Report of Maine Attorney General on the Use of Deadly Force by State Police Troopers

Synopsis - On September 27, 2014, Shad Gerken, 35, of Woodville, was shot and killed by three State Police troopers after a standoff of several hours in a wooded area off the Woodville Road in Chester, Maine. The troopers, all members of the State Police Tactical Team, were Sgt. Nicholas Grass, Sgt. Donald Shead, and Det. Greg Mitchell.

Discussion

The Attorney General is charged by law with investigating any incident in which a law enforcement officer uses deadly force while acting in the performance of the officer's duties. The investigators in the Office of the Attorney General who conduct these criminal investigations are independent of and unaffiliated with any other law enforcement agency. The purpose of the Attorney General's investigation of the incident in Chester on September 27, 2014, 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 troopers who shot Mr. Gerken. 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 the 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

Early in the morning of Saturday, September 27, 2014, a motorist driving on a camp road in rural Woodville encountered a person he knew to be Shad Gerken walking along the road and carrying a gallon-sized plastic jug filled with what appeared to be swamp water. The motorist spoke with Mr. Gerken, who asked him if he saw the "war eagle" when he looked to the sky. When the motorist said no, Mr. Gerken said "there is death in the air," took a drink from the jug, and walked off. The motorist continued on his way. He did not report this observation to anyone at the time.

About two hours later at around 10 a.m., another motorist driving on the Woodville Road in Chester called the Penobscot County Sheriff's Office to report that a man - later determined to be Mr. Gerken - was walking along the road with a large knife in his hand, shouting and staring at passing traffic. Penobscot County Deputy Sheriff Michael Knights was assigned to investigate.

At around noon, a resident on the Woodville Road in Chester reported to the Sheriff's Office that two hours earlier, his eight-year-old niece walked to the end of her grandparents' driveway to retrieve their mail when she saw a man with a large knife, which he was holding down to his side. He was only a few feet from the girl when he told her to stop looking at him or he would kill her. The girl ran back to her grandparents' residence, and reported what had happened.

After the call from the motorist, Deputy Knights and Game Warden Sgt. Ronald Dunham located Mr. Gerken on the Woodville Road in Chester at about 10:30 a.m. Mr. Gerken, armed with the large knife, ran into the woods when he saw the two officers. The officers ran after him. Warden Dunham attempted to stop Mr. Gerken with pepper spray but it had no effect on him, despite his having sprayed Mr. Gerken directly in the face. As the foot pursuit continued, Sgt. Dunham sprayed short bursts of the pepper spray at Mr. Gerken every time he turned his head to look at the officers. The chase changed direction and the officers found they were headed back to the Woodville Road.

As the pursuit neared the road, Sgt. Dunham, fearful of the potential risk Mr. Gerken posed to the public, as well as a possible opportunity for Mr. Gerken to access his unlocked patrol vehicle, attempted to disarm Mr. Gerken. He pushed Mr. Gerken into a tree and, as Mr. Gerken fell to the ground, he grabbed the knife, which Mr. Gerken was holding tightly in his hand. Mr. Gerken would not relinquish control of the knife. Sgt. Dunham attempted to peel Mr. Gerken's fingers back from the knife. In the process, Sgt. Dunham sustained lacerations to his own hand. He concluded that Mr. Gerken was too strong to disarm and he backed away. Mr. Gerken was on the ground on his back and still armed with the knife. The officers told him several times to drop the knife.

Lincoln police officer Brandi Alton arrived. Sgt. Dunham again pepper-sprayed Mr. Gerken, but again with no effect. Sgt. Dunham asked Officer Alton to deploy her electronic weapon (Taser). Officer Alton fired the Taser and, while it appeared to have some effect on Mr. Gerken, he steadfastly refused to relinquish control of the knife, even after three more uses of the Taser and more bursts of pepper spray.

Other officers arrived, including State Police Trooper Thomas Fiske. Trooper Fiske and Sgt. Dunham made more attempts to persuade Mr. Gerken to relinquish the knife and surrender. Mr. Gerken remained non-verbal throughout this period. With more officers present to prevent Mr. Gerken from eluding them, Sgt. Dunham, Deputy Knights, and Officer Alton moved further away from him. The State Police Tactical Team and Crisis Negotiation Team were requested and fully briefed of Mr. Gerken's actions up to that point, including the report of his earlier threat to kill the eight-year-old child on the Woodville Road. In the meantime, further attempts to get Mr. Gerken to give up the knife continued but to no avail.

During the course of the standoff, Mr. Gerken remained largely silent except for a few outbursts during which he stated that he had the power of lightning, that Satan had raped his father, that he had killed Satan, that he was the angel of death, and other similar statements. Mr. Gerken licked the blade of his knife at one point and at another time, while violently waving the knife, he threatened to cut the officers and feigned doing so. At other times, he appeared ready to stab himself, holding the knife to different parts of his body.

