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Use of Deadly Force by Auburn Police Officer Legally Justified
December 17, 2008
Attorney General Steven Rowe announced today that he has determined that Auburn Police Officer Kristopher Bouchard was legally justified when, while acting in the performance of his public duty, he intentionally fired his weapon at a vehicle operated by Bartolo Ford, age 47, of Lisbon, the night of September 15, 2008, on the Hotel Road in Auburn.
The Attorney General's investigation focused on the issue of whether the use of deadly force by Officer Bouchard 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. Maine law defines deadly force as physical force that a person uses with the intent of causing, or that a person knows to create a substantial risk of causing, death or serious bodily injury. Further, in the specific context of a firearm, Maine law defines deadly force to include the intentional or reckless discharge of a firearm in the direction of another person or at a moving vehicle.
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.
In addition, under certain limited circumstances, a law enforcement officer is justified in using deadly force to make an arrest. Specifically, a law enforcement officer is justified in using deadly force to make an arrest when the officer actually and reasonably believes that the person has committed a crime involving the use or threatened use of deadly force, or otherwise indicates that the person is likely to endanger seriously human life or to inflict serious bodily injury unless apprehended without delay. When using deadly force to make an arrest, the law enforcement officer must first make reasonable efforts to advise the person that the officer is a law enforcement officer attempting to make an arrest, and the officer must have reasonable grounds to believe that the person is aware of this advice. Alternatively, the law enforcement officer must reasonably believe that the person to be arrested otherwise knows that the officer is a law enforcement officer attempting to make an arrest.
Attorney General Rowe determined that, based on the investigation and legal analysis conducted by his office, Officer Bouchard actually and reasonably believed that unlawful deadly force was being used by Ford against him, and that others were imminently threatened with death or serious bodily injury by the actions of Ford. Further, based on the investigation and legal analysis, Attorney General Rowe determined that Officer Bouchard actually and reasonably believed that deadly force on his part was necessary to protect himself and others from the imminent threat of deadly force. Moreover, Attorney General Rowe determined that Officer Bouchard actually and reasonably believed that Mr. Ford had committed a crime involving the use or threatened use of deadly force, was likely to endanger seriously human life unless apprehended without delay, and that Mr. Ford knew that Bouchard was a law enforcement officer attempting to arrest him.
The Attorney General reported the following findings from his office?s investigation:
On September 15, 2008, at 9:17 p.m., the Lewiston-Auburn 911 Communications Center received a report of a possible theft in progress of manufactured concrete products at a business on Minot Avenue in Auburn. The caller said that a bucket loader carrying concrete products had been seen leaving the business. Auburn Police Officer David Madore, in uniform and a marked police cruiser, responded to the call. A short time previous to the call, Officer Madore had observed a Caterpillar front-end loader traveling behind a convenience store in the direction of the Manley Road. The loader was transporting two manufactured concrete cylinders. Officer Madore?s initial impression was that the loader was involved in nighttime construction in the area.
Officer Madore returned to the area of the Manley Road where he had previously seen the front-end loader. In the parking lot of another business, Officer Madore observed a Ford F-550 duel wheel dump truck with two large concrete cylinders loaded on it. They appeared to be the same items that he had seen earlier on the Caterpillar loader. Officer Madore reported this information via radio, and Officer Kristopher Bouchard, also in uniform and driving a marked police cruiser, started driving to Officer Madore?s location. Officer Madore conversed with the truck?s operator, later identified as Bartolo Ford, who told Officer Madore that he was working. When questioned further, Mr. Ford fled the area in the truck onto the Manley Road. Officer Madore gave chase in his cruiser with emergency lights and siren activated.
Officer Bouchard, still on his way to back up Officer Madore, met the fleeing dump truck coming toward him from the opposite direction on the Manley Road. Officer Bouchard turned his cruiser around and became the primary chase vehicle behind the truck. Officer Bouchard had his cruiser?s emergency lights and siren activated. Officer Madore continued in his cruiser behind Bouchard. The dump truck turned onto the Hotel Road in Auburn. As the truck traversed a small bridge, concrete products fell from the bed of the truck and shattered into pieces on the roadway. A piece of the broken concrete punctured a tire on Officer Madore?s cruiser, disabling its operation. While Officer Madore pulled his cruiser to the side of the road, Officer Bouchard continued the pursuit of the truck, which was now traveling at speeds of 75-85 m.p.h. on Hotel Road.
