Bucks DA: Marino Death 'Justifiable Homicide'
David Heckler found that "loss of tactical control" by police did not rise to level of criminal wrongdoing
Update, 5:38 p.m. July 30
Bucks County District Attorney David Heckler called the investigation into the death of Michael W. Marino "thorough and impartial" and defended claims that Marino was "society's victim in these events" by describing the victim as "drug-abusing, mentally ill and violent."
He said to prosecute Officer Seth Mumbauer would make him "a scapegoat for those who decided Marino could be free without supervision."
During a 3 p.m. press conference in his office in the Bucks County Courthouse, Heckler said Mumbauer shot Marino once in the chest.
Marino's hands were cuffed behind his back, Heckler said.
"Shortly before the shooting, a total of three officers had combined to subdue Marino. The shooting took place during a fight which began after one officer stepped away and Marino dropped to his back and began kicking the officers to the extent that one was put out of the fight entirely," Heckler said. "Officer Mumbauer was dazed, having been kicked in the jaw and groin."
He said the incident was witnessed by at least one disinterested civilian witness.
One witness to the incident at the convenience store where police were called the afternoon of June 9 was Bikers Against Child Abuse Montgomery County Chapter member Ron Gallagher and his wife Robyn.
Heckler had points to make to those who believe that Marino was society's victim in the events.
"Whatever mental illnesses Michael Marino suffered from - he, his doctors, those close to him and ultimately our society - decided that he should be free, on the street, with a car, unsupervised and able to purchase and use controlled substances as he saw fit," Heckler said.
"He elected not to take the prescribed medications which had helped him live within society's rules and he decided to consume illegal substances, some of which have been known to make people do many bizarre things, including act out violently," Heckler said.
Heckler referred to these substances as bath salts or synthetic cannabinoids, which, he said, affect the synapses in the brain much like marijuana.
"He addressed himself in a variety of aggressive and anti-social ways toward people he didn't know and who had not provoked him in any way," Heckler said. "When confronted by police, as was inevitable given his conduct and as had occurred before in his life, he chose to do battle even after he had been restrained, instead of submitting to lawful authority."
"The police did not create this situation - he did," Heckler said.
Heckler said to prosecute Mumbauer would to make him a scapegoat for those who decided Marino could be free without supervision.
"It would be to make that officer a scapegoat for society's choice to cut corners and hope for the best where the mentally ill are concerned, and for society's decision that when things don't go well with the mentally ill, we'll let the criminal justice system handle the mess that follows," he said.
He said prosecuting Mumbauer would make him a scapegoat for the tactical misjudgements of others "who had the responsibility for protecting the public from this drug-abusing, mentally ill and violent subject."
"This is truly a case where the devil is in the details," he said. "It is for this reason that the county detectives conducted a thorough and independent investigation and why I have taken the step of providing an unusually detailed recounting of the findings of that investigation."
The findings are public documents and have been shared with counsel for the Marino family - Gerald McHugh of Raynes McCarty Law Firm in Philadelphia.
A message from Lansdale Patch was left with McHugh seeking comment on any civil litigation against Perkasie Police.
According to Matt Coughlin at PhillyBurbs.com, the Marino family did issue a statement through McHugh.
The undisputed fact remains that an unarmed young man, in the throes of mental illness, was shot with his hands cuffed behind his back, with three police officers on the scene.
We intend to continue pursuit of all remedies the law provides, with the goal of securing justice for the death of our son, and reforming the procedures of the Perkasie police to prevent such senseless tragedies in the future.
Perkasie Police Chief Joseph Gura also received a copy of the findings.
An autopsy on Marino revealed the following found in his bodily fluids:
- Synthetic cannabinoids at detectable levels
- Nicotine and metabolites
Bucks County District Attorney David Heckler has declined to charge Perkasie Police Officer Seth Mumbauer in the June 9 death of Michael Marino, the Quakertown-area man who was shot and killed during an altercation with police near a vacant Sellersville industrial property in which he had allegedly been squatting.
After a seven-week investigation, Heckler released a 10-page report and several photographs gathering all details by Bucks County detectives, which supported his decision to not criminally charge Mumbauer.
Marino, 26, died after being shot once in the chest by Officer Seth Mumbauer following what Mumbauer described to investigators as a physical struggle on "uneven terrain."
Perkasie Police Officer Steven Graff and Sgt. James Rothrock, a trained hostage negotiator, initially found Marino with his back against the vacant sign factory building, facing the railroad tracks, according to the findings.
The ground falls significantly as one proceeds west toward the tracks and rises again when one reaches the ballast on which the ties for the track are laid.
Mumbauer arrived at the scene and gave this account:
I saw Sgt. Rothrock and Officer Graff were in dialogue with the subject near the building. Both Sgt. Rothrock and Officer Graff were standing in a 'valley.' The subject was sitting on a hill, above them, near the building. He was yelling obscenities at various times.
Rothrock reported Marino "would appear to have moments of clarity and then slip into a state of incomprehension." Marino also appeared "agitated and spoke gibberish which to the officers sounded vaguely like German."
Marino was asked what medications he took, and rattled off names that Rothrock recognized as anti-psychotics. Marino told Rothrock his meds did not help him.
Marino told officers he was kicked out and was having a bad day.
In his findings, it was revealed Marino resided with his sister, Amber Simione, at 2513 Emerald Lane, Quakertown. Simione was on vacation during the weekend of Marino's death and advised a neighbor that "Mike had not been taking his medication." She told the neighbor to call the police if Marino was acting strange.
Then, Marino told the officers he wasn't going to speak with anyone about his mental health and wasn't going anywhere. He then stood up in "an aggressive stance" and stated:
I feel like I'm God. No, I know that I'm God. If you don't know who I am, then you don't read the Bible.
