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Findings of the Attorney General in the Matter of the Shooting Death of James F. Popkowski on July 8, 2010 at the Togus VA Hospital
December 21, 2010
Findings of the Attorney General in the Matter of the Shooting Death of James F. Popkowski on July 8, 2010, at the Togus VA Hospital
On the morning of July 8, 2010, James F. Popkowski, 37, of Medway, was shot and killed by law enforcement officers during an armed confrontation on the grounds of the Togus hospital facility of the U.S. Department of Veterans Affairs off Route 17 in Augusta.
Mr. Popkowski lived by himself in the Medway area, where he had been raised by an aunt and uncle and graduated from high school in 1990. Upon graduation, Mr. Popkowski enlisted in the U.S. Marine Corps. During his military career, he attained commissioned officer status. In 2003, Mr. Popkowski was diagnosed with a rare and aggressive form of cancer. A stem cell replacement resulted in serious long term side effects, and Mr. Popkowski medically retired from the Marine Corps. As a retiree, he qualified for certain medical benefits from the Department of Veterans Affairs, including outpatient care at the VA hospital at Togus, Maine. Mr. Popkowski routinely visited a VA outpatient clinic in Lincoln, Maine, which was closer to his home than the Togus facility in Augusta.
By 2009, Mr. Popkowski was expressing significant dismay with the quality of the medical treatment he was receiving from the VA hospital. He told others that he was not receiving his medications in a timely manner from Togus. He also expressed his feelings that the VA hospital at Togus was not responsive to his medical condition. He became especially focused in this regard on what he perceived as the failings of the VA director in assuring that he received adequate treatment and that his medications were delivered to him in a timely fashion.
On December 11, 2009, an employee at the Lincoln VA outpatient clinic contacted the Togus Police Department and reported that Mr. Popkowski had called her that day and threatened to load guns into his truck, drive to the Togus VA hospital, and ?blow it up,? unless he was allowed to speak with a particular physician?s assistant. The employee told the Togus Police that Mr. Popkowski was angry because he did not think that he was receiving his medications in a timely manner. The employee told Mr. Popkowski that prescriptions for his medications had been sent to the pharmacy at the Togus facility and that he would receive the medications soon. The employee offered to assist Mr. Popkowski in determining the status of the prescriptions, but Mr. Popkowski insisted on being able to speak with the particular physician?s assistant. The Togus Police contacted the physician?s assistant who, in turn, attempted to telephone Mr. Popkowski, but was unable to reach him. The Togus Police also attempted to contact Mr. Popkowski by telephone, but was likewise unsuccessful. The Togus Police then contacted a Penobscot County deputy sheriff and requested that the deputy check on the welfare of Mr. Popkowski at his home in Medway. In the meantime, the Togus Police was able to determine that Mr. Popkowski?s medications had been delivered to his home the afternoon of December 11, 2009, a few hours after Mr. Popkowski?s call to the Lincoln clinic. Three days later, the Togus Police received a message from the Penobscot County deputy sheriff that the deputy had indeed visited with Mr. Popkowski as a result of the December 11th request and, in the deputy?s opinion, Mr. Popkowski did not constitute a probable threat. As a result of this incident and because the Lincoln outpatient clinic does not have a police presence, Mr. Popkowski was notified by the Togus VA that he could no longer receive services at the Lincoln VA outpatient clinic, that he would be restricted to the VA hospital at Togus for any necessary medical services to which he was entitled.
On July 5, 2010, a few days before his death, Mr. Popkowski sent a series of messages through a social networking site to his biological mother in Massachusetts. On July 5 at 4:51 p.m., Mr. Popkowski wrote:
Mother?seeing the VA has not filled critical prescriptions in over three month?no surprise of my weight loss?if the cancer returns, whether it is the VA?s fault, or not?the children of the Director of VA Togus, Maine will grow up fatherless?just as my daughter will due to this man?s utter incompetence?I know where he lives?I know his schedule?I know what he drives?I have pics of his entire family?he is a dead man walking!
Three minutes later (4:54 p.m.), Mr. Popkowski added:
?in fact, I have his name printed on some specially modified rounds.
Mr. Popkowski continued four minutes later (4:58 p.m.):
?I hope [the] Director . . . is a man of faith?I hope he prays my cancer does not return and I snap?if I do snap?he will be my first priority?if my health, my life, were the least bit of his concern?he would ensure my meds were not three-plus months late?.DEAD MAN WALKING!?
And, finally, two minutes later (5:00 p.m.), Mr. Popkowski wrote:
?INCOMPETENT PEOPLE SHOULD NOT BE IN POSITIONS THAT ALLOW THEM TO IMPACT THE LIVE?S OF OTHERS!
