How NH investigates police shootings 

After members of a Central New Hampshire Special Operations Unit team, including four Concord Police officers, shot and killed 52-year-old Tony Hannon, the Attorney General’s Office is following an established set of steps to investigate whether the officers’ use of force was legal.

State law allows law enforcement officers to use deadly force when they “reasonably believe” killing someone is necessary to protect themselves or someone else.

Hannon exchanged gunfire with police and died of “multiple gunshot wounds,” following a 10-hour standoff with police on June 15 in Pittsfield, authorities said.

The New Hampshire Attorney General’s Office uses a set of protocols, which were revised last year, to guide its determination of whether an officer’s actions were legally justified.

“These laws reflect the special confidence that New Hampshire’s Legislature and citizens bestow on police officers, and impose an obligation on the police to use it legally, and be accountable for its use,” the policy states.

The protocol sets ground rules for the investigation, like recording interviews with eye-witnesses and advising them not to discuss the incident with others. Any directly involved officers are given the same warnings; however, they are allowed to consult and be represented by union representatives throughout the criminal investigation. The protocol also outlines when information will be released publicly and allows the victim’s family to receive confidential updates, which will cease if they share any information prematurely.

The same investigative process applies when a police officer uses force and causes serious bodily harm, but not death. The Attorney General’s determination only indicates whether criminal charges can be brought against an officer, leaving civil cases up to the courts.

Much of New Hampshire’s law focuses on what an officer believes at the time of a shooting, which can be considered a low legal threshold to meet.

“All they are really investigating is whether criminal charges should be brought against the officer or officers involved,” said civil rights attorney Larry Vogelman, who has represented the families of people killed in police shootings. “They don’t address blame, or civil liability, even though they’re couched in that language.”

In September, then-Attorney General Gordon MacDonald released a new protocol for conducting these investigations, superseding the previous version from 2004. The current protocol is dated November 17, 2020.

The officer’s law enforcement agency can also conduct its own internal investigation and determine whether discipline or policy change is necessary. Because Concord officers fired their weapons in the incident in which Hannon was killed, the Concord Police Department will conduct its own internal review after the Attorney General releases a decision.

Concord Officer Matthew Doyon, Officer Almadin Dzelic, Sergeant Craig Levesque and Officer Nicholas McNutt fired their guns on June 14, according to the Attorney General’s Office. Detective Thomas Sheveland and Sgt. Christian Lovejoy of Concord Police also fired but used “less-than-lethal weapons.”

“Once they’ve completed their review, then it goes back to us to do an administrative review, to look at: Was there any policy violations? Rule violations? Was there anything that could’ve been done differently?” Concord Police Chief Brad Osgood said. “It’s more of an aerial look to see if there are any policy failures.”

Under state law, a law enforcement officer has the authority to use “deadly force” against a person when “he reasonably believes such force is necessary to protect himself or a third person from what he reasonably believes is the imminent use of deadly force.”

An officer can also fire or use force to stop the person from fleeing with a deadly weapon or if an officer believes a suspect “is likely to seriously endanger human life or inflict serious bodily injury unless apprehended.” The law prohibits police from using chokeholds unless the same circumstances apply.

Some states have acted to raise that standard that governs officer’s legal ability to use force. George Washington Law Professor Cynthia Lee proposed a model statute that inspired Connecticut, Washington D.C. and Virginia to adopt legislation in 2020 that focused instead on whether an officer’s actions, rather than the officer’s belief, could be deemed reasonable enough to justify shooting or killing someone.

Immediately after a shooting or other deadly force incident occurs, the New Hampshire attorney general’s protocol says the officers involved in the shooting should administer any necessary first aid, secure any weapons and identify witnesses if they are uninjured and able to do so.

When supervisors and investigators arrive on the scene, they are told to preserve evidence and note facts like where officers were standing, but they don’t interview witnesses or the officers involved yet. Members of the attorney general’s Deadly Force Investigation Team conduct interviews later “in a timely manner.”

There is no set time frame for when interviews with officers, victims or witnesses take place, Associate Attorney General Jeffery Strelzin wrote in an email.

“As in all criminal investigations, the timing of interviews is dictated by a variety of factors, including the physical and mental condition of the interviewee, the geographic location of the interviewee, the timeline of the investigation, strategic considerations and the availability and schedules of the investigative team and any legal counsel or representatives,” he said.

