oct-29-196 36:32 Deo Pea 1 REPORT BY THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE ON THE INVESTIGATION INTO THE DEATH OF PAUL MAXWELL Introduction On July 24, 1998, twenty eight year old Paul Maxwell was shot to death in the Village of Hempstead by on-duty Officer John Zoll of the Hempstead Police Department, This Office has conducted an investigation into that death focusing on the legality of the shooting, AS part of this investigation, we have engaged in the followi 1, Respond to the scene while the body of the deceased was still present; 2, Review crime scene photographs, videotape and audiotape of police calls; 3. Examine Homicide Squad investigation file including witness statements and notes of interviews with police officers; 4. Interview pathologist who performed the autopsy and examine autopsy photographs and diagram; 5, Review prior psychiatric records of deceased from Nassau County Medical Center; 6. Review medical records on involved officerss 7, Interview Police Officer Zoll and Licutenant Oreszezyn; 8. Interview several civilian witnesses who had information pertaining to the event; 9. Review guidelines from the Nassau County and Hempstead Police Departments concerning use of force on emotionally disturbed persons; 10, Interview specialists with the Nassau County Police Department on dealing with emotionally disturbed persons; 11, Examine manufacturer's manual on Tasertron weapon (hereinafter referred to a8 “Taser’}; 12. Receive lecture and demonstration of this weapon by an instructor at the Nassau County police firing range; 13. Review report issued by the manufacturer on the operability of the taser uéed in this case; Based upon the above, we have concluded that the actions of Officer Zoll which resulted in the death of Paul Maxwell were justified under the Penal Law. Nor do we find any other criminality in the manner that the police handled this tragie incident,DeFo P22 Background of the Deceased Paul Maxwell was a twenty eight year old male who lived in a house at 240 Windsor Parkway, Hempstcad, which is around the corner from the shooting scene. At the time of his death he was six feet tall and weighed approximately 173 pounds. He had attended Morehouse College und worked in the insurance aud education fields. Coincidentally, Mr. Maxwell had been a summer aid in our office in 1988 and was described by his supervisor as a good worker. He hud no prior criminal record, His parents were divorced when he was a child and his mother died of cancer in January, 1996. He was living with his mother at the house on Windsor Parkway at the time of her death and was described as isolated after she died. In mid-1996, Paul Maxwell was hospitalized on several occasions at the Nassaut County Medical Center for psychiatric reasons. On tro of these occasions he was transported to the hospital by members of the Hempstead Police Department. During his last hospitalization, he Was releused at his own request by a judge over the hospital’s objection. Although we have examined the hospital records pertaining to these incidents, they cannot be disclosed in this report based upon privacy restrictions. Attempts to obtain background information on the deceased from his father were unsuccessful. He is represented by Thomas Liotti, Esq. who rejected repeated requests for us to mect with his client. Interviews with friends of Mr, Maxwell revealed that he had been acting strange for several days before his death. They described his behavior as erratic and unusual, his speech as confused and nonsensical and they were concerned to the point of considering calling the police fo take him to the hospital before he hurt himself, His female roommate was so frightened by him sitting around naked that she left the house the night before the shooting and stayed with her mother. One friend who spoke to him on the phone minutes before the shooting, described him making rambling remarks such as *he was going to leave the house naked and walk to the medical center, he wanted to be free and he was going to set the house on fire,” This conversation so concerned the friend that he drove immediately to Mr. Maxwell's house. When he arrived he smelled a strong odor of gas and observed a fire on the bedroom rug, Fire personnel who arrived shortly ‘after the shooting found a lamp in the bedroom that had set the curtains on fire and all the burners and the oven had been turned on with the pilot lights extinguished. A search of the house failed to reveal the presence of any medication or illegal drugs.3 Pacts Shortly after 9:00 AM on July 24, 1998, the Hempstead Police Department recciveil a call for a naked man in the street at a particular location in the Village. Uniformed officers were assigned to investigate the complaint. The first officer to arrive was Police Officer Coole, The location was a residential neighborhood, Officer Cooke observed Paul Maxwell walking in the roadway carrying a baseball bat in his hand and wearing no clothing. Although Mr. Maxwell was initially walking away from the patrol ear, he abruptly turned around and ran