Use of Deadly Force by South Portland Police Officers Legally Justified

November 17, 2008

District Attorneys Evert Fowle and Geoffrey Rushlau announced today that two South Portland police officers, Benjamin Macisso and John Sutton, were legally justified when they used deadly force against Michael S. Norton, 29, during the early morning of August 25, 2008, outside Norton?s residence on Main Street in South Portland. Norton died as the result of a single gunshot wound.

The Attorney General's investigation and the evaluation by District Attorneys Rushlau and Fowle 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. Attorney General Rowe requested the assistance of Fowle and Rushlau in the legal review of this matter because Officer John Sutton is the spouse of an employee of the Attorney General?s Office.

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.

District Attorneys Rushlau and Fowle determined, based on the investigation conducted by detectives from the Office of the Attorney General and overseen by Lt. Gary Wright of the State Police and the application of controlling Maine law, that Officers Macisso and Sutton actually and reasonably believed that unlawful deadly force was being imminently threatened against two other officers by Michael Norton, and that Macisso and Sutton also actually and reasonably believed that the use of deadly force on their part was necessary to protect the other officers. Therefore, both requirements of the law having been met, the use of deadly force by Officers Macisso and Sutton was legally justified.

The investigation revealed the following:

At 1:53 A.M. on August 25, 2008, Michael Norton presented himself outside the rear door of his home at 745 Main Street in South Portland. Present outside the home were a number of South Portland police officers, some of whom had negotiated with Norton for more than three hours while he was in his residence. Norton was armed with two knives, one in each hand. He held a knife with an eight-inch blade in his left hand, and a knife with a two-and-a-half inch blade in his right hand. Norton, who was highly agitated, challenged the officers in the immediate vicinity to shoot him. Various officers issued repeated commands for Norton to relinquish the knives.

Norton had taken up a position in the paved driveway at the rear portion of his residence where there were three parked motor vehicles. The area was illuminated by the headlights of a parked police cruiser and the flashlights of individual officers. A number of officers were situated in the tree line that abuts the northern boundary of 745 Main Street at the edge of the driveway and parking area. Two of those officers were Benjamin Macisso and John Sutton. Two other officers, Scott Corbett and Patricia Maynard, were located in the parking area. When Norton presented himself at the rear of the house in this parking area, Corbett and Maynard were facing Norton at a close distance.

Officer Macisso was armed with a .223 caliber rifle. Officer Sutton was armed with a .12 gauge pump shotgun loaded with less lethal beanbag rounds. Upon notice of the first sighting of Norton at the rear door of the residence, Officer Macisso, already situated in the tree line along the northern side of the parking area, was joined in the same area by Officer Sutton and Lt. Todd Bernard. Closest to Norton at the point that Norton came out of the residence and verbally challenged the officers to shoot him was Officer Corbett, who was positioned at the rear of one of the three vehicles in the parking lot. Officer Maynard was to the left and rear of Corbett.

Norton, along with verbally challenging the officers to shoot him, made circular gestures about his chest using one hand. He retreated under a deck attached to the residence, but moments later returned to the open and advanced a number of feet in the direction of Corbett. Norton repeated this motion a second time while officers continued to command him to disarm himself of the knives. On the second occasion, Norton moved out from under the deck and advanced ?five or so feet.? He was looking in the direction of Officer Maynard, but then focused on Officer Corbett. In response, Corbett aimed the beam of his weapon-mounted flashlight into Norton?s face. As Norton walked closer to Corbett, Corbett sighted his rifle on Norton. Corbett believed that Norton was now within 15 feet of him; Corbett stepped back and prepared to use deadly force against Norton.

Officer Macisso, from his position in the tree line next to the parking area, observed Norton?s steady pace in the direction of Officer Corbett. At a point where Officer Macisso believed that Norton was about 15 feet from Corbett and still advancing, he aimed his rifle at Norton, and fired one round. At the same time, Officer Sutton, armed with a shotgun loaded with less lethal rounds, observed Norton advancing on Officers Corbett and Maynard. Sutton believed that Norton was ?10 to 15 feet? from Corbett and ?20 feet? from Maynard. Officer Sutton fired one beanbag round at Norton. It was later determined that Officers Macisso and Sutton fired simultaneously; most officers at the scene reported hearing only a single report of a firearm. Both Officers Macisso and Sutton believed that Norton was about to use deadly force against other officers. Officer Sutton expressed surprise to investigators that deadly force had not already been used before he discharged his weapon.

In addition to interviews of all the officers at the scene and a thorough investigation of the shooting scene, a news video made at the time of the confrontation with Norton was extensively reviewed by investigators. The interactions depicted on the video between Norton and the officers were consistent with the accounts provided by the officers and the findings of the ensuing investigation. The Office of the Chief Medical Examiner determined that Norton died as a result of the single gunshot wound inflicted by Officer Macisso. There was no evidence that the beanbag round discharged by Officer Sutton actually struck Norton.

