Posted by Edmund R. Folsom, Esq., February 22, 2017

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  I offer it to potentially aid understanding only.

This past Saturday, February 18, 2017, Portland Police Sgt. Nicholas Goodman shot 22-year-old Chance David Baker at Union Station Plaza, in Portland. The police were called to Union Station Plaza on reports that Baker was walking through the parking lot, screaming and pointing a rifle at cars.  Baker reportedly died from a single gunshot to his head, fired from Goodman’s rifle some 100’ away.  The incident marks the second time Goodman has shot someone while serving as a Portland Police Officer.  It is the third officer-involved shooting in Maine in 2017.  The Attorney General’s Office is investigating, under authority of 5 M.R.S. §200-A, as it investigates all officer-involved shootings.  It is purely a criminal investigation, to determine whether the officer should be criminally prosecuted.  In my lifetime, I don’t recall a single Maine police officer being criminally prosecuted for an officer-involved shooting.

To understand how the A.G.’s Office applies the deadly force standard in an investigation of an officer-involved shooting that results in death, let’s look at the recent Report of the Attorney General on the Use of Deadly Force by Presque Isle Police Officer on May 7, 2016, in Presque Isle,* issued December 19, 2016.  In that report, the A.G.’s Office explains its investigative/prosecutorial decision-making perspective as follows:

“The purpose of the criminal investigation of the incident in Presque Isle on May 7, 2016, which resulted in Officer Hafford shooting Mr. Sam, was to determine whether the facts reasonably generated a case of self-defense, including the defense of others, so as to preclude criminal prosecution of Officer Hafford. 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 might be warranted, of whether the use of deadly force could have been averted, or of whether there might be civil liability. Indeed, State law provides that conduct determined to be permissible under the Criminal Code does not abolish or impair any other remedy available under the law.

There are two requirements with which any person, including a law enforcement officer, must comply to legally use deadly force in self-defense or in defense of a third party. First, the person must actually and reasonably believe that there is an imminent threat of deadly force against the person or against someone else; and, second, the person must actually and reasonably believe it is necessary to use deadly force to counter that threat. Whether the use of deadly 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.”

Title 17-A M.R.S. §107(2) defines the conditions under which a police officer is justified in using deadly force.   An officer is justified in using deadly force for self-defense or to defend a third person from what the officer reasonably believes to be the imminent use of unlawful deadly force.  17-A M.R.S. §107(2)(A).  An officer is also justified in using deadly force to effect an arrest or to prevent a person from escaping arrest, but only if the officer reasonably believes:  (1) the person has committed a crime; (2) the crime the person committed involved either the actual or threatened use of deadly force; (3) the person is using a dangerous weapon in attempting to escape or is otherwise likely to seriously endanger human life or to inflict serious bodily injury unless apprehended without delay; and the officer has either (4)(a) made reasonable efforts to advise the person that the officer is a police officer attempting to effect an arrest or prevent the person’s escape from arrest, and the officer has reasonable grounds to believe the person is aware of that advice; or (4)(b) the officer reasonably believes that the person to be arrested otherwise knows that the officer is a law enforcement officer attempting to effect an arrest or prevent an escape from arrest.  17-A M.R.S. §107(2)(B).

As we can see from the description of the controlling statute immediately above, the deadly force standard is a little broader than what the December 19, 2016, A.G.’s opinion dealt with.  Deadly force might be justified not only when an officer reasonably believes unlawful deadly force is imminently about to be inflicted on the officer or on a third person, but also where an officer attempts to make an arrest or prevent escape from arrest for certain offenses.  Either way, if the facts make it appear that the defense is a reasonable hypothesis to consider, no officer can be criminally convicted for the use of deadly force unless the State can disprove self-defense or defense of others beyond a reasonable doubt.

Let’s look at how an attempted prosecution for manslaughter would play out against an officer who shot and killed someone armed with a gun.  Manslaughter is committed when a person recklessly or with criminal negligence causes the death of another human being.  17-A M.R.S. §203(1). Recklessness is therefore the least culpable mental state that the State must prove in a manslaughter prosecution.   Proof that a person acted recklessly requires proof that a person consciously disregarded a certain risk, and the disregard of risk, “when viewed in light of the nature and purpose of the person’s conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.”  17-A M.R.S. §35(3).  As applied to justified use of deadly force by a police officer, this means that once the defense is generated as a reasonable hypothesis, the State has the burden to prove, beyond a reasonable doubt, either: (1) that the officer did not believe his or her actions were necessary to defend himself, herself or a third person against the imminent use of unlawful deadly force;  or (2) if the officer did in fact believe his or her actions were necessary for that purpose, that the officer’s belief, when viewed in light of the nature and purpose of the officer’s conduct and the circumstances known to the officer, involved a gross deviation from what a reasonable and prudent person would have believed in the same situation.  If the State were to prosecute the officer for murder– intentionally causing another person’s death—in order to overcome a plausible justified use of deadly force defense the State would need to prove beyond a reasonable doubt that the officer knew it was unnecessary to shoot the person to prevent the imminent use of unlawful deadly force against the officer or a third person, but went ahead and shot the person anyway.

