REPORT ON OFFICER INVOLVED USE OF DEADLY FORCE IN PELHAM, NEW HAMPSHIRE ON OCTOBER 22, 2011 December 16, 2011 I. INTRODUCTION The purpose of this report is to summarize the Attorney General’s findings and conclusions with regard to the officer-involved shooting in Pelham, New Hampshire, which occurred on October 22, 2011. The findings and conclusions contained in this report are based on information gathered during the investigation, including Alberto Pagan’s autopsy, crime scene examination, diagrams, information provided from investigators, interview reports, photographs, police investigative reports, and recordings and transcripts of witness interviews. Dozens of civilian and police witnesses were interviewed during the course of this investigation. All of the police officers and police departments in New Hampshire and Massachusetts, who were involved in the incident, as well as the civilian witnesses, were completely cooperative with the investigation. Based on the investigation’s findings, and for the reasons detailed below, New Hampshire Attorney General Michael A. Delaney has determined that the deadly force which resulted in the death of Alberto Pagan was a justified use of deadly force by the five police officers who fired at him. The investigation has revealed that the police officers’ use of deadly force was precipitated by Alberto Pagan’s course of conduct on Saturday, October 22, 2011, which created a situation where the police officers that fired their weapons reasonably believed that they or others were in danger of death or serious bodily injury. That course of conduct included the domestic assault Pagan committed in Lowell, Massachusetts earlier in the morning, the pursuit he led the police on through two states, the fact that he was armed with a deadly weapon, the threats he made to use his gun on himself and the police, his failure to comply with police commands to drop his gun and surrender, and his aggressive movement towards police officers as he lowered the gun from his head and pointed it in the direction of some of the officers. Accordingly, based on all the facts and circumstances of this case the officers’ actions in shooting Alberto Pagan were justified under the law. II. FACTS A. Summary of the facts On Saturday, October 22, 2011, at about 3:30 a.m., the Lowell Police Department responded to a reported assault. When they arrived, they learned that Alberto Pagan (age 21)
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REPORT ON OFFICER INVOLVED USE OF DEADLY FORCE IN PELHAM, NEW HAMPSHIRE ON OCTOBER 22, 2011
December 16, 2011
I. INTRODUCTION
The purpose of this report is to summarize the Attorney General’s findings and conclusions with regard to the officer-involved shooting in Pelham, New Hampshire, which occurred on October 22, 2011. The findings and conclusions contained in this report are based on information gathered during the investigation, including Alberto Pagan’s autopsy, crime scene examination, diagrams, information provided from investigators, interview reports, photographs, police investigative reports, and recordings and transcripts of witness interviews. Dozens of civilian and police witnesses were interviewed during the course of this investigation. All of the police officers and police departments in New Hampshire and Massachusetts, who were involved in the incident, as well as the civilian witnesses, were completely cooperative with the investigation.
Based on the investigation’s findings, and for the reasons detailed below, New
Hampshire Attorney General Michael A. Delaney has determined that the deadly force which resulted in the death of Alberto Pagan was a justified use of deadly force by the five police officers who fired at him.
The investigation has revealed that the police officers’ use of deadly force was precipitated by Alberto Pagan’s course of conduct on Saturday, October 22, 2011, which created a situation where the police officers that fired their weapons reasonably believed that they or others were in danger of death or serious bodily injury. That course of conduct included the domestic assault Pagan committed in Lowell, Massachusetts earlier in the morning, the pursuit he led the police on through two states, the fact that he was armed with a deadly weapon, the threats he made to use his gun on himself and the police, his failure to comply with police commands to drop his gun and surrender, and his aggressive movement towards police officers as he lowered the gun from his head and pointed it in the direction of some of the officers.
Accordingly, based on all the facts and circumstances of this case the officers’ actions
in shooting Alberto Pagan were justified under the law. II. FACTS A. Summary of the facts
On Saturday, October 22, 2011, at about 3:30 a.m., the Lowell Police Department responded to a reported assault. When they arrived, they learned that Alberto Pagan (age 21)
Officer Involved Shooting Incident December 16, 2011 Page Two had physically assaulted his former girlfriend, Tandalaya Candelaria. Pagan had left the area driving his 2004 Infinity, G35X automobile. Pagan and this vehicle were found shortly thereafter in a parking lot in Lowell. Pagan, who was out of the vehicle when the officer arrived, acted in an aggressive manner and told the officer to shoot him and that he wanted to die. Pagan reached for what appeared to be a gun in his car, and then got back in his car and drove straight at the fully marked Lowell police cruiser, veering away from it at the last minute. A pursuit then ensued that circled through Lowell for approximately 20-30 minutes. During this time Pagan drove at another police cruiser that had to swerve to avoid a collision. Also during this time it was confirmed that Pagan was armed with a handgun through information obtained by Lowell police dispatch.
From Lowell, Pagan drove north towards New Hampshire on Rt. 38, through Dracut,
Massachusetts. Police officers from Dracut joined in the pursuit. Once Pagan entered New Hampshire, officers from Salem, Pelham and the New Hampshire State Police also became involved. The Pelham Police Department successfully deployed stop sticks, which deflated one or more of the tires on Pagan’s car. After that happened, Pagan stopped his car on Rt. 38 in Pelham, where numerous police cruisers blocked him in.
The police spoke with Pagan at this location for approximately an hour and a half.
During this time Pagan exited and re-entered his car numerous times. Pagan had a handgun positioned to his head at all times when he was out of his car, except once when he lowered the gun, pulled back the slide, and chambered a round, readying the gun to fire. Pagan held his cell phone in the other hand and was heard speaking with individuals on his phone telling them that he wanted to end his life.
At approximately 5:15 am, Pagan drove his vehicle around a number of police
cruisers that had been blocking his path on Rt. 38. He drove onto Heath Road and then took a right onto Hobbs Road where an unmarked Pelham cruiser rammed the front of his car at low speed, stopping it in front of 14 Hobbs Road. Pagan got out of his car in an agitated state with his gun held to his head. Pagan asked the officers what he had to do to get them to shoot him. Pagan ignored numerous commands from the officers to put his gun down and instead, began walking at a brisk pace, directly and aggressively towards several police officers. As he walked towards them, Pagan brought the gun down from his right temple, and pointed it at some of the police officers. Five police officers then fired their weapons almost simultaneously. Pagan suffered numerous gun shot wounds that caused his death.
Except for one officer who suffered damage to his eardrum from the shooting, no one else was physically injured during the incident.
B. Tandalaya Candelaria - Alberto Pagan’s ex-girlfriend
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Tandalaya Candelaria was interviewed at the Lowell, Massachusetts Police Department on Saturday, October 22, 2011. She said that she had been seeing Alberto Pagan for about six to seven years and that they have a four-year old daughter together. Tandalaya and Alberto broke up about four months prior to the shooting, but he still kept calling her.
On Friday night, October 21, 2011, Tandalaya went out with some friends and
returned home at about 3:00 a.m. Pagan had been calling her repeatedly during the night, but she had not answered him until sometime after 3:00 a.m. She told him to stop calling her and he asked her if she was going to meet up with him. Tandalaya said no, and confirmed that she was going to be seeing another man that night. Pagan was upset because she hadn’t answered his other calls and he knew that she was kind of seeing someone else.
After that call from Pagan, Tandalaya left her home and walked down the street. As
she did that, she saw Pagan’s car pull up. She began running back towards her home as Pagan got out of his car and started chasing her. Pagan caught up to her and when he did, he punched her in the face. Tandalaya wasn’t clear how many times Pagan hit her. After he hit her, Tandalaya fell down onto the street. Some people in a truck stopped to help her and when they did, Tandalaya saw Pagan arguing with those people. Someone at the scene called the police, but Pagan drove off before the police arrived.
