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Lawyer releases tape of man shot during postgame melee

The lawyer for a Cambridge resident whom police shot in the face with a pepper pellet last month released a video yesterday showing his client, 24-year-old Paul Gately, sitting with his hands at his side on a Fenway Park girder before he was shot, and later waving a bloodied hand toward officers, signaling he had been injured.

It is unclear from the video exactly what Gately was doing when he was hit by the pepper pellet because there are edits in the tape between a distant view of Gately sitting on the girder and a close-up of him reeling from his injury. Gately's lawyer, Paul Kelly, maintained that police fired pepper pellets at his client without provocation.

"I think this tape shows that he is sitting there, innocently observing the crowd below," said Kelly, who provided a copy of the video exclusively to the Globe. "He and his sister were just sitting there, watching. He never heard any warning, and the next thing he knows, he has this terrible pain in his face."

Lawyers for the police officers who fired the FN303 pepper-pellet guns at revelers on Fenway's Green Monster girders after the Red Sox won the American League pennant have said the officers targeted individuals who ignored police orders.

A Police Department spokeswoman said yesterday that Commissioner Kathleen M. O'Toole did not want to jeopardize ongoing investigations by talking about the video Gately's lawyer released.

"We are going to let the investigations run their course," spokeswoman Beverly Ford said. "We encourage anyone who has video or photos of that night to come forward and assist us in our investigation."

Gately was one of three people struck in the face with pepper pellets shot by police attempting to control crowds around Fenway Park in the early morning hours of Oct. 21. Victoria Snelgrove, a 21-year-old Emerson College student, died after she was struck in the eye. A 19-year-old Boston University student, Kapila Bhamidipati, was seriously injured when he was struck in the forehead.

O'Toole launched two internal investigations of the shootings and a review by an external commission headed by former federal prosecutor Donald K. Stern.

Boston Police have said Patrolman Rochefort Milien shot Snelgrove, but have not identified which officers shot the other two people. Two officers on the scene that night, who spoke on the condition of anonymity, said Deputy Superintendent Robert E. O'Toole, who was in charge of police operations around the ballpark, and Patrolman Samil Silta fired toward people on the girders.

Training records released by the Boston Police Department indicate that Robert O'Toole was not certified to use the FN303. Two officers involved with weapons training at the department said Silta was not certified.

"They refused to come down from the girders when they were ordered to," O'Toole's lawyer, Timothy Burke, said of the people on the Green Monster. "It created a greater risk of harm because it encouraged other individuals in the crowd to climb the girders, too. It wasn't until the FN303 was used that people responded to the officers' commands to get down off the girders."

O'Toole fired only one shot on Lansdowne Street and struck one individual in the buttocks, Burke has said.

The video of Gately begins with a wide shot of him and his sister perched on a green metal girder about 10 to 12 feet above Lansdowne Street. More than half a dozen people around the pair are climbing down, and screams can be heard as two officers in the street aim pepper-pellet guns at the people on the girders.

An officer wearing a soft, eight-point cap is seen from behind sighting his weapon on Gately and his sister, while an officer in a blue motorcycle helmet aims his gun in another direction. Two of the officers on the scene said O'Toole was the only officer with a pepper-pellet gun wearing an eight-point cap.

Then the videotape cuts to a close-up of a helmeted officer with a pepper-pellet gun on the sidewalk underneath Paul Gately, whose dangling leg is briefly seen. Several pepper-pellet rounds sound in quick succession, though it is unclear how many, if any, were fired by the helmeted officer.

The camera then pans up, showing Gately leaning backward, grabbing his face, and then leaning forward, and holding out a bloodied hand.

He and his sister then turn toward the ballpark and begin climbing down as the video ends.

Gately's lawyer said the siblings had watched the game at a bar and were headed to their car in Kenmore Square when they got caught up in the crowds and could not get through. The two climbed the girders to wait until the crowds dispersed, Kelly said.

"Should they have been there in the first place? Probably not, but they were presenting no threat to police or to anyone else," Kelly said. "Had they been given warnings, Mr. Gately and his sister certainly would have gotten down."

Witnesses have said that the police on Lansdowne Street did not have bullhorns and that Gately and others might not have heard the warnings to get off the Green Monster over the noise.

The lawyer for Bhamidipati, who was hit in the forehead while also on a girder, said officers should not have fired at individuals who were perched above a concrete sidewalk.

"Why would you want to incapacitate someone who is 10 feet up in the air, who can fall down and break their neck?" Jeffrey A. Denner said.

Kelly said his office is investigating Gately's shooting and is preparing to ask for compensation from the city and possibly the gun manufacturer. He says his client has no medical insurance and will have a scar in the middle of his face for the rest of his life.

"At some point some type of demand will be made," Kelly said. "Whether that's in the form of a letter or a lawsuit remains to be seen."

Donovan Slack can be reached at dslack@globe.com. 

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