Floyd County Commonwealth's Attorney releases statement on 2022 officer-involved shooting

FLOYD COUNTY, Va. (WFXR) — The Floyd County Commonwealths Attorney’s office has released an opinion letter regarding the officer-involved shooting that killed 58-year-old Troy Allen Bain.

THE FOLLOWING IS THE FULL TEXT OF THE OPINION RELEASED JANUARY 27, 2023 REGARDING THE OFFICER INVOLVED SHOOTING OF FEBRUARY 6, 2022

I am in receipt of the final investigation report from the Virginia State Police involving a shooting on February 6, 2022 that resulted in the death of Troy Allen Bain. The role of the Commonwealth’s Attorney’s Office is to review the evidence to determine whether probable cause exists to support criminal charges against the officers involved. In preparing this opinion, this office has reviewed witness statements, medical examiner’s reports, Virginia State Police investigation reports, reports from our own investigative staff, viewed the scene of the shooting, reviewed photographic and physical evidence and consulted the relevant Virginia statutes and caselaw.

Overview

On February 6, 2022, deputies from the Floyd County Sheriff’s Office arrived at 204 Dogwood Lane, Willis, Virginia in an attempt to serve and Emergency Custody Order on Mr. Troy Allen Bain. Based on the information available to the deputies at the time, they believed that Mr. Bain was armed with one or more firearms and had recently discharged them in a dispute with another individual. The Floyd County Sheriff’s Office Emergency Response Team was activated to assist in the serving of the order. Deputies approached Mr. Bain’s residence, announced their presence and stood back from the front door. Mr. Bain opened the door holding a firearm in his hand. He disregarded commands by the deputies to drop the weapon and when he raised the firearm in the direction of the deputies, the deputies fired their weapons. Mr. Bain was fatally injured.

Facts

The summary of events leading up to the officer involved shooting is based upon the comprehensive investigation by Special Agents of the Virginia State Police. Their investigation involved taking statements from the officers involved, examination of the scene of the incident, review of all videos and dispatch call records, officer training records, use of force and firearm policies, citizen interviews and a review of the documentary evidence. It should be noted that this incident occurred before body cameras were available to the Floyd County Sheriff’s Office.

At approximately 8:00 p.m. on Sunday, February 6,2022, Investigator Bohnke of the Floyd County Sheriff’s Office was contacted by a family member of Mr. Troy Allen Bain. The family member was concerned due to statements made by Mr. Bain about harming others, the heavy use of alcohol for extended periods and a recent incident involving the use of a firearm in an altercation. Based on these concerns, Investigator Bohnke suggested that the family member speak to a magistrate about a possible Emergency Custody Order (ECO). The family member indicated concern that Mr. Bain was armed and would not go voluntarily with deputies.

Investigator Bohnke, off duty at the time, contacted Sargent Cody Brown, the active shift supervisor, and Captain Dale Marshall, the Patrol Division supervisor and alerted them to the potentially dangerous situation. The family member arrived at the sheriff’s office and was taken to speak with a magistrate. Based on the sworn statements of the family member, the magistrate issued an ECO. The statements were that Mr. Bain had been drinking heavily, having severe delusions, accusing others (mostly his elderly mother) of poisoning his trees or water, making threats towards his mother including threats to kill her, and threatening to shoot anyone that pulls into his driveway. The family member also noted to the magistrate that Mr. Bain had been known to hide around his property in full camouflage with a rifle “waiting on anyone” and that he had a large supply of firearms and ammunition hidden in his home.

A later interview with David Dalton indicated that three days prior to this incident Mr. Bain had been drinking alcohol with Mr. Dalton. Mr. Dalton described many of the same statements from Mr. Bain. Also, according to Mr. Dalton, Mr. Bain physically attacked him without provocation leading to a fist fight and Mr. Bain discharging a firearm several times in Mr. Dalton’s direction. Mr. Dalton reported a statement from Mr. Bain that he did not expect “to be around much longer.”

At 9:28 p.m. the magistrate issued an ECO pursuant to Virginia Code Section 37.2-808 which stated that probable cause existed to believe that Mr. Bain had a mental illness and that a substantial likelihood existed that, as a result of the mental illness, would in the near future cause serious physical harm to himself or others. The order directed the Floyd County Sheriff’s Office to take Mr. Bain into custody and transport him to a health authority certified by the Department of Behavioral Health within eight hours.

Shortly thereafter, Captain Marshall was notified that the ECO had been issued. He consulted with Chief Deputy Harris about activating the Emergency Response Team (ERT), due to potentially dangerous situation, in addition to the active duty deputies. Harris agreed. Four members of the ERT were called (Capt. Marshall, Inv. Bohnke, Inv. Breman Harris and Sgt. Cody Brown) to work with Deputy West and Deputy Dean in serving the ECO. The deputies met to discuss the plan for the operation before leaving for Mr. Bain’s residence at 204 Dogwood Lane in the Willis area of Floyd County.

