WESTBROOK POLICE USE OF DEADLY FORCE FOUND LEGALLY JUSTIFIED

July 7, 2004

JULY 7, 2004

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

 

            Attorney General Steven Rowe announced today that three Westbrook police officers, Sergeant Michael McCaffrey and Officers Thomas S. Roche, Jr., and John S. Hanlon, Jr., were legally justified when they intentionally shot and wounded Thomas J. Moulton, 41, of Texas, formerly of Westbrook, on Route 25 in Westbrook in the early morning of April 22, 2004.  Attorney General Rowe also said that a Cumberland County deputy sheriff, Sergeant Kerry Joyce, was likewise legally justified when he had seconds earlier intentionally struck Moulton with four beanbag rounds discharged from a shotgun.

            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.

            In this particular case, in order to assess whether the use of deadly force by the law enforcement officers involved was legally justified, two distinct legal justification bases under Maine law must be applied; the first relating to self-protection or the protection of third persons, the second relating to thwarting suicide or self-inflicted serious bodily injury.

As to the first basis—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.  

As to the second basis—under Maine law, for a law enforcement officer to be justified in using deadly force for purposes of thwarting suicide or self-inflicted serious bodily injury, two requirements must be met.  First, the officer must actually and reasonably believe that another person is about to commit suicide or to self-inflict serious bodily injury.  Second, the officer must actually and reasonably believe that the officer’s use of deadly force is necessary to thwart that other person’s imminent suicide or self-inflicted serious bodily injury.

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 general direction of another person is also deadly force under Maine law.  Further, with respect to the use of a firearm in the deadly force context, it makes no difference under Maine law whether standard ammunition is being employed in the firearm or instead so-called “less-than-lethal” ammunition is being employed, such as a beanbag round.  In either case, to intentionally or recklessly discharge any round (type notwithstanding) from a firearm in the general direction of another person is the use of deadly force under Maine law.

            Attorney General Rowe determined, based on the investigation conducted by his office and application of controlling Maine law, that Sergeant Joyce of the Cumberland County Sheriff’s office, actually and reasonably believed that Thomas Moulton was either about to commit suicide or about to inflict serious bodily injury upon himself, or that Thomas Moulton was about to use unlawful deadly force against Officer Roche of the Westbrook Police Department or other officers present, and that his intentional discharge of four beanbag rounds at Thomas Moulton was necessary to thwart those imminent alternative threats.

            Therefore, the requirements of the law were met, and the use of deadly force by Sergeant Joyce was legally justified.  Attorney General Rowe also determined, based on the investigation conducted by his office and the application of controlling Maine law, that Officer Roche of the Westbrook Police Department, actually and reasonably believed that unlawful deadly force was being imminently threatened by Thomas Moulton against him and that his intentional shooting at Thomas Moulton was necessary to thwart that imminent threat.  Finally, Attorney General Rowe determined, based on the investigation conducted by his office and the application of controlling Maine law, that Sergeant McCaffrey and Officer Hanlon of the Westbrook Police Department, actually and reasonably believed that unlawful deadly force was being imminently threatened by Thomas Moulton against Officer Roche and that their intentional shooting at Thomas Moulton was necessary to thwart that imminent threat.

 

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

Citizen Reports

In the early morning hours of April 22, 2004, a white Chevrolet Camaro with a flat tire was observed by two citizens as it noisily traveled east at a high rate of speed on Route 25 in Westbrook. 

Around 1:15 a.m. on April 22^nd, three other citizens happened upon the white Camaro which was sitting with its parking lights on in the eastbound travel lane of the Westbrook Arterial (Route 25) near the Lawrence Street pedestrian overpass.  Utilizing the breakdown lane, they drove their vehicle up next to the Camaro, stopped and observed that the front windshield was extensively damaged, the left front tire was missing from the wheel rim and the sole occupant was behind the wheel attempting unsuccessfully to restart the engine.  When they asked the driver if he needed help, he yelled through the closed windows of the Camaro for them to “Get out of here,” a number of times.  After telling the driver of the stranded Camaro that they would contact police in case he needed assistance, they left.  Shortly thereafter one of the trio called the Westbrook Police Department from a nearby public telephone.  The call was received by the police department at 1:21 a.m.