When asked about prior domestic assaults, Tandalaya said that she and Pagan had had
arguments in the past and that the incident on October 22, 2011, was the second time Pagan had hit her.
Tandalaya said that she’d noticed that Pagan had been “losing it” recently and had not
“been doing too good.” Pagan had been having some issues at work, which seemed to be affecting his behavior. Tandalaya also believed that Pagan might have been drunk when he attacked her and seemed “so angry.” She said that he would act differently when he was drunk, like he didn’t care. She also said that Pagan’s uncle had killed himself and his girlfriend a few months ago.
C. Police officers who were present and who fired their weapons Pelham Lieutenant Gary Fisher An interview was conducted with Pelham Police Lieutenant Gary Fisher on October 28, 2011. Lt. Fisher was contacted at home by dispatch at about 4:00 a.m. on Saturday, October 22, 2011. He was notified that there was a subject out on Rte. 38 in Pelham who had a gun to his head. Lt. Fisher got dressed and drove out to the scene in his unmarked police cruiser.
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Once at the scene, Pelham Officer Page updated Lt. Fisher and told him that the suspect (later identified as Alberto Pagan) had beaten up his girlfriend in Lowell and had a gun to his head. He was also told that “stop sticks” had been used to try to stop Pagan’s car, which was now in the middle of Rte. 38 in Pelham. At the scene, Lt. Fisher could see Pagan outside his car with a gun to his head. Spotlights from the police cruisers illuminated the area, so Lt. Fisher could see Pagan walking back and forth and going in and out of his car. Pagan was carrying his gun in his right hand and sometimes used his other hand to make cell phone calls. As all this happened, a Lowell police officer was talking to Pagan, trying to get him to surrender. During this time, Pagan said things like his life was over and that he wouldn’t be able to go into the military anymore. Pagan also talked about wanting to speak to a doctor. The Lowell officer told Pagan that nobody had been hurt and that they would put him in an ambulance and he could go see the doctor. The Lowell officer also mentioned that Pagan had a four-year old daughter. Pagan never surrendered but instead, responded by saying multiple times, “Shoot me, shoot me.” During this timeframe, Pagan also drew back the slide on his semi-automatic handgun and appeared to put a round in the chamber. At one point, Pagan threw his keys onto the ground. He then picked them up, got into his car, started it, and moved forward a short distance. The police officers at the scene followed Pagan, as he came to a stop near the Salem police cruisers which were in place as a road block. At this new location, Pagan was closer to the police officers than he had been earlier. Pagan also seemed more agitated than he had been earlier. After he got out of his car, he kicked the car’s door and window and slammed the door shut. Pagan held his gun to his head and told the police that he had no reason to live, saying many times: “Shoot me, shoot me, shoot me.” After ignoring the Lowell officer’s efforts to end the situation peacefully, Pagan got back into his car and drove in-between the Salem police cruisers that were in front of him. Lt. Fisher followed on foot as other police officers followed Pagan in their cruisers. Pagan came to a stop in front of a home on Hobbs Road. Lt. Fisher could see Pelham Lt. Brian McCarthy’s police cruiser in front of Pagan’s car. Pagan was outside of his car with his gun in his hand. The Lowell officer continued to talk to Pagan, trying to get him to surrender. At one point, Pagan’s attention was focused to his side and he could be heard saying something like, “Swearing makes you a tough guy? I’ve got a gun too.” Pagan was told that no one was swearing at him and to put the gun down. Pagan refused to put the gun down and again said, “Tough guy swearing? I’ve got a gun too.” Lt. Fisher described Pagan’s tone and demeanor as much more agitated and threatening than the other two times he had been out of his car earlier.
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Pagan turned and walked in the direction where Lt. McCarthy was located and said, “Shoot me, shoot me!” Pagan then turned around and walked towards where Lt. Fisher was located. Pagan was much more agitated and was walking in an aggressive manner. He had the gun to his head and said, “What’s it gonna take to shoot me?” After he said that, Pagan was close to Lt. Fisher and the officer next to him. Pagan began to bring the gun down from his head and brought it to about mid-chest level, aiming it in Lt. Fisher’s direction. At that point, Lt. Fisher believed that Pagan was a threat to him and/or the officer next to him, and so Lt. Fisher fired two shots at Pagan with his AR-15 rifle. Pagan immediately dropped to the ground and did not move afterwards. Lt. Fisher said that when Pagan was in front of the house on Hobbs Road, he was much more confrontational than he had been earlier. Pagan acted in an aggressive manner and never once complied with the orders given to him to drop his gun and surrender. Lowell Police Officer Dennis Moriarty The State Police interviewed Lowell Police Officer Dennis Moriarty. Officer Moriarty has been a police officer for 22 years and was on duty on the late shift on October 22, 2011, from 12:55 am to 9:00 am. During his shift, Officer Moriarty was in full uniform and was driving a marked police cruiser. He was also was armed with a .40 caliber Smith and Wesson handgun, with 15 or 16 rounds in his magazine. At approximately 3:32 am there was a call for a domestic incident involving a man beating a woman at the intersection of Andover and High Street in Lowell. Officer Moriarty responded to that call along with two other officers. When they arrived, they found that the suspect, who had been identified as Alberto Pagan, had left the scene in a black Infinity automobile. A stop and hold was sent out for the vehicle. Officer Moriarty traveled to Alberto Pagan’s known address at 77 Bernier Street, looking for the suspect. At this residence Officer Moriarty observed a vehicle matching the description of the suspect vehicle in the parking lot. Officer Moriarty saw a male subject, later identified as Alberto Pagan, step from the car in an aggressive manner and yell, “Fucking shoot me, fucking shoot me, I want to die, I have nothing to live for.” Officer Moriarty tried to calm Pagan down, but Pagan stated, “Fucking shoot me or I will shoot you.” The officer then backed up his cruiser and observed Pagan reach into his vehicle for what the officer believed was a weapon. Pagan then got back into his vehicle and drove straight at Officer Moriarty’s cruiser, forcing Officer Moriarty to back up his cruiser. At the last minute he swerved away from the cruiser and drove up Hollis Street with Officer Moriarty in pursuit.
