North Andover officer ordered held on dangerousness days after release
A North Andover police officer shot by a colleague in late June was released from jail Monday after months of medical treatment and several weeks behind bars. But by Thursday, 28-year-old Kelsey Fitzsimmons was back in jail after a judge vacated the terms of her release and deemed her dangerous.
The order came after lawyers for Fitzsimmons told an Essex Superior Court judge during a Thursday hearing that she could not complete required alcohol testing without severe pain due to her injuries from being shot.
As a condition of her release, Fitzsimmons was ordered to use a SCRAM alcohol testing device that required her to "blow intensely into a tube several times each test," her lawyers wrote in a motion filed Wednesday.
But Fitzsimmons, who was shot in the chest and experienced "severe lung, diaphragm and liver damage along with broken ribs ... continues to suffer pain and difficulty breathing," her lawyers wrote.
During the hearing, Timothy Bradl, a lawyer for Fitzsimmons, said she had been passing the alcohol tests but not without hours of "pain and dizziness afterwards."
The machine "shouldn't be a torture device for her," he said.
But Judge Kathleen McCarthy-Neyman said if Fitzsimmons "cannot or will not" undergo alcohol testing, that "changes everything."
A probation officer told the judge that Fitzsimmons remained compliant with the terms of her alcohol monitoring despite failing to initially complete the test at least twice. If she had missed the test, that could represent noncompliance, he explained.
Bradl said Fitzsimmons could continue undergoing the required testing if the court "tolerated" her being in pain.
"The court is not tolerating anything. Ms. Fitzsimmons is a defendant. In lieu of incarceration, my order was that she submit to SCRAM. If she cannot do that, I need to know that. Can she do that or not?" McCarthy-Neyman said.
"It is certainly not the court's intention, not the court's position to have Ms. Fitzsimmons in any pain at all," she added.
Bradl implored the judge to consider alternatives to the particular mode of testing she ordered. Fitzsimmons is "not trying to use this to create a situation where she can go drink alcohol," he added.
McCarthy-Neyman briefly stepped off the bench to consider the evidence.
When she returned, she noted Fitzsimmons had moved to amend her conditions of release twice in three days. Neither time did she submit any medical evidence, McCarthy-Neyman said.
"Just days ago, the court concluded that the condition of remaining alcohol free and submitting to SCRAM monitoring was necessary to ensure the safety of the community," she said. After reviewing everything, that "conclusion remains unchanged, regardless of Fitzsimmons' claimed physical limitations."
McCarthy-Neyman concluded that Fitzsimmons cannot abide by the condition of being monitored by SCRAM.
"Without this condition, which ensures she does not consume any alcohol, the court cannot ensure the safety of ... the community," she said, ordering Fitzsimmons held without bail.
Bradl asked to address the court. When he was not given the opportunity to do so, he objected, asking McCarthy-Neyman to stay her order pending an appeal to the Supreme Judicial Court.
Fitzsimmons can be heard crying during a recording of the hearing obtained by MassLive.
"There are other alternatives your honor can accomplish," Bradl is heard saying before the recording cuts out. Bradl has since filed a motion for reconsideration, according to the court docket.
Fitzsimmons is charged with assault and battery with a dangerous weapon in connection with the incident on June 30, during which police say she pointed a gun at a fellow officer .
Through her lawyer, Fitzsimmons has denied doing so and said she tried to take her own life that night.
As she left the courthouse Monday, Fitzsimmons, flanked by her lawyers, said simply, "The truth will come out."
On June 30, North Andover police officers arrived at Fitzsimmons' home to serve her with a restraining order obtained earlier that day by her fiancé.
In an affidavit, Fitzsimmons' fiancé said she had assaulted him and that he feared for the life of their infant son.
A hearing on the restraining order is slated for later this month.
While Fitzsimmons was packing up clothes for her son, police say she reached for a gun and attempted to fire it at one of the responding officers. She was shot once in the chest by the officer and taken to Massachusetts General Hospital, where she remained for more than a month.
At the bail hearing on Monday, Bradl asked McCarthy-Neyman to defer the order requiring Fitzsimmons to stay away from her son to the probate court.
The judge declined to do so, but said she would amend the order if needed.
Bradl has called the claims from Fitzsimmons' fiancé "self-serving."
"Her whole world was taken away from her because a guy went to the probate court ... filled out a piece of paper, full of self-serving allegations, and got her baby," he told reporters outside the courthouse. "Kelsey is very committed to showing this court, showing the judge that she's fine, that she's in control, that she's not a danger. The only thing that's been aggravating her postpartum [depression] is having her baby taken away."
"We're going to do everything we can to reunite Kelsey with her baby," Bradl added.
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