Maine Attorney General Janet Mills on Tuesday, Dec. 21, in a press release from the Maine Attorney General’s Office, issued her findings in the shooting death of James F. Popkowski of Medway on July 8, 2010, at the Togus VA Medical Center.

Mills concluded that the two law enforcement officers who shot and killed Popkowski did not commit any wrongdoing in the shooting.

The following is a summary of her report:

Facts

James F. Popkowski, 37, of Medway, was shot and killed by law enforcement officers during an armed confrontation on the grounds of the Togus hospital facility of the U.S. Department of Veterans Affairs off Route 17 in Augusta.

Popkowski lived by himself in the Medway area, where he had been raised by an aunt and uncle and graduated from high school in 1990. Upon graduation, Popkowski enlisted in the U.S. Marine Corps. During his military career, he attained commissioned officer status.

In 2003, Popkowski was diagnosed with a rare and aggressive form of cancer. A stem cell replacement resulted in serious long-term side effects, and Popkowski medically retired from the Marine Corps. As a retiree, he qualified for certain medical benefits from the Department of Veterans Affairs, including outpatient care at the VA hospital at Togus. Popkowski routinely visited a VA outpatient clinic in Lincoln, which was closer to his home than the Togus facility in Augusta.

By 2009, Popkowski was expressing significant dismay with the quality of the medical treatment he was receiving from the VA hospital. He told others that he was not receiving his medications in a timely manner from Togus. He also expressed his feeling that the VA hospital at Togus was not responsive to his medical condition.

On Dec. 11, 2009, an employee at the Lincoln VA outpatient clinic contacted the Togus Police Department and reported that Popkowski had called her that day and threatened to load guns into his truck, drive to the Togus VA hospital, and “blow it up,” unless he was allowed to speak with a particular physician’s assistant. The employee told the Togus Police that Popkowski was angry because he did not think he was receiving his medications in a timely manner. The employee told Popkowski that prescriptions for his medications had been sent to the pharmacy at the Togus facility and that he would receive the medications soon.

The Togus Police were able to determine that Popkowski’s medications had been delivered to his home the afternoon of Dec. 11, a few hours after Popkowski’s call to the Lincoln clinic. Three days later, the Togus Police received a message from the Penobscot County deputy sheriff that the deputy had indeed visited with Popkowski as a result of the Dec. 11 request and, in the deputy’s opinion, Popkowski did not constitute a probable threat.

As a result of this incident and because the Lincoln outpatient clinic does not have a police presence, Popkowski was notified by the Togus VA that he could no longer receive services at the Lincoln VA outpatient clinic, and that he would be restricted to the VA hospital at Togus for any necessary medical services to which he was entitled.

On July 5, 2010, a few days before his death, Popkowski sent a series of messages through a social networking site to his biological mother in Massachusetts. On July 5 at 4:51 p.m., Popkowski wrote: “Mother … seeing the VA has not filled critical prescriptions in over three month … no surprise of my weight loss … if the cancer returns, whether it is the VA’s fault, or not … the children of the director of VA Togus, Maine, will grow up fatherless … just as my daughter will due to this man’s utter incompetence … 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!”

Three minutes later (4:54 p.m.), Popkowski added: “…i n fact, I have his name printed on some specially modified rounds.”

Popkowski continued four minutes later (4:58 p.m.): “… I hope (the) director . . . is a man of faith … I hope he prays my cancer does not return and I snap … if I do snap …he will be my first priority … if my health, my life, were the least bit of his concern … he would ensure my meds were not three-plus months late … DEAD MAN WALKING!”

And, finally, two minutes later (5:00 p.m.), Popkowski wrote: “… INCOMPETENT PEOPLE SHOULD NOT BE IN POSITIONS THAT ALLOW THEM TO IMPACT THE LIVE’S OF OTHERS!”

During the afternoon of July 7, 2010, a neighbor was doing work at  Popkowski’s house in Medway. Popkowski was in his garage cleaning a gun and told the neighbor that doctors were trying to kill him by terminating his stem cell treatments. The friend also said that later that night, sometime between 10 p.m. and midnight, he heard gunshots coming from Popkowski’s property. The neighbor went to Popkowski’s house the next morning, July 8, only to discover that Popkowski was not at home.

During the early evening of July 7, another neighbor and his family were traveling past Popkowski’s home and saw Popkowski’s dogs in the road. At the same time, the neighbor’s children pointed out a crudely-constructed sign outside Popkowski’s house.  The sign, containing large block letters in yellow paint on dark-colored opaque plastic garbage bags strung together on a wooden frame, read: MUCH LIKE ME, VA DIRECTOR = DEAD MAN WALKING. In smaller lettering on the same sign: SELF DEFENSE: HE IS NOT SENDING CRITICAL POST STEM TRANSPLANT MEDS. HE IS SLOWLY KILLING ME. WHAT IF I KILL HIM IN DEFENSE?!?!?!?!

On July 8, at about 4:30 a.m., Officer Thomas Park of the VA Police was patrolling the VA grounds when he saw a man reading a newspaper while sitting on the steps of Building 203. The man identified himself as James Popkowski and told Officer Park that he was waiting to see the director of the facility. Park told Popkowski that the director was not yet in his office and, after determining that Popkowski was not an in-patient at the hospital, instructed Popkowski that he would have to leave the facility and return during normal business hours.