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The pursuit continued through the City of Lowell at a high rate of speed and later proceeded at a low rate of speed. When other cruisers drove towards Pagan, attempting to restrict Pagan, he did not stop or slow down, forcing the cruisers to swerve out of the way. When they drove onto Rt. 38 northbound, Pagan increased his speed again. Dispatch advised that Pagan was on the phone with dispatch stating that he had a handgun and he wanted to end his life. Pagan eventually drove northbound on Rt. 38 towards Pelham, New Hampshire. Pagan’s vehicle drove over stop sticks placed by Pelham officers that blew out one of Pagan’s tires. Eventually Pagan stopped his vehicle on Rt. 38 in Pelham on the soft shoulder of the road. Pagan immediately got out of his car holding a handgun to his head and talking on his cell phone, yelling, “Shoot me, shoot me.” Pagan got in and out of his vehicle several times and one time drove forward a short distance on Rt. 38. The officers repeatedly ordered Pagan to drop his gun and get on the ground. Pagan said he wanted to die and if anyone came near his vehicle, he would kill the officers. Pagan told the people he was on the phone with that he was going to die and that the police had guns pointing towards him and it was over. At one point Pagan was on the phone with a doctor from Lowell General Hospital whom Officer Moriarty knew. Officer Moriarty tried to convince Pagan to drop the gun and surrender, promising Pagan that he would be able to see his daughter if he did, that they would get him counseling, and take him to the hospital where he could see his family. Pagan did not comply with these orders and became more agitated, more aggressive with the officers, and kicked out the passenger window on the driver’s side of his car. Then, Pagan turned his car’s radio up very loud and became even more agitated. Officer Moriarty continued to ask Pagan to drop the weapon and lay down on the ground. At one point, Officer Moriarty observed Pagan pull back the slide of his gun and chamber a round into his handgun. The officers told Pagan that he was not in that much trouble and that it could be worked out. Pagan responded by saying that there was nothing to live for, he knew he was going to jail, he wasn’t going to get into the military, he was going to lose his job at the hospital, and that his family would be better off without him. Pagan continued to yell, “Kill me, kill me and shoot me.” Pagan then drove his vehicle forward again, turning left onto Heath Road and right onto Hobbs Road, where an unmarked cruiser stopped him. Officer Moriarty followed Pagan, stopping behind and to the left of Pagan’s vehicle, while a Salem police cruiser parked directly behind Pagan’s vehicle. Officer Moriarty positioned himself outside of his cruiser between the open driver’s door and the passenger compartment of his cruiser. Pagan got out of his vehicle with the gun to his head and Officer Moriarty again pleaded with Pagan to put the gun down. Pagan continued to tell the officers to just shoot him. Pagan walked with the gun to his head in the direction of Lt. McCarthy, away from Officer Moriarty, again
Officer Involved Shooting Incident December 16, 2011 Page Seven yelling for the police to shoot him. Lt. Fisher came up to Officer Moriarty’s left side with a long gun. Another officer came to Officer Moriarty’s right. Pagan then turned toward Officer Moriarty and his cruiser, still ignoring pleas and orders for him to drop the gun. Pagan then moved towards Officer Moriarty and the other officers near him, in an aggressive manner. Pagan’s gun, which had been against his face, was now away from his face, pointing slightly downward toward his cheek. Officer Moriarty was screaming for Pagan to get on the ground. Pagan ignored these commands and continued to move forward. When Officer Moriarty perceived that Pagan was within approximately 20-25 feet of the officers, Officer Moriarty discharged his firearm at Pagan twice. Officer Moriarty heard several other officers discharge their weapons. Pagan fell to the ground. The officers secured Pagan’s .40 caliber Sig Sauer handgun and called an ambulance to provide him with medical assistance. Officer Moriarty was taken to the Lowell General Hospital where he was treated and released for an injury to his eardrum. New Hampshire State Police Trooper Chad Lavoie New Hampshire State Trooper Chad Lavoie has been a New Hampshire State Trooper for 6 years. Prior to joining the New Hampshire State Police, Trooper Lavoie served with the United States Marine Corps for 8 years where he received extensive firearms training. He also served on their SWAT team and has had regular training in the use of deadly force, including “suicide by cop” training.
At approximately 3:30 a.m. on October 22, 2011, Tr. Lavoie was at the Troop B barracks when he and State Police Sgt. Lou Copponi were informed of a pursuit in Pelham on Rt. 38. They were told that the suspect was possibly heading towards I-93 North and that the suspect was armed. While en-route to Pelham, Tr. Lavoie was advised that the Southern Regional SWAT team was also responding, indicating the suspect was not in custody. Tr. Lavoie arrived at the scene on Rt. 38 in Pelham and parked his cruiser on the corner of Heath Street and Rt. 38, near parked Salem police cruisers. Tr. Lavoie took his M4 Colt rifle from his cruiser and replaced its 20 round magazine with a 30 round magazine containing 28 bullets. He then proceeded on foot through the wood line along the side of Rt. 38 to where the suspect, Alberto Pagan, was standing in the middle of the road near his vehicle. Tr. Lavoie observed Pagan holding a handgun in his right hand to the side of his head and a cell phone in his other hand. Tr. Lavoie heard an officer order Pagan to put the gun down, get on the ground and surrender. He heard Pagan yelling “kill me” and “shoot me.”
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Tr. Lavoie described Pagan as agitated, cursing and screaming. He also saw Pagan pull back the slide on his handgun, chambering a round. Pagan got in and out of his vehicle several times, and eventually pulled his car forward a short distance. Pagan was more agitated at this time, which he demonstrated by kicking at his car and breaking one of the windows. Tr. Lavoie heard Pagan yell, “If I point the gun on you, would you shoot me?” and “What do I have to do to make you shoot me?” The Lowell officer continued to order Pagan to drop the gun and surrender. Later, Pagan got back in his car and drove past the Salem police cruisers, left onto Heath Road and right onto Hobbs Road. Tr. Lavoie ran back towards his cruiser while the other cruisers followed Pagan onto Heath Road. Tr. Lavoie continued in his cruiser north on Rt. 38, until he observed Pagan’s vehicle stopped by an unmarked cruiser. Tr. Lavoie parked his cruiser on the side of Rt. 38, and ran into the brush towards Hobbs Road.
When he got within 50 feet of Pagan’s vehicle he observed that a Salem cruiser was behind Pagan’s vehicle, and Pagan was out of his vehicle. At this time Pagan was again holding a gun to his head, yelling for the officers to kill him, and to shoot him. Pagan was standing near his driver’s side door. Tr. Lavoie had a side view of Pagan and could see a large barn across the street from Pagan that appeared to be uninhabited. He could hear the officers at the Lowell police cruiser’s driver’s side door, ordering Pagan to drop the gun and surrender. Tr. Lavoie observed Pagan walk quickly, aggressively and directly towards the officers at the Lowell cruiser. This was different from how Pagan was pacing earlier on Rt. 38. Pagan got to the rear bumper of his vehicle, almost to the front of the bumper of the Salem cruiser. Tr. Lavoie believed that Pagan was going to kill the police officers at the Lowell cruiser and that it would be an ambush. He then fired his rifle at Pagan until Pagan fell to the ground. Tr. Lavoie believed he fired 5-6 rounds. Tr. Lavoie heard gunfire to his left as well. Sgt. Copponi immediately approached Tr. Lavoie and he advised Sgt. Copponi that he had discharged his weapon.
