REPORT OF THE DEPARTMENT OF JUSTICE
WILMINGTON POLICE DEPARTMENT USE OF DEADLY FORCE
SUBJECT: Jeremy McDole
OFFICERS: Senior Corporal Joseph Dellose
Senior Corporal Thomas Silva
Corporal Thomas Lynch
Corporal James MacColl
DATE OF INCIDENT: September 23, 2015

REPORT DATE: May 12, 2016

 Introduction and Summary
Four Wilmington Police Department officers shot Jeremy McDole on September
23, 2015. The Delaware Department of Justice (DOJ) undertook an investigation to
determine whether any of the four officers should be charged with a criminal offense. As
detailed in this report, DOJ also examined whether, notwithstanding any potential
violations of criminal law, there were deficiencies in the Wilmington Police
Department’s policies and/or training that should be corrected in light of Mr. McDole’s
shooting, to ensure that similar incidents do not occur in the future.


Our investigation revealed serious deficiencies in the way in which the
Wilmington Police Department prepares its police officers to deal with
situations like the one that Mr. McDole presented, specifically with regard to
use of force policies and training and policies for dealing with individuals
with mental illness, disabilities, or cognitive impairments. Most significantly,
we find that the “continuum of force” provisions of the Wilmington Police
Department’s use of force policy are effectively meaningless for police
officers as currently written.



With respect to three of the four officers – Senior Corporal (S/Cpl) Thomas
Silva, Corporal (Cpl) Thomas Lynch, and Corporal (Cpl) James MacColl –
DOJ did not find probable cause to charge them with a criminal offense.
Through our investigation, we determined that these three officers believed –
at the moment they discharged their firearms – that doing so was necessary to
protect themselves, or others, against death or serious physical injury.
Because of that belief, they were entitled under Delaware law to use deadly
force to subdue Mr. McDole. Under Delaware’s deferential legal standard for
the use of deadly force by a law enforcement officer, their subjective belief
that using deadly force was necessary to protect themselves or others
immunizes them from criminal responsibility.



With respect to the fourth police officer who discharged his firearm, Senior
Corporal (S/Cpl) Joseph Dellose, the Attorney General did believe that the
state should attempt to gather sufficient evidence to pursue a felony assault
charge, based upon S/Cpl Dellose’s conduct in immediately confronting Mr.
McDole rather than communicating with officers who S/Cpl Dellose knew
were already on the scene, and discharging his shotgun in the manner that he
did. However, after hiring a former federal prosecutor from Pennsylvania to
prepare a case for possible criminal prosecution and after consulting with two
nationally recognized police use-of-force experts who had recently
recommended criminal charges against the Cleveland police officer who shot
Tamir Rice, and after receiving opinions from both of those experts that S/Cpl
Dellose’s actions did not constitute criminal conduct under the Delaware
Code, DOJ concluded that it could not proceed with a criminal prosecution
against S/Cpl Dellose given that the defense would present unchallenged
expert testimony that S/Cpl Dellose’s conduct was reasonable.
1

 

Although DOJ is not able to pursue criminal charges against S/Cpl Dellose, it
is DOJ’s position that S/Cpl Dellose’s conduct in this case was extraordinarily
poor police work that endangered both the public and his fellow officers. DOJ
does not believe that S/Cpl Dellose should be employed by the Wilmington
Police Department in any role where he would be carrying a firearm in public.
Scope of Investigation

