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Monday, March 31, 2014

ATF faces lawsuit from police officers wounded in Greenland

CONCORD – Four New Hampshire police officers who were shot in Greenland in 2012 are asking a federal judge to order the Bureau of Alcohol, Tobacco, Firearms and Explosives to release information about the incident.

A lawsuit filed by the officers in federal court last week alleges the ATF has failed to meet public disclosure requirements under the Freedom of Information Act. The officers are asking for an expedited hearing and a judgment calling for the ATF to hand over its records. ...

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CONCORD – Four New Hampshire police officers who were shot in Greenland in 2012 are asking a federal judge to order the Bureau of Alcohol, Tobacco, Firearms and Explosives to release information about the incident.

A lawsuit filed by the officers in federal court last week alleges the ATF has failed to meet public disclosure requirements under the Freedom of Information Act. The officers are asking for an expedited hearing and a judgment calling for the ATF to hand over its records.

The plaintiffs believe the records include key pieces of evidence that could be used in a civil suit against the shooter’s mother, Beverly Mutrie. The officers sued her in July 2012, but the case is stalled in Rockingham Superior Court.

A judge dismissed some of the claims against Beverly Mutrie, but agreed to hear arguments about whether Mutrie supplied her son with weapons. The officers have until May 1 to respond or risk having the lawsuit dismissed.

They first sought records from the New Hampshire Attorney General’s office, which investigated the shooting, but the AG’s office declined to release unredacted versions of ATF’s records.

ATF also denied a request to provide the information, indicating in early 2013 that an investigation was still ongoing.

The officers challenged the decision and eventually won an appeal in December. The ATF was ordered to comply with their request, but the officers – who are identified in court filings as “John Doe” – are still waiting to receive the records.

With the clock ticking on their civil lawsuit, the officers filed a complaint against the ATF on Wednesday in U.S. District Court in Concord. Through their attorney, Christopher Grant, the officers argued there are no exemptions or exceptions to disclosing the records, nor are there circumstances that justify the delay.

“The Superior Court has repeatedly continued the case (against Beverly Mutrie) in order to give the ATF more time to comply with the FOIA request, which the ATF has failed to do,” the lawsuit reads. “John Doe 1 now brings this action, seeking injunctive relief, and specifically asks that this Court order ATF to produce the requested documents as required by the Freedom of Information Act.”

The four Drug Task Force members wounded by Cullen Mutrie were identified by the attorney general as Newmarket police Detective Scott Kukesh, Rochester police Detective Jeremiah Murphy, University of New Hampshire police Detective Eric Kulberg and Dover police Detective Greg Turner.

The injured officers were assigned to the New Hampshire Attorney General’s Drug Task Force at the time of the April 12, 2012 shooting. They were attempting to serve warrants at Cullen Mutrie’s residence in Greenland when four were shot.

An investigation by the attorney general’s office concluded Cullen Mutrie opened fire on the officers when they attempted to enter through the front door of his residence at 517 Post Road.

The officers had a warrant to search the home and to arrest Brittany Tibbetts, who was suspected of selling drugs out of the residence with Cullen Mutrie.

Mutrie retreated to a basement, where he shot and killed Greenland Police Chief Michael Maloney, the investigation concluded. He then shot and killed Tibbetts before taking his own life.

Police found mushrooms, 27.46 grams of cocaine, three vials of anabolic steroids and 5.78 grams of marijuana inside Mutrie’s home, according to New Hampshire State Police records. Investigators also found approximately $14,000 worth of cash in Tibbetts’ clothing.

An autopsy determined Cullen Mutrie had evidence of narcotics, opiates, marijuana and anabolic steroids in his body at the time of his death.

In court filings, the officers alleged that Cullen Mutrie received housing, automobiles, weapons and financial assistance from his mother, who also paid for his attorney fees. However, Judge Kenneth R. McHugh ruled that with the exception of weapons, nothing on that list can reasonably be considered to have created or contributed to an unjustifiable risk of harm to others.

“Cullen Mutrie was 29 years old when he engaged in the firefight with police, and there is no evidence to suggest that the defendant was in a position to control his actions,” McHugh wrote in an October 2012 ruling. “Providing him with a house, cars and financial assistance did not enable Cullen Mutrie to shoot the police, nor did it contribute to his decision to do so.”

McHugh indicated he’s still willing to consider the lawsuit if the plaintiffs provide more evidence about the weapons used in the shooting. McHugh requested evidence that would show “with reasonable probability” that Beverly Mutrie owned and provided Cullen Mutrie with the firearm used to injure the officers.

Police were ordered to remove firearms from the residence on Post Road in 2010 after Cullen Mutrie was served an emergency restraining order following an altercation with a girlfriend.

They also removed weapons from Beverly Mutrie’s home in nearby Hampton Falls.

An investigation by New Hampshire State Police determined there were two weapons inside Mutrie’s residence when the shooting occurred – a .357 handgun and 9mm handgun. Police concluded Tibbetts bought the .357 at a gun show in Manchester. Police said the 9mm was purchased in 1989 by Cullen’s father, Charles Mutrie, who died in 2010.

State Police concluded that four rounds were fired from the .357. The investigation determined Mutrie fired an additional four rounds with the 9 mm, shooting Maloney through a basement window, then murdering Tibbetts and committing suicide.

An evidentiary hearing about the weapons has been delayed for months in Rockingham Superior Court while the officers seek records from the ATF. Unless evidence is submitted by May 1, the case will be dismissed, and no further delays will be authorized, McHugh ruled in March.

Grant, of the firm Boynton, Waldron, Doleac, Woodman & Scott in Portsmouth, declined to comment on the legal action filed by his clients against the ATF.

Jim Haddadin can be reached at 594-6589 or jhaddadin@nashua
telegraph.com. Also, follow Haddadin on Twitter (@Telegraph_JimH).