Tr. Lavoie’s training has included similar scenarios with a suspect armed with a firearm, in which it has been demonstrated that an officer’s reaction time is slower than the time it takes for a suspect to aim and fire his weapon. Thus, Tr. Lavoie believed that the officers were in danger of being killed by Pagan due to Pagan’s non-compliant and aggressive behavior with a loaded firearm. Salem Police Officer Joseph DeFeudis The State Police interviewed Salem Police Officer Joseph DeFeudis. Officer DeFeudis has 7 years of law enforcement experience, is a certified Firearms and Taser
Officer Involved Shooting Incident December 16, 2011 Page Nine instructor, has been a use of force instructor, and has SWAT 1 and 2 training. On October 21, 2011, Officer DeFeudis completed a five hour detail and then began his patrol shift at midnight. He continued to wear his navy blue and florescent green reflective vest from the detail when he started his patrol shift. Otherwise, he was in standard police uniform and driving a marked cruiser. Officer DeFeudis heard a transmission from Lowell PD that there was a vehicle stopped in Pelham and they were asking for backup. He responded to the town line and met with Sgt. Kelly of the Salem Police Department. He continued to overhear radio transmissions that the suspect, later identified as Alberto Pagan, had a weapon, had chambered a round in his gun, and was non-compliant with orders to surrender. Officer DeFeudis also heard on the radio that Pagan was back in his vehicle and may attempt to leave the scene. Officer DeFeudis drove to the intersection of Heath Street and Hobbs Road and blocked the road from traffic in case there was a pursuit. Officer DeFeudis then returned to the line of Salem Police Department cruisers on Rt. 38. Pagan’s vehicle was within 20 feet of the cruisers. Pagan was out of his vehicle with a gun to his head and was very agitated. He continued to ignore the officers’ orders to drop the gun and surrender as well as their attempts to reason with him. Pagan repeatedly said, “I want you to shoot me, shoot me I am right here.” Officer DeFeudis observed Pagan’s finger on the trigger of his weapon. After a period of time, Pagan got back into his vehicle, was honking his horn, yelling and screaming again for the police to shoot him. He then drove past the Salem cruisers and down Heath Road onto Hobbs Road where an unmarked cruiser rammed the front of Pagan’s vehicle. Officer DeFeudis ran to Hobbs Road behind the cruisers that had followed the suspect’s vehicle. He took cover behind the Salem cruiser that parked behind the suspect’s vehicle. Officer Pappalardo got out of his cruiser and also took cover at the rear of his cruiser with Officer DeFeudis.
Pagan then got out of his vehicle. He still had the gun to his head, his finger on the
trigger, and he continued to plead with the officers to shoot him and to kill him. He was extremely agitated and angry. Pagan continued to say, “What is it going to take, do I have to point my gun on you?” He walked towards the officers and was clearly angry and upset. When Pagan got to the front fender of the Salem cruiser Officer DeFeudis yelled for someone to make the call, that the suspect was way too close. Officer DeFeudis estimated that the suspect was within 15 feet of himself and Officer Pappalardo. Officer DeFeudis believed that Pagan was going to use deadly force against him and the other officers.
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Officer DeFeudis then heard someone discharge their weapon and he fired his weapon, a Glock handgun, three times. Pagan immediately fell to the ground. Officer DeFeudis radioed for an ambulance.
Officer DeFeudis has had use of force training in which it has been demonstrated that
reaction time for an officer in a situation like this is much slower than the time it takes for a suspect to pull a gun away from his head and fire the gun. Based upon his experience and training, Pagan’s non-compliant behavior that night, his statements, and his aggressive walk towards the officers, Officer DeFeudis believed Pagan intended to use deadly force on the officers. Salem Police Officer Eric Pappalardo The State Police interviewed Salem Police Officer Eric Pappalardo on November 10, 2011 at the Salem Police Department. Officer Pappalardo has three years of law enforcement experience.
On October 22, 2011, Officer Pappalardo was on the midnight shift after working a detail. He was wearing his duty uniform with a blue and yellow detail vest. He heard the radio traffic regarding a pursuit from Lowell, Massachusetts on Rt. 38 northbound. Officer Pappalardo responded to Rt. 38 in Pelham at the intersection with Heath Road in his marked cruiser. Once there, he joined other Salem cruisers blocking in the suspect, later identified as Alberto Pagan. At the time Officer Pappalardo arrived, Pagan was approximately 50 yards from the Salem cruisers. Officer Pappalado left his cruiser with his rifle and walked along the wood line on the side of Rt. 38 to get out of the crossfire from the officers blocking Pagan from the south. He could hear the officers directing Pagan to put the gun down, surrender, and offer to take him to the hospital. Pagan had the gun to his head and got in and out of his vehicle several times.
Pagan eventually moved his car forward, within 25 yards of the Salem cruisers. At this time Officer Pappalardo returned to the cruisers and took aim at Pagan. Pagan appeared more agitated at this time. He continued to yell to the police, “If I point the gun at you, will you shoot me?” Officer Pappalardo saw Pagan lower the gun and pull the slide back on his handgun, racking a round in the chamber. At one point Pagan put the gun in his mouth. Officer Pappalardo directed Pagan to put the gun down.
In order to see Pagan when he went into his vehicle, officers put a spotlight on his vehicle. Pagan began screaming and yelling about this and then moved his vehicle around the cruisers and onto Heath Road. Officer Pappalardo got into Officer Norcross’s cruiser and drove behind Pagan, stopping just a foot behind Pagan’s stopped vehicle on Hobbs Road.
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Officer Pappalardo positioned himself at the rear of the cruiser on the driver’s side. Officer Pappalardo is 6’5” tall, so the cruiser did not offer him much cover. His reflective vest also highlighted his presence. He observed Pagan get out of his car and stand near the driver’s door of his vehicle. Pagan again had his gun to his head and his finger on the trigger. Pagan was directed to drop the gun several times, but did not comply.
Pagan was even more upset at this time and was screaming for the police to shoot him. Pagan also yelled words to the effect that the police thought that they were tough, but he had a loaded gun too. Pagan walked towards the officers and Officer Pappalardo believed Pagan was within 15 feet of him, at the front bumper of his cruiser. Officer Pappalardo heard someone yell, “he’s too close, someone call it.” He then saw Pagan was shot in the shoulder. Officer Pappalardo did not see Pagan go down from this shot, and he saw the gun come away from Pagan’s head. Officer Pappalardo believed that Pagan would shoot him or another officer, so he shot at Pagan, firing his rifle once. He heard other guns fire at this time as well. This time Pagan fell to the ground.
Officer Pappalardo covered Pagan while another officer secured Pagan’s weapon that was located between his legs. D. Other police officers who were present, but who did not fire their weapons
Salem Police Officer Matthew Norcross The State Police interviewed Salem Police Officer Matthew Norcross. Officer Norcross has 18 years of law enforcement experience. His training with firearms includes active participation in simmunitions training.
Officer Norcross was working the midnight shift on patrol on October 22, 2011. At approximately 3:30-3:45 a.m. Officer Norcross heard dispatch report a pursuit in progress on Rt. 38 headed northbound in Pelham. Salem officers placed stop sticks in various locations to stop the vehicle. He then heard that the subject was stopped on Rt. 38 and was out of his vehicle with a gun to his head.
Officer Norcross responded to the scene at the intersection of Rt. 38 and Heath Road in Pelham. He took his rifle and proceeded southbound on Rt. 38 through the wood line and positioned himself across from Pagan, between Pagan and the nearby residence. Officer Norcross heard a Lowell police officer talking to a subject he addressed as “Alberto” for approximately 45 minutes.
Officer Involved Shooting Incident December 16, 2011 Page Twelve Pagan then moved his vehicle forward a short distance towards the Salem Police cruisers. Pagan got out of his vehicle again; at this time he was more agitated. Officer Norcross was in the same area as Trooper Lavoie. He heard the dialogue with Pagan including the orders to put the gun down. The officers also spoke to Pagan about his daughter and his family. Pagan said he never got to see his daughter and that he was no use to his family. The officers tried to de-escalate the situation by offering Pagan help, offering to take him to the hospital, and to see his family at the hospital. These efforts continued for approximately an hour, but were unsuccessful.
