The sister of a man shot and killed by Falmouth police in 2021 is suing the town and the officers in federal court, saying their use of excessive force caused her brother’s death.

Christina DiMillo’s complaint against Falmouth, Police Chief John Kilbride and the two officers who shot her brother was moved Tuesday from state court to U.S. District Court in Portland.

Sgt. Kevin Conger and Officer Peter Theriault were responding to a report to police on the evening of Oct. 19, 2021, that an adult man was running around the intersection of Lunt and Middle roads with a long knife. Theriault and Conger recognized Daniel DiMillo, 51, according to the complaint, because he was “well known” to Falmouth police as a regular subject of “numerous reports of disturbances and crises secondary to mental health issues” over the years.

As DiMillo began to approach and officers asked him to drop the knife, Conger tased him, according to the complaint. 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 and succumbed to his fatal gunshot wounds,” the complaint states.

It was the first officer-involved shooting in Falmouth, Kilbride said at the time.

DiMillo’s sister argues that it violated his 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.

The city has until April 10 to file a response to the complaint, according to court records. Kasia Park, who is representing all of the defendants, said in an email Wednesday that Conger and Theriault’s use of deadly force “was necessary and appropriate” under the circumstances.

“This was a volatile situation: the complaint itself acknowledges that Mr. DiMillo was armed with a knife and advanced towards the officers,” Park wrote. “While the town and the officers acknowledge the family’s loss, there is no basis for liability here, and we are confident that this case will be resolved in favor of the town and the officers.”

Falmouth Police Chief John Kilbride speaks outside the police station after the town’s first officer-involved shooting in October 2021. Shawn Patrick Ouellette/Staff Photographer

Christina DiMillo’s attorneys, Joseph Gousse and Timothy Kenlan, didn’t respond to messages asking to discuss the complaint Wednesday or to connect a reporter with their client. Efforts to locate Christina DiMillo directly to talk about the complaint were unsuccessful.

Days after the shooting Kilbride said that Conger and Theriault didn’t have enough time under the circumstances to de-escalate the crisis.

“All my officers have mental health training and every day they deploy that in some form or another to de-escalate situations before they become violent,” Kilbride said at a news conference on Oct. 21, 2021. “These officers were engaged immediately upon exiting their vehicles.”

Audio recordings of police radio traffic that night indicate that about 75 seconds after one of the police officers radioed that he had arrived, he called out again, “Shots fired! He had a knife.”

Kilbride did not respond to messages Wednesday seeking to discuss the complaint.

The Office of the Maine Attorney General determined in April that the shooting was “legally justified” and 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.

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

Police retrieved several weapons from DiMillo’s body after he was shot, including a folding pocket knife in his right front pocket, a baton in his waistband and pepper spray. A member of the State Police Evidence Response Team later found three more knives on DiMillo’s body. Police also found the knife investigators believe he was holding on the shoulder of Lunt Road, the attorney general’s report states. 

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

The report briefly referenced problems DiMillo was having with his mental health, which were known to Falmouth police at the time. Officers had responded to at least 13 calls to DiMillo’s home from 2015 to 2019, all for issues arising from his “deteriorating mental health.”

The complaint doesn’t provide any more detail about DiMillo’s history with police or his mental health.

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 in 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.”