Attorney General Finds Trooper?s Use of Deadly Force in Albion Legally Justified

November 3, 2008

Attorney General Steven Rowe announced today that a State Police officer, Trooper Derrick Record, was legally justified when, while acting in the performance of his public duty, he shot and killed Johnathan T. Sullivan, age 34, the night of August 4, 2008, outside Sullivan?s home on Main Street in Albion.

The Attorney General's investigation focused on the issue of whether the use of deadly force by Trooper Record 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 engaged in the performance of the officer?s public 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 others, 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 deadly force under Maine law.

Attorney General Rowe determined that, based on the investigation and legal analysis conducted by his office, Trooper Record actually and reasonably believed that unlawful deadly force was being imminently threatened against him by Mr. Sullivan, and that others in the immediate vicinity were imminently threatened with death or serious bodily injury by the actions of Mr. Sullivan. Further, based on the investigation and legal analysis, Attorney General Rowe determined that Trooper Record actually and reasonably believed that deadly force on his part was necessary to protect himself and to counter the imminent threat against others.

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

On August 4, 2008, at about 8:15 p.m., a resident of Main Street in Albion called 911 to report a domestic disturbance at a nearby residence on Main Street. The caller said that a woman had been assaulted by her husband and the husband had fired a gun in or near the couple?s residence. The caller reported that the woman and two children were presently in another residence across the street, and the husband, believed to be armed, had gone behind the couple?s house.

State Police Trooper Derrick Record was on patrol, in uniform and driving a marked cruiser, in Winslow when he overheard radio traffic of a Kennebec County deputy sheriff asking if there was a trooper available to assist with the call in Albion. Tr. Record arrived on Main Street in Albion about nine minutes after receiving the call. He encountered several local firefighters and sought assistance from them in closing the street. Tr. Record walked to an area on Main Street pointed out to him by firefighters. He noticed several residents outside their homes and instructed them to go inside because of the report of shots being fired. Tr. Record encountered a man carrying a shotgun. Tr. Record ordered the man to relinquish the shotgun. The man complied and informed Tr. Record that he was the person who called 911 to report the incident, and that he had armed himself to protect his family and the woman and children who had sought refuge with another tenant in his apartment building. He told Tr. Record that the woman had been assaulted by her husband, and that the husband, later determined to be Johnathan Sullivan, was armed with what he thought was a handgun. He said that Mr. Sullivan had disappeared behind the Sullivan house across the street. The man, stating that he had heard a gunshot from that direction, suggested that Mr. Sullivan may have committed suicide.

Tr. Record took a position near the man?s house next to a pickup truck, which was parked close to Main Street and directly across the street from the Sullivan residence. The man that Tr. Record initially encountered with a shotgun remained nearby. Identifying himself as a State Police officer, Tr. Record called Mr. Sullivan by name, instructing him several times to come out and put his gun down. Tr. Record also requested that a dispatcher attempt to contact Mr. Sullivan at his residence by phone. This attempt was unsuccessful. Shortly thereafter, Tr. Record observed a person armed with a shotgun appear ?out of the shadows? in a driveway next to the Sullivan residence. The distance between Tr. Record and Mr. Sullivan at that point was approximately 85 feet.

Tr. Record continued to identify himself as a State Police officer and ordered Mr. Sullivan several times to disarm. Sullivan spoke incoherently; it was Tr. Record?s impression that he was intoxicated. Tr. Record then observed Mr. Sullivan lower the barrel of his shotgun and start walking directly toward Tr. Record. Mr. Sullivan ignored several repeated commands from Tr. Record to ?drop the gun? and, as Mr. Sullivan was bringing the barrel of the shotgun upward so that it was pointed at Tr. Record, Tr. Record fired three rounds from his rifle at Mr. Sullivan. Struck by the rounds, Mr. Sullivan fell to the ground. About seven minutes had elapsed from the time Tr. Record arrived on the scene. Tr. Record rendered first aid until relieved by emergency medical personnel. Mr. Sullivan died shortly after.

The investigation that followed determined that Mr. Sullivan was armed with a .12 gauge shotgun with a pistol grip, allowing for one-handed use of the firearm. The safety mechanism was in the off position making the weapon ready to fire. One live slug was found chambered and two live birdshot cartridges in the magazine. The weapon fired by Tr. Record was a .223 caliber rifle. A post-mortem examination by the Office of the Chief Medical Examiner revealed that Mr. Sullivan was struck by three rounds and died as a result of the gunshot wounds. Toxicology tests determined the presence of marijuana and a blood alcohol level of .24%.

Detectives from the Attorney General?s Office and the State Police, as well as forensic specialists from the State Police, conducted the investigation at the scene. The State Police cooperated fully with the investigation by the Attorney General?s Office, and conducted its own review of the incident.

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NEWS RELEASE November 3, 2008 David Loughran, (207) 626-8577