DA Conley Releases Investigative File on Fatal Shooting

May 11, 2018
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On Monday Suffolk County District Attorney Dan Conley released his office’s investigative file that cleared Boston Police Officers Matthew Morris and Eric Schmidt of any wrongdoing in the shooting death of suspect Kirk Figueroa during the October 12, 2016, shooting on Gladstone Street in East Boston. Under state law the DA has the statutory duty to direct all death investigations in the City of Boston, including fatalities related to the use of force by law enforcement officers.

The file included testimony from Officer Schmidt of his harrowing ordeal being pinned down in Figueroa’s basement apartment with two critically injured officers and no cover as the suspect fired round after round at the officers while wearing body armor. Officers Morris and Richard Cintolo nearly lost their lives that night as Figueroa shot the two officers during a frisk search and then turned his attention to Schmidt who returned fire while being pinned down behind a kitchen island.

As both Morris and Cintolo lay bleeding to death in the kitchen, Schmidt engaged the suspect with his own gun, his two back up magazines, Morris’s gun and a magazine from Cintolo before SWAT arrived with long guns. Despite the intense firefight where dozens of rounds were exchanged Figueroa was only hit seven times, including three shots to the head, two shots to the chest, and two shots to the side.

The investigation found that Figueroa’s body armor had stopped 18 of the officer’s bullets during the exchange.

Conley determined that Morris and Schmidt acted in lawful self-defense, defense of each other, and defense of Officer Richard Cintolo when they discharged their weapons at Figueroa.

“After shooting two of the responding officers, Mr. Figueroa engaged the officers in a pitched gun battle, as he retreated to a bedroom and other officers attempted to rescue their two gravely wounded colleagues.” Conley writes in the file. “During the gunfight, Mr. Figueroa armed himself with a second weapon – a tactical pump-action, 12-gauge shotgun – and again fired on the officers. Mr. Figueroa refused repeated commands to surrender his weapons and at one point feigned surrender as he attempted to ready the shotgun to continue the gunfight. Under the circumstances, the officers who fired their weapons did so in a lawful and proper exercise of self-defense and defense of others as they tried to stop Mr. Figueroa’s violent assault and allow other officers to rescue the two wounded Boston Police officers. Therefore, based on a thorough investigation into the circumstances surrounding the shooting death of Mr. Figueroa, I have determined that criminal charges against the Boston Police officers who fired their weapons are not warranted.”

Under a voluntary policy of transparency in such investigations, Conley released the evidence of the case, which included more than 500 pages of interview transcripts, almost 800 pages of written reports and forensic testing results, over 1,800 photographs, and more than three hours of dispatch recordings. A detailed report of the investigation is  posted online.

The independent investigation, led by Conley’s top homicide prosecutor, revealed that Figueroa donned an armored vest and used an HS Produkt XD(M) 9mm handgun to shoot Cintolo and Morris when they and other officers responded to his roommate’s 911 call. Officer Cintolo was struck beneath his chin, in his left arm, and in his right chest, shattering bones and causing nerve damage.  Morris was struck in the upper left leg, severing his femoral artery.  Forensic testing showed that all of their injuries were sustained from a distance of less than nine inches.

“The evidence showed that Cintolo was incapacitated by his injuries, and that Morris and Schmidt returned fire as Figueroa retreated to a darkened bedroom, where he armed himself with a Kel-Tec tactical, 12-gauge shotgun and fired again,” according to the files released.

When Morris was incapacitated by blood loss, Schmidt continued to fire, holding Figueroa at bay and covering the rescue effort that extricated the two critically wounded officers from the basement apartment.

“Under the circumstances, the use of deadly force was a lawful and reasonable exercise of self-defense and defense of others,” Conley said. “Accordingly, I have determined that criminal charges are not warranted.”

The investigation revealed that Figueroa purchased the 9mm used to shoot the officers, the shotgun he used to continue the assault, and a second 9mm recovered from his room legally in Arizona and Florida, but but no license or permit for them in Massachusetts.  Given a 2010 arson conviction in Georgia, prosecutors said, he likely would not have been able to purchase or possess them legally in Massachusetts.

“Congress is currently considering federal legislation that would extend a license to carry in lax gun law states like Florida to safer states like ours,” said Conley.  “Any federal lawmaker who thinks that’s a good idea should look very closely at this case and talk to the officers involved. The last thing police officers need, the last thing Boston or any community needs, is more high-powered weapons like these in the wrong hands.  But for the heroic efforts of officers at the scene, Boston EMTs, and the staff of Mass. General, they could very well have claimed these three officers’ lives that night.”

In October 2017, almost a year to the day of the shooting, Governor Charlie Baker presented Cintolo, Morris and Schmidt with the state’s highest award, the George L. Hanna Medal of Honor.  Also honored were Sergeant Norberto Perez, Officer Lenin Ortiz and Officer Clifton Singletary who all responded to the gun battle and provided life saving measures to the down officers. The three other officers were presented with the the George L. Hanna Medal of Valor.