A Kennebec County woman claims in a wrongful death lawsuit filed in federal court this week that police used excessive force when they killed her daughter while investigating a burglary two years ago.
The lawsuit by brought by Jessica L. Fagre on behalf of her daughter arises from the shooting deaths of Ambroshia “Amber” Fagre, 18, of Oakland and Kadhar Bailey, 25, of Gardiner on Feb. 10, 2017, in Vassalboro. Bailey was driving a Dodge Durango pickup truck, Amber Fagre was a passenger and both were allegedly fleeing police after Bailey had allegedly burglarized a nearby home, leaving the homeowner tied up in a basement, police have said.
Fagre’s 21-page complaint, which seeks unspecified punitive and compensatory damages, claims that her daughter was an innocent bystander when she was killed by shots fired by state police Trooper Jeff Parks.
“Trooper Parks knew, or reasonably should have known, Amber was not an imminent threat to himself or any other police officer, or person, present at the scene at the time Trooper Parks fired shots into the Durango,” according to the lawsuit.
The Maine Attorney General’s office cleared Parks and two other officers of wrongdoing in a report released in March 2018, ruling that they had reasonable grounds for self-defense when they fired their weapons and calling Fagre’s death accidental.
The lawsuit was filed in Kennebec County Superior Court by Bangor attorney Hunter J. Tzovarras on Friday and transferred to U.S. District Court in Bangor on Monday.
Also on Friday, Vassalboro police Chief Mark Brown filed a motion to dismiss Fagre’s lawsuit, claiming immunity under state law because his gunfire did not hit Fagre and therefore he was not responsible for Fagre’s death.
“Chief Brown’s use of deadly force against Bailey clearly was not unreasonable,” attorney Edward Benjamin of Portland wrote in the motion. “The concept of ‘reasonableness’ under the Fourth Amendment must take into account that police officers ‘are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary.’”
State police Lt. Scott Ireland, Parks and Brown were searching for Bailey after receiving a report that the 25-year-old Gardiner resident was armed with a handgun and had allegedly burglarized a Vassalboro resident’s house and left the man tied up in the basement, according to the attorney general’s office.
The shooting began when Brown saw Bailey approaching the truck, ordered him to drop his gun and, when he appeared to point it at the chief, Brown fired a single shot before ducking for cover. Crouched behind a snowbank, Brown heard what he believed to be a gunshot and emerged to return fire only to see Bailey accelerating the truck toward Trooper Parks’ cruiser, according to the attorney general’s report.
Parks fired several shots at Bailey that struck Fagre, who was sitting in the truck’s passenger seat, as the truck drove by Parks and struck his cruiser, driving it back about 50 feet. Forensic examiners determined that Fagre was slumped over in the truck and not visible to Parks as he fired, according to the attorney general’s report.
Ireland shot Bailey in the neck after the lieutenant yelled for him to place both hands outside the truck and Bailey responded by reaching toward the vehicle’s center console with his left hand, according to the attorney general’s report. Bailey died at the scene and Fagre died at a local hospital, according to the report.
“While certainly tragic, the unintended death of Ms. Fagre does not affect the legal analysis of whether Trooper Parks acted reasonably in firing at Mr. Bailey,” the attorney general’s report states.
In her lawsuit, Fagre claims that the police were negligent and failed to protect her daughter from harm before the shooting started.
“Chief Brown could have placed Amber inside his cruiser to protect her from the armed and dangerous person in the area, but took no steps to do that,” according to the lawsuit.
The lawsuit claims that Parks had no reason to shoot at the passing vehicle, that he should have noticed that Bailey was driving and that Fagre was in the passenger seat.
“At the time Trooper Parks fires shots into the Durango he had previously received information from dispatch, or one or more police officers, that a young woman is inside the passenger seat of the Durango,” according to the lawsuit. “He had safely retreated off the roadway and is not in danger of being hit by the Durango.”
No hearing dates for the lawsuit or the motion to dismiss before U.S. District Judge Lance Walker have been set.