The Windham man shot by a Cumberland County sheriff’s deputy April 12 had his hands, including the one holding a cocked .357 revolver, by his side when he was killed, according to the Maine attorney general’s investigative files on the case.

The report corroborates claims by Stephen McKenney’s widow that he wasn’t waving the gun around at the time he was shot, as police originally had said.

An attorney for the widow, Vicki McKenney, says the new information about Stephen McKenney’s death means he was much less of a threat than if he had been pointing the gun at police.

“I think if the gun is pointed at him it would give him lots more justification for shooting,” said attorney Daniel Lilley.

The report also states that police made no verbal commands to McKenney for six minutes and 10 seconds after he was told to drop his gun. He was fatally shot nine seconds later.

Attorney General Janet Mills found that Deputy Nicholas Mangino’s use of deadly force was justified because he reasonably believed he and others were threatened with deadly force.

Policing experts say that was the right call because a person can raise a gun and fire before an officer has time to process the threat and pull the trigger, putting the officer and possibly the public in mortal danger.

“If you’ve got a gun and a finger on the trigger, in a fraction of a second you could point the gun and shoot somebody,” said Jon Goodman, of the Portland law firm Troubh Heisler. A former sergeant with Portland police, Goodman is an attorney who often represents officers.

In response to a Freedom of Access Act request by the Portland Press Herald, the Attorney General’s Office this week released 200 pages of investigative information along with ballistic reports and evidence photos. The newspaper had earlier won a court challenge seeking a transcript of the 911 call from McKenney’s wife and one of the cruiser videos from the incident.

The attorney general’s files include summaries of the evidence recovered at the scene, including the .357 Smith & Wesson that McKenney had been holding. The report says the hammer on the pistol was “locked in a cocked position,” and that blood from the shooting stained the front edge of the hammer, which would only be possible if it had been cocked at the time he was shot.

Goodman said a .357 revolver is a double-action firearm, requiring one pull on the trigger to cock the firing pin and a second to have it strike a round.

“When it’s cocked you’ve already done the first click, and literally just the slightest touch of your finger on that trigger and it’s going off,” he said.

Mangino, 25, a deputy for two years, responded April 12 to a call about a suicidal man at 2 Searsport Way in Windham. Mangino does not patrol Windham, but was writing reports at the end of his shift when Windham officers were summoned to the McKenney home at 6:30 a.m.

Vicki McKenney called police because her husband – suffering from debilitating back pain – was planning to kill himself. His intent, Lilley said, was to drive his pickup into the woods and take his life in a way that didn’t threaten anyone else.

Mangino and Windham officers James Cook and Seth Fournier responded and found McKenney inside his condominium with a gun. Officers backed out, and one drove Vicki McKenney away from the house. The officers planned to call in a tactical team to try to communicate with McKenney but never did.

When Stephen McKenney came outside, officers, including Mangino, ordered him to drop the gun. He did not, and at one point he raised it and then lowered the gun “as if he were seeking a target,” the report said.

Mangino, armed with a Bushmaster .223 caliber rifle, was crouched on the passenger side of his cruiser, using the engine block for protection in case McKenney started shooting. The cruiser was parked on the street in front of the house.

Zachary Welch, 23, a civilian, was doing a ride-along with Mangino. The two are aircraft mechanics with the Maine National Guard and Welch was considering a career in law enforcement. Welch was crouched down in the passenger compartment, trying not to draw attention, according to the report. Officers wanted Mangino to get Welch away from the scene, but Mangino could not get to the driver’s-side door without exposing himself to McKenney.

Nine minutes after police arrived, McKenney started walking down the driveway toward Mangino’s cruiser. Fournier shouted a warning to Mangino that “he is walking towards your car right now.”

The investigative narrative does not indicate whether Mangino told McKenney to drop the gun a second time. A summary of officers’ statements prepared by Detective Michael Pulire noted that Welch said he heard Mangino tell McKenney multiple times to drop the gun, but that recollection is not supported by the cruiser camera recordings.

However, Timothy Feeley, special assistant for Attorney General Mills, noted that four other officers and Welch said they heard yelling or “drop the gun” just before Mangino fired.

Mangino had no recording equipment on his cruiser.

A summary of Mangino’s statement makes no reference to whether he told McKenney to drop the gun just before he shot.

Mangino fired a shot, aiming for the torso, when McKenney was 69 feet away. Nothing happened and he thought he missed. He fired again and hit McKenney in the head. The report also says Windham Officer Ernest MacVane had readied his rifle to fire at McKenney when Mangino fired first.

Officers quickly handcuffed McKenney, but he was dead.

The Attorney General’s Office investigated the case as it does all instances of the use of deadly force. The investigation concluded that Mangino reasonably believed he needed to use deadly force to end the threat that McKenney might kill or seriously injure Mangino or someone else.

Since 1990, the Attorney General’s Office has investigated more than 100 such incidents of officer-involved shootings and found the officers justified in every instance.

Until the Attorney General’s Office released its investigative report, it was not clear whether McKenney had been pointing his gun at police. Police officials had said McKenney waved the gun around like he was looking for a target, but did not specify that that was more than six minutes before he was shot.

Vicki McKenney said after the incident, through Lilley, that she did not see her husband point a gun at Mangino. Lilley, who also obtained a copy of the investigative report, said he was unable to get cruiser camera video from the attorney general showing the moment of the shooting, but he said the investigative report confirms his client’s account.

“It turns out the officer admits the gun was not anywhere but by (McKenney’s) side,” Lilley said.

Lilley also said it does not appear that Mangino warned McKenney again as he approached.

“The shooter … didn’t say something – ‘drop the gun’ or ‘don’t go any further’ or ‘we’ll help you’ – nothing. It’s just bang, bang,” he said.

Vicki McKenney is considering a civil lawsuit in the case, Lilley said. The standards for determining whether an officer is justified in using deadly force are different for a civil suit, which must show that the officer’s conduct was not what a reasonable officer would do.

Mills did not return a call seeking comment on whether someone with a gun by his side represents a deadly threat. Her office said she was traveling and couldn’t be reached.

Researchers at Texas State University found that people portraying suspects who were holding a gun at their side were able to point at an officer and fire in 0.36 seconds, while officers with their gun out and pointed could fire in 0.39 seconds after the suspects started moving, according to an article in PoliceOne.com by the Force Science Institute.

Sheriff Kevin Joyce said he has been instructed by the county’s attorney not to comment on the case because of the possibility of a lawsuit. Neither Mangino nor his attorney could be reached for comment.

In his interview with investigators, Mangino describes how at one point McKenney raised his gun and pointed it at Mangino’s position, but didn’t fire. He was “afraid for his life and the life of Mr. Welch,” the report said. He told Welch: “I don’t want to shoot him; I really don’t want to have to shoot him,” the report said.

As McKenney walked toward him, with the gun at his side, Mangino told investigators “his training has taught him action beats reaction.”

That concept is familiar to officers because it is a basic part of their training about when to use force.

“It means that a person who is going to use force on you, as the aggressor, will beat you every time, before you can react as the recipient and defend yourself,” said John Rogers, director of the Maine Criminal Justice Academy. “A person who is using force has already made up his mind he’s going to strike or shoot or cut you with a knife. The person being threatened has to think about, decide … and defend himself.”

He said officer candidates work through about 20 use-of-force scenarios, including confronting would-be attackers with knives and guns who are firing fake bullets. The scenarios show cadets often would have been injured because of delayed reaction time.

“The biggest training hurdle is getting the officer to recognize the threat early enough,” he said.

Copy the Story Link