Report of the Attorney General on the Use of Deadly Force

November 24, 2015

Synopsis

On December 4, 2014, Karin Moller, 55, of Cape Neddick, was shot and killed by York Police Detective John Lizanecz on the Ogunquit Road in South Berwick near the York town line.

Discussion

The Attorney General has exclusive responsibility for the direction and control of any criminal investigation of a law enforcement officer, who, while acting in the performance of the officer’s duties, uses deadly force. Detectives in the Office of the Attorney General conduct a criminal investigation of all such incidents.[1] The detectives are independent of and unaffiliated with any other law enforcement agency. The purpose of the criminal investigation of the incident in South Berwick on December 4, 2014, that resulted in Ms. Moller’s death was to determine whether self-defense, including the defense of others, was reasonably generated by the facts so as to preclude criminal prosecution of the officers who shot her. Any such prosecution would require the State to disprove self-defense or the defense of others beyond a reasonable doubt. The investigation did not include an analysis of whether any personnel action may be warranted, of whether the use of deadly force could have been averted, or of whether there is civil liability. Indeed, state law provides that the fact that conduct may be justifiable under the Criminal Code does not abolish or impair any other remedy available under the law.

In order for any person, including a law enforcement officer, to legally use deadly force in self-defense or in defense of a third party, two requirements must be met. First, the person must actually and reasonably believe that deadly force is imminently threatened against the person or against someone else; and, second, the person must actually and reasonably believe that deadly force is necessary to counter that imminent threat. Further, whether the use of force by a law enforcement officer is reasonable must be based on the totality of the particular circumstances and must be judged from the perspective of a reasonable officer on the scene, allowing for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a given situation. The legal analysis requires careful attention to the facts and circumstances of each case, including the severity of the crime threatened or committed and whether the suspect poses an immediate threat to the safety of others.

Facts

Close to noon on Thursday, December 4, 2014, the nurse manager of a Kittery medical practice called 911 to report that a patient, Karin Moller of Cape Neddick, was threatening to kill herself at her residence. While police units responded to the Moller residence, the dispatcher learned from the caller that Ms. Moller claimed to be holding a loaded gun to her head and that she would shoot anyone who arrived and attempted to take her to the hospital. It was also learned that Ms. Moller told a physician to whom she was speaking on the telephone that she would be on the porch of her home and she hoped the police would kill her when they arrived.

Two York police officers were the first to respond to the call. The officers parked their cruisers out-of-sight of the residence which was located in a remote area close to the South Berwick town line. The police department in South Berwick was asked to block off the road at the town line. Given that Ms. Moller was talking on the telephone with a physician who was attempting to persuade her not to harm herself or others, additional officers took up positions near but out-of-sight of the Moller residence. It was their intention to take Ms. Moller into protective custody for medical evaluation if Ms. Moller otherwise refused the medical assistance being offered to her and attempted to leave her residence.

The officers learned shortly after their arrival that Ms. Moller was in the residence alone and that she was still armed with a gun. Several minutes later, the nurse manager at the Kittery medical facility, who remained in constant communication with the 911 dispatcher while the physician spoke with Ms. Moller, said that Ms. Moller reported that she was in bed with her gun, and attempts to persuade her to leave the house without the gun were not going well. The nurse manager said that a behavioral specialist had joined the efforts to negotiate with Ms. Moller and was coaching the physician in that regard. It was reported that Ms. Moller said she had taken Xanax and Valium and that she was tired. It was also learned that Ms. Moller had rebuffed all suggestions that she be taken to a hospital, by ambulance or otherwise, for evaluation and treatment. Close to 50 minutes from the time of the initial call to the police, the nurse manager told the 911 dispatcher that Ms. Moller was aware of a police presence outside her home and that she had hung up on the physician. A few minutes later, Ms. Moller left her residence and entered her vehicle.

