Hamilton

Officer who killed Tony Divers tells inquest if he was in same situation he'd shoot again

Const. Nicholas Cercone told the inquest he feels Divers "forced" him to shoot and, if he found himself in the same situation, said he would fire again.

'I didn't want to shoot him and go through this nightmare,' said Nicholas Cercone

This screenshot from a surveillance video shown during the inquest into the death of Tony Divers shows the tense moments before the trigger was pulled on Sept. 30, 2016. (Anthony Divers Inquest)

The Hamilton police officer who shot and killed Tony Divers said a shrug is what made him fear for his life and put his finger on the trigger.

A step forward is what made him pull it.

Const. Nicholas Cercone said seconds before he killed Divers he told him to get down or he would shoot. The 36-year-old reacted by shrugging.

During the inquest into Divers's death Thursday Cercone said that gesture gave him a pretty good idea "how this was going to turn out."

"He doesn't care about his life and if he doesn't care about his life why would he care about mine?" he asked.

Then, when Divers took a slight step forward, he fired.

Cercone had only been a sworn officer for about nine months before he pulled the trigger.

He told the inquest at Hamilton's John Sopinka Courthouse he feels Divers "forced" him to shoot and, if he found himself in the same situation, said he would fire again.

He also said he doesn't believe any training could have prevented the fatal shooting of the unarmed man from happening.

Outside court, Roy Wellington, the lawyer representing Divers's family, said it was "gut-wrenching" and "truly traumatic" for them to hear some of the things Cercone said — especially that he wouldn't change a thing if he encountered the same scenario again.

Ontario's Special Investigations Unit (SIU) cleared the officer of any criminal wrongdoing for the shooting, but the inquest is aimed at avoiding similar deaths in the future. If what he heard from Cercone is any indication, Wellington said he's not hopeful that will happen.

"There were several opportunities for this officer to have done things differently or to have made different decisions, and for him to suggest three years later knowing certainly that this was an outcome that wasn't necessary, as Mr. Divers was not armed … is quite frankly appalling."

Cercone had seen Divers before

Divers, who the inquest heard struggled with a range of personality disorders along with homicidal and suicidal thoughts which were magnified by drug use, was killed on James Street South just before midnight on Sept. 30, 2016.

About a month before that night, Cercone said he met him for the first time after one of Divers's sisters contacted police out of concern for his wellbeing.

He told the inquest he remembered Divers's name because when it went out of the radio other officers called for backup.

"At the time I had never experienced that much concern from officers just by the mention of a name," he said, adding several other officers came on the air describing Divers as a "dangerous guy."

Const. Nicholas Cercone said he met Tony Divers for the first time about a month before the shooting. (Facebook)

In the end it turned out to be a routine call and Cercone said Divers didn't show any sort of violent or anti-police behaviour and there was no reason to arrest him that day.

But, when his name went out on the radio again on Sept. 30 saying he had just assaulted his wife and might be armed, the officer said it immediately brought back his memories of the first call and he offered to respond, telling the other officers searching that Divers was a "very large guy."

'I was terrified'

Cercone joined the search and spotted Divers near the corner of James Street South and Bold Street. He said they locked eyes before he used his cruiser to block a bus that had just pulled up, because he was worried Divers would hop on.

Instead Divers started walking quickly north along the sidewalk, before breaking into a jog when he saw the officer following behind.

The officer said he noticed that despite Divers's lanky build he was "running very slow and awkwardly" which, along with a radio broadcast that he might be armed, led him to believe Divers had a gun hidden in his pants.

Cercone told the inquest he intended to keep some distance between him and Divers because "no one officer is going to want to take down a 6'4" guy with a gun by himself," but he quickly caught up when the man he was chasing slowed down.

At one point, he said, Divers lifted up his jacket and started to "dig into his waistband." That's when Cercone said he unholstered his firearm and pointed it at Divers.

"I though he was going to pull a gun out and shoot me. I was terrified."

Divers was rushed to hospital after he was shot. He was pronounced dead shortly after midnight on Oct. 1. (Andrew Collins/CBC)

Cercone said he continued to yell commands at Divers, telling him to stop and get down, but he didn't show any sign of responding until the officer shouted something along the lines of get down or I'll shoot.

It's at that point, with one hand still under his jacket, that Cercone said Divers shrugged and took his step forward, so he fired.

The officer said he believes there's no other explanation for the way Divers was acting except that he wanted Cercone to believe he had a weapon.

It wasn't until six months later that he found out Divers was unarmed, a revelation he said left him "floored."

"I did not feel safe, but I didn't want to shoot him and go through this nightmare," said Cercone, wiping away tears while Divers's family murmured sounds of disbelief. "I remember dry-heaving … I couldn't believe he had made me do that."

Later during questioning, Wellington challenged that, pointing out that despite Cercone's fears, he was wrong.

"I believed 100% he had a firearm and he didn't. So, yes, I was mistaken," the officer allowed.

The lawyer asked why, if Divers was so dangerous, Cercone didn't keep his distance until backup arrived.

The officer responded saying he knew other police were on their way and that although officers "routinely" disengage when situations become too dangerous "unfortunately we don't get that luxury in our line of work to turn around and run away from somebody with a gun."

Police quickly flooded the scene after Divers was shot on James Street South, just outside the Hamilton GO Centre. (Anthony Divers Inquest)

Wellington also raised questions about the kinds of stressful scenarios police are put in during training, saying more might be needed to prepare them for the sort of situation Cercone found himself in.

Cercone replied saying he believes there's an important human element to being a police officer and that you can't train fear out of someone.

"If you want Robocop, that's sort of what you're getting at," he added.

Marco Visentini, the lawyer representing the Hamilton police service at the inquest, pointed to the SIU's findings when questioning Cercone.

He noted the police watchdog spoke to a witness who, despite not hearing the police radio broadcast about a possible weapon and not having training to identify someone who might be trying to conceal a firearm, reached the same conclusion as Cercone — that it appeared a gunfight was about to break out and the officer had no option except to "shoot or be shot."

Officer says no training would change outcome

Cereone said during the inquest that his relative newness to the job meant he was "probably one of the best trained officers out there" because all that he had learned was still fresh in his mind.

When asked if there was anything he wished he had been trained on or that could have changed what happened that night, Cercone said no, adding he's thought about the shooting every day for the past three years.

"I can't think of anything they would be able to train me to do that would have changed this outcome."

The inquest continues Tuesday.

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