REPORT OF ATTORNEY GENERAL JANET T. MILLS ON THE USE OF DEADLY FORCE BY BORDER PATROL AGENT ON OCTOBER 14, 2013

MAINE - Synopsis In the late evening of October 14, 2013, U.S. Border Patrol Agent Christopher Talbert shot at a vehicle being operated by 16-year old Zachary Wittke of Eganville, Ontario.

Neither Mr. Wittke nor a 14-year-old female passenger from Pembroke, Ontario, nor any other person was injured. Nevertheless, whenever a law enforcement officer in Maine uses deadly force in the performance of the officer’s duties, regardless of the outcome, it is the responsibility of the Office of the Attorney General to determine whether the officer was acting in accordance with the law.

Facts:

During the evening of October 14, 2013, Supervisory Agent William Hardt of the U.S. Border Patrol, assigned to the Rangeley Station, was working in uniform and operating a marked Border Patrol vehicle. At 7:20 p.m., Supervisor Hardt received a report from the Port of Entry in Coburn Gore, Maine, that two English-speaking persons approached a business owner in Woburn, Quebec, and asked for directions to the international border. The business owner reported his observations to Canadian officials at the border crossing, who began searching for the individuals but did not locate them. About a half-hour later at the Rangeley Border Patrol Station, Supervisor Hardt relayed this information to U.S. Border Patrol Agent Christopher Talbert. Agent Talbert was also in uniform and operating a marked Border Patrol vehicle equipped with emergency lights and siren. After the conversation with Agent Talbert, Supervisor Hardt began driving toward Coburn Gore in search of the individuals. At 8:15 p.m., Supervisor Hardt received a report of a “port runner” (term for someone who fails to stop for inspection at the border) at the Coburn Gore Port of Entry. He learned that the vehicle involved was a red truck, later determined to be a stolen red 2002 Dodge Dakota pickup truck (the “Dakota”) bearing Quebec registration plates and owned by a Woburn resident. Supervisor Hardt was on Route 27 just a couple miles south of the intersection of Routes 16 and 27 near Stratton when he heard the report. He alerted the other on-duty agents, including Agent Talbert, of his location. Agent Talbert radioed that he was about five minutes behind Supervisor Hardt. While heading north on Route 27, Supervisor Hardt encountered the Dakota travelling south, a couple miles south of the Coburn Gore border crossing. He turned around and activated his blue lights and siren in an attempt to stop the truck, but the truck sped off. Supervisor Hardt followed and maintained visual contact of the Dakota as it continued southbound on Route 27. As he did so, the truck occasionally slowed down, but then sped up again. When Supervisor Hardt got closer to the Dakota, the driver aggressively hit the truck’s brakes several times in an apparent attempt to cause a collision. The Dakota continued on at high speeds and at one point during the pursuit Supervisor Hardt noted his own speed to be 89 m.p.h. During the pursuit, Supervisor Hardt passed by Agent Talbert, whose vehicle was pulled over on the side of the road on Route 27. Agent Talbert joined the pursuit behind Supervisor Hardt’s vehicle. During the chase, Agent Talbert noted that the Dakota “brake checked” Supervisor Hardt, at times coming to a complete stop and then continuing on. Agent Talbert was aware that the Dakota contained two occupants, but he did not know anything else about them. At least twice during the pursuit, Supervisor Hardt attempted to engage a pursuit termination technique on the Dakota. Each time, however, the Dakota sped away from him and he was unable to engage the technique.

As the pursuit approached Stratton, Agent Talbert, a trainer for the Border Patrol who instructed other agents on pursuit termination techniques, suggested that he take over the pursuit and attempt a termination procedure. Supervisor Hardt recognized that in addition to Agent Talbert’s expertise in termination techniques, the cruiser that Talbert was driving was faster; Supervisor Hardt pulled over in order to afford Agent Talbert the opportunity to pass him and become the lead pursuit vehicle. However, Agent Talbert, whose emergency lights and siren were activated, ultimately decided against using a termination technique because of the high speed of the pursuit.

The Dakota came to a complete stop in the opposite lane of travel just south of Pine Street on Route 27 in Stratton. Agent Talbert believed that the driver of the Dakota had finally decided to stop. Agent Talbert stopped his cruiser at a point later determined to be 32 feet behind the Dakota. He unbuckled his seatbelt, opened the driver’s side door, and started to get out of the cruiser with the purpose of arresting the occupants. While doing so, he observed the Dakota’s backup lights come on and heard it accelerating as it abruptly backed toward him at a high rate of speed. Agent Talbert quickly reentered his cruiser at the same time that it was struck by the Dakota. He fired six rounds from his handgun through his own windshield at the Dakota. Later investigation determined that four rounds struck and shattered the rear window of the Dakota, passed through the cab, and struck the inside of its windshield. One round struck the Dakota’s tailgate, and one round struck the driver’s side rear view mirror. None of the rounds struck the Dakota’s occupants.

