TROOPER, DEPUTY SHERIFF JUSTIFIED IN NORTH WATERBORO USE OF DEADLY FORCE

March 29, 2004

MARCH 29, 2004

CHARLES DOW, DIRECTOR, COMMUNICATIONS & LEGISLATIVE AFFAIRS, 207-626-8577

 

            Attorney General Steven Rowe announced today that a State Police officer, Trooper Jack W. Dow, III, was legally justified when he shot and wounded Thomas E. Harrington, 37, of Limerick around midday on January 21, 2004, on Route 5 in North Waterboro just north of the town-line bridge spanning the Little Ossipee River.  The Attorney General also said that a York County deputy sheriff, Sergeant Roger Hicks, was legally justified when, some ten or more minutes earlier, he fired one round at Harrington on Route 5 in Limerick about three tenths of a mile south of the town-line bridge.

            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 in the performance of the officer’s 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.   (Maine law defines deadly force as physical force that a person uses with the intent of causing, or which the person knows to create a substantial risk of causing, death or serious bodily injury.  With respect to a firearm, intentionally or recklessly discharging a firearm in the direction of another person or at a moving vehicle is also deadly force under Maine law.) 

            Attorney General Rowe determined that, based on the investigation and legal analysis conducted by his office, Sergeant Hicks and Trooper Dow, in separate but related encounters with Thomas Harrington, both actually and reasonably believed that unlawful deadly force was imminently threatened by Harrington, against another — namely Sergeant Harvey Barr in the case of Sergeant Hicks, and against Trooper Dow himself in the case of Trooper Dow.  Further, based on the investigation and legal analysis, Attorney General Rowe determined that Sergeant Hicks and Trooper Dow both actually and reasonably believed that deadly force on their part was necessary — in the case of Sergeant Hicks to protect another, namely Sergeant Barr, and, in the case of Trooper Dow, to protect himself.

The Attorney General reported the following findings from his office's investigation:

 

Citizen Report

On January 21, 2004, close to noontime, a citizen on a cellular phone reported to the York County Sheriff’s Office that a tall, thin man, wearing a baseball cap, a red and white sleeved jacket with the word “Patriots” on the back, and jeans, was walking southerly on Route 5 just beyond the town-line bridge and was carrying a handgun pointed at the ground. 

 

Use of Deadly Force by Sergeant Hicks

Sergeant Roger Hicks, informed of the citizen’s report by the York County Sheriff’s Office, went to the described area to investigate.  He was in uniform and driving a marked police cruiser.  He located a man, matching the citizen’s description, walking in the southbound breakdown lane on Route 5 toward Waterboro.  The man was wearing black gloves and carrying what appeared to Sgt. Hicks to be a German Luger (a semiautomatic pistol widely used by German troops in World War II) in his right hand pointed at the ground.  (The man was later identified as Harrington.)  Sergeant Hicks stopped his cruiser about 60 feet in front of Harrington and activated the cruiser’s rear blue emergency lights.  Harrington continued walking south on Route 5 toward the stopped cruiser.  Sergeant Hicks exited his cruiser and stood next to it.  Harrington stopped about 30 feet from Hicks.  Harrington said nothing.  Hicks instructed Harrington to put the gun on the ground.  Harrington said, “No.”  Hicks repeated his command.  Harrington’s body stiffened and he again refused, while staring straight at Hicks in an apparent challenging manner.  Sergeant Hicks, believing himself to be in danger, then drew his service weapon, pointed it at Harrington, and ordered him to get on the ground and to put the weapon down.  Harrington, continuing to look straight at Sgt. Hicks, responded, “Fuck you pig.  Shoot me,” or words to that effect.  Harrington then turned around and started walking northerly, crossing the roadway into the northbound lane, then into the breakdown lane, ignoring Hicks command to stop.  Sergeant Hicks went back to his cruiser and notified the York County dispatcher that the person was armed with a firearm in his right hand and wanted Hicks to shoot him.  He then made repeated unsuccessful attempts to have Harrington stop and lay his firearm on the ground by driving his cruiser up behind Harrington, getting out, and speaking to him.  Harrington continued throughout to ignore the commands, sometimes verbalizing his refusal.  At a point, Sergeant Harvey Barr, also of the York County Sheriff’s Office, in uniform and driving a marked police cruiser, arrived from the south.  Barr observed that Hicks was in his cruiser following a man in the breakdown lane who appeared to have a firearm in his right hand.  Barr took up a position in the southbound lane paralleling Sergeant Hick’s cruiser that was then occupying the northbound lane.  Thereafter, each officer alternated driving up behind Harrington, with the driver’s door open, exiting the cruiser, and calling upon Harrington to stop and put down his firearm.  Each time, Harrington ignored their commands and continued to walk past them in a northerly direction.  After this leapfrogging tactic had been employed a number of times, Sergeant Barr moved up once again to speak to Harrington.  Barr, while in the process of exiting his cruiser, reached back into the cruiser to move the gearshift lever into park.  At that moment, Harrington suddenly veered onto the roadway toward Barr’s cruiser, raised his right arm, and pointed his weapon directly at Sergeant Barr.  A distance of about 15 feet separated the two men.  Hicks, then outside his own cruiser pointing his service weapon at Harrington’s left side and believing that Harrington was about to shoot Sergeant Barr, discharged one round at Harrington at a distance of about 36 feet.  In response, Harrington lowered his right arm to his side, turned to face Hicks and yelled, “You fucking missed me.  You’re a lousy fucking shot,” or words to that effect.  Harrington then turned around, moved back to the breakdown lane and resumed walking northerly on Route 5, the weapon at his side.  Sergeant Hicks notified dispatch that he had fired one round at the armed person who had raised his firearm at Sergeant Barr.  