During this time Officer Norcross heard Pagan on his cell phone speaking with a doctor. Pagan told the doctor that he was going to die tonight and insisted that the police kill him. Officer Norcross observed Pagan lower the gun and pull back the slide, chambering a round. Pagan asked the Salem officers, what he had to do for them to shoot him. Pagan also said words to the effect of, “If I point my gun at you will you shoot me?” Officer Norcross observed Pagan put the gun to his mouth and take several deep breaths. Pagan then got back in his vehicle and drove past the Salem cruisers onto Heath Road. Officer Norcross ran to Heath Road and then to Hobbs Road where Pagan’s vehicle was stopped. He took a position at the driver’s side of the Lowell cruiser inside the driver’s door. Lt. Fisher was to his left in a kneeling position, and Salem Officer Pappalardo and Salem Officer DeFeudis were to the rear of the Salem cruiser. At this time Officer Norcross observed Pagan get out of his vehicle with the gun to his head. Pagan continued to walk towards them in an aggressive manner and appeared to be angry. Officer Norcross said words to the effect of; we are going to have to drop him, because Pagan was getting too close to them. Officer Norcross believes Pagan was within 20 feet of the officers. Based upon his experience and training, Officer Norcross knew that the officers would not be able to react in time to protect themselves if Pagan decided to fire his weapon at them. Officer Norcross believed that Officer Pappalardo was exposed due to his height and reflective shirt. He also believed that the other officers were in danger of being shot by Pagan. He then heard a gunshot to his left and then all the others fired their weapons. Officer Norcross believed that he had fired his weapon. He ran up to Pagan and checked him for other weapons as someone else cleared Pagan’s weapon from the scene.
Officer Norcross was armed with a M4 Colt rifle that was taken into evidence at the Salem Police Department immediately after this shooting. Officer Norcross has since learned that he still had 29 bullets in the magazine and one in the chamber. This means his rifle was fully loaded and he did not fire his weapon.
Officer Involved Shooting Incident December 16, 2011 Page Thirteen The State Police interviewed Lowell Police Sergeant David Frechette. He was assigned as a patrol supervisor on the late night shift from 1:00 a.m. to 9:00 a.m. in Lowell on October 22, 2011. Sgt. Frechette has 18 years of law enforcement experience, is a firearms instructor, use of force instructor, and a member of the SWAT team.
At approximately 3:30 a.m. he heard radio transmissions calling for a patrol car to a domestic assault at Andover and High Street in Lowell. Sgt. Frechette continued to listen to the radio transmissions in regards to this domestic. These transmissions advised that the suspect had left the scene and officers obtained an address for the suspect on Bernier Street in Lowell. Officer Moriarty relayed that he had some contact with the suspect, now known to be Alberto Pagan, at the Bernier Street address. Officer Moriarty advised there had been a threat that required him to back up his cruiser, that he had seen Pagan reach in his vehicle for an object that he believed might be a firearm, and he was now in pursuit of the vehicle. Sgt. Frechette joined the pursuit in downtown Lowell, third in line behind Officer Moriarty and Sgt. Careback. The pursuit went through the city and then onto Route 38 headed to Dracut. At some point during the pursuit Lowell dispatch advised that Pagan’s father had called dispatch and told them that his son had a firearm in the car. The officers attempted to make a felony traffic stop in Dracut, with Dracut officers joining the pursuit, but were unsuccessful in this attempt. There was another transmission from Lowell dispatch reconfirming that Pagan had a firearm, he would shoot it out and that he wanted to die. The pursuit continued northbound on Route 38 into Pelham, New Hampshire. In Pelham, the stop sticks that Pelham police officers had put in the roadway damaged Pagan’s vehicle. When Pagan stopped on Rt. 38 the three Lowell cruisers stopped behind him in a row. Pagan came out of his vehicle holding a handgun to his head with his right hand and a cell phone in the other. Pagan walked towards the officers, yelling words to the effect of, “Kill me, kill me.” The officers ordered him numerous times to drop the gun and get on the ground. Sgt. Frechette recognized Pagan as a security guard he had seen at Lowell General Hospital. Pagan was on his cell phone with a doctor from the hospital. During this time Pelham police officers joined the Lowell and Dracut cruisers. Eventually, Salem police officers blocked Rt. 38 from southbound traffic. Pelham police called for the regional task force to respond to the scene. Sgt. Frechette tried to negotiate with Pagan, telling him they would take him to the hospital and that he would be able to see his daughter. Pagan became more agitated and threw his keys behind his car, kicked at his car, and repeatedly asked the police to kill him. Sgt. Frechette witnessed Pagan put his gun down and chamber a round, making the gun ready to fire. Pagan got in and out of his car repeatedly and then drove past the Salem cruisers onto Hobbs Road, where an unmarked cruiser stopped Pagan’s vehicle.
Officer Involved Shooting Incident December 16, 2011 Page Fourteen Sgt. Frechette witnessed Pagan get out of his vehicle with the gun to his head, again asking the officers to kill him. Pagan then advanced aggressively toward Officer Moriarty’s cruiser where several officers were positioned. These officers were yelling at Pagan to stop and get on the ground, but Pagan ignored their orders. When Pagan got to within approximately 20 feet of the officers, Sgt. Frechette heard gunfire and observed Pagan fall to the ground. Sgt. Frechette did not fire his weapon due to concerns about the crossfire with the officers positioned behind Pagan. However, he believed if Pagan had turned directly toward him, he would have fired his weapon in self-defense. The officers rushed in to secure Pagan’s weapon and then called for an ambulance to respond to the scene. Pelham Lieutenant Brian McCarthy The State Police interviewed Pelham Police Lieutenant Brian McCarthy. He was at home on the morning of October 22, 2011, when he received a call from Pelham Chief Roark. The Chief told him that there was a standoff involving a man holding a gun to his head. Lt. McCarthy got dressed and drove to the scene of the standoff. Lt. McCarthy talked to an officer near the scene and then heard someone over the radio say that Pagan was on the move. McCarthy turned his cruiser onto Hobbs Road and could see blue lights coming down Heath Road towards Hobbs Road. Then, McCarthy saw a small black car coming towards him, which was the suspect’s vehicle, followed by police cruisers. McCarthy did not want the suspect to get by him and potentially pose a danger to other cars on Rte. 38, so he hit the suspect’s car head on. The collision was low speed; McCarthy’s air bags did not deploy. After the collision, McCarthy made eye contact with the driver, got out, and then moved across Hobbs Road, taking cover behind a truck parked on the side of the road. He drew his gun and pointed it at the suspect. The suspect, Alberto Pagan, got out of his car. A police negotiator told Pagan to drop the gun and surrender. Pagan put the gun to his head and said, “Shoot me motherfuckers, come on shoot me. I’ve got a gun. I’ve got nothing to live for.” The police negotiator responded by repeatedly telling Pagan to drop the gun. Pagan eventually turned and looked at Lt. McCarthy and said, “Come on motherfucker. Why don’t you shoot me? Shoot me!” Pagan had his gun to his head and moved towards McCarthy. McCarthy kept his gun trained on Pagan but did not fire. Then, Pagan turned to his left and engaged the police who were negotiating with him. Pagan said that he had nothing to live for and the negotiator told Pagan that he had a four-year old daughter, he needed to be there for her, and that she needed a Daddy. Pagan responded by saying repeatedly, “Shoot me motherfuckers.” Pagan then started walking towards the group of police officers who were positioned away from McCarthy. McCarthy lost sight of Pagan
Officer Involved Shooting Incident December 16, 2011 Page Fifteen and then heard gunfire. He took cover in order to avoid being hit by the officers’ gunfire. After the gunfire stopped, McCarthy stepped out and saw that Pagan had been shot and was on the ground. State Police Sergeant Lou Copponi The State Police interviewed State Police Sergeant Lou Copponi. He was on duty from 10:00 p.m. on Friday night until 6:00 a.m. Saturday morning, October 22, 2011. Trooper Chad Lavoie was one of the troopers on duty that shift as well. At about 4:15 a.m., Sgt. Copponi was advised there was a suspect vehicle heading up towards I-93 from Rte. 38. He was told that the driver was armed, had been threatening suicide by cop, and had been involved in serious assault. Sgt. Copponi and Trooper Lavoie moved towards the direction of the pursuit, which was on Rte. 38 in the Salem, New Hampshire area. As Sgt. Copponi continued to listen in on the radio, Trooper Lavoie arrived on the scene. Lavoie told Sgt. Copponi that the suspect’s car had been “spiked,” and he was stopped and armed. When Sgt. Copponi arrived on the scene, he saw a number of police cruisers that had Rte. 38 blocked in Pelham. There was a small black vehicle facing eastbound on Rte. 38 straddling the middle of the road. Copponi could hear voices going back and forth with the suspect, calling him “Alberto.” The officer told Alberto to put the gun down, that the situation was not that bad, and that he had a daughter. Sgt. Copponi was told by some of the Lowell officers that Pagan had been involved in a serious assault with his girlfriend and was a hospital security officer.