During the afternoon of July 7, 2010, a neighbor was doing work at Mr. Popkowski?s house in Medway. Mr. Popkowski was in his garage cleaning a gun. Mr. Popkowski told the neighbor that doctors were trying to kill him by terminating his stem cell treatments. The friend also said that later that night, sometime between 10 p.m. and midnight, he heard gunshots coming from Mr. Popkowski?s property. The neighbor went to Mr. Popkowski?s house the next morning, July 8, only to discover that Mr. Popkowski was not at home. The neighbor observed several spent shotgun casings on the ground at the residence.
During the early evening of July 7, another neighbor and his family were traveling past Mr. Popkowski?s home and saw Mr. Popkowski?s dogs in the road. At the same time, the neighbor?s children pointed out a crudely-constructed sign outside Mr. Popkowski?s house. The sign, containing large block letters in yellow paint on dark-colored opaque plastic garbage bags strung together on a wooden frame, read:
MUCH LIKE ME, VA DIRECTOR = DEAD MAN WALKING.
In smaller lettering on the same sign:
SELF DEFENSE: HE IS NOT SENDING CRITICAL POST STEM TRANSPLANT MEDS. HE IS SLOWLY KILLING ME. WHAT IF I KILL HIM IN DEFENSE?!?!?!?!
The neighbor, who later reported that he spoke with Mr. Popkowski that evening, said that Mr. Popkowski was ?talking crazy? while in the process of ?patterning?(1) a 12-gauge shotgun outside his home. He said that Mr. Popkowski was talking about shooting over hoods of cars, although there was no mention at that time of Mr. Popkowski going to the Togus VA hospital in Augusta. Mr. Popkowski told the neighbor that he was slowly dying because the VA was not giving him his medications and the doctors were not listening to him. The neighbor said that Mr. Popkowski was focused on a particular person at the VA who the neighbor believed to be a doctor and who Mr. Popkowski referenced on the sign (2). During their conversation, the neighbor said that Mr. Popkowski was shooting the shotgun at targets held up by rocks at ?point blank range,? and that the shotgun pellets were ricocheting and coming close to striking him and Mr. Popkowski. He said Mr. Popkowski appeared oblivious to the danger. The neighbor became increasingly concerned over Mr. Popkowski?s careless handling of the shotgun. Mr. Popkowski went on to tell the neighbor that if he went to the Togus hospital and killed ?the doctor,? it would be a matter of self-defense. Mr. Popkowski told the neighbor that even if he went to jail as a result, he would at least get his medications on time, along with three square meals a day, a shower, and a roof over his head. The neighbor did not take seriously these statements by Mr. Popkowski. He said Mr. Popkowski was known to possess a large quantity of firearms. During the conversation, the neighbor said that Mr. Popkowski donned a shoulder holster containing a pistol, which he said was a common occurrence in that Mr. Popkowski ?always carried a pistol in a shoulder holster.?
The Penobscot County deputy sheriff who had checked on Mr. Popkowski after the incident at the Lincoln VA outpatient clinic on December 11, 2009, later told investigators that he knew Mr. Popkowski and would occasionally check on his welfare. Such was the case the morning of July 8, 2010, shortly after 10 a.m., when the deputy went to Mr. Popkowski?s residence and observed a man who was identified as the neighbor who had been at Mr. Popkowski?s home the day before doing work. The man pointed out the sign on the property. Concerned over the nature of the sign?s message, the deputy telephoned Togus VA only to learn of the earlier shooting that morning that resulted in Mr. Popkowski?s death.
On July 8, at about 4:30 a.m., Officer Thomas Park of the VA Police was patrolling the VA grounds when he saw a man reading a newspaper while sitting on the steps of Building 203. The man identified himself as James Popkowski and told Officer Park that he was waiting to see the director of the facility (3). Officer Park told Mr. Popkowski that the director was not yet in his office and, after determining that Mr. Popkowski was not an in-patient at the hospital, Officer Park instructed Mr. Popkowski that he would have to leave the facility and return during normal business hours. Officer Park observed Mr. Popkowski to be upset, ?tense and aggravated? and ?potentially confrontational.? Mr. Popkowski told the officer that he was upset with the VA because he was not getting his medications. Mr. Popkowski told Officer Park that the VA director was a ?worthless piece of sperm,? and expressed similar sentiments about the VA system in general. Officer Park attempted to persuade Mr. Popkowski to consult with the patient advocacy office at Togus, but Mr. Popkowski responded that he had already talked with all the people with whom he intended to talk and that he was going to do something about the deficiencies sooner or later. Mr. Popkowski, when asked, refused to elaborate further. Officer Park warned Mr. Popkowski that if he returned to the facility outside normal business hours, he would be charged with trespassing. Mr. Popkowski agreed to leave, but told the officer that he would return later. Mr. Popkowski entered a nearby dark colored pickup truck and drove toward the Route 17 gate. Officer Park noted that Mr. Popkowski was wearing a t-shirt, shorts, sneakers, and a baseball cap.
