Margie Fishman, and Matthew Albright

The News Journal

The Attorney General's Office has released its report into the shooting of Jeremy McDole, 28, in September.

The report said charges cannot be filed against the four officers involved in the fatal shooting.

Denn called for reforms to Wilmington Police Department training procedures.

Last week, Attorney General Matt Denn released his 31-page explanation for why four Wilmington police officers weren't criminally culpable for the shooting death of a man in a wheelchair.

Denn's decision didn't rest solely on the facts of the case. Hamstringing the AG's efforts was that Jeremy "Bam" McDole was killed in Delaware, a state that essentially immunizes law enforcement officers from criminal responsibility when they use deadly force in response to a perceived threat.

Here, a police officer doesn't have to prove the use of deadly force was "actually necessary to protect the officer against death or serious physical injury," according to the recent state Department of Justice report. "All (the officer) must show is that he believed that to be the case at the time that he used deadly force, whether that belief was reasonable or unreasonable."

The AG's report not only sheds light on the considerations underlying prosecutorial decisions. In an unusual move, Denn called for reforms to Wilmington Police Department training procedures, noting "serious deficiencies" in how officers are prepared to handle such crisis situations.

It's unclear whether city police managers will heed Denn's advice. City officials said they disagreed with the attorney general's assessment, but declined further comment.

Denn also recommended in the report that one of the officers involved in the incident, Senior Cpl. Joseph Dellose, be stripped of his gun. That angered local police union representatives, who accused Denn, a career civil servant with no direct police experience, of overstepping his authority to advance his political objectives.

"From the outset, this was clearly politically motivated," Sgt. Harold Bozeman, Wilmington Fraternal Order of Police president, said in a statement. "The elected attorney general of this state has used this tragedy as a vehicle to cajole voters in his re-election and much-speculated eventual ascendance to the governor’s mansion.

Denn's office would not address local police criticism of the report, explaining that the conclusions speak for themselves.

State code subjective

Delaware is an outlier nationally in how it regulates lethal force by law enforcement, according to Kathleen MacRae, executive director of the Delaware ACLU. A recent Amnesty International report lumped the First State with a dozen other states that don't comply with basic standards set by U.S. constitutional law. The report called out Delaware for joining a minority of states in condoning lethal force to suppress riots.

"There's no objective rationale or reasonableness standard and that's what is necessary," MacRae said, adding that state criminal code should be amended as soon as possible.

The legal standard governing police use of lethal force was established by a pair of Supreme Court rulings from the 1980s. In Tennessee v. Garner (1985) and Graham v. Connor (1989), the court held that deadly police force qualifies as a "seizure" subject to the "reasonableness" requirement of the Fourth Amendment. When questions of excessive force arise, law enforcement personnel will be judged on whether their conduct was "objectively reasonable" based on the circumstances confronting them at the time, the court determined.

There are no concrete numbers on how often police kill civilians in the line of duty — estimates range from 400 to more than 1,000 a year. Law enforcement agencies aren't required to submit incident reports to the FBI, but research suggests that African American men are disproportionately impacted by police use of lethal force.

In the McDole case, the DOJ blasted Dellose, one of the four officers at the scene, for "extraordinarily poor police work." But Denn stopped short of filing felony charges after two national police consultants and a former federal prosecutor concluded that a conviction was unlikely.

That outcome underscores the complexity of policing police officers, the men and women who must evaluate life-and-death situations at lightning speed. Nationwide, juries have been reluctant to convict cops absent clear evidence of malice, sparking public outcry. In recent years, there have been several high-profile cases of officers not standing trial after killing civilians, including the shooting death of Michael Brown in Ferguson, Missouri; the choking death of Eric Garner in Staten Island, New York; and the shooting death of 12-year-old Tamir Rice in Cleveland.

It's even more challenging for prosecutors to launch a successful case in Delaware, where the use-of-force standard is "entirely subjective in nature," according to the DOJ report. Had McDole been killed in New York, for example, prosecutors would've been permitted to assess the "reasonableness" of the officers' actions, the report said.

Delaware's subjective standard is rare and problematic because it doesn't account for all the factors at play in a lethal force case, according to David Klinger, a criminology professor at University of Missouri-St. Louis. Among important considerations are how many officers are at the scene, their individual skill level and the severity of the threat.

Further, Delaware's criminal code does not require "either accurate observations or accurate recollections of police officers who use deadly force," according to the DOJ report. Officers' recollections in the moments after the McDole killing differed from their interview responses the next day and from what was observed on video, the report found.

State Rep. Helene Keeley, D-Wilmington South, who has previously advocated for police reforms, said lawmakers will need to fully read and digest the DOJ’s findings before calling for specific legislation. She said she is open to considering changes to the state’s use-of-force standard if it turns out Delaware lags behind other states.

"We still have time to do it in this session," she said.

Local and state police union representatives fear that extra layers of regulation could have disastrous consequences for officers on the ground.

"How now do you expect us to do our jobs? said Fred Calhoun, state FOP president. "We have created a society that thinks that by creating policy they can dictate the outcome of someone's future...If we could do that, we wouldn't need the police."

