Bucks DA: Marino Death 'Justifiable Homicide'

David Heckler found that "loss of tactical control" by police did not rise to level of criminal wrongdoing

Update, 5:38 p.m. July 30

Bucks County District Attorney David Heckler called the investigation into the death of Michael W. Marino "thorough and impartial" and defended claims that Marino was "society's victim in these events" by describing the victim as "drug-abusing, mentally ill and violent."

He said to prosecute Officer Seth Mumbauer would make him "a scapegoat for those who decided Marino could be free without supervision."

During a 3 p.m. press conference in his office in the Bucks County Courthouse, Heckler said Mumbauer shot Marino once in the chest.

Marino's hands were cuffed behind his back, Heckler said.

"Shortly before the shooting, a total of three officers had combined to subdue Marino. The shooting took place during a fight which began after one officer stepped away and Marino dropped to his back and began kicking the officers to the extent that one was put out of the fight entirely," Heckler said. "Officer Mumbauer was dazed, having been kicked in the jaw and groin."

He said the incident was witnessed by at least one disinterested civilian witness.

One witness to the incident at the convenience store where police were called the afternoon of June 9 was Bikers Against Child Abuse Montgomery County Chapter member Ron Gallagher and his wife Robyn.

Heckler had points to make to those who believe that Marino was society's victim in the events.

"Whatever mental illnesses Michael Marino suffered from - he, his doctors, those close to him and ultimately our society - decided that he should be free, on the street, with a car, unsupervised and able to purchase and use controlled substances as he saw fit," Heckler said.

"He elected not to take the prescribed medications which had helped him live within society's rules and he decided to consume illegal substances, some of which have been known to make people do many bizarre things, including act out violently," Heckler said.

Heckler referred to these substances as bath salts or synthetic cannabinoids, which, he said, affect the synapses in the brain much like marijuana. 

"He addressed himself in a variety of aggressive and anti-social ways toward people he didn't know and who had not provoked him in any way," Heckler said. "When confronted by police, as was inevitable given his conduct and as had occurred before in his life, he chose to do battle even after he had been restrained, instead of submitting to lawful authority."

"The police did not create this situation - he did," Heckler said.

Heckler said to prosecute Mumbauer would to make him a scapegoat for those who decided Marino could be free without supervision.

"It would be to make that officer a scapegoat for society's choice to cut corners and hope for the best where the mentally ill are concerned, and for society's decision that when things don't go well with the mentally ill, we'll let the criminal justice system handle the mess that follows," he said. 

He said prosecuting Mumbauer would make him a scapegoat for the tactical misjudgements of others "who had the responsibility for protecting the public from this drug-abusing, mentally ill and violent subject."

"This is truly a case where the devil is in the details," he said. "It is for this reason that the county detectives conducted a thorough and independent investigation and why I have taken the step of providing an unusually detailed recounting of the findings of that investigation."

The findings are public documents and have been shared with counsel for the Marino family - Gerald McHugh of Raynes McCarty Law Firm in Philadelphia.

A message from Lansdale Patch was left with McHugh seeking comment on any civil litigation against Perkasie Police.

According to Matt Coughlin at PhillyBurbs.com, the Marino family did issue a statement through McHugh.

The undisputed fact remains that an unarmed young man, in the throes of mental illness, was shot with his hands cuffed behind his back, with three police officers on the scene.

We intend to continue pursuit of all remedies the law provides, with the goal of securing justice for the death of our son, and reforming the procedures of the Perkasie police to prevent such senseless tragedies in the future.

Perkasie Police Chief Joseph Gura also received a copy of the findings.

An autopsy on Marino revealed the following found in his bodily fluids:

  • Amphetamine
  • Caffeine
  • Synthetic cannabinoids at detectable levels
  • THC
  • Nicotine and metabolites

Earlier Story

Bucks County District Attorney David Heckler has declined to charge Perkasie Police Officer Seth Mumbauer in the June 9 death of Michael Marino, the Quakertown-area man who was shot and killed during an altercation with police near a vacant Sellersville industrial property in which he had allegedly been squatting.