About 45 minutes later, at about 5:15 a.m., a Togus employee on his way to work was driving on Route 17 in Augusta when he observed a green pickup truck parked next to a water pump house a short distance from the north gate of the Togus VA. The employee saw a man at the rear of the truck, and presumed that the man was a water district employee checking on the pump house. Fifteen (15) minutes after that, a delivery truck driver traveling on Route 17 saw the same pickup truck parked near the pump house. The driver noticed that the door on the truck?s cap was open and he saw a person standing near the front of the truck. A resident living near the Route 17 Togus gate saw the pickup truck parked next to the pump house at about 6:00 a.m. Another resident of Route 17 went outside to retrieve his morning newspaper at about 7:45 a.m. and he saw the same pickup truck parked next to the pump house.
At about 9:20 a.m., two female employees of the VA were on break and sitting at a picnic table behind Building 209. They heard gunshots coming from the direction of a small pond on the grounds, and the sound of bullets coming close to them. Both women ran into Building 209 and reported the gunshots to the Togus Police. At least two other persons in the parking lot near Building 209 likewise heard gunshots. One of these persons heard about six gunshots coming from the direction of the pond, and heard at least one of the rounds striking tree branches near where his vehicle was parked. The other person, a military veteran familiar with the sound of small arms fire, heard about six gunshots that he believed were fired from the area of the pond. This witness said that he could discern by sound that at least one of the rounds came close to him. He also reported seeing other persons in the parking lot ducking and at least one of them running toward a building in apparent retreat. The same two residents on Route 17 near the VA who had earlier seen the pickup truck parked next to the pump house similarly heard gunshots at the same time. One of these residents heard several gunshots coming from the woods near the pump house, while the other resident heard five or six gunshots.
Still on duty, Officer Park overheard a radio transmission to another officer reporting gunshots being fired toward Building 209 from a location near the pond. Officer Park was instructed to check the area of the pump house off Route 17, a short ways from the north gate of the Togus VA facility (4). Officer Park drove to the pump house where he observed the pickup truck parked next to the building and recognized it immediately as the same truck Mr. Popkowski had driven off the Togus grounds nearly five hours earlier. Officer Park observed the stock of a rifle or shotgun inside the cab of the truck. He also saw two dogs in the back of the truck. Speculating that Mr. Popkowski was the person shooting near the pond and concerned that he would return to retrieve the firearm inside the truck, Officer Park decided to stay in the area for a while. In the meantime, he spoke with residents across the street who told him they had heard three to five gunshots coming from the woods behind the pump house near the Togus VA grounds. After hearing a single gunshot from the same area of the woods, Officer Park positioned himself near the pump house in view of the wooded path.
By happenstance, two game wardens, Sgt. Ronald Dunham and Warden Joey Lefebvre, were traveling together in a warden service vehicle headed east on Route 17 on their way to pick up a boat for a training session for new wardens. Sgt. Dunham observed Officer Park near the pump house with his service weapon drawn. While Warden Lefebvre parked the vehicle, Sgt. Dunham joined Officer Park who told Dunham that there was a man in the woods and the man had just fired a shot. Sgt. Dunham moved to a position of less foliage next to Route 17 and observed the foot path in the woods. Officer Park observed a man he recognized from his earlier encounter as Mr. Popkowski walking down the path toward Sgt. Dunham. Mr. Popkowski was wearing a shoulder holster and a baseball cap, and was now dressed in a green jump or flight suit with the pant legs tucked into his socks (5). Mr. Popkowski, arm extended, was holding a handgun and pointing it directly at Sgt. Dunham. Sgt. Dunham, positioned at the end of the path next to Route 17, had not yet observed Mr. Popkowski but, along with Officer Park, heard Mr. Popkowski shout in an agitated manner, ?You guys got a problem with my truck? Who the hell are you?? Sgt. Dunham identified himself as a game warden and then observed Mr. Popkowski walking at a brisk pace down the path and pointing a handgun directly at him. Sgt. Dunham and Officer Park issued successive commands for Mr. Popkowski to drop the gun. Mr. Popkowski, however, continued to advance on Sgt. Dunham with his handgun pointed directly at Sgt. Dunham at which point Officer Park and Sgt. Dunham simultaneously fired several rounds at Mr. Popkowski.
