Report of the Attorney General on the Use of Deadly Force by Cumberland County Sheriff on April 12, 2014 in Windham

August 21, 2014

August 21, 2014

Synopsis

On April 12, 2014, Stephen F. McKenney, age 66, was shot and killed outside his home in Windham by Nicholas Mangino, a Cumberland County deputy sheriff. The Office of the Attorney General has investigated the incident to determine whether the officer was acting in self-defense or in defense of someone else at the time he used deadly force.

Facts

At 6:14 a.m. on the morning of April 12, 2014, Vicki McKenney called 911 from her home in Windham, and asked “for some help down here for my husband, he’s kind of threatening suicide.” As the 911 operator spoke with Ms. McKenney, a dispatcher immediately radioed Windham police officers James Cook and Seth Fournier, who were in separate cruisers, to respond to the McKenney residence. The 911 operator continued to speak with Ms. McKenney who provided additional information. While on the phone with Ms. McKenney, the 911 operator could hear Mr. McKenney demanding that his wife hang up the phone. Despite the demands, Ms. McKenney stayed on the line and told the operator that her husband had sustained a lower back injury some seven months earlier and that chronic pain had “really affected him mentally.” She pleaded with the operator to “please get somebody here, please.”

While Officers Cook and Fournier were on their way to the McKenney residence, the 911 operator learned from Ms. McKenney that her husband, though not armed at the moment, had access to “a house full of” firearms in the residence. When asked if her husband had indicated the manner in which he might harm himself, Ms. McKenney responded, “Gun, shoot.” As Ms. McKenney’s tone became more desperate, the 911 operator could tell that Mr. McKenney was nearby and she could hear him in the background being verbally aggressive toward Ms. McKenney. At one point, Mr. McKenney attempted to grab the telephone from Ms. McKenney.

About six minutes after Officers Cook and Fournier were dispatched, Deputy Sheriff Nicholas Mangino, who happened to be parked in Windham in the general area of the McKenney residence, also responded to the call. All three officers arrived at the McKenney residence at about the same time, some eight minutes after the initial 911 call. All were dressed in standard patrol style uniforms and each was operating a marked cruiser. The officers met with Ms. McKenney outside an attached garage and directed her to a safer location before they entered the residence to speak with Mr. McKenney. Officers Cook and Fournier entered the residence through the garage and Deputy Mangino entered through another door. Once inside, the officers identified themselves several times as “police department.” They encountered Mr. McKenney almost immediately when he appeared from a hallway at the rear of the house. Within seconds of making contact with Mr. McKenney, Officer Fournier questioned what Mr. McKenney was holding in his hand. Mr. McKenney replied, “.357 magnum.” The officers told Mr. McKenney to put the gun down, but he refused. The three officers withdrew from the house. In the next few moments, several other officers arrived, including Windham police officer Ernest MacVane.

Ms. McKenney was escorted to Officer Fournier’s cruiser and driven to a safe location, a cul-de-sac about 284 feet from the residence. As Officer Fournier was about to drive away, he saw Mr. McKenney come out of the residence. He could see that Officer Cook was still near the residence and he informed Officer Cook of Mr. McKenney’s presence outside the residence. Officer Cook was unable to access his cruiser without approaching Mr. McKenney, who was visibly armed, so he retreated to a position along the side of the residence. The officers could see that Mr. McKenney was carrying what was later identified as a Smith & Wesson .357 magnum revolver. Mr. McKenney cocked the revolver, raised it, and then slowly lowered it in a motion as if he were seeking a target. Mr. McKenney appeared to be focused on Deputy Mangino, who had gone to retrieve a rifle from his cruiser parked on the street at the driveway entrance, about 100 feet from Mr. McKenney. From that location, Deputy Mangino issued several commands to Mr. McKenney to drop the gun. The commands went unheeded.