Detectives from the Office of the Attorney General went to the scene of the shooting in South Portland to conduct the investigation. They were assisted by the South Portland Police Department and later, the Office of the Chief Medical Examiner and the Maine State Police Crime Laboratory. The South Portland Police Department cooperated fully with the investigation and conducted its own internal departmental review of the incident.

Events and Circumstances Leading to the Death of Michael S. Norton

On August 22, 2008, shortly after 6 p.m., the South Portland Police Department received a call from a psychiatrist who had been treating Michael Norton. The psychiatrist reported that in his opinion Norton was a threat to himself. He said Norton had attempted to purchase a shotgun. Based on his diagnosis and other information, the psychiatrist requested that Norton be taken into protective custody as preliminary to Norton?s commitment to a psychiatric facility for evaluation and treatment.

As a result of the report by the psychiatrist, South Portland police officers attempted but failed to make contact with Norton at his residence. Approximately three hours after the call from the psychiatrist, a woman who identified herself as Norton?s employer called the South Portland Police Department, expressed knowledge of the earlier report to the police by the psychiatrist, and reported her personal knowledge that Norton was in fact in his home at 745 Main Street but would not answer the door for officers. The woman expressed serious concern for Norton?s wellbeing. By 10:35 p.m., the police officers who had responded to these calls terminated their efforts to interact with an uncooperative Norton after concluding that they had not met the legal requirements for taking Norton into protective custody against his will.

The next morning, August 23, 2008, at 11:36 a.m., a nurse who had interacted with Norton via telephone called the South Portland Police Department. She reported that she had spoken with Norton that morning, and learned from him that he had attempted to commit suicide on August 22. She had similar concerns at the time of her call to the police. As a result of this report, approximately two hours later, Norton was transported by a South Portland police officer from his residence in South Portland to the Maine Medical Center for psychiatric evaluation. A short time later, he was transferred to Southern Maine Medical Center in Biddeford. On August 24, 2008, at 9:21 p.m., Michael Norton?s father called the South Portland Police Department. The police learned for the first time that Norton had signed himself out of the hospital and was at his residence on Main Street in South Portland. As a result of this information, the police also formed a basis to believe that Norton was imminently contemplating suicide.

On duty officers in South Portland were alerted to this call and initial telephone contact was made between a police dispatcher and Michael Norton. Norton denied suicidal ideations. He refused, however, a request from the dispatcher that he step outside his residence and meet with officers so that they could engage him in conversation. Over the next three hours, the interactions between the South Portland police and Norton deteriorated. It was learned that Norton was in the company of a female companion in his residence, and at least initial indications that the companion was not being permitted by Norton to leave the residence.

In the hours subsequent to the call to the South Portland police by Norton?s father, the police learned that Norton had consumed alcohol and prescription drugs, and was armed with a knife. Norton?s employer again called the South Portland police about an hour after the father?s call. She reported that she had just spoken to Norton and stated ?this man should not be out on the street, why they let him out is beyond me.? She also reported that Norton had moments earlier stated he planned to go outside his residence to confront the police with ?something in his hands so that they?ll shoot him on the steps.? About two hours later (12:20 a.m., August 25), Norton?s father reported similar representations by his son when he had spoken by telephone with his son shortly before midnight.

In the meantime, Norton had refused requests of the police to speak with the female companion in the residence. He had also refused a request by police to allow the companion to leave the residence. However, at 1:38 a.m. (August 25) the companion did leave the Norton residence. Officers learned from her that Norton was armed with a knife, had expressed suicidal ideations, and had inflicted small lacerations to his neck. After the female companion left the residence, Norton told a South Portland police negotiator that he was all done and was going to charge at the police officers outside his residence with a knife. Norton hung up and did not answer further attempts by the police to contact him. Fifteen minutes later, Norton appeared outside the rear of the residence armed with a knife in each hand, challenged the police to shoot him, and advanced within feet of Officers Corbett and Maynard. In less than a minute of his appearance outside the residence, Norton was shot and killed.

1. The investigation disclosed that Michael Norton attempted on August 22, 2008, to purchase a .12 gauge shotgun at a retail outlet in Scarborough. The sale was thwarted at the time by a delay in the computerized system that checks persons wishing to purchase firearms for information that would disqualify them from making a purchase. The investigation disclosed, however, that the retail outlet had later received authorization for the sale of the shotgun to Norton and had planned on notifying Norton of that fact on August 25.

2. If a law enforcement officer has reasonable grounds to believe, based upon probable cause, that a person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons, the law enforcement officer may take the person into protective custody. When, in formulating probable cause, the law enforcement officer relies upon information provided by a third party informant, the officer shall confirm that the informant has reason to believe, based upon the informant's recent personal observations of or conversations with a person, that the person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons. See 34-B M.R.S.A. ? 3862.

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NEWS RELEASE November, 17 2008 David Loughran, (207) 626-8577