Mr. Popkowski died at the scene from what the Office of the Chief Medical Examiner later determined to be a single gunshot wound to the neck fired by Officer Park (6). Mr. Popkowski also suffered a non-fatal grazing gunshot wound to the right thigh.
While Officer Park rendered aid to Mr. Popkowski and called for emergency medical services, Sgt. Dunham, not knowing if additional persons were in the woods, walked up the path. At the top of a grade about 48 feet from where Mr. Popkowski was shot, Sgt. Dunham discovered a single-shot rifle with a scope in a partially open gun case, along with a bipod for the rifle. Also found nearby was a GPS device with three saved locations: the area of the pump house, the pond, and Mr. Popkowski?s residential location in Medway 7). It was discovered later that Mr. Popkowski was carrying on him a digital camera, a survival knife, and a pair of binoculars. A photograph on the camera dated 07/08/10 was a recent depiction of the parking lot near Building 209. The photograph was taken from behind a split rail fence next to the pond described by witnesses as the area from which the earlier series of gunshots emanated. Investigation disclosed areas of matted vegetation near the pond behind the fence. The bipod discovered by Sgt. Dunham showed evidence of this vegetation.
In addition to the rifle found on the path a short distance from where Mr. Popkowski was shot and the 9mm loaded semi-automatic pistol he was brandishing, additional loaded firearms ? three semi-automatic pistols, a rifle with a scope, and a shotgun ? were found in Mr. Popkowski?s pickup truck. Also found in the truck was another GPS device, a night vision spotting scope, and several hundred rounds of ammunition for the various firearms.
Detectives from the Attorney General?s Office went to the scene of the shooting to conduct an investigation with the assistance of the State Police and the Office of the Chief Medical Examiner, as well as the Augusta Police Department, Maine Warden Service, and the Togus VA Police Department.
Analysis and Conclusion
The Attorney General is charged by law with investigating any law enforcement officer who uses deadly force while acting in the performance of the officer's duties. The sole purpose of the Attorney General?s investigation is to determine whether self-defense of the defense of others, as defined in law, is reasonably generated on the facts so as to preclude criminal prosecution. The review does not include whether there could be any civil liability, whether any administrative action is warranted, or whether the use of deadly force could have been averted.
Under Maine law, for an individual to be justified in using deadly force for self-defense or the defense of others, two requirements must be met. First, the individual must reasonably believe that deadly force is imminently threatened against the individual or against someone else, and, second, the individual must reasonably believe that deadly force is necessary to counter that imminent threat.
The Attorney General has concluded that at the time that shots were fired at Mr. Popkowski, it was reasonable for Officer Park and Sgt. Dunham to believe that deadly force was imminently threatened against them. In addition, both officers reasonably believed it was necessary to use deadly force to protect themselves from the imminent threat of deadly force against them. Because the law enforcement officers used deadly force in self defense, no criminal action will ensue against the officers involved in this tragic incident. This conclusion is based on an extensive scene investigation, interviews with numerous individuals, review of medical records, and all other evidence made available from any source. The investigation also disclosed that, prior to July 8, 2010, neither of the officers involved knew Mr. Popkowski nor had either of them had any interactions with him.
It is beyond the scope of this report and beyond the authority and expertise of this office to determine Mr. Popkowski?s motivations, his state of mind, or the medical or psychological underpinnings of his behavior and actions on July 8, 2010.
(1) Patterning a shotgun is a process where the shooter chooses a specific load and choke combination to test how the weapon shoots and delivers pellets to a specific area on the target at certain distances. (2) The sign referenced the VA director, not a doctor. (3) While Building 203 normally contained the office of the facility director, the building was undergoing renovations and the director?s temporary office was in another building, a fact of which Mr. Popkowski was unlikely aware. (4) The pump house was also easily accessible on foot via a path through the woods from the pond to a point on Route 17 near the pump house, a distance of about two-tenths (2/10ths) of a mile. (5) Later investigation determined that the jump suit was donned over the shorts and t-shirt Mr. Popkowski was known to be wearing during his earlier encounter with Officer Park on the steps of Building 203. (6) When the officers shot at Mr. Popkowski, Officer Park was about 47 feet to the right of Mr. Popkowski, and Sgt. Dunham about 44 feet facing Mr. Popkowski. (7) The chain of events, as well as the discovery of a high-powered rifle with scope and bipod and other indicia of ?sniper? activity, resulted in members of the State Police Tactical Team checking the area, as well as a team from the State Police checking for explosives and incendiary devices.