South Portland Officer's Use Of Deadly Force Justified

May 11, 2004

Attorney General Steven Rowe announced today that South Portland police officer Kevin J. Battle was legally justified on February 12, 2004, when, while acting in the performance of his law enforcement duties, he used his cruiser to ram a vehicle he was pursuing in Portland. The driver of the vehicle, Steven E. Berry, 36, of Portland and a 20-year-old female passenger were shaken up by the collision, but not seriously hurt.

Determining that the intentional employment of the cruiser to terminate the pursuit was in fact the use of deadly force, the Attorney General's inquiry and analysis focused on the issue of whether that use of deadly force by Officer Battle 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 duties.

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

Attorney General Rowe determined that, based on an investigation and legal analysis, Officer Battle actually and reasonably believed that unlawful deadly force was imminently threatened by Berry against other persons - namely the passenger in Berry's vehicle, as well as motorists and pedestrians along a particularly long chase route. Further, based on the investigation and legal analysis, Attorney General Rowe determined that Officer Battle actually and reasonably believed that deadly force on his part was necessary to protect the passenger and others from death or serious bodily injury. Therefore, both requirements of law having been met, the use of deadly force by Officer Battle was legally justified.

The Attorney General reported the following findings from the investigation: On February 12, 2004, at about 11 a.m., Officer Kevin Battle of the South Portland Police Department, in uniform and driving a marked police cruiser, was on his way to investigate a report of unlawful drug activity involving a man and a woman outside a local hotel when he was informed that the same caller had reported that the man had grabbed the woman by the throat and had hit her. As he approached the hotel, he was further informed that the man and woman had just left the hotel in a black Suzuki Sidekick. Moments later, Officer Battle encountered a vehicle that matched that description a short distance from the hotel. The officer activated his cruiser's emergency lights and siren, and stopped the vehicle by partially blocking its path. Upon exiting his cruiser and approaching the vehicle on foot, Officer Battle saw the female passenger attempting to exit from the passenger's side door. He then observed the driver, later identified as Steven E. Berry, forcibly grab the woman and pull her back into the vehicle. The woman screamed for help. Officer Battle commanded Berry to turn off the vehicle's engine. Berry, ignoring Battle's command, suddenly drove the Suzuki Sidekick at Battle, who avoided being hit only by jumping out of the way. Officer Battle returned to his cruiser, pursued the vehicle, and advised the dispatcher as to what had just occurred.

The pursuit that ensued over the next 45 minutes covered a distance of some 39 miles from its origin in South Portland, into Scarborough, Westbrook, Portland, and Falmouth, and back into Portland. Multiple law enforcement agencies were involved, with Officer Battle serving much of the time as the primary pursuit cruiser. On a number of occasions during the chase, Officer Battle saw what he interpreted to be an unsuccessful attempt by the passenger to exit the Suzuki Sidekick. Berry, while for the most part not traveling at high speeds during the pursuit, drove through numerous red lights and stop signs, drove the wrong way on a one-way street, often drove on the wrong side of the road into oncoming traffic, continuously ignored police sirens and flashing emergency lights from multiple cruisers, and very deliberately avoided numerous attempts to stop him by way of marked cruisers and other vehicles set up as physical barriers, and the employment of spike mats. The pursuit eventually ended at Forest Avenue and William Street in Portland when Officer Battle, seeing an appropriate opportunity, rammed the left rear fender of the Suzuki Sidekick as Berry was preparing to make a turn at the intersection. The Suzuki Sidekick was pushed sideways, apparently striking the curb, rolled over and came to rest off the roadway in an upright position. The vehicle was, as a consequence, disabled. Shortly before Officer Battle physically engaged the Suzuki Sidekick with his cruiser, South Portland Police Chief Edward Googins spoke with Officer Battle and authorized him to employ, at an appropriate time posing minimal risk to the public, low speed ramming to end the chase.

Berry was arrested and charged the same day with various violations including eluding a police officer, possession of drug paraphernalia, assault, reckless conduct with a dangerous weapon, operating after suspension, and violation of bail conditions.