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Commander not certified to use gun, records say

Boston Police Department training records show that Deputy Superintendent Robert E. O'Toole Jr. was not certified to use the pepper-pellet gun that he and other officers under his command fired during celebrations of the Red Sox American League pennant victory last month, killing a 21-year-old reveler and seriously injuring two others.

A lawyer representing O'Toole, who was the commander of police operations that night around Fenway Park, has said that O'Toole was trained to use the FN303 pepper-pellet gun at a five-day course last year in Ithaca, N.Y.

But an instructor's guide says the course only acquainted students with a variety of less-lethal weapons, including the FN303. The company that offered the sessions, which included limited time for firing each of the weapons, also said the course did not constitute certification.

"It was very clearly articulated it was not training," said Kyle B. Olson, a Community Research Associates vice president. "At no time would this have been presented as anything other than a demonstration, at best a familiarization, with the different types of less-lethal weapons."

O'Toole's lawyer maintained yesterday that course instructors would not have allowed anyone inexperienced or incapable to fire less-lethal weapons during the sessions, though he acknowledged that his client was not certified.

"He was eminently qualified to use this particular weapons system or, for that matter, any type of weapons system available to the Boston Police Department or any department anywhere across the country," said the lawyer, Timothy M. Burke.

Boston police are investigating the shootings and have not said who fired the pellet that killed Victoria Snelgrove, an Emerson College student. The department purchased the FN303 guns to assist with controlling protests during the Democratic National Convention and had not used them in crowd-control situations outside training before the Fenway Park shootings. Police officials have suspended their use pending the outcome of the investigation.

O'Toole was one of three officers who fired pepper-pellet guns at postgame crowds on Lansdowne Street that night, according to one police officer at the scene and another person involved with the investigation of the shootings. Patrolman Samil Silta also was not certified to use the FN303, while Rochefort Milien, the third officer who fired, was certified, according to a Boston police officer involved with the weapons training at the department.

Almost 30 officers took an eight-hour class offered by the weapon's manufacturer in the spring, which certified them as instructors on the weapon, according to the manufacturer, FN Herstal. The training includes classroom work and time on the firing range, the company said.

As postgame celebrations spun out of control in the early morning hours of Oct. 21, O'Toole took at least two FN303 rifles from a police supply vehicle and asked officers nearby if they were certified to use the weapon, according to the officer at the scene and the person involved with the investigation. O'Toole handed one gun to Silta, who had said he was not certified, and shot several rounds from one of the guns himself, said the officer and person involved in the investigation. O'Toole shot four rounds, his lawyer said, but not in the direction of Snelgrove, who died after a pellet struck her in the eye.

Police have also not said who fired the pellet that tore through the cheek of 24-year-old Cambridge resident Paul Gately or a third pellet that pierced the forehead of Kapila Bhamidipati, a 19-year-old Boston University student. Both had climbed the girders underneath the left-field Green Monster seats.

The gun manufacturer's website says the weapons are not to be aimed at the head or neck area.

Asked yesterday about the Ithaca instructor's guide and the representative who said the course did not constitute training or certification, a Police Department spokesman, Lieutenant Kevin Foley, would only say that O'Toole is "one of the most highly trained command staff members in the department."

The department released O'Toole's training records, which included a copy of the instructor's guide used with the Ithaca course, in response to a written request from the Globe.

Under open records law, the Globe has also requested the records for Milien and Silta; the department has not released the records for the two officers, who have been on injured leave since the shootings.

Boston police officials have said O'Toole is restricted to desk duty pending the outcome of investigations into the shootings, though he remains in command of the department's Special Operations Unit.

The department has launched an Internal Affairs investigation of the shootings, as well as a probe conducted by homicide detectives. Police Commissioner Kathleen M. O'Toole, who is no relation to Robert O'Toole, also convened an external committee, headed by former federal prosecutor Donald Stern, to review the shootings.

"We continue to wait for the findings of both the internal department investigations, as well as the external Stern committee report," Foley said yesterday.

Robert O'Toole's records show he attended the five-day course in less-lethal technologies in October 2003. The instructor's guide calls for one 45-minute session about less-lethal munitions and a 2-hour "demonstration and exercise" at a firing range. The guide says students fire five FN303 rounds and a few rounds each from eight other weapons, including those that shoot beanbags and rubber and foam projectiles. The exercise is supervised by trained instructors, the company said.

Attendance "does not certify the students" as instructors or users of less-lethal munitions, states the guide.

Olson, the vice president of the company that offered the course, said it is designed for students to "have some knowledge and make informed decisions in terms of acquiring less-lethal weapons for their departments."

Robert O'Toole's training records show he earned certification through various courses as an instructor in Advanced Taser stun-gun usage and as an instructor in the use of revolvers, semiautomatic pistols, and chemical munitions. He is certified to teach the use of some less-lethal munitions, including beanbag rounds, stun grenades, and smoke and tear gas rounds. The company that provided that certification, Combined Tactical Systems Inc., says the training does not transfer to use of the FN303.

Sid Heal, a commander in the Los Angeles Sheriff's Department who trains officers around the world in the use of less-lethal force, said specialized training is critical to the proper use of the FN303, because the design of the gun, which uses a compressed-air mechanism to shoot liquid-filled pellets, affects how pellets behave in the air. Like other pepper-projectile technologies, the FN303 pellets curve in flight, he said.

"The result of that is a device that's effective at 10 feet wouldn't be effective at 100 feet, and to make it effective at 100 feet it's likely to be dangerous at 10 feet," Heal said.

Representatives of FN Herstal did not return calls for comment yesterday.

Andrea Estes and Shelley Murphy of the Globe staff contributed to this report. Donovan Slack can be reached at dslack@globe.com. 

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