After a seven-week investigation, Heckler released a 10-page report and several photographs gathering all details by Bucks County detectives, which supported his decision to not criminally charge Mumbauer. 

Marino, 26, died after being shot once in the chest by Officer Seth Mumbauer following what Mumbauer described to investigators as a physical struggle on "uneven terrain." 

Perkasie Police Officer Steven Graff and Sgt. James Rothrock, a trained hostage negotiator, initially found Marino with his back against the vacant sign factory building, facing the railroad tracks, according to the findings.

The ground falls significantly as one proceeds west toward the tracks and rises again when one reaches the ballast on which the ties for the track are laid.

Mumbauer arrived at the scene and gave this account:

I saw Sgt. Rothrock and Officer Graff were in dialogue with the subject near the building. Both Sgt. Rothrock and Officer Graff were standing in a 'valley.' The subject was sitting on a hill, above them, near the building. He was yelling obscenities at various times.

Rothrock reported Marino "would appear to have moments of clarity and then slip into a state of incomprehension." Marino also appeared "agitated and spoke gibberish which to the officers sounded vaguely like German."

Marino was asked what medications he took, and rattled off names that Rothrock recognized as anti-psychotics. Marino told Rothrock his meds did not help him.

Marino told officers he was kicked out and was having a bad day.

In his findings, it was revealed Marino resided with his sister, Amber Simione, at 2513 Emerald Lane, Quakertown. Simione was on vacation during the weekend of Marino's death and advised a neighbor that "Mike had not been taking his medication." She told the neighbor to call the police if Marino was acting strange.

Then, Marino told the officers he wasn't going to speak with anyone about his mental health and wasn't going anywhere. He then stood up in "an aggressive stance" and stated:

I feel like I'm God. No, I know that I'm God. If you don't know who I am, then you don't read the Bible.

Police said Marino had been handcuffed and was resisting their attempts to take him to Grand View Hospital for medical attention.

The officers began to take him into custody, Mumbauer with Marino's right arm and Graff with Marino's left arm and head. Marino became "resistant, flailing" and "tensing his arms and body."

Mumbauer describes the process of cuffing Marino:

I pulled my cuffs out and was trying to cuff the left arm. When the cuff clicked on the left arm, I then tried to get the right cuff on. This hung up, possibly on the subject's pants. When cuffs get caught up on cloth, there is no sound or feel of the cuff's ratchet. I did not hear the click. I did not double lock the cuffs because the subject was combative and because we were on uneven terrain

Graff told investigators that after Marino had been handcuffed by Mumbauer, he "began to flip out" while Graff was frisking him.

I patted down the subject's right front pocket and felt a large soft object which the subject stated was marijuana. I went to pat down the subject's left front pocket and began to feel multiple hard objects. As I was patting the left pocket, the subject began to flip out.

Graff said he "went to the ground" with Marino to physically subdue him and was "knocked backwards down [an] embankment and disoriented." Before Graff got up, he heard a gunshot.

I went to the ground with the subject trying to control his legs. AS I was attempting to control the subject's legs, I was knocked backwards down the embankment and disoriented. During this time frame, I heard a loud bang. When I looked up, I saw the subject lying on his back with a hole in his chest.

Mumbauer, who said he was kicked in the jaw, told investigators, "I knew we were losing this fight" and "I feared for our safety," explaining that he believed Marino may have broken loose of his handcuffs or been armed.

The kick to the head and the groin made me feel like I would go unconscious if kicked again. The force knocked me back and slightly down the hill. I knew he was within a few feet of me and could easily jump for me and try to get my gun. He could have gone to either side of me at that point but he didn't. Instead, the subject started to come directly at me by rocking his body to get up in one forward motion. The subject immediately lurched forward toward me. He planted his feet within a foot of my feet and I knew he could jump into me and knock me into the bottom of the valley.

