Four Wilmington police officers will not be charged in the shooting death of Jeremy "Bam" McDole, a 28-year-old in a wheelchair who police opened fire on in September after he refused to raise his hands, according to a report from the state Department of Justice.
Prosecutors considered filing a felony assault charge against one of the officers involved – Senior Cpl. Joseph Dellose, who was seen firing a shotgun at McDole in a cellphone video that surfaced after the Sept. 23 incident.
Prosecutors said Dellose immediately confronted McDole rather than communicating with officers who were already on the scene and then fired his shotgun. The report indicated that Dellose's firing of the gun created "uncertainty as to whether the gunfire came from a fellow officer, Mr. McDole or an unknown third party."
A few seconds later, the officers told McDole to put his hands up. He did not comply, and in readjusting himself in the wheelchair moved his hands, at which point the other three officers opened fire, killing McDole, who was found with a .38 caliber revolver in his boxers.
The officers had responded to the area after a woman called 911 stating a man in a wheelchair had shot himself. The report released a transcript of the 911 call, in which the dispatcher is heard saying: "They're going to take him out." The caller responded: "Oh my Jesus, don't kill him!"
The comment raised prosecutors' concerns and they interviewed the operator, who said his statement was not made to police on scene or the 911 caller, but to his colleague in the dispatch room. The operator was speculating as to what might happen at the scene based on his belief from the phone call that McDole was holding a firearm and/or pointing it at police officers or civilians.
"He explained that it was faster to call out to the other dispatcher rather than making a computer entry due to the rapidly unfolding events," the report said.
The Department of Justice concluded it "could not proceed with a criminal prosecution" after consulting with three experts, including a former federal prosecutor it had hired to prepare a case for possible criminal prosecution.
"Although [the Department of Justice] is not able to pursue criminal charges against Senior Cpl. Dellose, it is DOJ's position that Senior Cpl. Dellose's conduct in this case was extraordinarily poor police work that endangered both the public and his fellow officers," the 31-page report said. "DOJ does not believe that Senior Cpl. Dellose should be employed by the Wilmington Police Department in any role where he would be carrying a firearm in public."
The report also found "serious deficiencies" in how Wilmington Police prepares its officers for such situations.
McDole's family issued a statement through their lawyers.
"Our family disagrees with the conclusions of the report not to charge any officer with a crime which seems to reflect the historic fact that we believe that no police officer in Delaware has ever been charged with a crime for the fatal use of force on a civilian," the statemend reads. "Blacks also suffer three times the death rate of whites at the hands of police nationwide. But this is not reflected in the report.
"Jeremy was paralyzed and he could not run or hide. He was sitting in broad daylight out in the open with plenty of nearby cover to protect the police. Jeremy was not combative or physically aggressive, nor did he say anything threatening or verbally taunt the police. He was not fleeing from the scene of a felony crime which involved serious physical injury, or a threat of imminent harm to anyone. Jeremy's assailants never verbally warned him that deadly force would be used against him to take his life if their commands were not followed.
"Due either to their poor training or their lack of qualifications to be police officers licensed to use deadly force to kill, the shots fired that day were unnecessary. The tactical response reflected deliberate indifference to the life of Jeremy."
The McDoles' statement added that the Department of Justice's action would have no effect on their federal civil case. Unlike a criminal case where the proof must be beyond a reasonable doubt, in civil cases the plaintiff only needs to show there is a preponderance of evidence, which means that it was more likely than not that something happened.
To make their point, the two-page statement brought up another Wilmington case in which a family was awarded a settlement despite the officer being cleared of criminal wrongdoing. This was the fatal shooting of 25-year-old Derek Hale, a former Marine and associate of the Pagans Motorcycle Club, who was killed by a Wilmington police officer in November 2006.
Hale was sitting on the steps of the Wilmington home of a Pagan when police surrounded him and stunned him with Taser guns before shooting him. A witness told investigators that Hale said "in a low raspy voice" that he was trying to comply with the officers' demands to remove his hands from his sweatshirt pockets. Witnesses said Hale did not appear to pose a threat and had just vomited and was shaking violently from the Taser blasts when then-Lt. William Browne shot him in the chest with three .40-caliber rounds.
Browne was cleared of any wrongdoing in 2007 by the state Department of Justice. But, in federal court, Wilmington settled with the family for $875,000. Hale's family was represented by Wilmington attorney Thomas S. Neuberger, who is one of the lawyers representing McDole's family.
