Lawyer says commander did not fire fatal pellet
The lawyer for Deputy Superintendent Robert E. O'Toole Jr., who commanded the Boston police unit that fired the shot that killed an Emerson College student last Thursday, acknowledged yesterday that his client fired a pepper-pellet gun four times that night, but said O'Toole did not fire the fatal shot that struck 21-year-old Victoria Snelgrove.
Disputing an account in yesterday's Globe, Timothy M. Burke said his client was trained to use the weapon. Burke said O'Toole fired it four times and authorized those in his command to fire their pepper-pellet guns. O'Toole fired three times to force a crowd that had scaled the Pedro Martinez billboard on Brookline Avenue to get down, Burke said. O'Toole fired two warning shots that struck the sign, Burke said, and one round that struck a fan in the chest after he refused to climb down.
O'Toole later moved down Lansdowne Street, where he saw people climbing the Green Monster, Burke said. Disputing accounts by witnesses who said that no warnings were issued, Burke said that according to O'Toole, police ordered people to get off the Green Monster, but they didn't move.
"One individual was struck in the buttocks area by a round fired by Deputy Superintendent O'Toole," said Burke. "He says he fired only one round on Lansdowne Street.
Burke said that O'Toole, who declined to be interviewed for this article, was devastated by Snelgrove's death. She was shot while celebrating with friends on Lansdowne Street and died at Brigham and Women's Hospital.
In a separate interview, Police Commissioner Kathleen M. O'Toole said she had not questioned Robert O'Toole or the other officers in his unit who fired pepper-pellet guns on Lansdowne Street early last Thursday, saying she wanted to "maintain the integrity of the investigation" into Snelgrove's death.
"I didn't talk to Bobby," she said.
"He is my friend, personally and professionally, but no way did we talk about the facts" surrounding the shooting, the commissioner said.
She said she had heard "rumors and reports" that some people had maintained that Robert O'Toole, who is not related to her, had fired one of the weapons as police tried to control the crowds that turned violent after the Red Sox defeated the Yankees.
She said it would be improper for her to question people involved when she is not part of the investigation team.
Police sources and a person involved in the investigation into Snelgrove's death have told the Globe that Robert O'Toole was not trained to use the weapon.
But Burke said his client was trained to use the gun and fired it "at least 10 times" when he attended a five-day civil disturbance seminar in Ithaca, N.Y., prior to the Democratic National Convention in July. The lawyer said a group of Boston police officers who attended the seminar were instructed on how to use an array of less-lethal weapons, including the Herstal FN303 pepper-pellet gun, the weapon used last Thursday by O'Toole and at least two other members of the special operations unit he heads.
According to Burke, O'Toole said he spent a half day on the range firing an FN303 and other "less lethal" weapons.
Asked if O'Toole's firing the weapon 10 times at a single instructional session constituted being trained, Burke said, "In conjunction with his use of all sorts of weapons, yes." He said O'Toole is a recognized expert in special operations and was familiar with the use of an array of "less lethal" weapons, including the FN303. He said O'Toole had rejected his unit using other less-lethal weapons, such as beanbag shotguns, because there was a risk of fatal injuries that he had been assured did not exist with the FN303.
Burke said the Boston Police Department does not have any regulation requiring officers to receive a certain amount of training with such weapons before they are deemed qualified to use them. "The BPD doesn't require an officer to have a certain certificate to fire it, but that doesn't mean you don't have to have some kind of training," he said.
Asked if the department requires a certain amount of training before officers are considered qualified to use the weapon, police spokeswoman Beverly Ford said, "I don't think so."
However, Burke confirmed that O'Toole did not attend any of the training classes that FN Herstal, the manufacturer of the FN303, provided to nearly 30 other Boston police officers who completed the course and were certified.
Bucky Mills -- deputy director of law enforcement sales, marketing, and training for FN Herstal -- said that nearly 30 Boston police officers completed an eight-hour training course on the FN303 and were certified to teach others how to use it.
"We recommend that people go through our training classes," said Mills, adding that the training includes time in the classroom and at the firing range. He said the training manuals and instructors advise officers that "you do not intentionally target the face or the head or neck, because it can cause death or serious injury."
He said the company has not been officially notified that an FN303 killed Snelgrove and has not taken action as a result of her death. Since the company started marketing the FN303 about 2 years ago, it has sold about 1,000 to law enforcement agencies and, until Snelgrove's death, had received no reports indicating that they caused death or serious injuries, according to Mills.
Burke questioned the manufacturer's statements about the "less lethal" nature of the FN303, pointing out that the manufacturer's website says the projectiles fired by the weapon "have been designed especially to break up on impact, eliminating risks of penetrating injuries."
Burke said O'Toole and other officers who had fired the weapon prior to Thursday "knew not to fire at head level."
"At no time did any of these officers fire at anyone's head," said Burke. "This was a riot situation. If you look at where those who were struck, the vast number of the impact wounds was on the torso. Some who got it in the head may have ducked or had been behind someone who ducked."
Burke also disputed a report in yesterday's Globe, based on an account by an officer involved in the department's weapons training, that his client had handed his pepper-pellet gun to Officer Richard B. Stanton, who was not trained to use it. O'Toole "has no memory of handing Stanton a weapon," Burke said.
"And his belief is that the weapon was distributed only to those individuals who had been qualified to handle it. He has no recollection of having that communication with Stanton. He did ask other individuals if they were trained."
Suzanne Smalley of the Globe staff contributed to this report.