The scope of the investigation into Mr. McDole’s death was much broader than
the scope of prior investigations that have been undertaken by DOJ regarding policeinvolved shootings. There were a number of reasons for this. First, this case was the first
police-involved shooting since Attorney General Denn assumed responsibility in January
2015 where there was a bona fide question as to whether the individual who was shot was
armed with a weapon at or around the time of the shooting. This created a need for a
broader factual investigation. Second, concerns were raised by Mr. McDole’s family as
to (among other things) (1) the integrity of the scene of the shooting (and, in particular,
whether evidence may have been placed at the scene by Wilmington Police Department
officers), (2) the possibility of prior contact between Mr. McDole and one or more of the
officers involved, and (3) the possibility of additional video of the incident. All of these
issues had to be thoroughly investigated by DOJ investigators, in addition to their
investigation of the shooting incident itself. Third, a decision was made early in the
investigation that, notwithstanding any issues of criminal liability, the shooting raised
serious questions about the Wilmington Police Department’s preparation of its officers,
which DOJ should attempt to address through the use of outside experts for the future
benefit of both the Wilmington Police Department and other Delaware police
departments. All of these factors resulted in an investigation that was more extensive
than other investigations of police-involved shootings.
Finally, the preliminary conclusion that DOJ should attempt to gather sufficient
evidence to pursue a felony assault charge against S/Cpl Dellose required that DOJ (a)
recruit, hire, and deputize a former federal prosecutor who was not a member of the
Delaware bar to prepare the case for possible presentation to a Delaware grand jury, and
(b) consult with two national experts with respect to police conduct who had supported
criminal charges against a Cleveland police officer with respect to the shooting of Tamir
Rice, in order to determine whether the facts collected by DOJ were sufficient to initiate a
criminal prosecution against S/Cpl Dellose. DOJ first consulted with Jeffrey Noble,
former Deputy Chief of the Irvine Police Department in California, who has been
involved in over one thousand police use-of-force investigations and, in November 2015,
authored an expert opinion on behalf of Tamir Rice’s family that criticized the expert
opinions of the Cleveland District Attorney and argued that the Cleveland police officer
who shot Tamir Rice should be held responsible for his death. After reviewing all of the
materials in the McDole case, Mr. Noble told DOJ that, in his expert opinion, S/Cpl
Dellose’s conduct did not violate Delaware’s criminal statute. After receiving Mr.
Noble’s opinion, DOJ solicited a second opinion from Roger Clark, the former head of
the Los Angeles Sheriff’s Department’s North Regional Surveillance and Apprehension
Team. Mr. Clark has been retained as a consulting expert 1,400 times, the majority of
2

 times for cases involving the use of force, and like Mr. Noble, authored an expert opinion
last year on behalf of Tamir Rice’s family that criticized the expert opinions of the
Cleveland District Attorney and argued that the Cleveland police officer who shot Tamir
Rice should be held responsible for his death. Like Mr. Noble, Mr. Clark reviewed all of
the materials in this case, and told DOJ that, in his expert opinion, S/Cpl Dellose’s
conduct did not violate Delaware’s criminal statute.
DOJ’s investigation included:


In the days immediately after the shooting, a broad-based neighborhood
canvass involving multiple DOJ investigators to locate eyewitnesses,
video or audio evidence, or any other information that would help DOJ
prosecutors to understand all relevant facts from the incident in which Mr.
McDole was shot. This canvass was accompanied by a public request
through traditional media and social media for persons with information to
come forward.



Ballistic evidence was analyzed by Carl M. Rone of the Delaware
State Police Forensic Firearms Services Unit. The evidence itself
was gathered by the Wilmington Police Department and the
Delaware Division of Forensic Science from the crime scene.



Performance of an autopsy by the Delaware Medical Examiner’s office.
This autopsy, which was received by DOJ on January 28, 2016, included a
post-mortem toxicology report.1



Interviews of Wilmington Police Department officers who were at the
scene of Mr. McDole’s shooting and civilian witnesses. Some of these
interviews were conducted by Wilmington Police Department officers and
observed by DOJ investigators, others were conducted jointly between
DOJ and WPD officers, and some were conducted by DOJ investigators
outside the presence of WPD officers.



Interviews by DOJ of members of Mr. McDole’s family (accompanied by
their legal counsel), followed by interviews of persons identified by those
family members as potentially having relevant knowledge.



Subpoenaing and reviewing thousands of pages of documents from the
Wilmington Police Department, and hundreds of pages of documents from
other third parties.

Some elements of Mr. McDole’s autopsy report will not be discussed in this report
because they may constitute private health information under Delaware law.
1

3

 

Microscopic examination of swabs taken from Mr. McDole’s hands by the
R.J. Lee group, an independent laboratory. The swabs themselves were
gathered by the Wilmington Police Department at the scene.



Video evidence, including a version of the cell phone video processed by
the Federal Bureau of Investigation, providing a detailed review of the
images captured by the cell phone video.



Collection and review of video evidence from multiple stationary
locations in the area of Mr. McDole’s shooting.



Retention of experts in police policies and training to review the policies
and trainings of the Wilmington Police Department, in order to identify
any relevant deficiencies relating to the incident involving Mr. McDole.



Retention of an attorney from the Pennsylvania bar (a former federal
prosecutor) sworn as a Delaware DOJ Special Deputy Attorney General to
prepare the case for possible prosecution, in order to avoid any real or
perceived conflicts presented by DOJ prosecutors presenting a case
involving criminal charges against a Wilmington Police Department
officer.



Retention of two national experts in police practices to determine whether,
if charges were filed, the State could rebut expert testimony expected from
the defendant officer with respect to the justification of his conduct under
Title 11, Section 464 of the Delaware Code. As noted above, the national
experts retained by DOJ were the two experts retained by Tamir Rice’s
family who recommended criminal charges against a police officer in
Cleveland, Ohio for the police shooting incident that led to Tamir Rice’s
death.

