Federal Officials Close Review Into the Death of Jeremy McDole

WASHINGTON -- The Justice Department announced today that there is insufficient evidence to pursue federal criminal civil rights charges against the Wilmington Police Department (WPD) Corporals involved in the fatal shooting of 28-year-old paraplegic Jeremy McDole on Sept. 23, 2015.

Officials from the U.S. Attorney’s Office of the District of Delaware, the Justice Department’s Civil Rights Division and the FBI met today with representatives of the McDole family to inform them of this determination. The department makes this decision based on the determination that the evidence does not indicate that the corporals willfully used excessive force in shooting McDole.

Federal authorities devoted significant time and resources to reviewing the events surrounding McDole’s death. This involved reviewing detailed and lengthy analysis of voluminous materials, including police reports, law enforcement accounts, witness statements, dispatch logs, physical evidence reports, the autopsy report and an enhanced cell phone video of the incident.

The team of experienced 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 subject corporals violated federal law. 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. 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.

The evidence developed during the investigation revealed that corporals Thomas Silva, James MacColl, Thomas Lynch and Joseph Dellose were dispatched pursuant to a 911 call reporting that a male suspect in a wheelchair, later identified as McDole, was armed with a handgun and may have sustained self-inflicted gunshot wounds. Silva arrived first at the scene, and the 911-caller pointed out McDole and said McDole was still in possession of a gun. Silva commanded McDole to show his hands and drop the gun, but McDole instead rolled his wheelchair into the street and reached into his waistband. MacColl arrived next and saw that McDole was not responding to Silva’s commands. Dellose arrived and immediately approached McDole from the opposite direction of Silva and MacColl. Dellose also ordered McDole to show his hands; however, McDole continued to reach into his waistband. Dellose stated that he observed the handle of a gun, so he fired a round at McDole from his shotgun. Lynch arrived immediately after Dellose fired.

After the shotgun blast, McDole continued moving his hands around his lap and waistband. McDole then reached into the right side of his waistband as if to grab something and began withdrawing his right hand, in which he held what the corporals believed to be a handgun. Silva, MacColl and Lynch each fired four shots at McDole from their service pistols. McDole fell to the ground and a responding officer approached him and removed from his waistband a handgun.

The incident was recorded in a cell phone video, which was enhanced at the FBI Laboratory. 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. The camera pans away from McDole the instant before the shotgun blast. Toward the end of the video, McDole reaches into his waistband with his right hand, then begins pulling his right hand upward. A volley of shots is heard, but the camera pans away from McDole for a moment while the shots are being fired. Several law enforcement officers and civilians witnessed the shooting and the events leading up to it. These witnesses corroborated the claim of the corporals who fired at McDole that 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 was on McDole’s right palm and shirt sleeve.

There is insufficient evidence to disprove the corporals’ claims that they shot McDole in self-defense and in defense of nearby civilians and fellow officers. 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 precise moment. Accordingly, the government cannot disprove that Dellose saw a handgun or believed he saw a handgun. When Silva, MacColl and Lynch fired their weapons a few moments later, they had reason to believe that McDole had a gun that he had recently fired. They also knew that McDole had not responded to repeated commands to show his hands and drop the gun, was reaching into his waistband and was at that moment pulling his hand upward. The testimonial, video and physical evidence corroborates the corporals’ version of the events.

Accordingly, after extensive investigation into this incident, the federal review of this incident has been closed without prosecution. This decision is limited strictly to an application of the high legal standard required to prosecute the case under the federal civil rights statute; it does not reflect an assessment of any other aspect of the incident that led to McDole’s death.

The U.S. Attorney’s Office of the District of Delaware and the Civil Rights Division are committed to investigating allegations of civil rights violations by law enforcement officers and will continue to devote the resources required to ensure that all allegations of serious civil rights violations are fully and completely investigated. The department will aggressively prosecute criminal civil rights violations whenever there is sufficient evidence to do so.