back toward the ear with the bat raised over his head. Officer Cooke attempted fo back up but Mr. Maxwell was quickly at the ear smashing the windshield and bruising the officer's hand by hitting him with the bat. He was shouting at Officer Cooke: "Do me. Do me." Eventually, Cooke was able to drive away and request assistance as well as an ambulance and a supervisor with a “taser.” The taser gun is a hand held device which simultaneously fires two dart-like projectiles delivering fifty thousand volts of electricity that will immobilize a dangerous subject and render him helpless. It holds two cartridges, both containing two darts and each cartridge is fired sequentially by depressing each side of a button on the top of the device. One dart is loaded above the other with the top dart pointing horizontal and the bottom dart at a downward angle. Accordingly, it is not as casy to aim as a pistol. Wires are attached to the darts which are powered by a rechargeable battery also affixed to the device. The firing mechanism must remain depressed and both darts in each eartridge must strike and stick to the target for the electrical charge to be activated. Hempstead Police Officers Wellington and Murphy heard Officer Cooke's radio call and responded to the scene in one car. They both observed Maxwell in the middle of the road with the bat in his hand, When he observed this police car, Maxwell charged at it with the bat, One officer heard him yell: “My mother just died and if you guys don't want to die, you better ron.” A civilian witness heard Mr. Maxwell yell at the police: “you caused my mother to die” As the car proceeded away from Mr. Maxwell, the officers saw him slip on the grass while chasing them, Eventually they were able to avoid him and drive away. Another civilian witness observed Mr. Maxwell put the bat between his legs by his genitals and exclaim “this is my prick.” He also told this same civilian witness as he walked by: Vm not crazy~I'm just ready for battle, Come with me and wateli what Pm going to do." Also hearing the original notification and Officer Cooke's request were Lieutenants Wells and Oreszezya at the Hempstead police station and Police Officer Zoll who was at the armory preparing for community bicycle patrol. Lieutenant Oreszezyn was in uaiform but Wells was in plain clothes. They drove to the seene in the same unmarked car. Officer Zoll was in uniform and drove a marked patrol car. Prior to responding, Lieutenant Oreszezyn took the taser gun from headquarters, attached the battery and loaded it with two cartridges of darts, As the Heutenants arrived at the scene, Officer Zoll pulled behind their unmarked car.KIMMIE 28044 Pea 4 When the lieutenants pulled up, Mr. Maxwell was still in the strect holding the bat. When be became aware of the unmarked car behind him, he turned and ran toward it with the bat raised over his head. As he approached the drivers® side, he appeared to be trying to hif the car with the bat. Lieutenant Oreszezyn was aware that Mr. Maxwell had previously struck Officer Cooke's car with the bat. Licutenant Oreszczyn got out of the ear on the passenger side and fired one round from the taser over the hood at Mr. Maxwell who was on the other side of the car. Mr. Maxwell said “that stings" and then proceeded to run around the front of the car toward Lieutenant Oreszezyn with the bat raised, When he got to about six feet away, the lieutenant fired the seeand cartridge from the taser and Mr. Maxwell simultaneously struck him over the head with the bat eausing him to fall to the ground, Lieutenant Wells then tried {0 manually subdue Mr. Maxwell but he proceeded to strike him on the back and shoulder with the hat knocking him to the ground as well. Officer Zoll saw Licutenant Oreszczyn get struck with the bat and kunocked to the ground. He then saw Mr, Maxwell standing over the licutenant with the bat raised over his head as if to strike him again, Fearing that the lieutenant would be killed, Officer Zoll fired his service firearm at Mr. Maxwell who then turned and advauced toward Officer Zoll from five-six feet away with the bat raised. Fearing for his own life, Officer Zoll fired several more shots and Mr, Maxwell fell to the ground and dropped the hat, Mr. Maxwell died at the scene asa result of the wounds he sustained from Officer Zoll’s gun. From the time the taser was first fired until Officer Zoll had finished shooting wes only a few seconds. This factual description of the incident is well substantiated from interviews with ten members of the Hempstead Police Department and written statements from eight civilian witnesses, Four civilians observed Mr, Maxwell attack Officer Cooke's car with the bat and break his front windshield. Seven police witnesses and five civilian witnesses observed him hit Lieutenant Oreszezyn over the head with the bat, Just prior to the shooting, nine police witnesses and five civilian witnesses saw Mr, Maxwell standing over the fallen lieutenant with the bat raised as ff (o strike him again, Six police witnesses and three civilian witnesses see him advance