click to enlarge Courtesy Of Vermont State Police

Trooper Christopher Brown (left) and Robert Smallidge

Vermont State Police Trooper Christopher Brown attracted plenty of scrutiny when he and a Richmond police officer fired on and killed a suicidal man in Bolton last week. That's in part because Brown, 31, had been involved in two other fatal state police shootings in the past six months.

But an even earlier incident may have revealed potential red flags about Brown's decision making. In 2015, Brown wounded a man he thought was armed — but who claimed he had been holding nothing more than a spatula, according to legal documents reviewed by Seven Days.

Brown encountered Robert Smallidge, 47, outside a Fayston home and later claimed he saw what appeared to be a rifle in his hand. Saying he feared for his life, Brown backed away and fired nine shots, even as he lost sight of Smallidge. Brown later acknowledged that he mistook the muzzle flash from his own gun for shots from Smallidge. Some of the rounds he fired went into the house.

"I wasn't going to give him the opportunity to fire. So I started firing and retreating," Brown later told attorneys investigating the incident, according to a deposition obtained by Seven Days. "You're going to stand there, determining whether or not it's a rifle or not? In that split second, if you hesitate, and he gets the first round off, you're dead."

The incident does not appear to have harmed the career of Brown, who joined the state police in 2012. Bill Sorrell, then the attorney general, and Scott Williams, then the Washington County state's attorney, cleared Brown in the Fayston shooting. The next month, state police assigned him to its version of a SWAT team, the Tactical Services Unit, putting him in a position to respond more frequently to dangerous situations.

As part of the TSU, Brown, along with other troopers, fired on Michael Battles in Poultney in September and Nathan Giffin in Montpelier in January. Both men died and were later found to have been wielding BB guns.

In an interview last week, Col. Matt Birmingham, commander of the Vermont State Police, declined to comment on the Fayston shooting or the decision to put Brown on the TSU. Birmingham said that in the wake of the three fatal shootings, he had commissioned an external review that will focus on the decisions to use force.

"I want to improve what we're doing," he said — "to come up with new ideas" to better handle these incidents.

Brown, who was placed on paid administrative leave after last week's shooting, declined to comment through his union representative, Sgt. Mike O'Neil.

Brown only narrowly avoided a federal lawsuit stemming from the Smallidge shooting. Last summer, Burlington attorney Robert Appel was putting the finishing touches on a legal complaint against Brown and his commanders alleging excessive force, negligence, and assault and battery.

"From my review of the situation, it's clear to me that the trooper didn't have a reasonable belief that he was under imminent threat of physical harm," Appel, a former defender general, said in an interview. "It appears to me to be a clear case of excessive use of force. It calls into question why the command staff of the Vermont State Police felt that was appropriate, to make that assignment to the TSU. You have to wonder if this is someone you want discharging this incredible trust we place in police officers."

The case might have proceeded if Smallidge hadn't hanged himself in August. Described by Appel as an alcoholic who lived alone in Brattleboro, Smallidge had no surviving family and left no estate that could sue in his name, short-circuiting potential litigation.

But documents associated with that would-be case — including a deposition Brown gave in a related criminal case against Smallidge, an incident report and police affidavits — shed light on a questionable incident that authorities did not thoroughly explain.

Around 7 p.m. on September 11, 2015, dispatchers sent Brown to a home on Mill Brook Road in Fayston, a few miles from the Mad River Glen ski area. Smallidge's ex-wife, Erin, and her boyfriend, Steven Shropshire, had invited Smallidge to stay on the premises temporarily to help care for their terminally ill dog.

On that evening, Smallidge was drunk and angry, and when the property owners repeatedly asked him to leave, he refused. When Brown arrived at the house, he encountered Smallidge outside, whereupon the belligerent trespasser told the trooper it would require more than just him to handle the situation. Smallidge had a can of beer in one hand; his other hand was in his pocket. He was about 20 yards from Brown.

As the trooper approached him, Smallidge headed back toward the house. Brown unholstered his pistol and yelled, "Let me see your hands!"

In his deposition, Brown said that as Smallidge reached the home's doorway, he thought he saw Smallidge take an "aggressive stance" with something he thought was a rifle. Brown could not identify what the rifle looked like, the barrel or size, but said he saw something dark that he assumed was the gun.