I knew he had gotten the upper hand and was still able to fight. I feared for our safety. I believed that the subject may have thrown a cuff, or was armed. I believed that the might grab my gun. I took a step back and drew my duty weapon. As he rocked up and came at me, I fired a single shot into the chest of the subject. He immediately dropped back to the ground and stopped moving.

"I do not find that Officer Mumbauer's belief that he needed to draw and fire his weapon was unreasonable under the circumstances," Heckler wrote in his official statement of findings.

See DA Heckler's statement of findings in this article's PDF section.

Heckler was critical of "the loss of tactical control" that he said led to Mumbauer needing to use deadly force and suggested that Marino should have promptly been placed in the back of a police car in order to end the officers' "physical interaction" with him.

"Three physically fit police officers, two of them armed with Tasers and batons as well as sidearms and one trained specifically in dealing with mentally ill and drug abusing subjects like Marino, should have been able to avoid the loss of tactical control which led to Officer Mumbauer’s being in a position where the use of deadly force was necessary," wrote Heckler.

Additionally, Heckler found, Rothrock, who had walked some distance from the scene to ask Ron Gallagher to move back from the area, should have stayed with his two colleagues.

"[The witness] didn't present a threat," Heckler wrote. "He could have been verbally requested to remain at a safe distance."

Ultimately, Heckler said, it was outside his prosecutorial authority to determine whether proper police procedure had been followed.

"The matter which does lie within my responsibility is whether any crimes were committed in connection with Mr. Marino's death," Heckler wrote.

"Under the applicable law his act was therefore a justifiable homicide," Heckler concluded.

The Beginning

Heckler said Marino had broken into and set up housekeeping in a vacant sign factory at 201 West Clymer Avenue in Sellersville Borough, located next to railroad tracks, in the late afternoon of June 9.

Marino's silver Toyota was parked on the far side fo the factory, immediately next to a door that was forced open, according to Heckler in his findings. An armchair had been set up between the car and the building, and various cans of food and toiletries were found on shelves.

On June 9, at 4 p.m., Marino was reported in the vicinity of a convenience store at Clymer Avenue and East Park Avenue wearing a yellow poncho and carrying a large container of iced tea. In addition to the poncho, he was wearing long underwear pants, socks, gray-colored Croc-type shoes and a pair of light camouflage BDU-style shorts.

Marino made his way back down Clymer Avenue in a westerly direction toward the tracks, and periodically obstructed traffic, according to Heckler in his findings. 

Marino "brought himself to the attention of a number of people who were prompted by his actions to call police radio." Clymer Avenue residents told police Marino walked down the the middle of the street, shouting and acting in a menacing fashion.

Heckler wrote that Marino was striking signs and screaming epithets, as attributed to him by witnesses:

  • "You bitches are going to pay"
  • "I'm going to kill you; I'm going to kill everyone"
  • "I'm going to kill you motherfuckers"
  • "Fuck the world"
  • One witness said he growled at him in an intimidating way
  • Another witness saw a shirtless Marino as she crossed the tracks at Clymer Avenue, and was going to render aid: "He looked at me with a stare with his pupils black and enlarged and I thought to myself 'Holy shit ... I'm out of here.'"
  • One neighbor described Marino's face as red with his veins popping out, looking really frustrated

The Gallaghers were on their motorcycle and encountered Marino near the convenience store. Robyn Gallagher saw Marino across the street from the store as he proceeded down Clymer Avenue. She said he yelled at her and her husband that "We are all going to burn in hell."

Ron Gallagher called 911 and Graff and Rothrock responded to the scene.

