Senior Assistant Attorney General Benjamin Agati shows the home where Merrill “Mischa” Pataski-Fay, 17, was shot to death by a police officer Jan. 1, 2023, at a news conference Thursday. Paula Tracy photo
By PAULA TRACY, InDepthNH.org
CONCORD – A little more than a year after a Gilford teen was shot and killed in his home by local police, the Attorney General said Thursday the actions of the officers were legally justified.
The investigation by the Department of Justice found Gilford Police Sgt. Douglas Wall, a 28-year veteran officer who fatally shot Merrill “Mischa” Pataski-Fay, 17, at 5 Varney Point Road on the night of Jan. 1, 2023, was legally justified, said Attorney General John Formella.
The report can be found here: https://indepthnh.org/wp-content/uploads/2024/01/attorney-generals-office-report-regarding-the-january-1-2023-officer-involved-shooting-incident-in-gilford-new-hampshire-1.pdf
Formella called it a difficult case, particularly due to the age of the victim.
Formella said, “Any loss of life is tragic,” but particularly difficult is the loss of a child.
According to the final report, Fay’s mother called 9-1-1 telling the dispatcher her son “snapped,” was having a breakdown and had an eight-inch knife. She said her husband had locked himself in an office in the house.
Police entered the house within four minutes of the call, encountered Fay with a knife clenched in his fist, refused orders, was tased and fatally shot once, almost simultaneously, the report said.
In a press conference at the Department of Justice in which police body camera video footage of the encounter was played, Senior Assistant Attorney General Benjamin J. Agati laid out the evidence and the law to support his department’s conclusion. He said there would be no criminal prosecution of the two officers.
Agati said the boy’s family had been briefed prior to the announcement of their conclusion with their attorney and they had also just informed the Gilford Police Department as well.
The Fays told investigators that Mischa was a normal healthy child who played organized sports but in the last two years of his life suffered from physical and mental problems that had him in and out of hospitals, including Hampstead Hospital.
The Fays said they had been given a range of diagnoses from asymptomatic COVID-19, encephalitis, schizophrenia or early bipolar disease and a viral infection and the autopsy showed he had an assortment of prescribed drugs in his system including Diazepam and Gabapentin. There were no recreational drugs or alcohol and the levels did not indicate an overdose.
His mother, Beth Pataski-Fay, 50, told officers her son had been doing well through the few weeks of the holidays but he had become upset the day before and then seemed to explode for some reason into a “break down” breaking furniture. She said he had been rifling through a knife drawer when she ran from the house to call for help and told her husband to lock himself in his office, which had no exterior exit.
Agati said when the officers encountered Fay in the darkly lit home a little before 10 p.m. on New Year’s Day, he was holding a butcher knife with his knuckles upward and in front of him, clenched in his right hand. He said Fay refused orders of police and was converging on Wall when Gilford Officer Nathan Ayotte discharged a non-lethal taser which did not fully hit Fay, grazed his shoulder, but did not subdue him.
Wall discharged his firearm almost simultaneously, Agati said, hitting the teen in the chest area near his collarbone.
Fay dropped to his knees and then the floor, with his mother standing just behind the officers who immediately began CPR. He later died at what was then Lakes Region General Hospital. That is when the New Hampshire Major Crimes Unit of the State Police took over and began the investigation into whether the shooting was justified.
Agati said that the actions were justified within the law RSA 627:5, II (a) & (b) which allows for anyone to use justifiable force when threatened with deadly force if the person “reasonably” believes such force is necessary and is “imminent” and not in hindsight.
Agati said because Fay’s father, who was 86 years old at the time of the shooting, was in the house, essentially trapped in a locked office, the officers were justified in going into the house as they reasonably believed deadly force was about to be used.
“They had no choice but to enter to ensure Mr. Fay’s safety,” Agati said. “There was no option for them to advance and no option for them to retreat,” and noted the officers asked Beth Pataski-Fay to stay outside the home but she followed them in.
Agati said Fay showed no sign of obeying the officers’ requests and said nothing during the encounter.
“We don’t know what Mischa was thinking that night,” Agati said, but what the state does know is that the officers were confronted “with an impossible situation.”
Asked why they did not call for a SWAT Team or get a ladder to get the elder Fay out of the house before entering, Agati said that was not the purview of the investigation.
The two officers were returned to service in February, 2023 following an internal review by the Gilford Police and the Board of Selectman had reviewed body camera footage.
The National Alliance for Mental Illness said following the incident: “Such incidents are tragedies for the victim, their family, the law enforcement officers involved and their families, as well as entire communities.”
According to his obituary, Mischa was born in Laconia, the son of Merrill P. Fay and Beth Pataski-Fay. The Fays own Fay’s Boat Yard on Lake Winnipesaukee.
Mischa loved hockey and played for the Lakers and New England Wolves for many years at the Merrill Fay Arena, his “second home” and loved the movie “Star Wars,” the obituary said.
“Mischa loved, and was so loved by many friends, teachers, and coaches…everyone who had the privilege of knowing him. Many doctors, nurses, and health care workers also adored Mischa during his past two years of declining health.
“Family meant everything to Mischa, and he was everything to his family. Mischa was so kind, sweet, soft spoken, polite, and very giving – always thinking of others,” his obituary said.
Paula Tracy writes for InDepthNH.org. She has been a reporter in New Hampshire for 30 years.