Jessica Masulli Reyes, and Jenna Pizzi

The News Journal

The family of Jeremy McDole is suing Wilmington police and city officials over his fatal shooting.

McDole was shot near Tulip and Scott streets in the Bayard Square neighborhood in September.

A lawyer on Thursday said the officers never identified themselves to McDole as police.

The grandmother and mother of Jeremy "Bam" McDole are suing the city of Wilmington, alleging that the deadly police shooting in September was prompted by racial discrimination and would not have happened had McDole been white.

McDole, a 28-year-old African-American man, was shot multiple times by four police officers – three white and one Hispanic. The fatal shooting of McDole – who used a wheelchair because he was paralyzed – caused outrage in both the city and nation after bystander video of the incident went viral online.

"Before using deadly force, Jeremy should have been talked down by a properly trained professional before a cowboy mentality seeped into police work," said the lawsuit filed in Superior Court in Wilmington on Thursday.

Both the city police and Attorney General Matt Denn’s office have assured the public that they are investigating the shooting, but one of the attorneys representing the McDole family said it has been too long with no word.

“It has been five months,” said attorney Thomas C. Crumplar. “The family just cannot wait. We still don’t even know the names" of the officers.

A spokesman for Denn's office said investigations of police use of force have taken on average 9½ months since January 2010.

"The Department of Justice believes a thorough investigation of the death of Jeremy McDole is important for the family and for the community," spokesman Carl Kanefsky said. "That investigation remains active and underway and is expected to be completed in the near future."

About a dozen of McDole’s family members gathered Thursday morning with attorneys – Crumplar, Raeann C. Warner and Thomas S. Neuberger – to announce the civil rights lawsuit against the city, Wilmington Police Chief Bobby L. Cummings and the four unnamed officers. They noted that Thursday was also the 25th anniversary of the brutal beating of Rodney King by Los Angeles Police Department officers.

The family stood next to McDole’s black wheelchair and an enlarged photo of him smiling. They did not answer questions, at the recommendation of their attorneys.

In the past, they have been vocal about the lack of information they have received from police or the state. The family has led occasional marches and protests, and in December, called for the resignation of Wilmington Mayor Dennis P. Williams, Cummings and Denn.

The city police and the newly filed lawsuit portray the Sept. 23 shooting differently.

Wilmington police say they were called to the area of Tulip and Scott streets in the Bayard Square neighborhood at around 3 p.m. to respond to a 911 call about a man in a wheelchair with a self-inflicted gunshot wound.

The lawsuit alleges McDole had his wallet stolen, and then a possible accomplice of the thief called the police claiming McDole had a self-inflicted gunshot wound.

A witness on the scene shot cellphone video showing police officers approach McDole, guns drawn. The video shows one officer pointing a shotgun or rifle at the man in the wheelchair while screaming at him to “drop the gun” and “hands up.”

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Three more officers appear on the video with handguns drawn, as McDole fidgets and rubs his knees with both hands. As he slides his hand up toward his waist, the officers open fire.

Several shots ring out, and for a moment McDole freezes, then falls sideways on the ground.

"As shown by a contemporaneous video, he was unarmed, his hands were on his lap, sitting in broad daylight out in the open with plenty of nearby cover for the police," the lawsuit said. "He was not combative or physically aggressive, and he did not say anything threatening or verbally taunt the police. Nor was he fleeing from the scene of a felonious crime which involved serious physical injury, or a threat of imminent harm to anyone."

Neuberger said the officers never identified themselves to McDole as police and did not attempt to use lesser forms of force, such as a verbal warning, stun gun, pepper spray, tear gas or bean bag shotgun.

Following the shooting, Cummings said McDole was reaching for a weapon and that a .38-caliber gun was recovered from McDole’s side. But the lawsuit points out that no gun is visible in the video.

“The folks in the city of Wilmington, especially blacks and poor whites, are very scared when the police pull up to them,” Delaware’s NAACP President Richard Smith said. “It is hard to live in a city where it is doomed or die for those between the ages of 14 and 42.”

Crumplar and Neuberger said the lawsuit will shed light on what really happened at the shooting. The attorneys for the family are asking any witnesses to contact them for a confidential interview.

“We are going to investigate this matter, and we ask every member of the community who witnessed this shooting to come forward,” Neuberger said.

The Wilmington Police Department continues to investigate the shooting to determine whether the officers involved followed department policy, said city spokeswoman Alexandra Coppadge. The state Justice Department’s Office of Civil Rights and Public Trust is also investigating the shooting to determine if any criminal charges should be filed against the officers.

Both investigations are protocol anytime a police officer fires a weapon that injures or kills someone.

Kanefsky said the Department of Justice's investigation has been active. Interviews of law enforcement officers, witnesses, community members, and other persons claiming to have relevant knowledge of the incident, including new individuals, have been occurring.

Likewise, the final autopsy report was completed by the medical examiner on Jan. 28, he said.

"The investigation has also included review of forensic evidence gathered at the scene by scientific experts, enhancement of video evidence of the incident, consultation with outside experts on the use of force by law enforcement officers, and subpoenaing and reviewing hundreds of pages of documents," Kanefsky said.

The state NAACP and a few local elected officials called for an additional, independent investigation into the shooting by the U.S. Department of Justice. The U.S. Attorney’s Office previously said it typically waits for the conclusion of a state investigation before making a determination if additional review is needed.

“The city is awaiting the conclusion of both investigations being conducted by the Attorney General’s Office and the Department of Justice and the police department and cannot comment on the incident,” Coppadge said.

Neuberger said the only way to independently find out what happened is to "use the power of the courts."

“The family and the community need to know the facts,” Crumplar said. “Neither the Wilmington Police Department nor the Attorney General can give us the unbiased facts.”

The McDole family was initially represented by Baltimore attorney William H. “Billy” Murphy Jr., who won a $6.9 million settlement last year for the family of Freddie Gray, a Baltimore man who died after suffering injuries in police custody in April.

The McDole family’s attorneys declined to say why Murphy is no longer representing the family, but said Murphy is “cooperating” with them.

Murphy could not be reached for comment by The News Journal.

Along with the lawsuit, the attorneys have also filed court documents requesting that the city be forced to release various documents, including the officers’ names.

“We do not live in a communist country,” Neuberger said. “We don’t have secret police. They are members of the public authorized to use deadly force in certain circumstances. So why are the names being hidden?”

The lawsuit is seeking damages for the wrongful death, saying the family should receive a to-be-determined amount for funeral expenses, suffering and pain, loss of civil rights and emotional distress.

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @jessicamasulli. Contact Jenna Pizzi at (302) 324-2837 or jpizzi@delawareonline.com.

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