PITTSBURGH — Statements accused shooter Robert Bowers made during and after the massacre and shootout with police at Tree of Life synagogue in 2018 can be used at trial, the judge in the case ruled Thursday.
U.S. District Judge Donetta Ambrose, who is set to retire next month and hand the case to another judge, said the statements Bowers made to police after being shot and later at the hospital will not be suppressed, as his lawyers argued they should be.
The statements he made to police, either spontaneously or in response to questions during and after the shootout, pertained to public safety and a possible continuing threat, the judge said.
Officers at that point were not sure what they were dealing with or whether there were other shooters, booby traps or bombs.
"To ensure the safety of the officers at the scene and the surrounding community, they needed information about the quantity and location of firearms, whether any explosive devices had been placed at the synagogue or elsewhere, and whether Bowers acted alone or with collaborators or accomplices as part of a larger attack," the judge wrote. "The questions officers posed, including those relating to why Bowers surrendered and why he engaged in the attack, served those purposes."
Questions at the hospital, where Bowers was taken for gunshot wounds, served a similar purpose, the judge said.
"I recognize that the questions posed while Bowers was at the hospital happened when he personally no longer posed a threat," she wrote, "but his apprehension did not remove the potential threat existing elsewhere. Officers needed to know whether his car or home presented any danger. Additionally, to the extent that Detective [Robert] Shaw or Agent [Matt] Patcher inquired about threats still existing at the Tree of Life, I find credible their uncontradicted testimony that they were unaware at the time that the synagogue had been 'cleared' and declared secure and safe."
Bowers' lawyers had argued that police improperly interrogated him at the scene, in the ambulance and at the hospital in violation of his rights under the Fifth and Sixth Amendments and under Miranda v. Arizona.
The statements were the subject of a two-day hearing in October during which numerous police officers and medical personnel testified about what Bowers said at various times.
The U.S. attorney's office countered that officers had asked the questions out of "concern for officer and public safety."
After he'd been shot, Bowers yelled that he was wounded and wanted to give up.
A SWAT team member, Clint Thimons, told him to "crawl out or you will die" from blood loss. Bowers did. He then provided his name and said that he'd left a rifle and a pistol in the room behind him but had two other handguns on him. Officers also asked him if he had a bomb and he said no.
Officer Thimons then asked Bowers why he did it.
"He said 'he's had enough. Jews were killing our children.' He 'couldn't take it anymore and all Jews had to die,'" the officer testified.
Other officers said they heard him make similar statements. The SWAT commander at the scene, Stephen Mescan, reported on the radio that Bowers said "All these Jews have to die" as he crawled out of his hiding place.
The judge agreed with Bowers' lawyers that he was in custody after crawling out and that the officers' questions about why he did it constituted a "custodial interrogation." But she said that interrogation was legal under what's called the "public safety" exception.
"The questions posed by the SWAT officers were designed to ensure the safety of the officers and the public rather than to elicit incriminating answers," she wrote.
The judge said that questions to Bowers in the ambulance and at the hospital also fall under the public safety exception.
"This finding extends to those questions posed during transportation to the hospital and while receiving medical care asking about the presence of explosives at the synagogue and about the presence of explosives or 'anything that could hurt people' at his residence," the judge ruled.
At the suppression hearing, most of the officers said Bowers complained of some pain during treatment but was alert and able to provide his name, date of birth and other biographical data.
On a bodycam video of the ambulance ride, a paramedic can be heard asking Bowers what his name is, and Det. Robert Shaw is heard asking questions about how he is doing. The detective said he gave Bowers his Miranda warning before the camera was activated and that Bowers invoked his right to a lawyer.
Shaw said he asked Bowers whether there were any items at Tree of Life that could hurt anyone else.
"He said there was nothing," Shaw said. "He just itemized his weaponry."
Those weapons were an AR-15, three handguns and, in his car, a shotgun.
Shaw said he asked about possible bombs or other threats because of concerns to officers still at the scene, but he said his questions were not an interrogation about the shootings.
He said he read Bowers his Miranda rights a second time at the hospital, and Bowers again invoked his right to a lawyer.
Shaw said he honored that request, saying the right to remain silent "has to be respected."
Judge Ambrose said all of Bowers' statements can be used against him and, in an unusual commentary for a federal judge, commended police for their courage that day.
"Those who responded to the scene did so with a remarkable amount of selflessness and bravery," she said. "That those individuals were able to maintain their composure and act with such professionalism in the face of what they encountered is a testament to their training and character. The city of Pittsburgh and surrounding region are fortunate to have had them on site that day."