Park observed Popkowski to be upset, “tense and aggravated” and “potentially confrontational.” Popkowski told the officer that he was upset with the VA because he was not getting his medications. Park attempted to persuade Popkowski to consult with the patient advocacy office at Togus, but Popkowski responded that he had already talked with all the people with whom he intended to talk and that he was going to do something about the deficiencies sooner or later.

About 45 minutes later, at about 5:15 a.m., a Togus employee on his way to work was driving on Route 17 in Augusta when he observed a green pickup truck parked next to a water pump house a short distance from the north gate of the Togus VA. The employee saw a man at the rear of the truck, and presumed that the man was a water district employee checking on the pump house. Several other passersby reported seeing the same same pickup truck parked near the pump house.

At about 9:20 a.m., two female employees of the VA were on break at a picnic table behind Building 209 when they heard gunshots coming from the direction of a small pond on the grounds, and the sound of bullets coming close to them. Both women ran into Building 209 and reported the gunshots to the Togus Police. At least two other persons in the parking lot near Building 209 likewise heard gunshots.

Still on duty, Officer Park overheard a radio transmission to another officer reporting gunshots being fired toward Building 209 from a location near the pond and was instructed to check the area of the pump house off Route 17, a short ways from the north gate of the Togus VA facility. Park drove to the pump house where he observed the pickup truck parked next to the building and recognized it immediately as the same truck Popkowski had driven off the Togus grounds nearly five hours earlier. Park observed the stock of a rifle or shotgun inside the cab of the truck and also saw two dogs in the back of the truck.

Speculating that Popkowski was the person shooting near the pond and concerned that he would return to retrieve the firearm inside the truck, Park decided to stay in the area for a while. After hearing a single gunshot from the same area of the woods, Park positioned himself near the pump house in view of the wooded path.

By happenstance, two game wardens, Sgt. Ronald Dunham and Warden Joey Lefebvre, were traveling together in a warden service vehicle on Route 17 when Dunham saw Park near the pump house with his service weapon drawn. While Lefebvre parked the vehicle, Dunham joined Park who told Dunham that there was a man in the woods and the man had just fired a shot. Park observed a man he recognized from his earlier encounter as Popkowski walking down the path toward Dunham. Popkowski was wearing a shoulder holster and a baseball cap, and was now dressed in a green jump or flight suit with the pant legs tucked into his socks. Popkowski, arm extended, was holding a handgun and pointing it directly at Dunham.

Dunham, positioned at the end of the path next to Route 17, had not yet observed Popkowski but, along with Park, heard Popkowski shout in an agitated manner, “You guys got a problem with my truck?  Who the hell are you?”  Dunham identified himself as a game warden and then observed Popkowski walking at a brisk pace down the path and pointing a handgun directly at him. Dunham and Park issued successive commands for Popkowski to drop the gun. Popkowski, however, continued to advance on Dunham with his handgun pointed directly at Dunham, at which point Park and Dunham simultaneously fired several rounds at Popkowski.

Popkowski died at the scene from what the Office of the Chief Medical Examiner later determined to be a single gunshot wound to the neck fired by Park. Popkowski also suffered a non-fatal grazing gunshot wound to the right thigh.

While Park rendered aid to Popkowski and called for emergency medical services, Dunham, not knowing if additional persons were in the woods, walked up the path. At the top of a grade about 48 feet from where Popkowski was shot, Dunham discovered a single-shot rifle with a scope in a partially open gun case, along with a bipod for the rifle. Also found nearby was a GPS device with three saved locations: the area of the pump house, the pond, and Popkowski’s residential location in Medway. It was discovered later that Popkowski was carrying on him a digital camera, a survival knife, and a pair of binoculars. A photograph on the camera dated 07/08/10 was a recent depiction of the parking lot near Building 209. The photograph was taken from behind a split rail fence next to the pond described by witnesses as the area from which the earlier series of gunshots emanated.

In addition to the rifle found on the path a short distance from where Popkowski was shot and the 9 mm loaded semi-automatic pistol he was brandishing, loaded firearms – three semi-automatic pistols, a rifle with a scope, and a shotgun – were found in Popkowski’s pickup truck. Also found in the truck was another GPS device, a night vision spotting scope, and several hundred rounds of ammunition for the various firearms.

Detectives from the Attorney General’s Office went to the scene of the shooting to conduct an investigation with the assistance of the Maine State Police and the Office of the Chief Medical Examiner, as well as the Augusta Police Department, Maine Warden Service and the Togus VA Police Department.

Analysis and Conclusion

The Attorney General is charged by law with investigating any law enforcement officer who uses deadly force 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 in law, is reasonably generated on 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.

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 attorney general has concluded that at the time that shots were fired at Popkowski, it was reasonable for Officer Park and Sgt. Dunham to believe that deadly force was imminently threatened against them. 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.

This conclusion is based on an extensive scene investigation, interviews with numerous individuals, review of medical records, and all other evidence made available from any source. The investigation also disclosed that, prior to July 8, 2010, neither of the officers involved knew Popkowski nor had either of them had any interactions with him.

It is beyond the scope of this report and beyond the authority and expertise of this office to determine Popkowski’s motivations, his state of mind, or the medical or psychological underpinnings of his behavior and actions on July 8, 2010.