AUGUSTA, Maine — Maine Attorney General Janet T. Mills has ruled that the July 8 fatal shooting of retired U.S. Marine Lt. James Popkowski by police outside the Togus Veterans Affairs Medical Center was justified.
Popkowski had repeatedly threatened to kill the hospital’s medical director, Mills said in a report released Tuesday.
“The children of the Director of the VA Togus will grow up fatherless … just as my daughter will due to this man’s utter incompetence,” James F. Popkowski, 37, wrote to his mother through a social networking site July 5. “I know where he lives. … I know his schedule. … I know what he drives. … I have pics of his entire family. … He is a dead man walking.”
Popkowski, 37, of Grindstone Township had gone to the Togus VA Medical Center armed with numerous guns and escalating concerns about the lack of care he had been receiving from the hospital. He was shot at by Sgt. Ron Dunham of the Maine Warden Service and Officer Thomas Park of the Department of Veterans Affairs after he turned toward them with his weapon drawn.
“The Attorney General has concluded that at the time that shots were fired at Mr. Popkowski, it was reasonable for Officer Park and Sgt. Dunham to believe that deadly force was imminently threatened against them,” the report said. “In addition, both officers reasonably believed it was necessary to use deadly force to protect themselves from the imminent threat of deadly force against them. Because the law enforcement officers used deadly force in self-defense, no criminal action will ensue against the officers involved in this tragic incident.”
Kate Simmons, a spokeswoman for the Maine Attorney General’s Office, said the report speaks for itself and Mills was not going to comment further on the case.
“Other agencies can take various action, including civil action, but the case is closed as far as the Attorney General’s Office is concerned,” Simmons said.
Mills met with family members of Popkowski on Tuesday morning to let them know the result before it went public. Popkowski’s family members have said they would refrain from comment until the investigation was complete. They could not be reached for comment Tuesday.
Angela Adams, a close friend of Popkowski’s who administers a Facebook page in his honor, has said previously that her friend’s death could have been avoided.
“James knew what he deserved,” Adams said. “He deserved to be treated like a human. Even if he were a prisoner, he would have been treated more fairly. He would have had three square meals, a cot to sleep on, and his medications couldn’t have been denied.”
A report on the case issued recently by the Department of Veterans Affairs’ Office of Inspector General at the request of U.S Rep. Mike Michaud did not mention Popkowski by name, but Michaud confirmed that it was about the retired Marine.
That report, coupled with the attorney general’s report, detailed the following account of the circumstances that led to Popkowski’s death:
He grew up in the Medway area and graduated from high school in 1990. Shortly thereafter, Popkowski enlisted in the U.S. Marine Corps. In 2003, he was diagnosed with a rare and aggressive form of cancer that forced him to retire. As a retiree, he qualified for certain medical benefits from the Department of Veterans Affairs, including outpatient care at the Togus VA hospital, but Popkowski regularly visited a VA outpatient clinic in Lincoln closer to his home.
The veteran, who also was being treated for major depression, said problems with his doctors began almost immediately. His second VA clinic visit in January 2006 was canceled by clinic staff, but Popkowski did not receive notification.
A short time later, Popkowski received a new primary care physician, but the problems persisted. After a few months of missed appointments, including three consecutive “no-shows,” Popkowski was taken off his doctor’s roster.
In October 2008, one provider wrote that he considered the veteran “a high risk for suicide due to, among other circumstances, cancer, a shortened military career and isolation.”
By 2009, Popkowski began complaining more frequently about the quality of medical treatment he was receiving from the VA hospital. In December of that year, an employee of the Lincoln clinic reported that Popkowski threatened to blow up the clinic unless he was allowed to speak with a particular physician assistant.
In response to that incident and because the Lincoln outpatient clinic does not have a police presence, Popkowski was told he could no longer receive services there. Instead, he would be restricted to the VA hospital at Togus for any necessary medical services.
On July 7 — one day before the shooting — a neighbor saw Popkowski cleaning a gun inside his garage. Popkowski told the neighbor that doctors were trying to kill him by terminating his stem cell treatments. Later that night, the neighbor said he heard gunshots coming from Popkowski’s property
The next morning, when the neighbor came to check, Popkowski had left.
By 4:30 a.m., he already was on the grounds of the VA hospital in Augusta when Officer Park approached him as he sat on the steps of a building. Popkowski and the officer had a brief exchange, and Popkowski was asked to leave and come back during normal business hours.
Popkowski drove from the grounds but did not leave the area.
Shortly after 9 a.m., two VA employees on break outside heard gunshots coming from woods near the hospital grounds. The employees went back inside to report the gunshots, which were heard by at least two others.
Officers went to the location of the gunshots. Park recognized Popkowski — who now was wearing a shoulder holster — from his earlier encounter. The veteran pointed a handgun directly at Park and at two game wardens, Dunham and Joey Lefebvre, who had responded to the gunshots.
Dunham and Park both commanded Popkowski to drop the gun. He continued walking toward them, gun raised. The officers fired several rounds, killing Popkowski with a wound to the neck from a shot fired by Park.
A rifle was recovered near the shooting scene, along with a scope and GPS device. Five more loaded firearms and several hundred rounds of ammunition were found in Popkowski’s truck.
The officers involved were temporarily placed on leave in the wake of the shooting, but both Dunham and Park have returned to duty.
“It is beyond the scope of this report and beyond the authority and expertise of this office to determine Mr. Popkowski’s motivations, his state of mind, or the medical or psychological underpinnings of his behavior and actions on July 8, 2010,” the attorney general’s ruling stated.
The ruling is not unexpected. According to statistics provided by the Attorney General’s Office shortly after Popkowski’s death, police in Maine had used deadly force 82 times over the last 20 years. In 44 cases, the use of force resulted in death. In none of those cases was an incident of deadly force ruled not justified.
Under Maine law, for an individual to be justified in using deadly force for self-defense or the defense of others, two requirements must be met. First, the individual must reasonably believe that deadly force is imminently threatened against the individual or against someone else, and second, the individual must reasonably believe that deadly force is necessary to counter that imminent threat.
The state’s review process does not examine events leading up to a shooting or whether alternative means could or should have been used. Some departments conduct their own internal affairs review of any police shooting, but that process is rarely public.
Some state legislators, including Rep. Donald Pilon, D-Saco, believe the state’s criteria are too narrow. Pilon unsuccessfully co-sponsored legislation last year that sought to improve the review process for incidents where deadly force was used.