Brown began backpedaling and opened fire with his 40-caliber semiautomatic pistol. That's when he thought Smallidge fired at him. At one point he lost sight of Smallidge. Taking cover behind his cruiser, he called for backup and began to fear that Smallidge was trying to flank him, he said during his deposition.

But Smallidge soon walked toward Brown, who ordered him to the ground.

Smallidge responded with words to the effect of, "Why? You already shot me, motherfucker," according to a police affidavit. Smallidge then walked over to a grill, grabbed a can of beer, cracked it open and started drinking.

Though he could see that Smallidge was not holding a weapon, Brown again threatened to shoot him and ordered him to the ground. Smallidge kept drinking.

Brown unholstered his Taser and fired it at Smallidge, who fell to the ground.

As he handcuffed Smallidge, Brown asked, "Why did you grab the gun?"

There was no gun — just a spatula, Smallidge answered, according to the deposition.

Brown went inside the home looking for the rifle he believed he'd seen, but he didn't find anything. He returned to Smallidge, patted him down and discovered the bullet wound in the man's left thigh.

Police found a spatula with a brown handle three feet from where Smallidge went down, according to a draft of Appel's lawsuit.

State police regulations call for Tasers to be used only when people are "actively resisting in a manner that is likely to result in injury to others ... or without further action ... injury is likely to occur."

Brown insisted in follow-up interviews that he obeyed protocol.

"If ... you got in a gunfight with somebody, you don't know if they have any more weapons, you're not going to go up there and just start buckling him up, especially after all that," Brown said during the deposition. "If we didn't have the Taser, he'd probably be there at gunpoint."

Though it was the first time he had ever fired his pistol or Taser in the line of duty, Brown was a certified use-of-force instructor, tasked with training police officers on when to use their weapons.

The day after the shooting, Vermont State Police investigators searched the home. They found an air gun with a pistol grip, its stock and barrel cut off, in a plastic tub just inside the doorway.

Appel contends that Smallidge never touched the air gun. He had been drinking beer and grilling when Brown arrived, the lawyer said. "He didn't even know [the gun] existed," Appel said. "It was his recollection that the only thing he had in his hand was a spatula."

The air gun played prominently in official accounts. A police news release said that Brown fired his Taser "after seeing that the suspect no longer had a weapon in his hands."

Police charged Smallidge with trespass and assault on a police officer. In a September 2016 plea deal, the assault charge was dropped, and he pleaded guilty to trespass and paid a $147 fine, according to Washington Superior Court documents.

By then, attorney general Sorrell and state's attorney Williams had already cleared Brown of wrongdoing. In their press release announcing the decision, they discussed the "pellet-style air rifle with a cut-off stock and barrel, approximately 18 inches long" in detail and noted it was found "within arm's reach of where Brown observed what he believed was a rifle." But the statement made no mention of the spatula found near Smallidge nor of Brown shooting into the home.

"Trooper Brown was reasonable in his belief that he was in imminent danger of death or serious bodily injury," they wrote, later adding that there was "evidence that Smallidge was suicidal and that he was seeking a confrontation with police."

Sorrell declined to comment, saying he could not remember the details of the case. Williams did not respond to messages seeking comment.

Last week, public officials were once again addressing Brown's use of deadly force.

On February 12, Birmingham held a press conference regarding the fatal shooting of Sheldon resident Benjamin Gregware, 42, by Brown and Richmond Police Officer Richard Greenough. Gregware was the target of a brief manhunt after police learned that he was armed, suicidal and driving on Interstate 89.

Gregware got out of his car with a gun to his head, approached the officers and ignored their commands to drop his weapon. Both opened fire; Brown fired seven times. Prosecutors are reviewing whether that shooting was legally justified. Police had taken Brown off the TSU two weeks before for undisclosed reasons.

In his public remarks, Birmingham expressed concern for Brown's well-being because of his involvement in so many shootings.

Two years earlier, after the Fayston incident, Brown told lawyers that he just wanted "to move on in my job." He added, "I hope I never have to pull my gun or shoot my gun in the line of duty again. All right? Most cops go their entire career without doing that."