Sgt. Copponi saw Pagan get out of the car with a gun in one hand and a cell phone in the other. Pagan was asking the police to shoot him at times and asking the police if they were going to shoot him. Pagan turned the music on his car stereo up very loud at one point and was extremely agitated, kicking the side of his car. About forty-five or fifty minutes later, Pagan got into his car and started to drive off. Copponi went back to his cruiser as other police cruisers began to move and follow Pagan. Pagan moved forward towards the Salem police cruisers and then turned left onto Heath Road. Sgt. Copponi moved his cruiser to the other end of the road to block Pagan’s path. As he watched, Sgt. Copponi saw that other police cruisers had blocked Pagan’s path. He could hear loud voices and then a few minutes later, he heard six to seven shots being fired.
Officer Involved Shooting Incident December 16, 2011 Page Sixteen Sgt. Copponi moved up towards the scene and saw Pagan on the ground. There were six or seven police officers close by, including Trooper Lavoie. Sgt. Copponi checked on Trooper Lavoie to make sure that he was okay. Trooper Lavoie confirmed that he was okay and advised Sgt. Copponi that he had fired at Pagan. Officer Ronald Page The State Police interviewed Pelham Police Officer Ronald Page. Officer Page has been a Pelham Police Officer for four years. He was also in the Military Police with the Marine Corps.
Officer Page was on duty for the town of Pelham from 11 p.m. on October 21, 2011, to 7 a.m. on October 22, 2011. Officer Page learned of a pursuit coming northbound on Rt. 38 from Officer Locke. Radio transmissions advised that the suspect in the pursuit, later identified as Alberto Pagan, was armed. Officer Page put down stop sticks on Rt. 38, but Pagan avoided them. Officer Page then joined the pursuit. Officer Locke radioed that he had also put down stop sticks and one of Pagan’s tires was now flat. Pagan eventually stopped his vehicle on Rt. 38 in Pelham. Officer Page observed Pagan, who was out of his vehicle with a gun to his head, pacing on the road, and talking with people on his cell phone. One of the officers was talking with Pagan using the public address system, telling Pagan to drop the gun. The officers told Pagan that they would get him all the help he needed if he put down the gun. Pagan repeated that he just wanted to die. After some time Pagan got into his car and drove a short distance northbound. Pagan then got out of his vehicle again, still with the gun to his head. Negotiations continued, but Pagan was yelling, “I just want to die, I don’t want to live, and if I point my gun at you will you kill me?” Pagan got into his vehicle, turned the music up loud, then got back out of the vehicle upset, and agitated. Pagan then kicked his vehicle breaking a window and then got back in. Pagan then drove past the Salem cruisers that were blocking him, and drove down Heath Road to Hobbs Road. Officer Page ran to that area with Lt. Fisher.
Officer Page took up a position near Lt. Fisher, armed with his rifle. Officer Page had his sights on Pagan. Pagan got out of his vehicle. He again had his gun to his head and was more agitated. Now Pagan was within 20 feet of the officers and he was yelling, “Just kill me, I want to die, I don’t want to live.” Pagan was walking aggressively towards Lt. Fisher and Officer Page, and was within approximately 10 feet of the officers. Officer Page was not in a location to safely take aim at Pagan so he started to move to a safe position to fire his weapon. While he was doing this he heard the other officers fire their weapons.
Officer Involved Shooting Incident December 16, 2011 Page Seventeen
Pelham Police Officer James Locke The State Police interviewed Pelham Police Officer James Locke. Officer Locke has
been a police officer for the town of Pelham for three years. Officer Locke was working a patrol shift from 11 p.m. on October 21, 2011, to 7 a.m.
on October 22, 2011. Officer Locke heard a transmission from Dracut, Massachusetts that Lowell had a domestic and they were pursuing the suspect on Rt. 38 heading northbound into Pelham. The transmission also advised that the suspect was in possession of a firearm.
Officer Locke set up stop sticks on Rt. 38 to disable the suspect’s vehicle. The
vehicle did not stop immediately and Officer Locke joined the pursuit northbound on Rt. 38. Eventually the suspect’s vehicle was disabled with a flat front tire. Officer Locke saw the suspect, later identified as Alberto Pagan, get out of his vehicle with a gun to his head yelling “Get back!” Pagan also said that it was over tonight and that he didn’t want to live anymore. Officer Locke heard another officer speaking with Pagan over a public address system, telling Pagan it didn’t have to end this way, to drop the gun, they would take him to the hospital and let him see his 4-year old daughter. Pagan got back into his vehicle and drove northbound a short distance. He then got out of his vehicle again with his gun to his head. Pagan continued to say it was over, he was going to die that night, and what did he have to do to get the police to shoot him. The officer on the public address system continued to tell Pagan it did not have to end this way, to think of his family, to think of his 4-year old daughter. However, Pagan was extremely agitated. He kicked at his vehicle, got back in and drove down Heath Road, onto Hobbs Road where a cruiser stopped him. Officer Locke drove his cruiser to the intersection of Heath and Hobbs Road. Officer Locke observed Pagan out of his car, very close to the other officers and still very agitated, with a gun to his head. Pagan was yelling at the police saying, “What do I have to do to get you to shoot me? Do I have to point this gun at you?” Officer Locke was behind the Lowell cruiser and he observed Pagan advance towards the officers. At this time Officer Locke could only see the left side of Pagan. Believing that he and the other officers were in danger of being killed by Pagan, Officer Locke drew his weapon, aimed at Pagan, and put his finger on the trigger. At that time he heard several shots fired by the other officers, but he did not discharge his weapon. Pelham Police Sergeant Michael Pickles
The State Police interviewed Sergeant Michael Pickles. Sgt. Pickles has been with
the Pelham Police Department for 16 years. He is a former member of the Southern New
Officer Involved Shooting Incident December 16, 2011 Page Eighteen Hampshire Special Operations Unit (SNSOU) and he is a firearms instructor for the Pelham Police Department.
Sergeant Pickles received a phone call at his residence at approximately 4:20 a.m. on
October 22, 2011, from the Pelham Dispatch requesting assistance with an armed subject barricaded on Rt. 38. Sgt. Pickles responded to the police department and then to the scene on Rt. 38, in the area of Hobbs Road. He could hear the officers talking on a public address system telling the suspect, later identified as Alberto Pagan, they would take him to see his daughter.
He was not on the scene long before he saw Pagan’s vehicle turning down Heath Road and onto Hobbs Road. Lt. McCarthy was driving an unmarked cruiser toward Pagan’s vehicle on Hobbs Road. Sgt. Pickles went through the brush to where Lt. McCarthy was positioned behind a large truck.