Officers are interviewed separately and instructed not to discuss events with others until everyone involved has been formally interviewed, but there are no repercussions if they do. They may request a lawyer or a union representative be present during their interview, according to the Attorney General’s Office.

The assistant attorney general who is assigned to conduct the investigation can consider information from the officer’s personnel file. Officers placed on the Exculpatory Evidence Schedule, often called the Laurie list, have credibility issues that must be disclosed to defense attorneys when officers appear as witnesses in court.

The names of the officers involved are released once they have been interviewed in order to “maintain the integrity of the investigation,” according to the protocol. The Attorney General’s Office named the officers involved in the shooting of Hannon on June 25.

Another step in the protocol is securing and reviewing any video or audio recordings or photos of the incident, including from witnesses and from officers’ body and dashboard cameras. None of the officers involved in Hannon’s shooting wore body cameras, according to the Attorney General’s Office.

The Attorney General’s Office is responsible for investigating incidents because of the agency’s role as an “independent, unbiased and professional body,” according to the policy. The New Hampshire State Police Major Crime Unit can assist in fact-finding, even if state police officers are being investigated, but only the Attorney General’s staff can interview the officers involved and determine whether they were justified in using force.

“It’s not a conflict of interest; it’s just protecting their own, even if they’re investigating individual officers,” Vogelman said.

The end result of the investigation results in the determination if an officer violated the law. If the answer is yes, then the Attorney General will seek an arrest warrant or bring the case to a grand jury. If the attorney general’s office decides that no, the officer’s actions were justified under the law, the office releases a report explaining the investigation and how it came to its conclusion.

Nearly all use-of-force incidents in New Hampshire are ruled justified, even in cases when someone calls 911 for help with a family member or friend who is suffering from a mental health crisis.

Last summer, Democrat Rep. Amanda Bouldin proposed a bill that would have created a committee to study ways to involve citizens in officer-involved shooting investigations. That committee would have explored, in part,“the establishment of a civilian complaint commission or review board in New Hampshire to oversee officer-involved shooting investigations.”

The bill was tabled in the Senate in June 2020. “It died of COVID,” Bouldin said.

Some states have implemented limited community oversight in the investigation of officer shootings. In Hawaii, two community members are appointed to sit on the independent law enforcement officer review board, which reviews the criminal investigations of officer-involved shootings and issues recommendations. The District of Columbia’s Police Complaints Board includes at least four non-law enforcement residents and reviews all use of force by the Metropolitan Police Department.

The President’s Task Force on 21st Century Policing released a report in 2015 which included guidelines for improving community policing in the United States. One recommendation advised police departments to set up a review board for officer-involved shootings that involves both police and community members.

“It’s a nationwide, really high-level thing. I’m getting a flavor that some of those recommendations are for major metropolitan areas, not necessarily small-town departments,” Osgood said. Nashua’s police commission, whose members are appointed by Governor Sununu, oversees the investigation of officer-involved shootings in that city.

A subcommittee of Concord City Council’s Public Safety Advisory Board led by Councilor Zandra Rice Hawkins will review the Task Force guidelines with Osgood later this summer.

“These are the types of situations where we want to have clear guidelines and community expectations about how our community and our police department and the rest of the state respond,” Rice Hawkins said.

All of the Concord Police officers involved in the June 14 shooting were placed on paid administrative leave during the state’s investigation. Most are now back at work, and the remaining officer will return on July 12. In some cases, officers may be placed on leave without pay, a more punitive step taken in consultation with the city manager and human resources department, Osgood said.

Before Concord police officers can return to work, they are required to meet with a psychologist and given an opportunity to discuss the experience. “I think that police officers that are involved in fatal shootings, it’s traumatic, and so they may have some emotions, or they may be struggling with something,” Osgood said.

Since weapons used in a shooting become evidence in the investigation, officers are issued new firearms and required to pass tests qualifying them to use those weapons. This also allows them to practice firing a weapon in a low-stakes environment before heading back out to the streets.

“I think it’s good practice, at least psychologically, to hear that gunshot go off again and know that you’re good,” Osgood said.

Following the state’s use of deadly force investigation, the Attorney General’s Office will complete a report describing the facts of the case and whether the use of force was justified.

If the Attorney General’s Office determines that no criminal charges against the involved officers are warranted, that report and multimedia materials associated with the incident become public. If criminal charges are brought, the report is released after criminal prosecution.

Past reports on officer-involved shootings can be found on the Attorney General’s web site.