The deputies arrived at Dogwood Lane at approximately 10:15 p.m. and approached Mr. Bain’s home on foot. Two deputies (West and Dean) moved to the rear of the building while the remaining deputies took positions around the front entrance. West and Dean did not witness the subsequent events. Inv. Bohnke knocked on the side of the building and loudly announced the presence of the sheriff’s office deputies.

Mr. Bain’s trailer had a front door with a glass storm door that opened out onto a deck/front porch. The stairs leading up to the deck were to the immediate right of the front door. There was a porch light adjacent to the front door. That light was on. The officers did not see other lights in the residence.

Three deputies took up positions on the ground to the right of the door (Bohnke, Harris and Brown). Captain Marshall positioned himself to the left of the door, on the ground in front of the porch. At that point the deputies heard Mr. Bain manipulating the lock and saw him open the front door. Mr. Bain opened the storm door and stepped out onto the deck. He was wearing only his underwear but in his right hand he was holding a black semi-automatic handgun.

The deputies called out to Mr. Bain repeatedly identifying themselves and ordering him to drop the gun. Mr. Bain then seemed to start to move back into the trailer but then took another step towards the deputies that were positioned to the right of the doorway. He turned towards them and began to raise his right arm in their direction, still holding the gun. When Mr. Bain’s arm had raised approximately halfway up to a firing position, the deputies discharged their weapons. Mr. Bain was struck three times. Once in his right hand, once in right chest and once in his lower left back.

Each of the officers interviewed agreed that the length of time from the moment Mr. Bain came to the door to the discharge of the firearms was less than a minute.

After being shot Mr. Bain stumbled backwards into the trailer and collapsed. The deputies proceeded to enter the trailer to check for any other threats. At the same time Deputy Brown, the team EMT, began resuscitation efforts. Emergency medical personnel who had been stationed nearby were called in to render assistance. Mr. Bain was pronounced dead at 11:06 p.m.

The Virginia State Police were called in to investigate the incident.

Legal Analysis

The use of lethal force in Virginia, either by law enforcement or private citizens, is governed by well established laws of self defense and defense of others. The first step of the analysis is to determine whether the person or persons using deadly force were in some way legally at fault in bringing about the incident. Here the deputies were presented with the necessity of serving the ECO and taking Mr. Bain into custody by 5:28 a.m. on a Sunday night (into early Monday morning). The information they were given indicated that Mr. Bain was intoxicated, had threatened violence towards others, had numerous firearms and had demonstrated a willingness to use them.

When Mr. Bain emerged from his front door, he was clearly holding a semi-automatic pistol. The Virginia State Police investigation later determined that the pistol was loaded and a round was in the chamber ready to fire. The State Police were not able to determine if the safety was on or off. At the time, the important facts for the deputies were that Mr. Bain was unresponsive to their commands, was holding a firearm and that he was raising it in the direction of the deputies.

Consequently, the law enforcement officers were not at fault in bringing about the incident. The law of justifiable self-defense controls. In cases of justifiable self-defense, a person without fault may use deadly force to subdue an attacker if they are reasonable in fear of death or serious bodily injury. They are not required to retreat. Gilbert v. Commonwealth, 28 Va. App. 466 (1998). The same right extends to the right to defend others who you reasonably fear to be at risk of death or serious bodily injury. Lamb v. Commonwealth, 141 Va.481 (1925). Thus any officer who reasonably believed that his or another officer’s life was in jeopardy could use deadly force against an attacker. The deputies cannot be held to a standard that requires them to determine if a firearm is loaded or ready to fire. To wait for such verification could have deadly consequences. Legally and practically, they must use force when force is threatened against them.

The deputies involved in the shooting, Captain Marshall, Investigator Bohnke, Investigator Harris and Sergeant Brown, had a reasonable belief, at the time that Mr. Bain raised his weapon towards them that one or more of them was at great risk of death or serious injury. Mr. Bain had not responded to their command for him to drop the weapon and was actively raising it in the direction of at least three of the deputies. The immediate perceived threat allows and justifies the use of potentially dangerous force in these circumstances.

It is the final decision of the Floyd County Commonwealth Attorney’s Office that Captain Marshall, Investigator Bohnke, Investigator Harris and Sergeant Brown acted appropriately and with justifiable use of lethal force against Troy Allen Bain on February 6, 2022. There will be no charges sought against the deputies for the actions they took in the performance of their duties on that date,”