One of the officers who responded to the initial call to the Moller residence was York Police Detective John Lizanecz. He arrived at a makeshift command post not far from the residence and, shortly thereafter, established a position near a marked cruiser out-of-sight of the residence. After Ms. Moller was seen leaving her residence and entering her car, Detective Lizanecz deployed a spike mat on the roadway a short distance from the residence. As Ms. Moller backed up her car and then started forward in the driveway, officers pursued the vehicle on foot while ordering Ms. Moller to stop. However, Ms. Moller did not stop. She drove onto the roadway toward South Berwick where Detective Lizanecz was situated with the spike mat deployed.[2] Ms. Moller drove her vehicle over the spike mat, and continued driving with Detective Lizanecz now in pursuit in a marked cruiser with blue lights and siren activated. In the meantime, Lt. Christopher Burbank of the South Berwick Police Department had parked off the roadway and waited nearby in the event Ms. Moller left the residence. As Ms. Moller’s vehicle drove by his location, he pulled out and pursued her vehicle with the cruiser’s emergency lights and siren activated. Within seconds, Detective Lizanecz came upon the pursuit just as Ms. Moller abruptly stopped her vehicle in the center of the roadway.

Lt. Burbank, who was in uniform, stopped and got out of his cruiser and drew his sidearm. Detective Lizanecz, armed with a carbine and wearing both a vest and a jacket clearly marked “police,” stopped slightly behind Lt. Burbank’s position and got out of his cruiser. Ms. Moller got out of her vehicle and approached the officers as Lt. Burbank retreated to the rear of his cruiser. Ms. Moller was armed with a handgun,[3] which she held in both hands pointed at the officers. Lt. Burbank fired one round at Ms. Moller, crouched, and then stood and fired three more rounds from his sidearm. At the same time, Detective Lizanecz fired a single round from his carbine. Lt. Burbank fired two more rounds, but Ms. Moller continued to advance on the officers with her hands thrust forward pointing her gun at the officers. Detective Lizanecz fired more rounds, one of which struck Ms. Moller in the chest causing her to fall to the pavement.

Ms. Moller was rendered immediate medical assistance at the scene in South Berwick and taken to a medical trauma center in nearby Portsmouth, N.H., where she died shortly after arrival. A postmortem examination and autopsy by the Office of the New Hampshire Chief Medical Examiner the next day determined that Ms. Moller died as a result of a single penetrating high velocity rifle wound of the chest.

Later investigation determined that after Ms. Moller got into and started her car in her driveway at 12:42 p.m., it took 25 seconds for her to drive onto the roadway and over the spike mat that had been earlier placed on the roadway by Detective Lizanecz. It was 11 seconds later that she passed by Detective Lizanecz who started to pursue her vehicle. About 47 seconds later, as her vehicle was pursued by Lt. Burbank and Detective Lizanecz, Ms. Moller stopped her vehicle and got out while pointing her handgun at the officers. Another five seconds elapsed before Lt. Burbank fired his sidearm at Ms. Moller as she advanced toward the officers. During the next 11 seconds, Lt. Burbank and Detective Lizanecz fired multiple rounds at Ms. Moller as she continued to walk toward them with her gun pointed at them. It was later determined that Lt. Burbank fired six rounds from his service pistol, and Detective Lizanecz fired seven rounds from his carbine. The investigation also concluded that Ms. Moller had advanced 64 feet from her vehicle in the direction of Lt. Burbank and Detective Lizanecz. She came within 37 feet of Lt. Burbank and 64 feet of Detective Lizanecz before she was struck by one of the gunshots fired by Detective Lizanecz.

Conclusion

Attorney General Janet T. Mills concludes that at the time Lt. Burbank and Detective Lizanecz shot Ms. Moller, each of them reasonably believed that unlawful deadly force was imminently threatened against them. It was reasonable for each officer to believe it necessary to use deadly force to protect himself and each other from deadly force, as well as others in the area at the time potentially within range of Ms. Moller’s weapon. The Attorney General’s conclusions are based on an extensive forensic investigation, on interviews with numerous individuals, and on a thorough review of all evidence made available from any source. All facts point to the conclusion that the officers in this case acted in self-defense.

[1] 5 M.R.S. 200-A [2] A spike mat was deployed elsewhere on the roadway in the event Ms. Moller drove in the opposite direction. [3] The handgun was later determined to be a Harrington and Richardson Model 923 .22 caliber revolver. Although cocked and ready to fire, the gun was not loaded.

Finding: Officers fired in self defense