toward Officer Zoll in a menacing manner after the initial shooting which is followed by several more shuts. One police witness commented that Mr. Maxwell was not aggressive toward civilians but only to the police. He ohserved rage in Mr. Maxwell's face that he had never seen before. ‘Onc civilian witness, however, gave a description of the event that is, in part, somewhat different from accounts provided by the athers. Consistent with the other witnesses, he described the police cars as “giving Paul bis space." Morcover, he observed Mr. Maxwell striking two of the officers with the bat, swinging the bat while officers were attempting to subdue him and while one officer was on the ground. Nevertheless, this witness totd the police that after the first shot was fired, Mr. Maxwell dropped the bat and the subsequent shots occurred while he was unarmed but standing, This latter statement is inconsistent with those of nine other witnesses (police and civilian) and, therefore, lacks reliability. Furthermore, this witness has an arrest record for disorderly conduct, harassment, resisting arrest (involving theDero Pos 3 Hempstexd Police Department) end criminal contempt. He was released from jail two months before this incident and rearrested three weeks after this incident for repeatedly threstening his girlfriend in violation of an order of protection. His credibility is, therefore, signi‘icantly impaired, An autopsy was conducted on the body of Mr, Maxwell by Dr. Demartino at the Nassau County Medical Examiner's Office, From this it was determined that the deceased was struck hy five bullets, three of which would have caused his death. He was struck by two bullets in the center of bis chest both of which perforated his heart and lungs. He was struck by another bullet on the left side of his chest which perforated a lung. He was struck by a fourth bullet in the right ear which transected his brain and would have killed him virtually instantly. A fifth bullet struck his right upper arm fracturing the bone, None of the shots were sufficiently close to leave stippling or gunpowder un the body. The autopsy cannot establish the sequence of the shots although the one to bis ear and brain would have been one of the last. All of the bullets were recovered in the body of the deceased. Additionally, five shell casings were recovered at the scene, all of which were identified by ballistics examination as having been fired from the gun recovered from Officer Zoll after the shooting. There were no other injurics to Mr. Maxwell’s body and toxicological tests for drugs and alcohol were negative. Three taser darts were found embedded in the body; one was in the middle of the chest, one in the penis and one in the genital area. One additional dart was recovered at the scene. Analysis, ‘The shooting of Paul Maxwell by Officer Zoll occurred while the latter was performing his duties and while using his authorized firearm. He fired five rounds, all of which struck Mr. Maxwell. The main issue to be determined is whether Officer Zoll was legally justified in his actions at the time of the shooting. Justification pursuant to Article 35 of the Penal Law is always a complete defense and must be disproved by the prosecution beyond a reasonable doubt, Pursuant to Section 38.15, Officer Zoll could lawfully use deadly physical force if he reasonably believed it to be necessary to defend himself or a third person from what he reasonably believed to be the use or imminent use of deadly physical force. Based upon the overwhelming evidence, the shooting of Paul Maxwell by Officcr Zoll was justified and, accordingly, lawful, There does not appear to be any credible factual dispute or investigative need which requires a grand jury presentation, Mr. Maxwell, who has a history of mental illness which previously required police intervention, was acting irrational and dangerous on July 24, 1998. He had eaused a fire in his, home and was proceeding naked through 2 residential neighborhood in daylight hours with a baseball bat in his hands. Why he would engage in this conduct is difficult to ascertain particularly in light of the refusal of his father to speak with us.6 He suddenly began to violently attack the first police ear to respond to a citizen's complaint and caused injury and property damage. The mere arrival of additioual police cars only served to further enrage him until he finally attacked an unmarked car with two occupants. To defend the safety of police personnel and subdue Mr, Maxwell, Lieutenant Oreszezyn had no choice hut to use force. The taser gun used is a nonlethal method of subduing a person in this type of situation, Chemical inace could miss the target, incapacitate other personnel and fs known to be ineffective against some emotionally disturbed persons. Also, neither licutenant in the unmarked car was in possession of mace, ‘Tragically, the taser was unsuccessful in subduing Mr. Maxwell. There are several possible reasons for this: missing the body with one of the ¢wo darts in a cartridge; failing to Keep the trigger mechanism