The Department of Justice report comes a little over a week after Wilmington police announced they had concluded their criminal investigation into the shooting. Police, however, did not elaborate on the findings of the report and did not make the full report public.
That annuncement came days after court filings revealed McDole had gunshot residue on his hand and clothing when he was fatally shot.
That was the first piece of information released since the shooting countering the family's claim that McDole was not armed.
McDole's attorneys said that having a gun does not change the requirements under Wilmington's use of force directive, which they said they will prove the four officers did not follow. Nor does having ingested any drug, which does not make one violent, absolve them.
The family said that before deadly force was used, McDole could have been talked down by "a properly trained professional using historic police methods." They could have also used lesser forms of force such as a stun gun, pepper spray, tear gas, a rubber buckshot or a bean bag shotgun.
McDole was shot in 1800 block of Tulip Street after police responded to the 911 call. The caller told police that a man had shot himself and still had a gun. Four responding officers, Senior Cpl. Thomas Silva, Cpl. Thomas Lynch, Cpl. James MacColl and Dellose, opened fire on McDole.
In its report, the state Department of Justice said there were a number of reason for why its inquiry was much broader than prior police-involved shooting investigations it had undertaken.
This was the first police-involved shooting since Matt Denn became attorney general and there was a question as to whether the individual who was shot was armed.
There also were concerns raised by McDole's family that evidence may have been placed at the scene, that McDole had had prior contact with one or more of the officers involved and the possibility there was additional video of the incident.
"All of these issues had to be thoroughly investigated by Department of Justice investigators, in addition to their investigation of the shooting incident itself," the report said.
Early in the department's investigation the shooting raised questions about the Wilmington Police Department’s preparation of its officers.
The McDoles, who asked the public to remain clam, said trust eroded between the police and the community with this shooting and it will be further eroded by proceedings in the family's civil lawsuit.
"It is a travesty that the police do not even want the shooters questioned by our lawyers in federal court under oath. But the law does not work that way," the McDoles said in the statement. "A jury trial is the ultimate method by which citizens control the determination of whether the law has been violated with any police killing of a minority group member. And so we place our trust in the unbiased federal judge and jury in our search for justice."
The Department of Justice hired Judson Aaron, a former federal prosecutor out of Philadelphia to try and ensure an impartial handling of the case since many of the state prosecutors have daily interactions with Wilmington police. Aaron concluded that the case could not successfully be prosecuted.
The department also consulted with two national experts who had supported criminal charges against a Cleveland, Ohio, officer in the shooting death of 12-year-old Tamir Rice. Jeffrey Noble, former Deputy Chief of the Irvine, California, Police Department and Roger Clark, the former head of the Los Angeles Sheriff's Department's North Regional Surveillance and Apprehension Team, reviewed all of the materials in this case and said Dellose's conduct did not violate Delaware's criminal statute.
While prosecutors could not pursue criminal charges against Dellose, it should not be mistaken for their approval of his conduct, the report said.
“At best, Senior Cpl. Dellose’s actions demonstrated extraordinarily bad judgment,” the report said. “Senior Cpl. Dellose knew that he was responding to an area where a person had already fired a gun and might still be armed. When he arrived, he saw other officers up the street, and at some point as he approached Mr. McDole he saw that the other officers were yelling. But rather than attempting to gain any knowledge of what the other officers he saw at the scene were doing or seeing, Senior Cpl. Dellose proceeded straight up the middle of the street and, upon encountering Mr. McDole, gave Mr. McDole approximately two seconds to comply with his instructions before shooting Mr. McDole."
The report said Dellose, who was involved in another police-involved shooting in 2006, should not remain on the police force.
“One of the officers interviewed described Senior Cpl. Dellose’s conduct as similar in some ways to his conduct in the incident involving Mr. McDole – arriving separately from other officers on the scene, and advancing into an incident where gunfire had already been reported as another officer shouted at him to turn back because he was in the line of fire.”
The report also conclude that improvements the police department’s policies and training could materially reduce the possibility of future shootings by police officers.
This is a developing story. Check back with delawareonline.com for more information.
Contact Esteban Parra at (302) 324-2299, firstname.lastname@example.org or Twitter @eparra3. Contact Adam Duvernay at (302) 324-2785 or email@example.com.