This is why the A.G. is unlikely to ever find against an officer, in a police-involved shooting case, where the person who was shot had a gun or a knife in his hand and refused to abandon it while in close proximity to the officer or a third person.  There simply cannot be a successful criminal prosecution in nearly any such circumstances.  Does an A.G.’s finding against prosecution mean that the officer’s actions were necessary, or wise, or the only available option?  No, it does not. There are many situations in which an officer shoots someone to death that could have been resolved without anyone dying, but in which the officer was nevertheless justified under Maine criminal law in shooting the person.  Tense situations may sometimes be calmed or escalated, depending on the personalities of those involved or the skills of the involved officers in calming versus escalating bad situations.  That aside, once things have reached the point where an armed person makes a police officer fear that he, she or a third person is about to be shot, stabbed or bludgeoned, well, there you are.  And once you are there, that’s when the officer pulls the trigger, and that’s the point of assessment for the A.G.’s determination whether the officer should be prosecuted.  Should it be any surprise, then, that the A.G.’s determination as to whether the officer should be prosecuted is always “No”?  Nevertheless, should the officer still hold his or her job?  Should the officer be held liable for a money judgment for damages?  What could have been done differently so that everyone could have left the scene with a pulse?  Those are different questions—questions not answered by an A.G.’s investigation into a police-involved shooting.

How can a person avoid being shot by the police?  If there is a perfect answer, I don’t know it.  But on the flip side, I do know how a person can pretty well guarantee to be shot by the police.  If you want to ratchet up your odds of being shot, do the following:  (1) make threats to harm someone else, or to maybe even shoot yourself; (2) pick up a weapon and at least carry it around, or preferably, wave it around menacingly at others; (3) when the police arrive and tell you to abandon the weapon, don’t; (4) make some ambiguous or twitchy movements likely to make other people fear that you’re about to do something rash with your weapon.  Right around this point, chances are really excellent that a cop will shoot you.  On the other hand, if you want to drastically lower your odds of being shot by a cop, the best thing is to not do any of the above, but definitely, under no circumstances, should you ever proceed past step 2.

* http://www.maine.gov/ag/news/article.shtml?id=726445

Addendum, May 21, 2017. 

This post does not constitute legal advice.  It is not intended as legal advice and should not be construed or taken as legal advice!   When I first posted the piece, I did not consider this disclaimer necessary.  But a short while ago, I received a phone call from someone asking why I titled the piece “How To Get Shot By A Police Officer.”  The caller asked whether I realized it might be taken as advice by those who want to get shot by a police officer.  I explained that the title is a little facetious, or tongue in cheek.  It’s actually meant to address how to reduce the risk of being shot by a police officer.  I could have called it “How Not To Get Shot By A Police Officer,” but people would have screamed at me that police shoot certain classes of people for no reason at all, all the time, and there’s nothing they can do to stop it.  By calling the piece “How To Get Shot By A Police Officer” I allow there are ways anyone can drive up the risk of being shot to near certainty but offer that there are, on the flip side, ways to drastically reduce the risk no matter who you are.   Personally, it would never occur to me to grab, brandish, or continue to hold any of my guns during any sort of confrontation with police, especially if I were ordered to move away from or put the gun down.  I have always simply understood that doing any of those things would get me shot to death.   But it  has become obvious to me that this understanding that I just happen to have must be some sort of gift that not everyone has.  Think of “How To Get Shot By A Police Officer” as my attempt to share the gift.  I simply forgot for a moment that one can never be too careful with disclaimers in these very strange times.

I also had a lawyer who used to be a police officer call me shortly after I posted a link to the piece on Facebook.  He told me he took the link down from his Facebook page after someone commented that the piece is anti-police.   That fits well with the email I received more recently from someone who told me I have no right to judge Chance David Baker because I didn’t know him and he was a fine young man.  I didn’t think I was judging Chance David Baker, but if I was, it was by the same token that I’d judge that a police officer is likely to face a homicide charge if he shot an unarmed man in the back for calling him a “pig” while the unarmed man ran away.  Would the police officer’s friends and relatives write to me to say I don’t know the officer and therefore have no right to judge him?  Maybe.  Would they be wrong in that criticism?  Yes.  Would the family or friends of the unarmed guy who was shot running away tell me I have no right to judge the officer, because I don’t know him?  Not a chance…