As state police urged Bryan Evans to surrender on Interstate 89 in Hopkinton on May 19, motorists trapped by the ongoing scene were left questioning whether the situation would end violently.
Two minutes before Evans was shot, a man and a woman sitting in a vehicle just feet away from the standoff with police and the Quechee, Vt., man, can be overheard on a video as the scene unfolds.
In the video, a woman in the vehicle expresses fear that Evans is going to be shot right in front of her eyes.
“I don’t want to see him get shot,” she said.
“They’re not gonna shoot him,” a man in the car answers.
Minutes later, gunfire rings out, and the people in the vehicle express shock and confusion about what happened. They also appear to believe – as state police Troopers Daniel Livingstone and Brandon Stubbs and New London police Officer James MacKenna did – that Evans was putting the police officers’ lives in danger when he pointed his hands in what the New Hampshire Attorney General’s office said was a gun-like fashion at the officers.
“He just shot a cop?” someone in the video asks.
“He tried shooting at something,” a man replies.
The video, as well as 10 other videos and several still photographs taken by civilians close to the shooting, were part of what led the state attorney general’s office to conclude that Livingstone, Stubbs and MacKenna were legally justified in their actions when they fired on Evans. The office released its findings in a preliminary hearing in May, but the only visual evidence they used to make that determination was not released with the findings.
None of that information came directly from law enforcement. Instead, the attorney general’s office had to ask permission from civilians who captured the incident on camera to use their information as part of the investigation, according to the attorney general’s report.
The officers from towns surrounding the incident that were equipped with either cruiser or body cameras did not have those cameras activated at the time of the shooting, and the state troopers involved in the incident did not have cruiser cameras, the attorney general’s office said.
State police do not use body cameras – and that’s unlikely to change for now, according to Chris Wagner, head of the state police. Speaking generally on Wednesday, Wagner declined to say whether having body cameras help prove his officers’ actions are justified in instances where they use deadly force.
“While I’m aware of the national debate surrounding the technology … I’m not in a position to speak fully towards the impact and the potential benefits of the technology,” he said. “We don’t use body cameras, so I can’t speak to their use. I would just be speculating.”
But that doesn’t mean state police aren’t aware that their actions may be recorded at any time, thanks to the prevalence of smartphone cameras, Wagner said.
“They don’t change the way our officers conduct business, because our officers rely on their training,” he said. “That’s the most transparent way to act. … The presence of video only enhances the bond between the officers and the public.”
Earlier, Wagner said he believes in transparency, and was not against the attorney general’s decision to release the information. In fact, he praised the public for consenting to turn over their videos and photographs.
“It speaks to the relationship our officers have with the public,” he said. “We’re always looking to identify instances where we can build upon that bond.”
That information did not become public until the American Civil Liberties Union of New Hampshire filed an open-records request and the Monitor filed its own right-to-know request with the attorney general’s office, asking for the complete records associated with the investigation. The office released the information to the public on the same day the requests were fulfilled.
The state initially did not disclose the information because they said it would interfere with the investigation and would deprive Evans – who now faces charges of receiving stolen property, unauthorized use of a propelled vehicle, criminal threatening and disobeying an officer – of his right to a fair trial.
Gilles Bissonnette, the legal director of ACLU-NH, took issue with that reasoning. He also argued that after releasing a preliminary report but not the footage, the attorney general’s office was contradicting itself.
“The State’s generalized concerns about how the release of this information would impact a ‘fair trial’ or ‘interfere with a law enforcement proceeding’ are insufficient to justify withholding,” Bissonnette writes in his request dated May 30. “The State does not explain how the release of these recordings would actually interfere with the State’s prosecution or the Defendant’s defense in this specific case.”
He later writes: “Indeed, disclosure here is no more prejudicial to the driver than the report the AG has published.”
Ultimately, Bissonnette said his organization made the request because the public has the right to see the evidence themselves and come to their own conclusions. The ACLU-NH has made requests for names of officers involved in police shootings before, he said – and if the attorney general wasn’t going to give them up, they were prepared to litigate the issue.
“This information serves the purpose of informing the public of the conduct and the activities of their government,” he said via email Wednesday afternoon, the day after the attorney general’s office released the information to the public. “This transparency is especially important when we are dealing with public servants using potentially lethal force.”
But Assistant Attorney General Geoffrey Ward was quick to point out that the office doesn’t hold full control over the release of information like that in the Evans shooting, because there’s nothing his office can do to prevent civilians who have visual evidence from releasing it on social media – except ask nicely.
“Early on in the interviews, we explain to people that this is an ongoing investigation,” he said. “We tell them it would be helpful to us if the information did not get out, because it might taint the information we learn later on.
“Whether they choose to listen is up to them,” he said.
Speaking broadly, Ward said it’s not uncommon for law enforcement to canvass a public area when an incident like Evans’s shooting occurs and ask if bystanders have seen anything. If there’s evidence his office might find useful, Ward said the information can be obtained in two ways: to ask for the information, either verbally or in written format, or to apply for and execute a search warrant.
But is that visual information critical to determining whether a police officer was justified in using deadly force? Ward said no.
“So much of the law on deadly force is based on the officer’s understanding of the situation,” he said. “We’re always looking to the officer’s perception of the situation and whether it was reasonable.”
That includes instances where an officer’s perception of the situation turns out to be wrong, Ward said.
“If, for example, someone pulls a cellphone out of their back pocket, they’re whipping out a black object – especially if they’ve made threats to police – that could lead to the reasonable belief that someone is going to kill that officer,” he said. “You have to look at the totality of the circumstances.”
State police are trained in situational assessment and when it is proper to use deadly force, Wagner said. Unfortunately, while an officer’s goal is always to de-escalate a situation safely, determining whether force is appropriate is often a split-second decision.
“They have to analyze what they’re seeing and act on that, and sometimes that information is coming in fractions of a second,” he said. “You don’t have the luxury of know all you know at the end of an investigation in that moment.”