Gateway Gazette

ASIRT Concludes Investigation into CPS Officer-Involved Shooting

On March 16, 2015, the Alberta Serious Incident Response Team (ASIRT) was directed to conduct an investigation into the circumstances surrounding the death of Anthony Heffernan as a result of an officer-involved shooting that occurred during the course of what was described as a “wellness check”.

In every case of serious injury or death, ASIRT’s mandate is to effectively, independently, and objectively investigate whether the conduct of police caused the injury or death, and, if so, whether the evidence provides reasonable grounds to believe that the conduct constituted a criminal offence.

On Sunday, March 15, 2015, Anthony Heffernan attended a Super 8 Hotel in Calgary, Alberta and checked in. On March 16, 2015, at approximately at 11:15 a.m., housekeeping asked the front desk clerk if the guest in room #414 had checked out, as there was a “Do Not Disturb” sign still on the door. The front desk clerk called the room but got no answer. She went to the room and knocked, calling “Front Desk” and “You are due to check out today” or words to that effect. There was no answer. She could hear the faint sound of a TV. She put the key in the door but could tell the inside deadbolt was in use. She contacted her manager who said to give the guest one hour. At 12:30 p.m., she took a cordless phone and went up to the door of #414 and dialed the room’s phone. She could hear the phone ringing but there was no answer. She became concerned something was wrong. She called into the room loudly that she would give him five more minutes to call down to the front desk and if she didn’t hear from him, she would call the police. No response came from the room. The hotel initially contacted police but then elected to give the guest more time. At 2:30 p.m., she and another staff member went into the room beside #414 and opened one of the doors between the two rooms. The other side was locked but she smelled what she believed was fresh cigarette smoke from the non-smoking room. After speaking with a manager, she again contacted police, who responded.

At approximately 3:14 p.m. on that date, Calgary Police Service (CPS) officers attended the fourth floor of the Super 8 Motel on Barlow Trail NE following a request to check on the well-being of the 27-year old man, identified as Mr. Anthony Heffernan. CPS officers were provided a key by motel staff and attended to the room. When the officers attempted to open the door, they found the security lock fastened, restricting access. Having a narrow view into the room through the partially open door, the subject officer unsuccessfully attempted to communicate with Mr. Heffernan who appeared to be flushed, non-responsive, and was hyperventilating. Concerned for his well-being, Emergency Medical Services (EMS) were requested to attend the scene and were asked to stand by in the lobby of the hotel. Emergency Medical Services members confirmed that they were in attendance as a result of CPS members raising concerns that a person in a hotel room might be in medical distress. The decision to remain in a nearby location, in this case the lobby, for CPS members to advise them when to move up to the room was standard practice in cases where there might be an elevated risk to their safety.

Hotel staff were asked for a tool used to unlatch the security latch device from the outside, and police attempted to gain entry into the room that way but were unable to disengage the latch. As time passed, concerns grew that Mr. Heffernan’s condition might have deteriorated, that he might engage in self-harm, and the officers felt that forced entry into the room was necessary under the common law duty to preserve life as there was the belief that Mr. Heffernan might need urgent medical intervention.

The officers felt that armed entry was warranted in the circumstances given the following factors:

  • Although they had only seen Mr. Heffernan at the door, it remained unclear whether anyone else might be present in the room as well.
  • The belief that Mr. Heffernan might be in a drug induced state.
  • The non-responsive and non-communicative behavior of Mr. Heffernan in the room.
  • A previous similar medical emergency encounter with Mr. Heffernan, as described by the subject officer, had required a use of force.
  • Mr. Heffernan might be in possession of needles.
  • Concern that things would escalate once in the room

 

Upon entry they were met by Mr. Heffernan who stood between and near the end of the two beds, with both arms raised. He held a small insulin syringe in his left hand at shoulder height and a lighter in his right hand. He was flicking the lighter in what appeared to be an unconscious habit and possibly playing with the plunger on the syringe, although there are differing descriptions as to how the syringe was being held. All of the witness officers stated concerns about the possibility that the syringe might be contaminated and that they might get stabbed or stuck by it.

Although the officers commanded him to drop the syringe, he remained unresponsive, non-communicative, and seemingly unaware. Officers further attempted to communicate with him addressing him by his first name in hopes it would de-escalate the situation; however, their attempts were unsuccessful.

Having been unable to get Mr. Heffernan to follow demands, the officer fired his Conducted Energy Weapon (CEW), commonly known as a Taser, striking Mr. Heffernan in the abdomen, momentarily incapacitating him and causing him to fall backwards onto a bed (the second bed, furthest from the doorway). One CEW probe penetrated Mr. Heffernan’s skin however the second probe only made contact with his shirt. The officer cycled and discharged the CEW a second time. While on the bed, Mr. Heffernan was described as either flailing his arms around and contacting the probe wires, or pulling at the wires. The lighter and the syringe remained clutched in his hands. Two out of the three officers carrying firearms holstered their weapon and moved in to grab him; however, he dislodged the wires and appears to have stood up from the bed.