Pagan was out of his car, holding the gun to his head. Sgt. Pickles heard Pagan
repeatedly shouting, “Shoot me, just shoot me!” Pagan was agitated, aggressive and out of control. He turned towards Sgt. Pickles and Lt. McCarthy and took half a step saying, “Just shoot me, shoot me.” Sgt. Pickles had his handgun out and ready to fire. He moved toward the front of the truck and heard Pagan say, “All you cops and no one will shoot me?” Sgt. Pickles then heard the gunfire, but did not see what happened. When he was able to look, he saw Pagan on the road. Sgt. Pickles called for an ambulance while another officer took Pagan’s gun away from Pagan.
Derry Police Captain George Feole, Commander SNSOU
The State Police interviewed Derry Police Captain George Feole. He has been the Commander of the Southern New Hampshire Special Operations Unit (SNSOU) for the past 12 years. This is a regional SWAT team serving 9 communities in the southern part of the State, including Pelham.
He received a phone call at home around 4:15 a.m. on October 22, 2011, requesting assistance from the SNSOU in Pelham for an armed subject who was stopped on Rt. 38. Cpt. Feole drove to Pelham and met with Pelham Police Chief Roark and Sgt. Pickles on Rt. 38, just east of Hobbs Road. The Chief began to escort Cpt. Feole to the designated staging area for SNSOU when they heard over the radio that the suspect was on the move. When they got to the intersection of Rt. 38 and Heath Road, he heard gunfire. Cpt. Feole did not witness the events that led to the shooting and none of the officers responding as part of the SNSOU observed the events or fired their weapons.
Officer Involved Shooting Incident December 16, 2011 Page Nineteen E. Neighbors present during the incident
Eric Helgemoe The State Police interviewed Eric Helgemoe who lives in the home directly across from the shooting scene. He was at home on the morning of October 22, 2011, when he noticed blue lights at the end of Heath Road and Rte. 38. He heard loud noises from a bullhorn outside and a voice telling someone to get out and do “police-type procedures.” Shortly afterwards, the police cruisers moved in front of his house. He heard a voice on the bullhorn telling someone to “lay down the gun.” He also heard the man’s name being announced over the bullhorn as “Alberto.” Someone on the bullhorn was saying things to Alberto like, “Alberto come out,” “Get out,” “Lay down,” “Come out to the back of the vehicle,” and “Raise your hands.” These instructions were consistently repeated to Alberto. He also heard someone talking to Alberto about a woman. The only time he heard Alberto say anything was when he heard Alberto telling the officers words to the effect of, “”Shoot me,” or “Why don’t you just shoot me?” Sometime after that he heard six to eight, maybe ten at the most, shots being fired at around 5:15 a.m.
Natalie Bunker The State Police interviewed Natalie Bunker who lives in the home directly across from the shooting scene. She was asleep on October 22, 2011, and awoken by noise being repeated over and over. The noise she heard was a voice over a bullhorn repeating “Alberto,” over and over again. When she looked out the window later on, she saw that the police cruisers had moved and were now in front of her house. The man (Alberto) was blocked in by police cruisers. She heard a voice telling Alberto to stay in the car and put down the gun. She heard Alberto say, “Go ahead and shoot me,” or “Go ahead and kill me.” After that, she heard six or so shots being fired.
Heath Dinsmore The State Police interviewed Heath Dinsmore who lives in a home near the shooting scene. He was asleep around 4:15 or 4:30 a.m. on October 22, 2011, when he awoke to the sound of a voice. He saw blue lights outside his window and heard an officer speaking over a public address system, telling a person to get out of the car, put the gun down and get on the ground. It sounded to him like the officers were trying to help the person and get him to come out of his vehicle. The negotiations went on for about twenty minutes. Then Mr. Dinsmore heard vehicles moving, including one that sounded like it had no tires. He heard an officer talking to the man, trying to do everything he could do to help this person out. It sounded to Mr. Dinsmore as if the man was in and out of his car during the incident. He heard the officers telling the man that they could help him, that they would take him to the
Officer Involved Shooting Incident December 16, 2011 Page Twenty hospital and would let him see his father and his daughter. This was repeated to the man over and over. The officer told the man that “this didn’t have to end in a bad way,” and “pleaded” with the man to let them help him. The man shouted back at the police that he had a gun, he wasn’t scared, he could be there all night long, he didn’t care if he lived, he wasn’t going to jail, and he didn’t care if he died. About fifteen minutes later, Mr. Dinsmore heard multiple gunshots. Mr. Dinsmore said it sounded to him like the police officers did everything they possibly could.
Leanne Dinsmore The State Police interviewed Leanne Dinsmore who lives in a home near the shooting scene. She was asleep and heard something, which woke her up on the morning of October 22, 2011. Then, she heard a man’s voice speaking and heard an officer talking to someone named “Alberto,” telling Alberto multiple times to get out of the car. She looked out the windows and saw cars and blue lights. Mrs. Dinsmore continued to hear the police speak to Alberto using a loudspeaker. She heard the police tell Alberto that he needed to put down the gun and estimated that for the next forty-five minutes the police tried to get Alberto to surrender. The police told Alberto that he was only twenty-two years old, that he was too young for this, that he hadn’t hurt anybody, that they could fix this, that he should let them help him, and then something about getting a doctor on the phone to speak to him. Later, she heard the officer tell Alberto to get down on the ground, to slide the gun away from him, and move to the back of the car. These statements were repeated and then it appeared to Mrs. Dinsmore that Alberto got back into the car. An officer told Alberto not to do this, that he had a daughter and that his daughter needed him. The officer told Alberto that he had not hurt him earlier and that Alberto could trust him. Alberto was yelling back obscenities, that he wasn’t afraid to die, and that he wanted a female to come to him. The officer told Alberto that he could not let the female come to him but when she arrived, the officer would let him speak to her. Then, Mrs. Dinsmore saw Alberto’s car pull away and drive around the cruisers down the road, driving on its rims onto Hobbs Road. Many police cruisers drove past her house, followed by officers on foot. Alberto’s car stopped in front of the farm at 14 Hobbs Road. She heard officers yelling at Alberto some more, saying things like come on, it’s not too late, let’s resolve this, this doesn’t have to be this bad, and you haven’t hurt anybody. Alberto responded and said, “You think I’m afraid of your gun? Because I’m not afraid of your
Officer Involved Shooting Incident December 16, 2011 Page Twenty-One guns, I have my own.” He also said, “I’m not afraid to die, I have nothing to live for.” Mrs. Dinsmore heard gunshots after that exchange and then it got quiet. Mrs. Dinsmore estimated that the whole incident took forty-five minutes or longer. She also said that she was impressed with the job the police did and that the officer negotiating with Alberto tried everything possible to defuse the situation. F. People Alberto Pagan spoke to on the phone
Rachel Cornaro - Lowell General Hospital The State Police interviewed Rachel Cornaro who works at Lowell General Hospital.
Ms. Cornaro knew Pagan because he was a security guard at the hospital. On October 22, 2011, Pagan called the hospital and told her that he had an emergency and wanted to speak with Dr. Christopher Kareores. Ms. Cornaro gave the phone to the doctor. At the same time Lowell police called the hospital and advised her that Pagan had a gun to his head. Ms. Cornaro listened to the doctor’s conversation with Pagan and could hear Pagan who sounded very upset. Ms. Cornaro overheard Dr. Kareores repeatedly advise Pagan to put down the gun.