As the pursuit approached the intersection of Hotel Road and East Hardscrabble Road, Officer Bouchard saw the truck?s brake lights come on and the truck come to a stop. Bouchard stopped his cruiser behind the truck whereupon the truck immediately backed up at a rapid speed and rammed the front of the cruiser. The truck then moved forward. Officer Bouchard likewise drove his cruiser forward. Approximately 15 seconds later, the truck stopped and again backed up at a rapid speed toward the cruiser. Officer Bouchard stated that he was afraid that the large pieces of concrete in the bed of the truck would land on his windshield and cause him serious injury if the truck rammed his cruiser again. Officer Bouchard attempted to avoid the truck ramming his cruiser by backing up at a fast speed. The truck, however, rammed the front of the cruiser a second time. The truck then rebounded from the collision and stopped.
Intending to arrest the operator of the truck, Officer Bouchard quickly got out of his cruiser and approached the truck with his service weapon, a .45 caliber pistol, drawn and pointed at the operator. Officer Bouchard ordered the operator (later identified as Mr. Ford) to get out of the vehicle. Mr. Ford looked at Officer Bouchard and started shifting gears to drive off. Officer Bouchard said that, at that moment, he believed that Mr. Ford, as operator of the truck, posed a threat of serious bodily injury or death to Officer Bouchard, other officers and members of the public. Officer Bouchard fired his weapon four times in the direction of Mr. Ford as Mr. Ford sped forward in the truck down Hotel Road. Officer Bouchard estimated that he was 15-20 feet from the driver?s side door of the truck when he fired. The time was approximately 9:30 p.m. Unknown to anyone other than Mr. Ford at the time, one of the rounds fired by Officer Bouchard penetrated the driver?s door and struck Mr. Ford in the upper left leg. Approximately two minutes had elapsed since the start of the initial vehicle pursuit by Officer Madore.
Officer Bouchard attempted to pursue the truck but was unable to do so because of the damage sustained to his cruiser. Officer Madore, upon learning that Officer Bouchard had fired shots at the operator of the truck, drove his cruiser on a flat tire to Bouchard?s location. A third Auburn officer, Matthew Johnson, passed Officers Bouchard and Madore, and continued on the Hotel Road, which becomes Route 122 in Poland. At about 9:34 p.m., Officer Johnson observed the truck come to a momentary stop on Route 122 in Poland. The truck then moved in reverse at a high rate of speed in an attempt to ram Johnson?s cruiser. Officer Johnson was able to maneuver his cruiser out of the path of the truck averting a collision. Mr. Ford then drove forward, negotiated a u-turn, and drove at a high speed directly at Officer Johnson?s cruiser. Officer Johnson was again able to maneuver his cruiser out of the path of the truck. When the truck drove at Johnson?s cruiser a third time, however, Officer Johnson, unable to avoid an impending collision, abandoned his cruiser just before the truck struck the cruiser head on at a high rate of speed. After ramming the cruiser ? and disabling it ? Mr. Ford fled the scene in the truck.
In the meantime, Auburn Deputy Police Chief Jason Moen, in uniform and driving an unmarked cruiser, was in Casco on his way home from an assignment while monitoring the police radio traffic. After Officer Johnson?s report of his cruiser being rammed head on by the truck, Deputy Chief Moen drove to the nearby intersection of Routes 122 and 26 in Poland and waited in the parking lot of a business establishment. Within seconds, the truck drove by Moen on Route 122. Moen drove onto Route 122 behind the truck, following it as it turned onto Route 26. Deputy Chief Moen activated his emergency lights, whereupon the truck slowed and started to make a u-turn. Fearing that the truck would attempt to ram his cruiser, Moen drove back into the parking lot. As the truck sped toward Moen?s cruiser, Moen was able to avoid a collision by driving back onto Route 122. The truck pursued Moen for a short distance and disappeared from sight.
Mr. Ford?s disabled truck was later located off the road on the Hines Road in Poland where it had come to rest after striking two parked vehicles on the Hines Road. At around midnight, a State Police trooper located Mr. Ford walking on Route 26 in Poland. Bleeding heavily from the gunshot wound to his left leg, Mr. Ford was taken by ambulance to a Lewiston hospital for treatment. He has since been released from the hospital and faces several criminal charges lodged by the Androscoggin County District Attorney?s Office, including aggravated attempted murder of Officer Johnson, two counts each of aggravated criminal mischief (estimates of damage to the two cruisers rammed by the dump truck amounted to nearly $15,000) and reckless conduct with a motor vehicle, eluding an officer, theft, and traffic offenses. Later investigation by the Auburn Police Department resulted in a multitude of other theft charges lodged against Mr. Ford. The charges related to the thefts of various construction materials in both Auburn and Topsham. A portion of the stolen materials were recovered as a result of the follow-up investigation.
Detectives from the Office of the Attorney General went to the scene of the shooting in Auburn to conduct the investigation. They were assisted by the Auburn Police Department and, later, the Maine State Police Crime Laboratory. The Auburn Police Department cooperated fully with the investigation and conducted its own internal departmental review of the incident.
Contact: Jessica Maurer, Special Assistant Attorney General, 207-626-8515