Judge dismisses Breer's lawsuit against VSP for shooting him with bean bag

Breer, 52, is facing in Washington County criminal court in Barre two felony counts of obstruction of justice, a felony count of extortion and a felony count of first-degree aggravated domestic assault, as well as misdemeanor counts of resisting arrest and violating conditions of release. He has pleaded not guilty to one of the obstruction of justice charges, the domestic assault charge and the resisting arrest charge, and has yet to be arraigned on the other charges. He is currently held without bail at Northern State Correctional Facility in Newport.

Breer is accused of assaulting someone on Folsom Hill Road in Marshfield on April 9, 2021. State Police troopers responded to the scene and made contact with Breer, but they said they weren’t able to take him into custody. Police said he fled on foot and hid in the woods.

Police spent the next few days looking for Breer and he was eventually found and peacefully taken into custody after a trooper spotted him coming out of the woods in Marshfield.

Breer pleaded no contest in May 2020 to felony counts of second-degree aggravated domestic assault and second-degree unlawful restraint and was under house arrest at the time of the alleged assault. He previously spent eight years in prison after being convicted in 1999 in a high-profile kidnapping case.

In August, Breer sued members of the State Police in Washington County civil court, stating he was shot in the back after he encountered troopers. There was no mention of a shooting, the use of a bean bag or any use of force in numerous news releases from State Police about Breer’s disappearance and eventual capture nor during a news conference held after his capture nor in court records for the resisting arrest charge he now faces.

Breer said in the lawsuit he now has panic attacks as a result of being shot. He said he still suffers from back and leg pain and hasn’t regained all motor function in his left leg.

Breer was suing for the mental and physical damage the incident caused him. He said the troopers acted negligently and used excessive force by shooting him in the back when they didn’t have the justification to do so. He argued the troopers didn’t have enough information at the time and did not do a proper investigation before attempting to arrest him.

Assistant Attorney General Bartholomew J. Gengler represented members of the State Police and had filed a motion in October and again in December asking Judge Robert Mello to dismiss the lawsuit. That motion confirmed Breer had been shot with a bean bag. Gengler said in the motion the U.S. Supreme Court has made it clear that arguments like the ones Breer is making will have to wait until the criminal charges he is facing are resolved. He said in the motion Breer’s lawsuit was, “nothing more than an attempt to collaterally attack the criminal case currently pending against him.”

Named as defendants in the lawsuit were Department of Public Safety Commissioner Michael Schirling, Deputy Commissioner Christopher Herrick, Lt. David White and Troopers Crista Maurice, Mathew Nadeau, Daniel Bohnyak and Paul Pennoyer. Breer was seeking $4 million from each defendant, $2 million for compensatory damages and the remaining $2 million for punitive damages. In March, Breer filed his own motion to dismiss, looking to have everyone except for Bohnyak, the trooper who shot him, removed from the lawsuit.

In a decision issued on May 1, Judge Mello granted Gengler’s motion and dismissed Breer’s lawsuit without prejudice, meaning it can be refiled at a later date.

The judge said in the decision, “The Court agrees with the Defendants that by filing this civil suit Breer is seeking to undermine the pending criminal prosecution by challenging the State’s allegations that he assaulted (the victim), caused him serious injuries, and then resisted arrest when confronted by (State Police). The criminal charges pre-date the filing of Breer’s complaint in this case, and, since they are based upon the same set of operable facts as are at issue in this case, they must be resolved first, and in Breer’s favor, before Breer can pursue his claim for civil damages.”

It does not appear this incident of use of force is reflected in the data publicly released by State Police. According to the data released last week, there were two incidents in 2021 where troopers used impact projectiles, including bean bags. One of the incidents took place on a Monday and the other on a Thursday. According to State Police, one of the shootings occurred between midnight and 3 a.m. and the other between 9 p.m. and midnight. Breer was reportedly shot with a bean bag on a Friday around 6 p.m.

State Police did not respond to questions by deadline Monday. Adam Silverman, spokesperson for the State Police, was not available for comment Monday, nor was Gengler.

Breer said in the lawsuit he was injured when he was shot. The data from State Police shows no subjects were injured by the use of impact projectiles in the two reported incidents last year.

It’s also unclear if this incident was a violation of the State Police’s use of force policy which states, “The act of fleeing or destroying of evidence, in and of itself, does not justify the use of a (conductive electrical weapon) or impact projectiles.”

Such force can be used, according to the policy, “against subjects who are exhibiting assaultive behavior or who are actively resisting in a manner that, in the member’s judgment is likely to result in injuries to the subject, the member or others.”

While troopers were responding to an alleged assault, there’s no information in court documents about Breer “exhibiting assaultive behavior” when he was met by troopers or at any point during that interaction. Nor was there any information about him acting in a way that would have injured anyone at that moment. Outside of Breer running away, there has been no information released by law enforcement showing why Bohnyak shot him with the bean bag.

eric.blaisdell

@timesargus.com