In the meantime, Officer Cook moved to the rear of the McKenney residence to confer with supervisors, and Officer Fournier watched both Mr. McKenney and Deputy Mangino from his location at the cul-de-sac with Ms. McKenney in his cruiser. Mr. McKenney continued to pace around, at times separated by distances later determined to be less than 100 feet from Deputy Mangino. Deputy Mangino’s cruiser was positioned with the driver’s side facing the McKenney residence. Unable to safely retreat any farther, Deputy Mangino sought additional cover by moving to the other side of his cruiser so that the engine block would provide some protection if Mr. McKenney was to fire his weapon at him. Inside Deputy Mangino’s police cruiser was a civilian passenger, who was participating in an authorized “ride-along.” The passenger was unarmed, had no ballistic protection, and was in the front passenger seat ducking down, hoping to prevent Mr. McKenney from seeing him.

Within minutes of brandishing his weapon in the direction of Deputy Mangino, Mr. McKenney advanced down the driveway toward the deputy, continuing to ignore commands from Deputy Mangino to drop the gun. Officer MacVane, who was positioned with a clear view of the scene, believed that Deputy Mangino was in danger of being shot by Mr. McKenney. Office MacVane readied his carbine rifle to fire at the advancing Mr. McKenney when Deputy Mangino fired two rounds from his carbine rifle. The distance between Deputy Mangino and Mr. McKenney at the time Deputy Mangino fired his weapon was later determined to be 69 feet. About ten minutes had passed since Deputy Mangino and Officers Cook and Fournier arrived at the McKenney residence.

When officers reached Mr. McKenney where he had fallen in the driveway he was still holding the revolver in his hand. The revolver was cocked and loaded. Emergency medical personnel, including Officer MacVane who was certified in emergency medicine, provided immediate treatment to Mr. McKenney, but Mr. McKenney was deceased.

Detectives from the Office of the Attorney General went to the scene in Windham to conduct an investigation, assisted by evidence technicians and detectives from the State Police. The state’s acting Chief Medical Examiner performed an autopsy and determined that Mr. McKenney died as a result of a single gunshot wound to the head that traversed from front to back and slightly upward. The results of an extensive forensic investigation of the scene and the post mortem examination were consistent with the accounts given independently by various officers and witnesses.

Analysis and Conclusion

The Attorney General is charged by law with investigating any incident in which a law enforcement officer uses deadly force while acting in the performance of the officer's duties. 5 M.R.S. 200-A. The sole purpose of the Attorney General’s investigation of the incident in Windham was to determine whether self-defense or the defense of others, as defined by law, was reasonably generated by the facts so as to preclude criminal prosecution of Deputy Mangino for causing the death of Mr. McKenney. The review did not include an analysis of potential civil liability, of whether any administrative action is warranted, or of whether the use of deadly force could have been averted.

Under Maine law, for any person, including a law enforcement officer, to be permitted to use deadly force in self-defense or the defense of others, two requirements must be met. First, the person must actually and reasonably believe that deadly force is imminently threatened against the person or against someone else; and, second, the person must actually and reasonably believe that deadly force is necessary to counter that imminent threat.

Whether the use of force is reasonable is based on the totality of the particular circumstances and must be judged from the perspective of a reasonable officer on the scene, allowing for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a given situation. The analysis requires careful attention to the facts and circumstances of each case, including the severity of the crime threatened or committed and whether the suspect poses an immediate threat to the safety of others.

Attorney General Janet T. Mills has concluded that at the time Deputy Mangino shot Mr. McKenney, Deputy Mangino reasonably believed that unlawful deadly force was imminently threatened against him and other persons within range of the weapon brandished by Mr. McKenney. It was reasonable for Deputy Mangino to believe it necessary to use deadly force to protect himself and others in the area from deadly force. Deputy Mangino acted in defense of himself and others who were within range of and in the line of fire of Mr. McKenney’s loaded gun. The Attorney General’s conclusions are based on an extensive scene investigation, on interviews with numerous individuals, and on a review of all evidence made available from any source, including video recordings from two Windham police cruisers and the 911 recording.

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