Sister of man killed by Falmouth police drops lawsuit

The sister of a man shot and killed by Falmouth police in 2021 has dropped her lawsuit against the town and its officers, who she had argued used excessive force against her brother during a mental health crisis.

Christina DiMillo dismissed her complaint against Falmouth, Police Chief John Kilbride and two officers – Kevin Conger and Peter Theriault.

Conger and Theriault were responding to a call in 2021 about a man on a street with a knife. Police said Daniel DiMillo was charging at them when Theriault shot him.

“We have always strongly believed that the officers’ use of force was appropriate and necessary under the circumstances and that there was no basis for liability,” Kasia Park, attorney for the town and the officers, wrote in an emailed statement Monday.

There was no settlement agreement, nor money paid to Christina DiMillo by the town or on its behalf. She agreed to drop the suit in December even though DiMillo and her family continue to believe police used excessive force, her lawyer said.

DiMillo was not available to be interviewed Monday.

Timothy Kenlan, DiMillo’s attorney, said his client filed her complaint to initiate the civil discovery process and get evidence from the town that wasn’t made available to the public after her brother Daniel DiMillo’s death. After reviewing that evidence, Kenlan said, they didn’t think they would meet the “extremely high burden of overcoming qualified immunity,” a legal doctrine often used to shield police officers from civil lawsuits.

Kenlan said the DiMillo family plans to continue advocating for better police training, as well as for removing qualified immunity.

“The family is still profoundly upset by what happened,” said Kenlan. “They want to focus their energies more on preventing this from happening in the future.”

‘WELL KNOWN’

Conger and Theriault were responding to a police call the evening of Oct. 19, 2021, regarding an adult man running around the intersection of Lunt and Middle roads with a long knife.

Daniel DiMillo was “well known” to Falmouth police, who had responded to at least 13 calls to DiMillo’s home from 2015 to 2019, according to a report by the Office of the Attorney General on the investigation into DiMillo’s death. All of the calls were related to DiMillo’s “deteriorating mental health,” the report said.

As DiMillo began to approach and officers asked him to drop the knife, Conger tased him, according to court records. DiMillo continued to advance toward Conger, and as the officer fell backward against his vehicle, Theriault shot DiMillo.

Officers continued to shout at him to drop his weapon and soon both officers were firing at DiMillo until he collapsed.

The Office of the Chief Medical Examiner identified seven gunshot wounds on DiMillo’s body and determined that a gunshot wound to the head caused his death.

DiMillo’s sister argued last year that the officers’ actions violated Daniel DiMillo’s constitutional right to be free of excessive use of force, that the town of Falmouth failed to implement a policy that protects the constitutional rights of those who come into contact with police, and that Kilbride failed to properly train the officers.

Kenlan said Monday that because police knew Daniel DiMillo, their response should’ve been different.

“If there had been a crisis-trained response to this mental health crisis, [the DiMillo family] is convinced that Danny would be alive,” said Kenlan.

But Kilbride has said his officers didn’t have enough time under the circumstances to de-escalate the crisis.

The attorney general determined in April 2022 that the officers were acting in self-defense and defense of others at a busy intersection surrounded by “several civilian witnesses.”

Every police shooting in recent history in Maine has been ruled justified. Kenlan said the state attorney general only considered the officers’ actions in a criminal sense, where there’s a higher standard to overcome than in civil cases.

But the town has used details from the report to further justify Conger and Theriault’s response in 2021.

According to the report, police retrieved several weapons from Daniel DiMillo’s body after he was shot, including three knives, a folding pocket knife, a baton and pepper spray.

One unnamed witness in the attorney general’s report told investigators that, “if they had not shot him, he was going to stab them.”

MOVING FORWARD

Kenlan said Christina DiMillo and her family want to use her brother’s story to educate people about mental health and to advocate for better police policies. He said they also plan to advocate for the removal of qualified immunity.

“She just wanted folks to know that Danny was a person who was kind and compassionate and who also struggled with mental illness,” Kenlan said. “I recognize, and Christina and the family recognize, that law enforcement is an incredibly difficult job. The vast majority of those folks in law enforcement are doing a good job, and removing qualified immunity isn’t a threat to them. It’s only a threat to those who act unreasonably, who we either want to train to do better or who shouldn’t be in law enforcement.”

An obituary for DiMillo published weeks after his death described his childhood growing up around the Portland area. He was “a brother, caretaker, teacher, and protector of his younger sisters Christina and Jean DiMillo,” the piece said. He loved the ocean, and could often be found sailing as a young adult at the Portland Yacht Club. He graduated from Portland High School in 1989 and enrolled at the University of Southern Maine, interested at the time in law school.

He later would sail south to attend the Chapman School of Seamanship and obtain a captain’s license in Stuart, Florida, in 1997.

He became a U.S. Merchant Marine officer in 2013 and worked on ships out of Pensacola, Florida, and Galliano, Georgia. He had been back in Maine for about 10 years at the time of his death, caring for his parents in Falmouth.

“Dan was an avid reader, scholar of history, and artist,” the obituary stated. “He shared his love of art with his nieces and nephew by providing morning art sessions at the kitchen table. Dan’s kindness, gentle nature, and generosity showed through during these precious moments. Dan’s presence in this world will be tremendously missed.”