depressed; mechanical malfunction; and profuse sweating by the target which interferes with the electrical current. Since only three darts stayed on Mr. Maxwell's body, one shot only caused one dart to stick. Licutenant Oreszeryn specifically recalls keeping the firing mechanism depressed after the first cartridge was fired. If true, itis likely that only one dart stuck to the body from the first shot or, that even if both darts stuck, the sweat produced by Mr, Maxwell’s violent movements on a hot summer morning interfered with the electrical shock. The manufacturer inspected the taser subsequent to the shooting and found an overheated oscillator transformer which results from the power being applied for an extended period of time. This would corroborate Licutenant Oreszezyn’s recollection of keeping the firing mechanism depressed after the first cartridge was fired. By the time he shot the second cartridge of darts, the lieutenant was struck over the head rendering him incapable of keeping the firing mechanism depressed. Therefore, the taser did not transfer any electricity to Mr. Maxwell from either shot and failed to disable him. We are unable, however, to determine the precise reason that the taser was ineffective. Once the taser was ineffective in subduing Mr. Maxwell and he was poised over a prone and injured policeman with the bat raised in an apparent effort to strike him agaii Officer Zoll was justified in using deadly physical force by discharging his firearm. When Mr. Maxwell them turned toward him and advanced forward with the bat raised, Officer Zoll was again justified in using deadly physical force by discharging his firearm, It must be remembered that this entire incident developed and escalated in only a few seconds. In their statements to the police, several civilian witnesses to the incident recognized the necessity of the action taken by the officer. In these circumstances, Officer Zoll clearly reasonably believed that the use of deadly physieal force was necessary to defend the lieutenant and himself from the imminent use of deadly physical force ond there was no opportunity for him to safely retreat, Accordingly, the shooting was justified pursuant to Section 35.15(2) of the Penal Law. Since the failure of nonlethal methods to subdue the deceased clearly led to the necessity of the use of deadly force, it is important to discuss the capability of the Hempstead Police Department to respond to situations involving emotionally disturbed persons. As a village police department, should it handle its own emergency situations or should it defer to the wires possessed by the county police department? The issue revolves around the greater resoAeO ee 1 conflict between specialized training and shorter response time. ‘The Emergency Services Bureau (ESB) of the Nassau County Police Department, in addition to participating in rescue efforts, transporting equipment and towing services, responds to requests to sssist in incidents involving emotionally disturbed persons. They are specially trained for these assignmnents and have assorted devices (taser, net, water under pressure, pepper spray) as well as protective gear (helmet, vest, ete.) to deal with the inherent danger involved. Moreover, they will respond to such calls from the villages and cities in the County. The drawback, however, to this Bureau’s assistance to a village is response time. They have two vehicles based in Bellmore and, even ifone were on patrol, depending on the location of the incident and prevailing traffic conditions, it could take a considerable amount of time to reach the loestion, Moreover, the Bureau does not always have sufficient on duty personnel to respond to this type of call and would have to mobilize off duty members at times, further inapeding response time to a rapidly developing incident. Minimum response time for ESB is now Gwenty to thirty minutes. Its usefulness is predominantly when the situation is static or slaw to develop allowing more time to respond and deploy. Given the aggressive manner in ich Mr. Maxwell repeatedly aitacked the police ears, there was no time for additional support to respond and the local village officces were forced to deal with this situation by using the equipment at hand. Conelusion ‘The deuth of Paul Maxwell was un unfortunate tragedy. It was, however, largely caused by his irrational und unprovoked violence toward members of the Hempstead Police Department. Although the police showed appropriate restraint when dealing with this emotionally disturbed person, the event rapidly cscalated into a situation where deadly physical force was reasonably required. In the future, itis respectfully sugyested that police agencies should conduct a comprehensive review of the equipment and procedures they utilize in dealing with mentally disturbed persons. Different nonlethal devices should be evaluated and, if deemed effective, scquired. Training in the methods of handling mentally disturbed persons should be emphasized and all officers should be retrained on a regular basis. Dated: September 29, 1998 TOTAL Pe?