Depending on the description provided by the witness officers, still holding the lighter and syringe, Mr. Heffernan either moved forward towards the officers or lunged in their direction. He was described by one officer as appearing to take an aggressive stance. Everyone in the room would have been in very close proximity to one another, some officers within an arm’s length or slightly more to Mr. Heffernan.

The officer who had entered last had stepped between the wall and the bed closest to the hall, removed his CEW from its holster and fired it at Mr. Heffernan at the same time as the subject officer fired his service issued 40 caliber Glock pistol six times. The probes of the CEW struck Mr. Heffernan in the right bicep, roughly seven inches apart. Mr. Heffernan was shot four times, with two bullets striking his head, one striking his neck and one striking his upper torso. Two bullet wounds were penetrating, which resulted in the bullets being recovered from his skull and chest area respectively. Two other bullet wounds were perforating, which resulted in the bullets passing completely through his head. Those bullets were recovered at the scene. It is not possible to determine the exact order in which the wounds were suffered.

Following kicking in the door, 72 seconds elapsed from the point police were in the room to the point the second Taser and shots were fired.

EMS members heard that an officer involved shooting occurred which changed the nature of the call and required immediate response so they made their way upstairs.

Mr. Heffernan had collapsed to the floor at the base of the bed nearest to the doorway, where he died. Scene photographs show that he was lying on his back on the floor with a lighter still grasped within his right hand. A syringe without a needle tip was recovered from underneath his right shoulder. Nothing was in his left hand.

An autopsy was conducted on March 17, 2015. At the time of death, Mr. Heffernan weighed 74 kg (approximately 163 lbs) and was 178 cm tall (approximately 5 feet 9 inches). He was noted to be well-developed and well-nourished. The cause of death was determined to be multiple gunshot wounds, a number of which would have been considered lethal. There were three evident CEW dart puncture wounds, where the prong had penetrated skin. A fourth prong did not penetrate skin and was stopped within the fabric of the shirt Mr. Heffernan was wearing. Lastly, multiple needle/puncture marks to both the upper and lower extremities were noted, consistent with a history of intravenous drug use. Toxicology results revealed significant levels of cocaine in Mr. Heffernan’s system. A piece of a plastic baggie was recovered from within Mr. Heffernan’s stomach.

The investigation was completed and reviewed thoroughly by ASIRT’s Executive Director, Susan D. Hughson, Q.C. The fundamental issue was whether, in the circumstances of this case, an insulin syringe, missing its tip, in the hand of a known IV drug user, who was unresponsive, irrational, and non-communicative, created an objectively reasonable belief that he constituted a threat of grievous bodily harm or death to the officers present. Factored into that assessment was the potential for the risk of possible exposure to blood borne disease, being mindful of the fact that there was no information that he did, in fact, have any communicable disease. Additionally, reasonable belief had to be assessed in the circumstances that another officer opted to use the CEW, a less than lethal use of force in response at the same moment in time. The evidence of the four witness officers, however, that they feared for their safety and in particular, the risk that they might be exposed to blood borne diseases also had to be weighed. This was a very difficult case. Ultimately, in her opinion, there was available evidence capable of constituting reasonable grounds to believe that an offence(s) under the Criminal Code had been committed. Having come to this conclusion, the matter was forwarded to the Alberta Crown Prosecution Service (ACPS) for an opinion. ASIRT was advised that an Expert Use of Force opinion could impact the analysis, and additional information relevant to policy issues and training was sought. ASIRT sought and obtained an expert opinion which was provided to the Crown. The Use of Force opinion found that, in the circumstances, the subject officer’s conduct could be justified. The additional material was also provided to the Crown.

On Friday, August 12, 2016, the final opinion was provided from the ACPS. Based on their review of the entirety of the investigation, there was no reasonable likelihood of conviction and the recommendation was that no charges be laid against the subject officer.

The roles of ASIRT and the ACPS are independent but necessarily connected. The Executive Director of ASIRT recognizes that it is important to respect and maintain those boundaries between the role of the Crown and the role of the Executive Director of ASIRT. Although there is evidence capable of providing reasonable grounds to believe that an offence or offences have been committed, the Crown opinion has determined that the case does not meet the standard for prosecution. The opinion provided was reasonable and demonstrated a comprehensive understanding of the evidence, the legal issues, and the relevant case law. In those circumstances, the subject officer will not be charged with any criminal offence arising out the circumstances in this case.

This finding in no way diminishes the sad fact that a family has lost their loved one. On behalf of ASIRT, the Executive Director extends condolences to the family and friends of Mr. Heffernan in relation to this tragic event.

ASIRT’s mandate is to effectively, independently, and objectively investigate incidents involving Alberta’s police that have resulted in serious injury or death to any person, as well as serious or sensitive allegations of police misconduct.

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