A Shelburne cop used excessive force during an incident last year with a teenager, according to a county prosecutor and an internal affairs investigation. But it’s unlikely the officer will face criminal charges, and it’s unclear if he faced any discipline for his conduct.
Cpl. Jon Marcoux spent most of last year on administrative leave while state police conducted a criminal investigation and his own department examined his actions. Marcoux’s supervisor initially flagged the incident and recommended an internal investigation, noting that Marcoux’s strike was “excessive and unreasonable force, ” according to police records.
Marcoux returned to work last month, according to the Shelburne News.
The use of force incident occurred during a traffic stop last January. According to video footage first published by the Shelburne News and later by VTDigger, Marcoux struck a teenage girl who was handcuffed in the back of his police cruiser.
Marcoux did not respond to a request for comment.
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The internal investigation found Marcoux violated four department policies: failure to follow department rules, abuse of authority, use of force, and conduct unbecoming.
Shelburne Police Sgt. Joshua Flore, in the conclusion of the report, wrote that Marcoux didn’t use any de-escalation techniques during the traffic stop, which “directly impacted the outcome of the situation leading to an unreasonable use of force.”
“Cpl. Marcoux used more force than was reasonably necessary under the circumstances of this case,” Flore wrote in the report. “[The teenager] was handcuffed behind her back, seated in the rear of the cruiser, and was seat belted. She posed no threat that would have caused Cpl. Marcoux to use physical force to protect himself or others from harm.”
The incident started when Marcoux responded to a call about a teenager who took her mother’s car without permission, records show. According to police records, Marcoux pulled the teen over and told her she would face a charge of operating the car without the owner’s consent.
“At this point, you are going to be charged as an adult. I can bring you back in handcuffs to the station and we can go from there,” Marcoux said, according to a transcript in the internal investigation.
“Cpl. Marcoux used more force than was reasonably necessary under the circumstances of this case. [The teenager] was handcuffed behind her back, seated in the rear of the cruiser, and was seat belted. She posed no threat that would have caused Cpl. Marcoux to use physical force to protect himself or others from harm.”Shelburne Police Sgt. Joshua Flore
The teenager initially refused to step out of the car, but eventually got out. Marcoux then handcuffed her and took her back to his cruiser, records say.
The teenager started to swear and yelled obscenities at Marcoux while he buckled her in the back of the car, records say. When he finished buckling her in, she spat on him, according to cruiser video of the incident.
Marcoux recoiled and then swung his arm at the teenager. The strike hit her chin and caused her head to move back, according to the video and the internal investigation. Marcoux then used the back of his left hand to turn her face towards him, records say.
“OK, that’s what we call assault on a police officer, you’re going to be charged with that as well,” Marcoux said, according to the video.
In an interview with Shelburne Police Sgt. Joshua Flore during the internal investigation, Marcoux said he had acted out of character and that he wished he had handled the incident differently.
“I can agree with you on that, that — this really is not the characteristic Jon Marcoux that I’m used to seeing on the side of the road,” Flore said during his interview with Marcoux, according to audio obtained by Vermont Public.
“Was there anything that was clouding your judgment at all,” Flore added.
“That is the million dollar question,” Marcoux said, according to the audio recording. “I can say, long hours and looking at my schedule, it looks like I worked every day that week, you know, upwards of more than 60 hours.”
Marcoux, during his interview with Flore, also said he pulled his strike before making contact.
“I had a bodily reaction to being spit in the face,” Marcoux said, according to the audio recording. “My arm swung out, and I caught myself before doing any harm.”
"I had a bodily reaction to being spit in the face. My arm swung out, and I caught myself before doing any harm."Shelburne Police Cpl. Jon Marcoux
The teenager, in an interview during the internal investigation, said she doesn’t like being touched and would have been more comfortable if she was dealing with a female officer, records say. She said she became more distressed when Marcoux put the seat belt on, because it was around her chest and abdomen, according to the internal investigation.
“I don’t like being touched,” the teenager told Flore, according to a transcript in the report. “I think that no matter what, spitting is self-defense, and I don’t care who I spit on, it's self-defense.”
The teenager told Flore that Marcoux elbowed her in the face after he seat belted her in the cruiser, according to records.
Shelburne Police Chief Michael Thomas, in an interview with Vermont Public, declined to say if Marcoux was disciplined, but he confirmed that Marcoux was back on the job.
“I really don’t want to comment on employment or personel issues,” Thomas said. “Cpl. Marcoux is getting caught up on training and getting caught up on some of the projects he was working on prior to going out.”
While Marcoux may have violated Shelburne Police policies, state police don’t believe his actions constituted a crime, putting them at odds with Chittenden County State’s Attorney Sarah George. Last February, George asked Vermont State Police to investigate the incident after Thomas forwarded her the case, records show.
State police finished their investigation in July and concluded that there wasn’t probable cause to support a criminal charge, according to VSP spokesperson Adam Silverman.
George did think there was enough evidence to bring a simple assault charge, a misdemeanor, and she requested state police issue a citation. VSP declined to cite Marcoux, George said in an email last week.
“The filing of a criminal charge requires an investigator to swear to a formal, written statement called an affidavit that affirms the investigator’s belief that probable cause exists to support the charge,” Silverman, the VSP spokesperson, said in an email. “If an investigator does not believe this standard has been met, it is unethical and inappropriate for the police officer to swear to an affidavit he or she believes is untrue.”
"If an investigator does not believe this standard has been met, it is unethical and inappropriate for the police officer to swear to an affidavit he or she believes is untrue."Adam Silverman, Vermont State Police spokesperson
State police have refused to release records of their investigation, claiming that the records are “relevant to prospective law enforcement proceedings,” because George’s charging decision is still pending.
But George appears unlikely to bring a case. George said in an email she looked into other options to bring a charge without law enforcement support, including a grand jury, but concluded that it wasn’t feasible.
“I was unable to find a way to do that short of a grand jury, and I do not have the resources to do that,” George said in an email.
Grand juries are rarely used in Vermont, though there have been a few cases where prosecutors have used them to bring charges against police, including in 2013 after a Winooski officer shot a man in the leg. The man had mental health issues, according to his family.
The process of using a grand jury is time-consuming, and even if an officer is indicted, the prosecution could face a difficult trial, said former Windsor County State’s Attorney David Cahill.
“The prosecution is faced with the reality of a trial where the defense could conceivably call as witnesses the investigators from the original agency who did not believe there was probable cause,” Cahill said in an interview. “And presumably they would be willing to testify as to why they thought the person on trial did not commit a crime.”
"Imagine a world in which police officers were strictly held to their department policies, and if they violated department policies in an egregious manner, they were terminated."David Cahill, former Windsor County State's Attorney
The courts might not always be the best avenue for addressing allegations of excessive force, Cahill said, noting that simple assault charges are frequently referred to diversion and the charges are often sealed after a few years, meaning the public can’t see if an officer was accused of using excessive force.
“I don't think we should automatically presume that one method of accountability is inferior to another,” Cahill said. “For instance, imagine a world in which police officers were strictly held to their department policies, and if they violated department policies in an egregious manner, they were terminated. And then they were placed on a list where they could never work again as a police officer.”
George did name Marcoux in a Brady-Giglio letter in August, a legal disclosure prosecutors make if they have evidence that calls an officer’s credibility into question. The letters often end an officer’s career. However, George in her letter notes that she will continue to accept future cases from Marcoux.
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