Supervisor Hardt drove his cruiser ahead of Agent Talbert’s and swerved to the right toward the Dakota, which was beginning to move forward after ramming Agent Talbert’s cruiser the one time. As it fled, the Dakota struck the right front section of Supervisor Hardt’s vehicle, which later investigation determined to be the cause of a broken steering mechanism on Supervisor Hardt’s cruiser. It was also determined that the same collision caused damage to the Dakota’s left steering mechanism. Nevertheless, the Dakota sped off and continued south on Route 27. A third Border Patrol officer, Agent Nate Gooding, passed by both Supervisor Hardt and Agent Talbert and took over pursuit of the Dakota. Agent Talbert attempted to follow but the damage to his cruiser precluded his driving at a high speed. The cruiser became inoperative a short distance later in Kingfield. Likewise, Supervisor Hardt could only operate his cruiser about three miles before it was inoperable.

Agent Gooding continued to pursue the Dakota but reduced his speed when he learned that officers from the Franklin County Sheriff’s Office and the State Police were preparing to use spike mats to disable the Dakota. However, the Dakota left the roadway without being seen and before reaching the location where the spike mats were to be deployed. The Dakota, drove across a field and into the woods on a snowmobile trail, and came to a stop after it struck a tree head-on and became wedged amongst other trees several hundred feet off Route 27. The truck was located a short time later by a Franklin County deputy sheriff. It was still running and its lights were still on, but it was unoccupied. State Police troopers began a K9 track of the area. Officers soon learned that the occupants of the Dakota were a teenage boy and girl from Ontario. Troopers on the K9 track soon located several items of clothing, including two hooded sweatshirts, in a nearby mill parking lot but did not find the occupants of the now abandoned Dakota. At 11:10 p.m., State Police Lt. Aaron Hayden was on his way to Kingfield. At the intersection of Route 27 and Route 146 in New Portland, Lt. Hayden encountered a red 1996 Dodge Ram pickup truck (the “Ram”), which failed to stop at a posted stop sign, made a wide turn onto Route 27, and crossed the center line of the roadway. Suspecting an impaired driver, Lt. Hayden followed the Ram as it traveled north on Route 27. When it began to slow and pull to the right of the roadway, Lt. Hayden activated his vehicle’s emergency lights and used his spotlight to illuminate the driver. The Ram accelerated and fled north on Route 27 with Lt. Hayden in pursuit at speeds of 65-70 m.p.h. Other officers deployed spike mats in Kingfield in two different locations. The Ram passed over the mats at both locations, resulting in its tires being punctured, but it continued north on Route 27 until immobilized by another trooper using a vehicle termination technique. The Ram came to a stop after striking guardrails alongside Route 27 in Kingfield. The male driver and a female passenger fled over the guardrails to the banks of the Carrabassett River where they were quickly apprehended. It was determined that the driver and passenger in the Ram were the same individuals who had fled from the police earlier in the Dakota, and that they had stolen the Ram from a residence in Kingfield after abandoning the Dakota. The driver was identified as 16-year-old Zachary Wittke of Eganville, Ontario. His companion, a 14-year-old girl from Pembroke, Ontario, was injured in the fall to the river bank and hospitalized. After treatment, she was returned to Canada. Mr. Wittke was detained and charged the next day in Farmington with eluding an officer (Class C crime), passing a roadblock (Class C), aggravated criminal mischief (Class C), and unauthorized use of a motor vehicle (Class D). On October 16, 2013, Mr. Wittke was adjudicated as having committed the crimes, as well as aggravated assault (Class B). He was returned to Canada where he faces further criminal charges.

Analysis and Conclusion The Attorney General is charged by law with investigating any use of deadly force by a law enforcement officer while acting in the performance of the officer's duties. The sole purpose of the Attorney General’s investigation is to determine whether self-defense or the defense of others, as defined by law, is reasonably generated by the facts so as to preclude criminal prosecution. The review does not include whether there could be any civil liability, whether any administrative action is warranted, or whether the use of deadly force could have been averted.

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.

In addition to the legal justification for the use of deadly force in self-defense or the defense of others, a law enforcement officer is justified in limited circumstances in using deadly force to make an arrest or to prevent an escape. Specifically, an officer is justified in using deadly force under circumstances when the officer reasonably believes that the person has committed a crime involving the use or threatened use of deadly force, is using a dangerous weapon in attempting to escape, or otherwise indicates that the person is likely to seriously endanger human life or to inflict serious bodily injury unless apprehended without delay.

Whether the use of force is reasonable is 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 particular situation. The analysis requires careful attention to the facts and circumstances of a particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Attorney General Janet T. Mills has concluded that at the time shots were fired by Agent Talbert at the vehicle being operated by Mr. Wittke in Stratton, it was reasonable for Agent Talbert to believe that deadly force was imminently threatened against him and, in fact, being used against him, and it was reasonable for him to believe that it was necessary for him to use deadly force to protect himself from Mr. Wittke’s actions.

The Attorney General’s conclusions are based on an extensive scene investigation, interviews with numerous individuals, and review of all evidence made available from any source.


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