Crisis negotiators consulted with a psychologist who provided Mr. Gerken's mental health history, including diagnoses of bipolar disorder, post traumatic stress disorder, attention deficit hyperactivity disorder, depression, and alcohol abuse, as well as medications prescribed to Mr. Gerken. The psychologist offered ideas primarily related to references to Mr. Gerken's three children that he believed could help in the negotiations. As the standoff continued, however, persistent attempts to persuade Mr. Gerken to relinquish his knife were unproductive. Officers formulated a plan to disarm Mr. Gerken. The plan, which involved foam baton rounds and pressurized water bursts from a fire hose, was to be initiated before nightfall given the risk of not being able to clearly observe Mr. Gerken or his movements in the dark. More than six hours had elapsed since the first attempts by Sgt. Dunham and Deputy Knights to disarm Mr. Gerken. During this time, arrest warrants were issued charging Mr. Gerken with felony crimes associated with threatening the eight-year-old child and injuring Sgt. Dunham earlier in the day, and threatening officers with the knife during the long standoff.

The officers initiated the plan to take Mr. Gerken into custody by telling him he was under arrest and again telling him to relinquish the knife, and submit to custody. He ignored the instruction. At the same time that one officer fired a foam baton round at Mr. Gerken, another activated the fire hose, and four members of the Tactical Team - Sgt. Shead, Sgt. Peter Michaud, Sgt. Grass, and Det. Mitchell - in a perimeter around and in close proximity to Mr. Gerken advanced toward him to take him into custody. The baton round struck Mr. Gerken, but neither it nor the water burst from the fire hose had the intended effect. Mr. Gerken lunged at Sgt. Shead and Det. Mitchell aggressively with the knife raised over his head pointing downward. In response, Sgt. Shead fired several times at Mr. Gerken, who was within about 15 feet of the officers and advancing. Mr. Gerken was struck and fell to the ground. At this point, he was within just a few feet of the officers. Despite several commands to stay on the ground, he started to get up, still armed with the knife. Sgt. Shead fired at him again at the same time that Det. Mitchell and Sgt. Grass fired several rounds. Mr. Gerken, struck by multiple rounds, fell to the ground.

Sgt. Shead (who is also a licensed paramedic) took the knife from Mr. Gerken and checked for vital signs while summoning previously-staged emergency medical personnel. The medical personnel pronounced Mr. Gerken dead. Dr. Mark Flomenbaum, the state's Chief Medical Examiner, performed a postmortem examination and autopsy two days later and concluded that Mr. Gerken died as a result of multiple gunshot wounds, the number of which was determined by Dr. Flomenbaum to be 20-26. The examination also disclosed that Mr. Gerken was suffering from Hashimoto's thyroiditis, an autoimmune disorder that causes the immune system to attack the thyroid, resulting in hypothyroidism, a condition that sometimes has psychotic side effects. Dr. Flomenbaum also observed that hypothyroidism, including Hashimoto's thyroiditis, is a known coexisting condition with mental illness.

Mr. Gerken had no criminal record, although he was charged a month earlier with 10 counts of animal cruelty for allegedly failing to care for several dogs kept at his residence in Woodville. About six months earlier, Mr. Gerken was reportedly suffering from delusional thinking and was hospitalized after saying that he was half Apache and half angel, that he could not be harmed because he had Godly armor, and that he would kill himself if his girlfriend left him. As recently as a month earlier, Mr. Gerken was behaving in an increasingly volatile and threatening manner, stalking his girlfriend who, with their children, moved out of the Woodville residence after being threatened by Mr. Gerken, who also told her that God was telling him to kill her.

Conclusion

Attorney General Janet T. Mills concludes that at the time Sgt. Shead, Det. Mitchell, and Sgt. Grass shot Mr. Gerken, each of them reasonably believed that unlawful deadly force was imminently threatened against them and against other officers within the effective range of the knife brandished by Mr. Gerken. It was reasonable for each officer to believe it necessary to use deadly force to protect himself and others from deadly force. 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. Mr. Gerken threatened to kill a child earlier in the day. He was delusional and engaged in threatening behavior with a dangerous weapon throughout the hours-long encounter with the police. He injured a game warden who tried to disarm him, and he remained in control of a dangerous knife throughout the standoff, steadfastly refusing to relinquish it. Officers tried many times to subdue Mr. Gerken with lesser means, including an electronic weapon (Taser), chemical spray, foam baton rounds, and a fire hose. They tried to negotiate with him over many hours, using all available negotiating tools, including trained negotiators and consulting with a psychologist with access to Mr. Gerken's mental health treatment records.

It is beyond the scope of this report and beyond the authority and expertise of this office to determine with any reasonable certainty Shad Gerken's motivations, his state of mind, or the medical or psychological underpinnings of his behavior and actions on September 27, 2014.

 

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