Use of Deadly Force by Indian Township Officers Legally Justified
July 17, 2008
Attorney General Steven Rowe announced today that Indian Township Police Officer Alexander Nicholas II and Indian Township Game Warden Scott Francis were legally justified when they used deadly force against Douglas P. Kelley, Jr., 40, of Calais, during the early evening of May 12, 2008, in Indian Township. Mr. Kelley died as the result of gunshot wounds inflicted by the officers.
The Attorney General's investigation 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.
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.
Attorney General Rowe determined, based on the investigation conducted by his office and the application of controlling Maine law, that Officer Nicholas actually and reasonably believed that unlawful deadly force was being imminently threatened against himself and others by Douglas Kelley and that Warden Francis actually and reasonably believed that unlawful deadly force was being imminently threatened against others by Douglas Kelley, and that the officers also actually and reasonably believed that the use of deadly force on their part was necessary to protect themselves and/or others. Therefore, both requirements of the law having been met, the use of deadly force by Officer Nicholas and Warden Francis was legally justified.
The Attorney General’s investigation revealed the following:
On Monday, May 12, 2008, at approximately 5:00 p.m., Douglas Kelley drove his vehicle to the home of his recent former girlfriend on Hemlock Point Road in Indian Township. At the residence were the girlfriend, her daughter, her daughter’s boyfriend and two infant children. Upon arriving at the residence, Mr. Kelley appeared to be upset. He was drinking a beer and was visibly intoxicated. He instructed the girlfriend to remove her personal property from his vehicle and lamented that the girlfriend no longer loved him. The girlfriend observed an empty gun holster and an ammunition box inside Kelley’s vehicle.
Kelley followed the girlfriend to the backyard of the residence. He carried with him an unopened 12-pack of beer. Kelley told the girlfriend that he had been “kicked off the reservation” and that he was not supposed to be at her residence. After going into the residence to use the bathroom, Kelley returned to his vehicle where a conversation between he and the girlfriend ensued. At a point when Kelley got out of his vehicle with his right hand under his shirt, the girlfriend pulled the shirt away and saw that Kelley was holding a handgun in his right hand. Kelley pointed the gun at the girlfriend. The girlfriend and the others at the residence went into the house, locked the doors and windows, and placed the infant children in a back bedroom. Kelley remained outside.
At approximately 5:37 p.m., the Indian Township Police Department received a telephone call from the girlfriend that Mr. Kelley was at her residence and that he had pointed a handgun at her. She told the police dispatcher that Kelley had moved from the driveway of her residence to the area of a large boulder situated between her residence and a neighboring residence and, from that location, had fired at least one shot into the woods behind her house. This information was relayed to the responding officers including Officer Nicholas, Warden Francis, Officer James Mendoza and Chief of Police Alexander Nicholas. Officer Mendoza, the first to respond, knew Kelley as he had arrested Kelley for OUI two days earlier. When Officer Mendoza arrived at a location where he could observe the girlfriend’s residence, he saw Kelley with what appeared to be a handgun, and relayed his observations to the other responding officers.
Warden Francis went into a wooded area behind the girlfriend’s residence. From that vantage point, later determined to be about 115 feet from Kelley, he observed Kelley sitting on the large boulder. Chief Nicholas and Officer Nicholas, who had responded to the call together and taken positions behind the opened doors of their police cruiser, both knew Kelley from previous encounters. They likewise observed Kelley sitting on the boulder.
Chief Nicholas instructed Mr. Kelley to drop his weapon and show his hands. Kelley responded with an expletive, turned slightly to his right and pointed his handgun in the direction of Chief Nicholas and Officer Nicholas. Chief Nicholas again ordered Kelley to drop the handgun. Kelley replied, “[expletive] you guys, you’re gonna have to kill me.” Additional commands to drop the weapon were given to Kelley by Chief Nicholas. Later, Kelley again briefly pointed his weapon in the direction of Chief Nicholas and Officer Nicholas. Chief Nicholas again ordered Kelley to drop the weapon. Kelley responded, “There’s nothing you can do. You guys are going to have to kill me. Someone is going to die.” Officer Nicholas also attempted to persuade Kelley to drop his weapon by telling Kelley that they could “talk it out” and that he would get Kelley some help.
The officers then saw Mr. Kelley put the handgun to the side of his head. Chief Nicholas again ordered Kelley to drop the weapon. Kelly stretched his arms outward and then pulled them back in. A few seconds later, Kelley pointed his handgun in the direction of Chief Nicholas and Officer Nicholas. Chief Nicholas told Kelley to drop his weapon or he was going to shoot. Kelley continued to point his weapon in the direction of the officers. Chief Nicholas attempted to fire his weapon at Kelley, but Chief Nicholas’ weapon did not fire. Chief Nicholas then ordered Officer Nicholas to shoot. Officer Nicholas fired three shots at Kelley. After Officer Nicholas opened fire, Warden Francis, armed with a rifle, fired a single shot at Kelley. Struck by gunfire, Kelley fell off the boulder to the ground. Emergency medical personnel, who were staged in the vicinity, arrived at the scene and determined that Kelley was dead.
An autopsy and forensic examination by the Office of the Chief Medical Examiner determined that Mr. Kelley died as a result of gunshot wounds. He was struck three times. He was struck (by bullets from Officer Nicholas’ handgun) in the right abdomen and right calf. He was struck (by the bullet from Warden Francis’ rifle) in the right rear of his head.
Several neighboring residents observed in varying degrees the shooting and the events leading up to it. They were interviewed as part of the investigation. Their accounts were consistent with the accounts given by the police officers involved. Also consistent with the several accounts of the event were the video from an Indian Township police cruiser camera, the results of a scene examination and analysis conducted by evidence technicians, and the post-mortem examination conducted by the Office of the Chief Medical Examiner.
Detectives from the Office of the Attorney General went to the scene of the shooting in Indian Township to conduct the investigation. They were assisted by State Police officers and technicians and, later, the Maine State Police Crime Laboratory.
****************************** 1 This was the first time Mr. Kelley had been at the girlfriend’s residence since his arrest two days earlier for operating under the influence of alcohol. That arrest occurred after the girlfriend had called the police to have Kelley removed from her property.
2 Kelley was referring to conditions of bail related to his OUI arrest on May 10, 2008.
3 When Warden Francis saw Kelley point his weapon in the direction of Chief Nicholas and Officer Nicholas and heard what he thought was Mr. Kelley firing his weapon, Warden Francis fired one shot at Kelley. Although civilian witnesses also stated that they thought Kelley had fired his weapon in the direction of Chief Nicholas and Officer Nicholas, no casings from Kelley’s weapon were located near Kelley’s body. Immediately following the shooting and as part of the investigation, Kelley’s weapon was examined. The CZ-Browning model 83 was found to have one live round in the chamber and ten live rounds in the magazine. The hammer was in a cocked position. The full capacity of the weapon was thirteen rounds.
4 The forensic examination disclosed that Mr. Kelley’s blood-alcohol concentration was 0.34% - more than four times the legal limit for operating under the influence.
NEWS RELEASE July 17, 2008 David Loughran, 626-8577