Use Of Deadly Force By South Portland Police Officers Legally Justified

January 9, 2007

Attorney General Steven Rowe announced today that two South Portland police officers, Theodore Sargent and Jeffrey Cogswell, were legally justified when they used deadly force against Donald H. Gray, 40, during the late evening of November 29, 2006, in South Portland. Mr. Gray died as the result of being shot by the two officers.

The Attorney General's investigation focused on the issue of whether the use of deadly force by the officers in the particular situation was legally justified. The Attorney General is required by law to review all occurrences in which a law enforcement officer uses deadly force while in the performance of the officer's public duty.

Under Maine law, for a law enforcement officer to be justified in using deadly force for purposes of self-protection or the protection of third persons, two requirements must be met. First, the officer must actually and reasonably believe that unlawful deadly force is imminently threatened against the officer or a third person. Second, the officer must actually and reasonably believe that the officer's use of deadly force is necessary to meet or counter that imminent threat of unlawful deadly force.

Attorney General Rowe determined, based on the investigation conducted by his office and the application of controlling Maine law, that Officers Sargent and Cogswell actually and reasonably believed that unlawful deadly force was being imminently threatened against them by Donald Gray, and that the officers also actually and reasonably believed that the use of deadly force on their part was necessary to protect themselves and each other. Therefore, both requirements of the law having been met, the use of deadly force by Officers Sargent and Cogswell was legally justified.

The Attorney General's investigation revealed the following:

In the late evening of November 29, 2006, Herbert Gray, 74, called the South Portland Police Department for assistance. He said that his 40-year-old son, Donald H. Gray, had retrieved a handgun from his vehicle, brought the gun into the house and taken it into his bedroom after telling his parents to stay out of his room. Herbert said that this followed an argument with his son concerning a pending court matter involving credit card debt, and Donald, who had been living with his parents for the past few years, being told that he could no longer reside with his parents in their home.

Within minutes, South Portland police officers Sargent and Cogswell arrived at the residence. Both officers were in uniform. When the officers arrived, Herbert Gray was still on the telephone with the police dispatcher. Officer Sargent spoke briefly with Donald's mother, Jacqueline Gray, who confirmed that Donald had taken a handgun into his bedroom. Mrs. Gray also requested that the officers speak with her son.

Immediately following the arrival of Officers Sargent and Cogswell at the Gray residence, another South Portland officer, John Sutton, arrived at the residence. Officer Sutton directed Mr. and Mrs. Gray to an area of the residence a distance away from Donald Gray's bedroom and remained with them while Officers Sargent and Cogswell approached Donald's closed bedroom door.

According to Officers Sargent and Cogswell, Officer Sargent knocked on the bedroom door, identified himself as a police officer and asked Donald if he could speak with him. Donald responded that he was "going to bed," according to Officer Sargent. Officer Sargent stated that he then asked Donald if he had "a pistol." According to Officers Sargent and Cogswell, Donald gave no further verbal responses. At about this time, a fourth South Portland officer, Lt. Todd Bernard, the shift commander, arrived outside the residence.

Both Officers Sargent and Cogswell stated that, seconds later, they observed Donald's bedroom door being opened from the inside and they saw Donald standing in the doorway.1 During this very brief time period, Officer Sargent was on the left side of the hallway facing the door, with Officer Cogswell behind him. According to the officers, Donald said nothing. Both officers described seeing Donald "bent over" or leaning over towards a desk or dresser just inside the room, and that he appeared to be reaching for something, but they could not see his hands. Officer Sargent immediately moved from the left of the open door to the right. Officer Cogswell moved into the position vacated by Sargent. The officers were now side by side at the open door in the narrow hallway facing Donald. Both officers recalled drawing their service weapons while repositioning.

Officer Cogswell stated that he made repeated commands for Gray to "show his hands," and "don't do it." Officer Cogswell distinctly recalls hearing the sound of a magazine being inserted into a pistol, as well as the sound of the action on the pistol being worked as if chambering a round. Officer Sargent's recollection is not as specific as Cogswell's in this regard, although he described having the "impression" that a pistol was being manipulated as if a round was being chambered.

Both officers stated that they then saw Donald with a pistol in his hand. Officer Cogswell recognized the weapon as a Taurus brand pistol. The officers stated that they repeatedly ordered Donald to disarm, but that he made no verbal response and, instead, raised the weapon and pointed it at Officer Cogswell.2 Both officers simultaneously discharged their handguns, .45 caliber semiautomatic pistols, at Donald, who, struck by the rounds, fell to the floor fatally wounded. The distance between Donald and the two officers at the time of the shooting was approximately 3 to 4 feet.

It was later determined that each officer fired four rounds, all of which struck Donald. Donald's weapon, a Taurus 9mm semiautomatic pistol, was loaded with eight rounds, one of which was chambered. The investigation disclosed that Donald Gray had purchased the pistol in November 2002. A hundred-count box of 9mm ammunition found in Donald's vehicle after the shooting contained 92 rounds.

Detectives from the Office of the Attorney General went to the scene of the shooting in South Portland to conduct the investigation. They were assisted in the investigation by the South Portland Police Department, the Office of the Chief Medical Examiner and, later, the Maine State Police Crime Laboratory. The South Portland Police Department cooperated fully with the investigation and is conducting its own internal departmental review of the incident.

1 Both officers described Donald as a large man. It was later determined that he stood 5' 11" and weighed approximately 370 pounds.

2 The other persons at the residence €“ Officer Sutton, Lt. Bernard, and Mr. & Mrs. Gray €“ heard variations of the commands directed at Donald, namely, "what are you reaching for?;" "let me see your hands;" "don't do it; put it down." (Sutton); "Drop the gun, drop the gun." (Bernard); "Drop the gun." (Mr. Gray); "Donald, put the gun down." (Mrs. Gray). No one heard any response from Donald.

JESSICA MAURER, SPECIAL ASSISTANT ATTORNEY GENERAL, 207-626-8515