According to the DOJ report, Dellose and the other officers answered a 911 call on Sept. 23 in which a resident told 911 dispatchers that a man in a wheelchair on the city's west side was brandishing a gun after shooting himself.

Dellose fired at McDole approximately two seconds after initially ordering him to put his hands up, the report said. That created uncertainty among other officers who, not knowing where the gunfire came from, also turned their weapons on the 28-year-old.

A stolen .38-caliber revolver was later retrieved from McDole's boxer shorts, according to the report, but none of the bullets from McDole's gun were found lodged in his body.

As part of its eight-month investigation, the DOJ consulted with two nationally recognized police use-of-force experts, both of whom recommended criminal charges against the Cleveland police officer who fatally shot Tamir Rice in 2014.

TIMELINE: The McDole shooting case

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

According to national media reports, Cleveland patrolman Timothy Loehmann said he shot Rice, an African American, within seconds of confronting him, after the boy reached into his waistband to pull out what appeared to be a weapon. It turned out to be a pellet gun.

As in the McDole case, prosecutors didn't charge Loehmann. Last month, the city of Cleveland paid Rice's family $6 million to settle their federal lawsuit.

DOJ police consultant Roger Clark, a 27-year veteran of the Los Angeles County Sheriff's Department who recommended filing charges in the Rice case, said the situation was less clear-cut in the McDole case due to weaknesses in Delaware code.

Dellose's "tactics were absolutely dreadful," said Clark, explaining that the officer failed to communicate with other officers already at the scene, strode down the middle of the street instead of taking cover, and abruptly fired his weapon instead of trying to defuse the situation.

"As you increase the anxieties of the subject, their ability to comply decreases proportionally," he said.

Still, Clark and other consultants refused to classify Dellose's conduct as "reckless" behavior — defined as "a gross deviation from the standard of conduct" — which can lead to a conviction of felony assault to homicide under Delaware code. Previously, Dellose, an 11-year-veteran, was investigated and cleared in a 2010 shooting incident.

DOJ: Wilmington training inadequate

Compounding the problem is that Wilmington Police Department's use-of-force policy is vague, according to the DOJ report. WPD, unlike other urban police departments, doesn't adequately train officers on how to de-escalate potentially life-threatening situations, especially when dealing with people who have physical or intellectual disabilities, the report said.

Wilmington adheres to a “continuum of force” policy, a widely accepted standard governing how much force an officer can use against a resisting suspect. The progression begins with verbal commands, but can quickly escalate to pushing, kicking, punching, tasering, and, lastly, shooting.

The DOJ report called Wilmington’s policy “effectively meaningless” by permitting police officers to ignore the sequence if a situation warrants it. By comparison, the Seattle Police Department tries to limit the use of lethal force by instructing officers to establish a perimeter to contain the threat and engage in active listening and verbal persuasion techniques, the report said.

Klinger, the criminal justice professor, disagreed with the AG's assessment. Officers need flexibility in responding to rapidly evolving situations, he said. For instance, if a man rushes an officer with a baseball bat, the officer doesn’t have time to try steps one to four before firing, he said.

Wilmington’s policy is “consistent with training and it makes perfect sense,” Klinger said.

The McDole family has filed a federal civil lawsuit against Wilmington and the police chief, alleging that the killing was racially motivated. Wilmington attorney Thomas S. Neuberger, who is representing the family, believes the DOJ report will help his case.

"Instead of closing off the investigation, Denn ... goes on and helps us make the civil case for us," he said last week.

Local black coalition leaders and New Castle County Councilman Jea Street have demanded that federal prosecutors pursue criminal charges against Dellose, but it is too early to tell if the Justice Department will intervene. In response to public outcry over excessive police force and racial bias, the department has opened 23 investigations of police departments since the start of the Obama administration.

STORY: For one officer, McDole shooting was his second on duty

STORY: Black leaders want feds to investigate McDole shooting

Similarly, many in Wilmington for years have urged Mayor Dennis P. Williams' administration to overhaul its policing strategy, with gun violence reaching record levels.

Last year, a panel of consultants appointed by Gov. Jack Markell reported that despite ample resources, Wilmington police suffered from antiquated practices and structural deficiencies. Asserting the city's sovereign control over its police department, Williams has refused to provide police deployment data to the state, jeopardizing $1.5 million in state aid.

Earlier this year, the city hired community policing expert Charles H. Ramsey under a $112,000 no-bid consultant contract. Ramsey, who previously ran police departments in Philadelphia and Washington, D.C., did not respond to a request for comment on the AG report.

Despite the AG's findings, MacRae of the ACLU doesn't expect swift changes from Wilmington police.

"The community must come together and demand that changes be made," she said.

State Rep. Stephanie T. Bolden, D-Wilmington East, said the McDole incident reinforces the need to rebuild the city’s community policing programs, in which officers are assigned to specific communities to develop positive relationships with residents.

“Had there been community officers, you may not have even had this turn into a phone call to 911," she said. "Because they would have known who to call."

News Journal reporter Esteban Parra contributed to this report.

Contact Margie Fishman at (302) 324-2882, on Twitter @MargieTrende or mfishman@delawareonline.com. Contact Matthew Albright at malbright@delawareonline.com (302) 324-2428 or on Twitter @TNJ_malbright.