AG Finds Shooting By Portland Police Officer Legally Justified

November 9, 2006

Attorney General Steven Rowe announced today that a Portland police officer, Sgt. Robert Martin, was legally justified when he shot and killed Richard "Cali" Duncan, 26, the night of August 25, 2006, in Portland.

The Attorney General's investigation focused on the issue of whether the use of deadly force by the officer 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, Sgt. Martin actually and reasonably believed that unlawful deadly force was imminently threatened by Duncan against Martin, as well as other officers in the immediate vicinity who were assisting Martin in attempting to take Duncan into custody. Further, based on the investigation and legal analysis, Attorney General Rowe determined that Sgt. Martin actually and reasonably believed that deadly force on his part was necessary to protect himself and others in countering the imminent threat against them.

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

Shortly before 11:00 P.M., on August 25, 2006, the Portland Police Department received a citizen's report of suspected narcotics trafficking taking place at or near the intersection of Pleasant and Forest Avenues in Portland. The citizen caller provided specific information regarding one of two vehicles associated with this suspicious activity. The registered owner of that vehicle was well known to the Portland officers on duty at the time. A number of those officers interdicted the vehicle, a green Jeep, on Cumberland Avenue in Portland. The driver was also a person well known to the Portland officers. There were five active warrants for the arrest of the driver. In addition, the driver was found to be in possession of crack cocaine, he was operating after license suspension, and his passenger, the owner of the vehicle, was in violation of bail conditions.

Shortly after this first group of Portland police officers had contact with the occupants of the green Jeep, a second group of officers encountered a vehicle situated near the intersection of Pleasant and Forest Avenues in Portland. The vehicle, a 1987 Oldsmobile Cutlass, had previously been identified by the citizen caller as having been part of the suspected drug trafficking. There were two others in the parked vehicle, both women, ages 21 and 41.

The second group of Portland police officers, five in all led by Sgt. Martin, began to interact in varying order and degree with the occupants of the Oldsmobile. The other officers were David Argitis, Joseph Bliss, William Stratis, and Jeffrey Tully. The focus of the officers' initial investigative action was to determine the identity of the three individuals in the Oldsmobile and determine if there was evidence that they had engaged in illegal narcotics trafficking.

While the five officers at the second vehicle stop were engaged in their preliminary contact with the occupants of the Oldsmobile, the officers on Cumberland Avenue were conducting the arrests of the two occupants of the green Jeep. As a result of these arrests, it was learned the male occupant of the Oldsmobile was a person known as "Cali," (later identified as Richard W. Duncan). It was further learned that the driver of the Jeep had purchased the crack cocaine in his possession from Duncan, and that there was likely a firearm in Duncan's possession or within the Oldsmobile. This information was transmitted by police radio to the second group of officers. After receiving this information, Sgt. Martin directed the officers to remove the occupants of the Oldsmobile in order to conduct a threat assessment.

The two women in the Oldsmobile offered no resistance. Duncan, however, exhibited unusual behavior in an apparent attempt not to be identified and then became physically combative with the officers.[1] Sgt. Martin attempted to conduct a pat-down search of Duncan. Duncan, though, actively resisted this attempt, both verbally and physically, which included his kicking one of the officers. At that point, Sgt. Martin directed that Duncan be arrested for his assaultive conduct.

Standing at the rear of the Oldsmobile, Sgt. Martin and two other officers attempted to physically control Duncan in an attempt to handcuff him. At the same time, Sgt. Martin noted that Duncan kept his right hand clenched in a fist. The fact that nothing was being concealed in Duncan's right hand did not become apparent until Sgt. Martin, still at the trunk of the Oldsmobile with two other officers trying to handcuff Duncan, observed Duncan take from his person with his right hand a small semi-automatic pistol. Responding to the presence of a firearm in Duncan's hand, Sgt. Martin wrestled with Duncan to prevent him from firing the weapon. This resulted in Sgt. Martin and Duncan, as well as two other officers, all falling to the pavement to rear of the Oldsmobile.

Once on the ground, the officers attempted to disarm Duncan, who was positioned face-down on the pavement. Duncan continued to aggressively resist the officers. During this struggle, Sgt. Martin used his chest to pin down Duncan's right hand and soon thereafter felt what he believed to be Duncan attempting to fire the pistol. All attempts up to that point to disarm Duncan or to otherwise control or restrain him had failed. Sgt. Martin yelled more than once, "He's trying to shoot me" or words to that effect. While atop Duncan's lower body and in fear of being shot by Duncan, Sgt. Martin drew his service weapon and brought it to bear at Duncan's lower back. Martin gave verbal warnings of his intent to shoot Duncan and, finding that this resulted in no cessation of the combat between Duncan and the officers, he discharged his firearm once into Duncan's lower back. Recovered by the officers immediately thereafter was the firearm that had been in Duncan's hand, a .25 caliber semi-automatic pistol.

Duncan was treated at the scene by emergency medical personnel and transported to the Maine Medical Center in Portland where he died shortly after as a result of the gunshot wound.

From the time the police initially encountered the Oldsmobile near Pleasant and Forest Avenues to the time Duncan was shot by Sgt. Martin was eight minutes.

Autopsy results from the Maine Chief Medical Examiner's Office showed that Duncan had cocaine in his blood when he died.

Five detectives from the Office of the Attorney General went to the scene of the shooting to conduct the investigation. They were assisted by detectives from the Portland Police Department, as well as forensic specialists and the Office of the Chief Medical Examiner. In addition to several police officers, several citizens were interviewed as part of the investigation, as well as the individuals with Duncan in the Oldsmobile, and the two persons arrested in the green Jeep. The Portland Police Department cooperated fully with the investigation, and conducted its own departmental investigation and review of the incident.

[1] Had Duncan been identified at this initial stage, a wanted person check would have informed the officers of an outstanding arrest warrant for Duncan issued by the Maine Superior Court in Bangor. The warrant directed that Duncan be held without bail and authorized nationwide extradition.