No charges for police who shot, rammed man with pellet gun: SIRT

New Brunswick's police watchdog found that two Saint John Police officers who shot a man in the leg and then hit him with a car in an alleged firearms incident last October acted reasonably in the circumstances, according to an investigation report.

The review by Serious Incident Response Team director Erin Nauss found no grounds for charges against the two officers regarding the Oct. 5 incident on Mecklenburg Street in Saint John, according to a report dated June 6.

The report contained new public details about the incident, in which Michael Hebert, 47, was allegedly seen smashing windows and waving a knife and what appeared to be a handgun, although it was later found to be a pellet gun.

Hebert has pleaded not guilty to 16 charges in the incident, including assaulting an officer with a firearm, and none of the allegations have been tested in court.

He is scheduled to stand trial Sept. 5, where his lawyer Charles Bryant said that his client's criminal responsibility may be part of the issues at trial. His sister Michele Marks told Brunswick News in April that he has had a history of issues with mental health and addiction and that "the current trajectory of his situation is deeply troubling."

According to the report, a witness who lived on Mecklenburg Street called police after hearing Hebert "screaming outside of her house" and allegedly smashing the windows of cars. The person allegedly heard him say things like "You're all out to get me." Hebert allegedly threatened multiple people with a knife and was seen pulling out a handgun by a second witness, who told investigators he heard a gunshot, Nauss wrote.

Hebert allegedly confronted the first officer to respond and pointed a "black handgun" at him, ignoring commands from the officer to drop the weapon, according to the report. The officer fired his gun four times, striking Hebert's left leg, although the report says it's not clear how many times he was struck. The officer's use of force report said he "believed (Hebert) would kill him" and fired when he had a clear sight to him, Nauss wrote in the report.

A second officer's use of force report says he approached in a police car and saw Hebert, after the gunshots, "trying to stand" with his firearm pointed at the first officer, Nauss wrote. The second officer struck Hebert with his vehicle, knocking him over, and immediately hit the breaks, the report said.

The officers provided first aid to Hebert until paramedics arrived, according to the report, and was taken to hospital where he recovered. As part of the investigation, the gun allegedly used by Hebert was seized and "it was learned it was a replica pellet gun," Nauss wrote.

Nauss found that the first officer had ordered Hebert to drop the firearm before firing, and that "it was reasonable to conclude" that the officer feared Hebert would fire at him, that "immediate action was necessary" and that alternate use of force options were not reasonable. She also found that the second officer's vehicle strike was "not excessive" because "immediate action was required" to stop Hebert.

"I have also considered the fact that the AP’s firearm was a replica. This was not known at the time of the incident," wrote Nauss, who said she reviewed witness reports, the officer's reports and a photo of the gun, and came to the conclusion that "it was reasonable for the (officers) to believe that (Hebert's) firearm was real."

The Nova Scotia-based SIRT, an independent body authorized to investigate incidents involving injury or death involving police in New Brunswick, took control of the scene in the aftermath, according to the report, which said SIRT officers and Saint John police were both responsible for interviewing witnesses for both the SIRT and criminal investigations.

"We have a very experienced team and they conducted a very thorough investigation," Nauss told Brunswick News Wednesday. "We do our best to remain impartial and also permit both investigations to unfold concurrently, and I think that was done well in this case."

Regarding the fact that the weapon was a pellet gun, Nauss said that it's important to evaluate what the officer's "reasonable objective and subjective perception was at that time."

"There's a threat to public safety and also officer safety at that time," she said. "They didn't have that luxury of being able to go and inspect the alleged firearm, they had to treat it as a real threat."

In a statement June 7, the Saint John Police Force acknowledged Nauss's findings added that it "appreciates the SIRT for their professionalism and diligence in their investigation."

"We remain committed to the highest standards of accountability, professionalism, and transparency to maintain public trust and confidence," the statement read.

Hebert, who had "a lengthy history of suffering from addiction and mental health issues," did not participate in the SIRT's investigation, including providing a statement or medical records, Nauss wrote in the report. He had been scheduled for a methadone appointment earlier that day but there was a delay and he left without receiving his prescription, a witness told investigators.

Hebert's lawyer Bryant declined a request for comment.

Benjamin Perryman, an associate professor at the UNB faculty of law, said that to evaluate a decision not to charge, you have to consider both whether police would have reasonable grounds to arrest and whether a Crown prosecutor would believe they could prove the case beyond a reasonable doubt in court.

"From their perspective, I don't think this was a close case," Perryman said Tuesday. "I think this was a case where SIRT investigated and thought that the use of force was consistent with what the Criminal Code requires or allows."

Perryman said there are "real concerns" when police respond to people in mental health crises, including use of force during wellness checks, but said the facts of this case were different.

"In these circumstances, the mental illness aspect takes a backseat to the public safety aspect," Perryman said. "There's definitely a need for proactive mental health services ... but at that moment, when police respond to threats of someone with a firearm and observe a person with a firearm and that person is not responding to commands, there may not be much space for de-escalation."

With regard to the pellet gun, Perryman said it's important whether police perceive an "imminent threat to them" and whether they perceive it as a real firearm. He noted the report found Hebert was still pointing it when he was struck, which was a "significant factor" in the vehicle strike.

Perryman said the evidence was "extensive," noting that there were two use-of-force reports provided, which police do not have to and do not always submit, 18 civilian witness statements taken, one of whom told investigators that he believed the first officer "had no choice but to discharge his firearm in the circumstances."

"The public wants to know that there is healthy and robust police oversight, and with that comes acknowledging when police conduct was reasonable and consistent with their training," Perryman said. "Maybe the police manual doesn't need to be changed in relation to this set of facts, but there's a different need that comes long before 911 was called."

Andrew Bates, Local Journalism Initiative Reporter, Telegraph-Journal