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Mommy September 21, 2012 at 08:20 PM
Don... your post is very professionally and logically written. Thank you for sharing your experiences in dealing with the mentally ill. How strong they can become when in a drug induced fit. I've posted earlier about the incident with Marino last year... where it took 6 cops and 2 hospital personnel to hold him down to sedate him. "People" want to discredit that incident. You're right in saying that we shouldn't always place blame. Assuming that there is always fault. But there is fault in filing lawsuits and suing for something that you either turned the other cheek to, or that you couldn't help. If the family feels that they deserve something out of all of this... that is wrong. They weren't there to help him... if he refused help... then he made his own decisions and choices. They deserve nothing monetary wise. They do not deserve to accuse the cops of murder or failing at their jobs. If they want to make something positive out of all of this. Instead of focusing on all of the negative... maybe they should focus on making something positive out of his death. Counseling... Giving people chances so that the same thing doesn't happen to them or their family members. Learn from it. Not looking for a payout or police reform. Perkasie and Sellersville are safe towns. Probably because the police don't deal with BS and let things slide (not talking about Marino Eric). They're coming in and tarnishing. Looking to blame everyone but themselves.
Eric W September 22, 2012 at 12:43 AM
Resident4, your problem is clear: low tolerance for people questioning the actions of police officers. I reject your religious worship of police officers. If I am paying them to police, they are going to do it correctly. They will find some flaws in their procedures and it will be interesting to see how you disagree with them over changes. You will disagree wont you? Because you stand (steadfast) with what Mumbauer did that you should object any procedural correction. However, your integrity sucks, Resident4. You are a follower and are offended when someone does not follow as you do. You will, instead, lie about your commitments, backtracking and denying ("i never said that" .. seems to be your middle name). So, do me a favor, come back several months from now and impress me by admitting you were wrong when Perkasie Police change their procedures (and HOPEFULLY getting rid of Mumbauer). Or, will you protest? As I said, you are a study in contradictions due to your lack of integrity. Something tells me you and Mumbauer have alot in common in that regard. Hopefully, you do not serve the public. Oh, I am formerly from the city of brotherly love. Philadelphia is a good place. Predicted follow up: "it's a ghetto" ... but dont forget, you have to live in the city of Philadelphia to be a police officer. So watch what you say, your integrity is showing.
Eric W September 22, 2012 at 12:46 AM
Tazers, Batons, Pepper Spray. There are many objects the police have at their disposal. A bullet for the mentally ill is quite a choice, Don.
mr grinch September 22, 2012 at 01:06 AM
Online report is quite real. "Once cuffed, Marino became momentarily calmer" Then Rothrock left.. Then Graff began the search... All three were confident the subject was restrained. Through out Mumbauer's own description not one word....NOT ONE WORD of his account of the scuffle reflects that Marino had use of his arms. In fact if you read the report everything he describes is a man RESISTING WITHOUT THE USE OF HIS ARMS, accurate because HE DIDNT. He didn't because they were handcuffed and both officers we confident of that FACT as reflected by their own account in the report. Thats their story and I'm sticking to it.
Mommy September 22, 2012 at 01:51 AM
Oh Eric. You and your big boy words. Do you feel smarter now by writing the word integrity more than once? I do not have a "religious view" of police officers. (I was using your own words). I do, However, have respect for law enforcement. I do have respect for men and women (cops or not) who protect. Who put their lives on the line. You obv don't have any respect for others. You think that because they're public workers... Paid for by our tax money... They should bow down and do whatever you say. Do you also have such negative reviews of teachers? Firefighters? What I have a low tolerance of Eric... Is people who have their head stuck so far down in the sand (or up their own rears... However you like it)... That they are unable to hear anything but themselves. Sound familiar? We will see if I disagree with any procedure changes IF they choose to make any. I don't plan my opinion of things before they happen. I don't follow Eric. You have that backwards. Please... Show me exactly (in my words... Go ahead copy and paste) where I have lied or backtracked and denied. I'm waiting. What does you having lived in Philadelphia have to do with anything? Here's a shocker for you... I dont think all of philly is ghetto. Except for... The ghetto parts.
