional rights were violated or that there were violations of the Maine Civil Rights Act. It further stated that several of Parent’s arguments were not supported by the factual record.

The court ruled that the officers lawfully entered the dwelling, that they had probable cause to arrest Begin on a variety of charges, and that the officers had reason to believe that Begin was hostile toward them. The ruling further stated that Begin’s running to the back of the house with his gun escalated the tension and “the officers’ apprehension of danger,” as well as raised suspicion that Begin possibly was attempting to escape or planned to take up an offensive position against the officers.

The court also found that since the officers did not use excessive force against Begin and did not violate Maine law during the confrontation with Begin, there was no basis for finding liability for battery.

Parent’s attorney Kelley said Tuesday afternoon that he had not seen the ruling but had been briefed on it and was “very disappointed.”

He said Parent had the option to appeal to the 1st U.S. Circuit Court of Appeals in Boston but that he had not yet discussed that with his client.

Kelley contended that Begin was in his own home when he was shot and that the officers could have employed tear gas or negotiation instead of using deadly force, which was an argument addressed in the ruling.

“That the officers potentially could have used tear gas, called for backup from other law enforcement agencies, employed a negotiator, or simply waited for the situation to calm down, as Plaintiff suggests, does not render the use of deadly force unreasonable,” the ruling stated.

Michelle Benson-Fuller, spokeswoman with Customs and Border Protection, said Tuesday afternoon that the agency will continue its work across the nation.

“While the outcome of the Cyr Plantation incident was tragic, when requested, Border Patrol agents will continue to assist our local, state and tribal law enforcement partners where public safety is the primary concern,” she added.

State officials could not be reached for comment.

http://bangordailynews.com/2012/07/03/news/aroostook/court-dismisses-suit-against-state-federal-officers-in-fatal-shooting-of-cyr-plantation-man/ printed on September 22, 2014