Esteban Parra

The News Journal

Federal authorities announced Friday they found no evidence that four Wilmington police officers "willfully used excessive force" in the 2015 fatal shooting of Jeremy "Bam" McDole in his wheelchair.

The announcement comes three weeks after the city of Wilmington agreed to pay $1.5 million to settle a lawsuit brought by McDole's family.

That means the U.S. Department of Justice will not pursue federal criminal civil rights charges against Wilmington police Senior Cpl. Danny Silva, Cpl. Thomas Lynch, Cpl. James MacColl or Senior Cpl. Joseph Dellose. In May, the Delaware Attorney General's Office said it would not prosecute any of the officers.

Friday's announcement was a blow to the family, which has been seeking a criminal indictment against the officers, said Thomas S. Neuberger, an attorney representing the family.

"The family strongly disagrees and are greatly disappointed with the conclusions and still feels a criminal prosecution would be warranted," Neuberger said, adding he had no basis to challenge the conclusions of the Justice Department, which conducted an independent review.

Neuberger pointed out that the Justice Department's findings did not dispute any of the conclusions made in the Delaware Attorney General's report that singled out Dellose for "extraordinarily poor police work." The 31-page state report said Dellose should not be employed "by the Wilmington Police Department in any role where he would be carrying a firearm in public."

"There is nothing in there exonerating Dellose from the conclusions that [Delaware Attorney General] Matt Denn raised," Neuberger said.

That report said prosecutors initially considered filing a felony assault charge against Dellose, but after consulting with two national police-use-of-force experts it was determined that Dellose's conduct was not criminal because of a Delaware law that immunizes officers if they believe force is necessary to protect themselves.

Wilmington police had no comment on Friday's announcement.

More on the McDole shooting:

TIMELINE: The McDole shooting case

STORY: Man who took McDole video claims he was never interviewed

STORY: McDole shooting: Wilmington police won't be charged

STORY: Wilmington to pay $1.5 million to settle McDole lawsuit

EDITORIAL: City's reaction to McDole report is troubling

A team of federal prosecutors from the Civil Rights Division Criminal Section and the U.S. Attorney’s Office reviewed thousands of pages of documents and other evidence to determine whether the officers violated federal law, according to a release by the U.S. Attorney’s Office of the District of Delaware.

"Under the applicable federal criminal civil rights statute, prosecutors must establish, beyond a reasonable doubt, that a law enforcement officer willfully deprived an individual of a Constitutional right," the release said. "To establish willfulness, federal authorities must show that the officer acted with the deliberate and specific intent to do something the law forbids. This is the highest standard of intent imposed by law.

"Mistake, misperception, negligence or poor judgment are not sufficient to establish a federal criminal civil rights violation."

Some of the evidence reviewed by the federal DOJ included a cellphone video that captured much of the incident.

"The video shows McDole continuously moving his hands around his waistband as WPD officers yell for him to show his hands and drop the gun," according to the release. "The camera pans away from McDole the instant before the shotgun blast."

Other officers and civilians witnessed the shooting and the events leading up to it and corroborated the claim of the four officers who fired at McDole, saying McDole failed to respond to law enforcement commands and continued moving his hands around his waistband when the shots were fired.

"The investigation also revealed that McDole’s DNA was located on the grip of the handgun recovered from his waistband and that there was gunshot residue on McDole’s right palm and shirt sleeve," federal officials said.

"There is insufficient evidence to disprove the corporal's claims that they shot McDole in self-defense and in defense of nearby civilians and fellow officers," federal officials said. "Other witnesses also corroborate Dellose's claim that McDole was reaching into his side immediately before Dellose fired his shotgun, even though the video does not capture that moment.

"Accordingly, the government cannot disprove that Dellose saw a handgun or believed he saw a handgun."

Officials said this closed their review of this incident.

Friday's announcement was a letdown to Mahkieb Booker, founder of the Delaware chapter of Black Lives Matters and one of several African-American leaders who last year asked the federal agency for a civil rights investigation.

"It's very disheartening to the black community," Booker said, adding the judicial system's actions often feel disrespectful to the community. Booker said the video images of the shooting and Denn's report concluding that Dellose should not have a job that allows him to carry a firearm point to some sort of wrongdoing.

"If you ask the community if the police officer was in violation, I'm quite sure that 99.9 percent, everybody will say he was violating [McDole's rights]," he said. "On the flip side, if you ask officers that same question you're going to get 100 percent saying that it was a good shooting."

There appears to be a different standard when dealing with police-involved shootings of black Americans, Booker said.

Thomas C. Crumplar, another McDole family attorney, said standard in a civil case is different from a criminal matter and Friday's announcement changes nothing in the settlement.

"It's been an emotional time and I still have hope that the settlement will start the healing process," Crumplar said.

As part of the settlement, Wilmington police will consider a comprehensive use of force policy that will outline when force is appropriate and train officers in de-escalation techniques. Denn's report said Wilmington officers received little guidance on de-escalating procedures, especially among people who are physically or mentally disabled, and recommended Wilmington look at policies being used by other police departments.

De-escalation techniques cited in the settlement include using cover to decrease exposure to threats, using verbal techniques to calm an agitated person and calling for extra resources to assist.

A statement released last month by the city said the Wilmington Police Department agreed to meet with members of McDole’s family and retired federal Judge Joseph J. Farnan Jr., who has mediated between the parties, to discuss the status of the review process and to consider their suggestions.

The settlement is scheduled to be approved on Tuesday at a federal court hearing.

Contact Esteban Parra at (302) 324-2299, eparra@delawareonline.com or Twitter @eparra3.