Mommy September 22, 2012 at 01:54 AM
Yes Ive been in the ghetto of Philly... Gotten lost and ended up there, visited my sister there who attends temple. Have I been scared? At times. Did I feel safer Seeing cops... Hell ya... Because I know that they will do what it takes to protect. Not because they are from philly, but because they have sworn to protect.
Mommy September 22, 2012 at 02:07 AM
My integrity... Your word of the day. Why would I care if Philadelphia cops have to reside in philadelphia? What does that have to do with anything?? Oh... It doesn't have anything to do with the perkasie pd. you just think its cool saying that you lived in Philly. Am I supposed to now view you as culturally aware, tough...? You now live in perkasie or sellersville sweetheart. Watch out!!!! These corrupt bucks county cops are out to get everyone! Better move back to the city!!!!
Mommy September 22, 2012 at 02:12 AM
Mr grinch. I suggest you read it again... Maybe 3rd time is a charm? Here are some key words: didn't. Hear. Cuff. Click. Suspect. Lunged. Could. Have. Thrown. Cuff. Read the real report... Not the online. Rothrock left before he was being cuffed. READ THE REPORT . The real one. Thanks. That's the real deal and I'm sticking to it. Yours is sliding off the wall like a wet sticker. No adhesive left...
Eric W September 22, 2012 at 02:32 AM
Resident4, so this all comes down to bad police work. Thank you for confirming that. He did not hear the cuff click.Why? How did the suspect lunge? And finally, when anyone lunges at you with their hands behind their back, is it justifiable to take their life if you are packing heat?
Eric W September 22, 2012 at 02:33 AM
oh, i'm sorry. Is integrity a big word for you?
Mommy September 22, 2012 at 02:40 AM
Round and round in circles with you Eric. I am not explaining it again so that your peanut brain can comprehend it. I feel like a broken record with you. Here's your already predicted statement from me: I didn't confirm bad police work. It has been fully confirmed that you are a true gem though.
Mommy September 22, 2012 at 02:41 AM
Yes... Integrity is a big word for me... Your right. Considering you don't know the meaning... I think it may be too big of a word for you. You stole it from someone else's comment I'm sire
Mommy September 22, 2012 at 02:42 AM
Eric W September 22, 2012 at 05:56 AM
Resident4, are these the same circles that were said to surround the wrists of Michael Marino before Seth Mumbauer took his life? The more attention this story gets the better. Thanks for being a tool.
mr grinch September 22, 2012 at 11:24 AM
Taking your advise I once again read the report hoping to be wrong. Crazy....but after reading it in some detail......the conclusions are the same.Not My conclusions...the reports. I prefer the key words I quoted, the conflicting statements and the chronological order of the report itself; to your so called key words. When you read it, is Marino found to be handcuffed before he was shot?
mr grinch September 22, 2012 at 11:33 AM
Mommy September 22, 2012 at 01:04 PM
Eric. Wow... That was creative. This story isn't getting more attention. You and I are debating it in a comment section on patch. Big deal. The last report published... Stated... Perkasie is not going to be hiring a private investigator. Mumbauer is back on duty. It is ruled justified... Not criminal. Gura is still conducting his investigation on whether or not some policies need to be changed. You're just going to exhaust yourself with an endless fight that is going to go nowhere. Now... Impress me in a couple months... And tell me that I was right... Tell me that mumbauer is still employed by the perkasie pd, that there were minor changes in the way the dept is run, still no private investigation done, no trial. Possibly Marinos family will get a payout from insurance co and they will go away. I have no respect for people who bear no responsibility for their family, but then turn around and demand things and $ when something tragic happens. I feel for their pain in the loss of Marino... Hope they can find peace. But they don't deserve anything from the police dept or the town... They won't get it either. You watch Eric. Tool? Hmmm... Sassy.
Mommy September 22, 2012 at 10:35 PM