Just as Sergeant Hicks fired at Harrington, Deputy David Scullion, also of the York County Sheriff’s Office, arrived from the south and exited his marked cruiser and heard a gunshot.  Deputy Scullion, also in uniform, drew his service weapon and took up a position behind Hicks’ cruiser using it as a shield.  Scullion observed that Harrington was carrying in his right hand what appeared to him to be a German Luger.    Thereafter, Sergeants Barr and Hicks resumed their leapfrogging tactic, with Scullion walking behind Hicks’ cruiser, all the way up Route 5 to the bridge across the Little Ossipee River.  Harrington, apart from stopping and yelling back over his shoulder a few times, kept up a steady pace northbound, ignoring the commands of the three officers to stop and lay his firearm on the ground. 

 

Use of Deadly Force by Trooper Dow

            At a point in time well before Hicks discharged the round at Harrington, State Police Trooper Jack Dow, to the knowledge of both Sergeant Hicks and Barr, took up a position on Route 5 well north of Hicks’and Barr’s location, but south of the town-line bridge.  Dow was in uniform and driving a marked cruiser.  Dow exited his cruiser armed with a rifle and alternated between blocking all traffic arriving from the north on Route 5, and watching Harrington as he walked along the northbound side in the break down lane toward Dow’s position.  Harrington was carrying a gun in his hand.  Two Sheriff’s cruisers were following him.  Each time that Harrington got close to his position, Trooper Dow backed his cruiser up to maintain a safe distance.  After having moved his cruiser for the second or third time and, while out of his cruiser directing vehicles away that were appearing from behind him, Dow turned to see Harrington approach a deputy sheriff cruiser and raise his firearm.  Immediately thereafter he heard a gunshot but was unable to determine who had fired.  As he continued to watch, Harrington resumed walking towards Dow’s position.  As Harrington closed in on his position, Dow could hear the deputies ordering Harrington to stop and put down his gun.  Dow eventually backed his cruiser up a final time, taking up a position immediately beyond the north side of the town-line bridge with his cruiser parked diagonally in the southbound lane.  Just before Harrington reached the town-line bridge, Sergeant Jonathan Shapiro of the Maine State Police drove up to the bridge from the south behind Hicks and Barr.  He radioed Dow not to let Harrington get beyond his position because of the danger posed by Harrington to the occupants of the stopped vehicles backed up to Dow’s rear, to bystanders, and to the potential occupants of homes located north of the bridge. 

            When Harrington began to cross the bridge, Dow put the rifle he was carrying down on the trunk of his cruiser and drew his service weapon.  Trooper Dow yelled at Harrington numerous times to stop and put the gun down.  Harrington finally responded, “I’m not going to stop,” or words to that effect.  Dow continued to command Harrington to stop and put the gun down.  As Harrington walked by Dow’s position at the right rear of his cruiser, Dow started towards Harrington.   Harrington suddenly stopped, turned towards Dow, and brought his right arm around as if preparing to shoot Dow.  A distance of between 6 to 8 feet separated the two men.  Trooper Dow, believing that Harrington was about to shoot him, discharged two rounds at Harrington.  Harrington, struck in the abdomen by one of the rounds, fell to the ground.  Several civilians who witnessed the event variously described Harrington as “lunging” at the trooper, “raising the gun” toward the trooper, “veering directly toward” the trooper, “turning toward” the trooper, and “walking toward” the trooper.

Other officers, within seconds, kicked Harrington’s weapon, later identified as a CO² pellet replica of a German Luger, out of the reach of Harrington, and rendered immediate first aid.  Within minutes, emergency medical technicians arrived, treated Harrington at the scene, and then took him by ambulance to a Portland hospital.  Harrington survived his wound.  Criminal charges against him are being reviewed by the York County District Attorney’s Office.

Five detectives from the Office of the Attorney General went to the scene of the shooting to conduct the investigation.  They were assisted in the investigation by detectives and forensic specialists from the State Police, as well as members of the York County Sheriff’s Office.  Both the York County Sheriff’s Office and State Police cooperated fully with the investigation.  Both agencies are conducting their own departmental reviews of the incident.

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