Events at the White Camaro

Officer Roche, responding to the citizen call of a disabled vehicle in the eastbound travel lane of the Westbrook Arterial near the Lawrence Street pedestrian overpass, arrived at the location at around 1:30 a.m.  He was in uniform.  After calling in the Texas plate number attached to the Camaro, he exited his cruiser and walked up to the Camaro.  He observed, with the benefit of his flashlight, a sole occupant, later identified as Thomas J. Moulton, positioned behind the steering wheel attempting to start the car.  He also observed that the left front tire was missing from the wheel rim, that the windshield was seriously damaged and that both the driver side and passenger side airbags had deployed.  Through the closed window of the Camaro, he asked Moulton if he was okay and asked him to roll down his window.  Moulton appeared to be dazed and did not respond.  While shining his flashlight inside the Camaro, Officer Roche saw that Moulton had a cylindrical item in his left hand between the door and the seat that had a pull pin.  Because it looked to him like either a grenade or a can of some disabling chemical, Officer Roche immediately backed away from the Camaro, called for assistance, and waited.  Soon thereafter Westbrook police officer Allen LeBlanc, in uniform, arrived in his cruiser, followed by uniformed Westbrook officers Stephen Pulsoni and Brian DellIsola, as well as Sergeant McCaffrey.  In addition to Moulton remaining noncompliant and noncommunicative, further investigation revealed that the Camaro’s doors were locked, that the container appeared to be a disabling chemical rather than a grenade, that Moulton had at least one open knife near his right hand and that the Texas plates did not belong to the Camaro.  It was decided by Sergeant McCaffrey, after consultation with others, to enter the Camaro by breaking the passenger-side door window.  Immediately after the window was broken by Officer LeBlanc, Moulton sprayed a reddish brown gas at the law enforcement officers through the broken window.  Officer Roche responded by spraying mace into the Camaro from a small can.  Officer LeBlanc, until he received aid from MEDCU, was incapacitated from the gas sprayed by Moulton, which turned out to be a form of pepper spray marketed as a bear repellant.  Other officers were affected but not so as to disable them.  Almost immediately after Officer Roche sprayed mace through the broken window, Moulton opened the driver’s door of the Camaro and exited carrying both the disabling chemical container and an open knife.  He discharged more disabling chemical, then discarded the can and, holding the knife, started across the travel lanes of the Westbrook Arterial at a run.  Officers Roche, DellIsola and Sergeant McCaffrey followed, ordering him to drop the knife and stop.  Moulton ignored the commands climbing over the median barrier, running across the westbound lanes and up the embankment adjacent to the pedestrian overpass.  Toward the top of the embankment Moulton’s path of travel was cut off by the confluence of two six foot high, chainlink fences—one running perpendicular to, and the other running parallel to, the Arterial.  The combination of the fencing and the three approaching police officers precluded Moulton from running any further.

Standoff on the Embankment

Officers Roche and DellIsola and Sergeant McCaffrey took up positions in a rough semicircle to Moulton’s front, illuminating Moulton with their flashlights.  Officer Roche was closest to Moulton and assumed the primary role of negotiating with him.  From the very outset Moulton made it clear that he wanted to die, that he had nothing to live for, and that it was his intent to commit suicide either by his own hand or by getting the officers to shoot him.  A minute or so into the confrontation, Officer Pulsoni appeared on the far side of the fencing behind Moulton.  Pulsoni, aided by his flashlight, directed a stream of disabling chemical directly into Moulton’s face.  Moulton, apart from looking briefly towards Pulsoni and wiping his face with the bottom portion of his shirt, was unaffected.  Also, soon after the confrontation began, Sergeant McCaffrey recognized Moulton’s voice as that of Tom Moulton from prior contacts with Moulton years before and shared that information with the other officers and Moulton himself.