Dr. Christopher Kareores - Lowell General Hospital
The State Police interviewed Dr. Christopher Kareores. Dr. Kareores came to know Alberto Pagan from his work as a security guard at the Lowell General Hospital. Dr. Kareores was also the attending physician in the emergency room when Pagan’s father arrived there on October 22, 2011.
When Pagan called to speak with his father, he also asked to speak with Dr. Kareores. Dr. Kareores spoke with Alberto Pagan on the phone as Pagan was being pursued by the police. Pagan told Dr. Kareores the following; that he was in trouble, that he had a gun to his head, the police were there, they blew out his tires, he needed help, and he did not know what to do.
Dr. Kareores asked Pagan to explain what was going on. Pagan told the doctor that he had the gun to his own head, that he was surrounded by police, that he didn’t trust the police, and they wanted him to put the gun down. Dr. Kareores told Pagan he needed to trust the police and that he had a lot to live for, especially his daughter. Dr. Kareores could hear the police in the background telling Pagan to drop the gun. Dr. Kareores could also hear Pagan yelling to the police to shoot him. Dr. Kareores continued to urge Pagan to drop the gun. Dr. Kareores believed Pagan was agitated, at times crying and scared. Pagan spoke
Officer Involved Shooting Incident December 16, 2011 Page Twenty-Two with a raised voice during parts of the conversation. The phone conversation ended when the call was dropped or terminated by Pagan. Attempts to call him back were unsuccessful. G. Physical evidence and autopsy results Evidence collected included the weapons carried by the police officers involved in the shooting, Alberto Pagan’s handgun, and spent shell casings at the scene. All the physical evidence collected appears consistent with the information obtained from civilian and police witnesses. Testing on bullets and bullet fragments has not been completed. However, based on the condition of the bullets recovered from Alberto Pagan’s body, it is unclear whether any definitive information will ever be gleaned as to exactly which particular officers’ bullets struck Pagan. The State’s Deputy Chief Medical Examiner, Dr. Jennie V. Duval, conducted an autopsy on Alberto Pagan on October 23, 2011. She determined that Pagan’s cause of death was multiple gunshot wounds and that the manner of death was homicide. Pagan was found to have gunshot wounds to his abdomen, hip, back, right arm and hands. It appears as though he was hit by seven separate bullets and that all but one were consistent with a rifle as opposed to a handgun. The wound to Pagan’s hand was consistent with both of his hands being wrapped around the handle of his gun as the bullet entered his right hand, exited and grazed his left hand. Debris on Pagan’s chest was also consistent with Pagan’s gun being positioned around chest level at the time he was shot. Toxicology showed that Pagan’s blood alcohol concentration was .137, which is almost twice the legal limit to drive in New Hampshire. Alberto Pagan’s Facebook page was reviewed. This documented that at approximately 5:15 am, on October 22, 2011, Alberto Pagan posted his status on Facebook as follows: “I’m ending my life rite now.” III. THE APPLICABLE LAW AND LEGAL STANDARDS New Hampshire’s laws regarding self defense, defense of others and the use of physical force by law enforcement are set forth in RSA Chapter 627. Under RSA 627:5, II (a), a law enforcement officer is justified in using deadly force when he reasonably believes that such force is necessary to defend himself or a third person from what he reasonably
Officer Involved Shooting Incident December 16, 2011 Page Twenty-Three believes is the imminent use of deadly force. The phrase “reasonably believes” means that the actor “need not have been confronted with actual deadly peril, as long as he could reasonably believe the danger to be real.” State v. Gorham, 120 N.H. 162, 163-64 (1980). The term “reasonable” “is determined by an objective standard.” State v. Leaf, 137 N.H. 97, 99 (1993). All the circumstances surrounding the incident should be considered. See id. at 99; Aldrich v. Wright, 53 N.H. 398 (1873). When analyzing the reasonableness of an actor’s use of deadly force, the State must consider that it would bear the burden at trial to disprove a claim of self-defense or defense of another, beyond a reasonable doubt. See State v. McMinn, 141 N.H. 636, 645 (1997). The person who used deadly force would have no obligation to show that his conduct was reasonable or met the requirements of the law. IV. ANALYSIS AND CONCLUSION
The evidence shows that the police encounter with Alberto Pagan began in Lowell,
Massachusetts at about 3:30 a.m. on Saturday, October 22, 2011. Pagan had physically assaulted his former girlfriend, who later reported that he had been “losing it” recently and had not “been doing too good.” She also said that Pagan had been having some issues lately at work, which seemed to be affecting his behavior.
After the assault, Pagan fled the area and drove north to New Hampshire, armed with
a handgun. Pagan was initially stopped on Rt. 38 in Pelham, after the stop sticks deployed by the Pelham Police deflated one of his tires. The police officers on the scene spoke with Pagan for over an hour, trying to get him to drop his weapon and surrender. However, Pagan refused to drop his weapon or surrender. Instead, Pagan’s mood escalated to an extremely agitated state and he continually asked the police to kill him. Pagan eventually attempted to leave the scene by driving around the cruisers blocking him in. He drove onto Hobbs Road in an apparent attempt to flee, but was stopped when an unmarked police cruiser rammed his car head-on at low speed. When Pagan got out of his vehicle on Hobbs Road he was extremely agitated and continued to plead with the officers to shoot him. When they did not, Pagan advanced towards the police officers in a much more aggressive manner than he had been acting earlier. As Pagan advanced, he lowered his handgun to a firing position, aiming it at some of the police officers positioned ahead of him. This action occurred after Pagan had made numerous ominous and threatening statements to the police, including:
Officer Involved Shooting Incident December 16, 2011 Page Twenty-Four
“Shoot me, shoot me!” “Fucking shoot me or I will shoot you.” “What’s it gonna take to shoot me?” “If I point the gun on you, would you shoot me?” “What do I have to do to make you shoot me?” “I want you to shoot me, shoot me I am right here.” As Pagan got to within fifteen to twenty feet of a group of officers, Salem Police
Officer Joseph DeFeudis, Pelham Police Lieutenant Gary Fisher, New Hampshire State Police Trooper Chad Lavoie, Lowell Police Officer Dennis Moriarty, Salem Police Officer Eric Pappalardo, all fired their weapons at Pagan. Pagan was struck multiple times by the gunfire and killed.
Based on all the facts and circumstances known to the five officers at the time they
fired their weapons, and examining the situation from the standpoint of objective police officers in their position, it was reasonable for them to conclude that Alberto Pagan was about to use deadly force against them or other officers. The officers’ conclusion that deadly force was necessary is supported by all the facts and circumstances of the incident, including the fact that Pagan had committed a domestic assault prior to his encounter with the police, Pagan failed to obey numerous and repeated police commands, Pagan failed to drop his gun, Pagan chambered a round in his gun and made it ready to fire, Pagan made numerous ominous and threatening statements to use violence, and Pagan behaved most aggressively in the moments before he was shot as he advanced to within about 15 to 20 feet of a group of officers as he lowered his gun down from his head and aimed it towards some of the officers.
Therefore, Salem Police Officer Joseph DeFeudis, Pelham Police Lieutenant Gary
Fisher, New Hampshire State Police Trooper Chad Lavoie, Lowell Police Officer Dennis Moriarty, and Salem Police Officer Eric Pappalardo, were all legally justified in using deadly force against Alberto Pagan to defend themselves and the other officers present from what they reasonably believed was the imminent use of deadly force by Alberto Pagan.
