Federal Judge Dismisses Lawsuit Against Cop Who Killed Peyton Ham
9:04 AM EST on January 25, 2023
A federal judge has dismissed a wrongful death lawsuit filed against Maryland State Police officer Joseph Azzari by the family of Peyton Ham, a 16-year-old from Leonardtown, Md., who was shot and killed by Azzari on April 13, 2021.
Azzari told investigators that Ham was killed when the teen “charged” at him after being ordered to drop a pocket knife. But three witnesses told Defector that Ham was on his knees and nowhere near the cop when they saw Azzari fire four shots into the teen’s neck and chest. The eyewitness accounts appear to be supported by the findings of the state medical examiner’s office: A summary report of Ham's autopsy said that the bullets that killed Ham were traveling “downward” as they passed through his vital organs. (The state has still not released a full copy of Ham's autopsy report.) No witness or physical evidence yet released by the state police supports Azzari’s version that Ham was upright or running at him.
But in an opinion announcing the dismissal filed on Jan. 10 in the U.S. District Court for the District of Maryland, Judge George Hazel asserted that it is legally “not material” whether Ham was on his knees when he was killed, or if Azzari made up his story about being under attack when those shots were fired. Judge Hazel, an Obama appointee who announced last month that he will be leaving the federal bench to return to private practice, ruled that Azzari “acted reasonably in using deadly force” because of the officer’s “belief that [Ham] was dangerous.”
“We don’t get it,” Mike Boyle, Ham’s father, said of Judge Hazel's ruling and rationale.
Azzari has never faced criminal charges for the killing. The Maryland State Police, Azzari's employer, is the only law enforcement agency to ever conduct an investigation of the shooting. When St. Mary’s County state's attorney Richard Fritz announced in October 2021 that the case was closed and Azzari would walk, the officer celebrated by making a Facebook post advising his fellow cops to “get home to your families no matter what." Hazel’s opinion in dismissing the Ham lawsuit seems to endorse Azzari’s by-any-means-necessary approach to his work as legally sound.
The encounter, according to an audio-only recording, resulted in Azzari emptying all 15 bullets in the clip of his 9mm service weapon in two bursts of gunfire about a minute apart. It began after the teen called 911 on himself during what his mother, Kristee Boyle, says was an apparent “mental crisis.” No video of the shooting has yet surfaced; Azzari wasn’t wearing a bodycam and told investigators for the state police that he intentionally didn’t activate the siren on his police SUV, and therefore the vehicle’s dashcam, for what he described as “tactical reasons.” Azzari is the only person alive who knows what happened when he started shooting. Investigators for the state police say Azzari told them that as he exited his vehicle he saw Ham aiming what the officer thought was a firearm; it later turned out Ham was holding a toy replica of a handgun. And Azzari began firing.
There were 11 bullets in Azzari’s first salvo, at least three of which hit Ham in the arms and shoulder, causing him to fall to his knees and drop the toy; other bullets from that burst hit houses across the street, 350 feet to 450 feet away. Azzari then walked up to the kneeling Ham and stood behind the wounded teen, a gruesome and bloody scene captured in a photo taken by Michelle Mills, a neighbor who looked out her bedroom window after hearing the first burst of gunfire. Mills told Defector that she watched Azzari circle Ham and come within a couple feet while shouting at him repeatedly about a knife; she remembers hearing both “Show me the knife!” and “Drop the knife!” from Azzari. Based on the audio recording of the shooting, Azzari's ceasefire lasted about 57 seconds. Then, according to Michelle Mills and her daughter, Allison Mills, Azzari suddenly backed away from Ham for no obvious reason and fired four more shots into his torso. Ham never got off his knees, the Millses both told Defector.
“Peyton was on his knees and obviously wasn’t a threat,” Allison Mills told Defector.
“Peyton was murdered in my driveway,” Michelle Mills said.
State police investigators said a pocket knife with a 2.5-inch blade was recovered on the scene, along with a toy replica gun. According to the family, Ham had been carrying a pocket knife around for years since he got it as a gift. Azzari told investigators that when Ham was on his knees he told the officer he wanted to die.
"This is a child in crisis who you say screamed, 'I want you to shoot me!' so you do him in?" says Kristee Boyle.
The family's civil suit, which asked for $10 million in damages, did not challenge the legality of Azzari’s shooting at Ham when the teen was allegedly pointing a toy gun at the officer. “Those 11 shots weren’t the shots that killed him,” Mike Boyle says. “The four shots that people saw with Peyton on his knees were the shots that killed him.”
On Monday, the Boyles filed a notice with the United States Court of Appeals for the Fourth Circuit in Richmond of their intent to appeal the dismissal of their case. Mike Boyle said the appeal will likely focus on Judge Hazel’s frequent characterizations of Azzari’s decision to fire those final four shots as being made spontaneously. “Immediately before Defendant Azzari fired the second round of shots at [Ham, he] was armed with a knife,” is one such reference in Judge Hazel’s ruling.
“There was nothing immediate about this. Listen to the audio. There’s a long break. Listen to the witnesses,” Mike Boyle says. “The second round of shooting was not a knee-jerk reaction to Azzari’s fear, which is what the judge says. The judge made up his own version of what happened, and based his ruling on his made-up scenario.”
The Boyles say they will also tell the appeals court that the state’s continued refusal to turn over evidence from the shooting crippled the family’s ability to find out what really happened when their son was killed and prevented them from making their best legal case. Judge Hazel specifically denied the Boyles’ plea to be provided with evidence that the state police have been holding for more than a year and a half, including: the full autopsy report; Ham’s toy gun and pocket knife; and bodycam and dashcam footage from state and local police officers (some of whom arrived on or drove past the scene before Ham was killed). Hazel also said in the ruling that he was refusing to let the plaintiffs “depose Defendant Azzari to explain the apparent differences in his two statements,” or for them to have any access to “information as to Defendant’s training.”
“The Court will deny this request as none of this information would change the Court’s ruling,” Hazel wrote.
“We couldn’t answer all questions about what really happened because the state police won’t give us anything,” Mike Boyle says. “The big one was the autopsy. Why have they never given us the autopsy? That’s why we filed the suit. If the state police are still holding on to everything, we need discovery to make our case. Or all the judge has to go on is the story the state police gave him. We can only hope that somebody listens to us when we say, 'You never even gave us a chance to look at everything!'”
Azzari remains armed and on the job. In fact, he was recently celebrated by his employers. On Oct. 31, the Maryland State Police posted a photo on Facebook showing Azzari receiving a certificate for completing something called “Crisis Intervention Team (CIT)” training. That's a five-day course which the agency says will teach police officers “how to assist persons experiencing a mental health crisis with an efficient, respectful and compassionate approach.”