AARON M, Frey saruion Mau Fee Stat Hours Seerion ei : Avousta, MAINE 04333-0006 Fax: (207) 496-3291 Saar 62023 Chief David St. Piewe Lewiston Police Department 171 Park St Lewiston, ME 04240 Dear Chief St. Pierre: ‘We have completed our investigation and legal review of the incident on August 5, 2019, in Lewiston, involving the use of deadly force by Orficer Jeffrey Burkhardt, The person against whom deadly force was used, Kevin Harvey, age SI, died of a selF-nflcted gunshot wound, ‘Factual Summary On August 5, 2019, at approximately 1143 am, the Lewiston/Aubum 9-1-1 Communications Center received a call from a resident of Robinson Gardens in Lewiston, reporting that “my neighbo: has a gun. He's threatening to kil is prliiend or kill himself, Please hhuny. .. He's trying to getin my door. I'm with his grlfiend and a friend.” The caller identified the neighbor withthe gun ss Kevin Harvey Officers Jeffrey Burkhardt and Anthony Zawistowski, both in uniform, were working a nearby trafic detail and responded together in a marked cruiser, When they arrived at Robinson. Gardens, they heard what sounded lke a gunshot. Officer Burkhardt went tothe caller's residence and spoke with the caller end Mr. Harvey's girlfriend, The giltiend told him that she and Mr. Harvey argued that momning, he threatened her with a pistol, and he expressed an intent to kill her and then kill himself. ‘The girltiend fled fom he house tothe ealler’s home. She heard a shot as she was running to the neighbor's house. Mr. Harvey followed with the gun tothe ealler’s home and then returned to his howse. Other uniformed officers fiom the Lewiston Police Department arrived and set up a perimeter around Mr, Harvey's house. Orficers Burkhardt and Zawistowski walked about 50 yards into the woods behind the house and began to walk back to secure the back of the house when Officer Zawistowski pointed out that the back door to Mr. Harvey's home was open. AS theofficers moved toward the house to get a better view through the back door, they heard what sounded like a gunshot to ther left. Officer Burkhardt turned in the direction of the gunfire and ‘observed a man “proned out” and looking in the direction of the officers. Officer Burkhardt, believing the man had shot at him and Officer Zawistowski, fred a round from his AR 15 rifle in the direction of the man, Radio Communication was made that shots had been fied. Officer Burkhardt directed the prone man to show his hands. The man did not respond. Other officers joined Officers Burkhardt and Zawistowski and approached the man. They found Mr. Harvey ‘with a fatal injury to his bead and s handgun on the ground to his right. Two casings were located near Mr. Harvey's body, which were later determined to have been casings of rounds fired from lhe andgust. The handgus was a Sam Walther model Creed semi-automatic pistol Among items fourd in a search of Mr. Harvey's vehicle was a receipt for Mr. Harvey's purchase that day of the 3mm pistol. Also found in the search was a 250-count box of 9mm ammunition with 15 rounds missing and a black gun case with a 15-round magazine. A 9mm fired ceasing and a live cartridge were recovered from near the back deck of Me. Harvey’s home. A post-mortem ecamination by the Office of Chief Medical Examiner in Augusta determined Mr. Harvey's cause of death o bea self-inflicted gunshot wound tothe head. He had no other gunshot wounds. Discussion and Legal Analysis ‘The Office of the Attorney General has exclusive responsibilty for the direetion and control of any criminal iavestigation of a law enforcement officer, who, while acting in the performance of the officer's duties, uses deadly foree.' The detectives who conduet these investigations are indeperdent of any other law enforcement ageney. The sole purpose of the investigation in this matter was to determine if criminal prosecution was warranted or if self= defense oF the defense of others was reasonably generated by the facs.* Any such prosecution would require the State to disprove selfsdefense or the defense of others beyond a reasonable doubt. The investigation di not include an analysis of whether any personnel action might be warranted, whether the use of deadly foree could have been averted, or whether there might be civil liability. Indeed, state law provides that the fact that conduct may be justifiable under the law does not abolish or impair any other available legal remedy. Whether the use of foree by alaw enforeement officer is reasonable is based on the totality of the particular circumstances and judged from the perspective of a reasonable officer on the scene, allowing forthe fat that police officers are often forced to make split-second decisions about the amount of force necessary in given situation, The legal analysis requires careful attention tothe facts and circumstances ofeach ease, including the severity of the erime threatened or committed and whether the suspect poses an immediate ‘threat to the safety of others TSMR. § 200-4 2 Under Maine lw, fora aw enforcement fcr to lawl se deadly force in adefense othe defense of thers, two requirements ust be met. Fist, the oficer mast reasonably belive that ula deadly fre imminent ‘heated agaist the fcr or anther person and, sesnd the fier mas reasonalyBlieve hat the we of deny fone is necesary to defend the oie wer peson. IFA MRS. § 107QKA).Conclusion When Officer Burkhardt fired a single shot inthe dreetion of Mr. Harvey, he reasonably believed that Mr. Harvey was shooting at Officer Zawistowski and him. Officer Burkhardt and Officer Zawistowski wereaware that Mr. Harvey was armed and that he had previously discharged the firearm and threatened to kill his girlfriend and himself. Mr. Harvey had fled into the woods behind his house, and only he and the responding officers were in the woods atthe time that he fired his gun. When Officer Burkhardt tuned in the direction ofthe gunfire, he observed a prone ‘man looking in his direetin. Believing that the man had fired at the officers, Officer Burkhardt shot atthe man to preven: him from shooting atthe officers again, Infact, the gunfire thatthe officers heard was Mr. Harvey shooting himself in the head, but that information was not known to Officer Burkhardt at the time that he fired at Mr. Harvey. All the facts and circumstances point to the conclusion that Officer Burkhardt acted in the defense of himself and Officer Zawistowski at the time he used deadly force. Sincerely, a RS ‘Aaron M. Frey ‘Attorney General