Mr Grinch... Are you reading the actual report? The one that is on the public records search, or one on a news site? In the actual report.... Of course it states that he is handcuffed. But... Like I stated before... It also states that he started fighting while in the process of being cuffed. Therefore... Mumbauers uncertainty of whether he threw a cuff is valid.
Mommy September 22, 2012 at 10:40 PM
Their stories don't conflict. Marino had one handcuff on... Locked. He started fighting and kicked graff down the terrain. Remember... Mumbauer didn't recall the other cuff clicking. Graff wouldn't have heard a click or not... He wasnt doing the cuffing.
mr grinch September 22, 2012 at 11:31 PM
Actual report? ...yes..any and all in depth. Stories in actual report?....totally conflict. Graff not doing the cuffing? ....No he was just holding Marino's head and left arm. Thanks for confirmation on the dead man being handcuffed. And not to taint whatever cool aid your drinking, but several national organizations are very aware of the situation and ruling and getting the word out about this brutality. Personally I would love to see and independent non biased investigation. Just hope I dont have to wait as long as i did for Hecklers.
Mommy September 23, 2012 at 12:12 AM
Graff wasnt placing the cuffs on his wrists... Does that help you to understand what I said? If there are several national organizations listening... Where are they? This happened in June. DA's report was done in July. We are close to Oct. What are they waiting for? I'm going to take a wild stab in the dark and guess that you think the Sean Sullivan case was unjustifed too?
Eric W September 23, 2012 at 01:07 AM
Resident4, it does not matter what you said. Why do you continue to portray yourself as this beacon of justice. You are one of the most uninformed people I have ever debated with. The fact is the report was not written by you nor did it pass through your logic to arrive at the DA's conclusion. You are clearly one sided on this whole issue and you serve no other purpose than to illuminate this story. But your worth in this will soon be over as there is interest in this story. You may assume something that happened less than a year ago will go away. But, keep thinking it. You do not matter.
Mommy September 23, 2012 at 01:48 AM
Hmm... I thought I was addressing Mr Grinch. Apparantly not. Really... The most uninformed person you have debated with ever? One could say the exact same for you. One sided?! Hahahahaha. Right. We will see how far this "interest" goes Eric. Aw. Quit hurting my feelings by telling me I don't matter. You keep saying that... Is this something you hear often? Misery loves company Eric. I matter to you... You comment on 99% of what I post. Now that is what matters sweetheart.
american hero September 23, 2012 at 12:47 PM
double amputee in wheelchair shot by Houston Police."He feared for his life" and "wanted to go home to his family". A familiar line of b.s.
Eve September 23, 2012 at 01:03 PM
It's "you're right" not "your right". As a "know it all", I thought you'd want to know. Your welcome!
Mommy September 23, 2012 at 01:25 PM
Eve... Obv it was a mistake. Just like "you're welcome" not "your welcome". Lmfao... Good one dumbas*. Doesn't do much to to prove your intelligence when you do the exact thing you're critizing. Just saying. Also... I know you didn't write it that way on purpose. So save that line. You fail as grammar police. Go away.
Eve September 23, 2012 at 04:20 PM
Excellent! Just seeing if you're paying attention. And I was sure you couldn't comment without insulting me. My husband owes me a dollar. Thanks!
Mommy September 23, 2012 at 06:07 PM
Cool... Are you the lucky lady that's married to Eric? Why wouldn't I comment to you?? I love commenting to everyone quite obviously. Yep... A big mouth with a lot of opinions. Hoping I answered your questions. You're welcome.
Eric W September 23, 2012 at 10:50 PM
resident4, you missed my point about you being a tool. Don't flatter yourself thinking you are anything more. If it helps you sleep at night, I don't know a thing about you nor do I ever want to meet someone like you. But you are company here purely for the thread bump. I wonder how raw Mumbauers behind is from the constant contact with your lips.
Mommy September 24, 2012 at 12:58 AM
Eric W... The feeling is mutual. As for Mumbauers behind... I'm sure it's fine... I wear lipgloss. I'll see you in a future thread on this topic... Oh wait... Prob not. I won't comment when nothing changes but a few minor things with the PD procedures. :) good night


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