Police said Marino had been handcuffed and was resisting their attempts to take him to Grand View Hospital for medical attention.
The officers began to take him into custody, Mumbauer with Marino's right arm and Graff with Marino's left arm and head. Marino became "resistant, flailing" and "tensing his arms and body."
Mumbauer describes the process of cuffing Marino:
I pulled my cuffs out and was trying to cuff the left arm. When the cuff clicked on the left arm, I then tried to get the right cuff on. This hung up, possibly on the subject's pants. When cuffs get caught up on cloth, there is no sound or feel of the cuff's ratchet. I did not hear the click. I did not double lock the cuffs because the subject was combative and because we were on uneven terrain
Graff told investigators that after Marino had been handcuffed by Mumbauer, he "began to flip out" while Graff was frisking him.
I patted down the subject's right front pocket and felt a large soft object which the subject stated was marijuana. I went to pat down the subject's left front pocket and began to feel multiple hard objects. As I was patting the left pocket, the subject began to flip out.
Graff said he "went to the ground" with Marino to physically subdue him and was "knocked backwards down [an] embankment and disoriented." Before Graff got up, he heard a gunshot.
I went to the ground with the subject trying to control his legs. AS I was attempting to control the subject's legs, I was knocked backwards down the embankment and disoriented. During this time frame, I heard a loud bang. When I looked up, I saw the subject lying on his back with a hole in his chest.
Mumbauer, who said he was kicked in the jaw, told investigators, "I knew we were losing this fight" and "I feared for our safety," explaining that he believed Marino may have broken loose of his handcuffs or been armed.
The kick to the head and the groin made me feel like I would go unconscious if kicked again. The force knocked me back and slightly down the hill. I knew he was within a few feet of me and could easily jump for me and try to get my gun. He could have gone to either side of me at that point but he didn't. Instead, the subject started to come directly at me by rocking his body to get up in one forward motion. The subject immediately lurched forward toward me. He planted his feet within a foot of my feet and I knew he could jump into me and knock me into the bottom of the valley.
I knew he had gotten the upper hand and was still able to fight. I feared for our safety. I believed that the subject may have thrown a cuff, or was armed. I believed that the might grab my gun. I took a step back and drew my duty weapon. As he rocked up and came at me, I fired a single shot into the chest of the subject. He immediately dropped back to the ground and stopped moving.
"I do not find that Officer Mumbauer's belief that he needed to draw and fire his weapon was unreasonable under the circumstances," Heckler wrote in his official statement of findings.
See DA Heckler's statement of findings in this article's PDF section.
Heckler was critical of "the loss of tactical control" that he said led to Mumbauer needing to use deadly force and suggested that Marino should have promptly been placed in the back of a police car in order to end the officers' "physical interaction" with him.
"Three physically fit police officers, two of them armed with Tasers and batons as well as sidearms and one trained specifically in dealing with mentally ill and drug abusing subjects like Marino, should have been able to avoid the loss of tactical control which led to Officer Mumbauer’s being in a position where the use of deadly force was necessary," wrote Heckler.
Additionally, Heckler found, Rothrock, who had walked some distance from the scene to ask Ron Gallagher to move back from the area, should have stayed with his two colleagues.
"[The witness] didn't present a threat," Heckler wrote. "He could have been verbally requested to remain at a safe distance."
Ultimately, Heckler said, it was outside his prosecutorial authority to determine whether proper police procedure had been followed.
"The matter which does lie within my responsibility is whether any crimes were committed in connection with Mr. Marino's death," Heckler wrote.
"Under the applicable law his act was therefore a justifiable homicide," Heckler concluded.
Heckler said Marino had broken into and set up housekeeping in a vacant sign factory at 201 West Clymer Avenue in Sellersville Borough, located next to railroad tracks, in the late afternoon of June 9.
Marino's silver Toyota was parked on the far side fo the factory, immediately next to a door that was forced open, according to Heckler in his findings. An armchair had been set up between the car and the building, and various cans of food and toiletries were found on shelves.
On June 9, at 4 p.m., Marino was reported in the vicinity of a convenience store at Clymer Avenue and East Park Avenue wearing a yellow poncho and carrying a large container of iced tea. In addition to the poncho, he was wearing long underwear pants, socks, gray-colored Croc-type shoes and a pair of light camouflage BDU-style shorts.
Marino made his way back down Clymer Avenue in a westerly direction toward the tracks, and periodically obstructed traffic, according to Heckler in his findings.
Marino "brought himself to the attention of a number of people who were prompted by his actions to call police radio." Clymer Avenue residents told police Marino walked down the the middle of the street, shouting and acting in a menacing fashion.
Heckler wrote that Marino was striking signs and screaming epithets, as attributed to him by witnesses:
- "You bitches are going to pay"
- "I'm going to kill you; I'm going to kill everyone"
- "I'm going to kill you motherfuckers"
- "Fuck the world"
- One witness said he growled at him in an intimidating way
- Another witness saw a shirtless Marino as she crossed the tracks at Clymer Avenue, and was going to render aid: "He looked at me with a stare with his pupils black and enlarged and I thought to myself 'Holy shit ... I'm out of here.'"
- One neighbor described Marino's face as red with his veins popping out, looking really frustrated
The Gallaghers were on their motorcycle and encountered Marino near the convenience store. Robyn Gallagher saw Marino across the street from the store as he proceeded down Clymer Avenue. She said he yelled at her and her husband that "We are all going to burn in hell."
Ron Gallagher called 911 and Graff and Rothrock responded to the scene.