For nearly an hour Officer Roche, and the other officers at the scene (including officer Hanlon and Westbrook Police Chief, Paul McCaffrey, both of whom had since joined the other officers) sought to get Moulton to lay down his knife.  During this period Officer Roche unsuccessfully sought to persuade Moulton that the officers did not intend to take him to jail, but instead wanted to transport him to a medical facility where he could get help.  In response to Officer Roche’s repeated requests that Moulton drop the knife and let the police help him, Moulton stated that he wanted to die and invited Officer Roche to shoot him.  The standoff communications between Officer Roche and Moulton were interspersed with serious imminent threats of suicide either by placing his knife at his own neck or breast, sometimes employing one hand, other times employing both hands, or by sudden one to two-step advances, usually toward Officer Roche, with the knife pointed threatenly outward at the officer.  In the latter circumstance, Roche and the other officers would point their service weapons at Moulton and order him to halt.  In each instance he would then comply.

Toward the end of the first hour during this lengthy negotiation period, Deputy Paul Thorpe, a trained negotiator from the Cumberland County Sheriff’s Department, arrived on scene at the request of the Westbrook Police Department.  After attempting for a few minutes to engage Moulton in conversation, however, Deputy Thorpe concluded that Moulton had no interest in conversing with him, and that negotiations conducted by Officer Roche had the best chance of success.  Officer Roche thereafter continued in his role as primary negotiator, and Moulton continued to respond with threats to himself and, alternately, threats against Roche and others, showing no willingness to end the confrontation.

Finally, in an effort to end the continuing stalemate, the Westbrook Police Department asked the Cumberland County Sheriff’s Office for an officer trained in the use of less-than-lethal ammunition.  Sergeant Kerry Joyce of the Cumberland County Sheriff’s Office arrived at the scene at approximately 3:07 a.m., some hour and a half into the negotiation period.  He was first briefed by Officer Pulsoni.  After loading a shotgun with beanbag rounds, and after receiving further briefings from Deputy Thorpe and Sergeant McCaffrey, Joyce approached the semicircle of police officers confronting Moulton.  Upon seeing Joyce with the shotgun, Moulton immediately stated that he knew the weapon was loaded with beanbag rounds.  Sergeant Joyce thereafter took time to fully assess the situation and to allow Moulton to become accustomed to his presence.  He observed the ongoing negotiations for 20 to 25 minutes.  He saw Moulton threaten imminent suicide by placing the knife with both hands at his own neck.  He saw Moulton make abrupt one or two step movements toward Officer Roche, followed by commands from Roche and others to “stop,” to which Moulton complied.  He observed Moulton become upset when an officer changed his position in the semicircle.  He saw that Moulton was becoming increasingly agitated, looking around as if formulating a plan of action.  He satisfied himself that Moulton posed an imminent threat to Moulton himself, to Officer Roche and to the other police officers present.  At a point when Moulton turned facing Joyce, Sergeant Joyce took the opportunity presented, raised the shotgun from its former low rest position and intentionally discharged a single beanbag round at Moulton’s midsection.  Although knocking Moulton slightly backward, the impact did not have its anticipated effect.  Moulton ignored the impact, making a brushing motion with his hand across his stomach and did not drop the knife.  Sergeant Joyce immediately discharged three more beanbag rounds on quick succession.  This time the resulting impacts did not even knock Moulton off balance. 

Following the impact of the fourth beanbag round, Moulton screamed an obscenity and then charged at Officer Roche with the blade of the knife directed at Officer Roche.  There were eight officers in the immediate vicinity as Moulton charged at Roche.  Three, Sergeant McCaffrey and Officers Roche and Hanlon, fired their service weapons at Moulton.  Moulton was but a few feet from Roche when the officers fired their weapons.  Moulton, having been struck by at least two of the rounds discharged by the three officers, fell to the ground on his back within three feet of Officer Roche.  Officers rushed Moulton and recovered the knife from where Moulton had dropped it close by.  Immediate first aid was rendered to Moulton by emergency medical personnel who were standing by in the vicinity.  Moulton was taken by ambulance to the Maine Medical Center in Portland where he underwent surgery and later recovered from his wounds.

The Cumberland County District Attorney’s Office charged Thomas Moulton with criminal offenses as a result of the incident.  Six detectives from the Office of the Attorney General went to the scene of the shooting in Westbrook to conduct the investigation.  They were assisted in the investigation by detectives from the State Police, as well as personnel from the State Police Crime Laboratory.  The Westbrook Police Department cooperated fully with the investigation and conducted its own departmental review of the incident.

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