Applicable Law
The Delaware Criminal Code is written in a manner that provides a great deal of
deference to police officers with respect to the use of deadly force, and allows for a
review of the reasonableness of their use of deadly force toward a person they believe to
be armed, only in very narrow circumstances. For this reason, criminal prosecution of a
police officer for the use of deadly force under existing Delaware law – even in cases like
this one where the judgment of one of the officers was extraordinarily poor – is extremely
challenging.
The reckless use of deadly force by any individual in Delaware can result in a
criminal conviction ranging from a felony assault to a homicide, depending upon the
extent of the victim’s injury. However, there are two defenses available to police officers

4

 in such cases – one that is available to all Delawareans, and one that is unique to law
enforcement officers.
The first defense available to a law enforcement officer is the “use of force for
self protection.” The Delaware Code states:
(a) The use of force upon or toward another person is justifiable when the
defendant believes that such force is immediately necessary for the
purpose of protecting the defendant against the use of unlawful force
by the other person on the present occasion.
(b) Except as otherwise provided in subsections (d) and (e) of this section,
a person employing protective force may estimate the necessity thereof
under the circumstances as the person believes them to be when the
force is used, without retreating, surrendering possession, doing any
other act which the person has no legal duty to do or abstaining from
any lawful action.
(c) The use of deadly force is justifiable under this section if the defendant
believes that such force is necessary to protect the defendant against
death, serious physical injury, kidnapping or sexual intercourse
compelled by force or threat.
11 Del.C. § 464 (emphasis added).2
As noted in the sections of the Code emphasized above, this provision of the
Delaware Code is entirely subjective in nature – in order to successfully assert it as a
defense, a police officer need not establish that the use of deadly force was actually
necessary to protect the officer against death or serious physical injury. All he must show
is that he believed that to be the case at the time that he used deadly force, whether his
belief was reasonable or unreasonable.3
There is one relevant exception to the deferential, subjective test described above.
This section of the Code also states that “the use of deadly force is not justifiable under
this section if… (2) The defendant knows that the necessity of using deadly force can be
avoided with complete safety by retreating…”, but effectively excludes police officers by
stating, “A public officer justified in using force in the performance of the officer's
duties, or a person justified in using force in assisting an officer or a person justified in
using force in making an arrest or preventing an escape, need not desist from efforts to
perform the duty or make the arrest or prevent the escape because of resistance or
threatened resistance by or on behalf of the person against whom the action is directed.”
2

3

The second justification defense available to police officers is found at 11 Del.C. § 467.
Because we have determined that the defense under Section 464 cannot be rebutted
beyond a reasonable doubt, we do not examine this further.
5

 Title 11, Section 470(a) of the Delaware Code states:
When the defendant believes that the use of force upon or toward the
person of another is necessary for any of the purposes for which such
relief would establish a justification under §§ 462-468 of this title but the
defendant is reckless…in having such belief or in acquiring or failing to
acquire any knowledge or belief which is material to the justifiability of
the use of force, the justification afforded by those sections is unavailable
in a prosecution for an offense for which recklessness…suffices to
establish culpability.
Thus, a police officer who uses deadly force based upon a sincere belief that such force
was necessary to protect himself against death or serious physical injury, but was reckless
in coming to that belief, is not entitled to the subjective test outlined in Section 464, and
his use of deadly force can be reviewed to determine if it was reckless. “Reckless” is a
term defined in the Delaware Criminal Code to mean, in relevant part, “A person acts
recklessly with respect to an element of an offense when the person is aware of and
consciously disregards a substantial and unjustifiable risk that the element exists or will
result from the conduct. The risk must be of such a nature and degree that disregard
thereof constitutes a gross deviation from the standard of conduct that a reasonable
person would observe in the situation….” 11 Del.C. § 231(e).
Therefore, in order to successfully prosecute a police officer for the use of deadly
force against Mr. McDole, the state would need to prove two things:
1.

That the officer was aware of and consciously disregarded a substantial and
unjustifiable risk in obtaining or failing to obtain information he needed to
make a determination regarding the use of deadly force, and that the officer’s
disregard of the risk constituted a gross deviation from the standard of conduct
that a reasonable person would observe in the situation; and

2.

That the officer’s decision to use deadly force itself also involved a conscious
disregard of a substantial and unjustifiable risk, such that the disregard
constituted a gross deviation from the standard of conduct that a reasonable
person would observe in the situation.4
Results of Factual Investigation

4

This high standard with respect to criminal liability for police officers who use deadly
force varies among states. In the state of New York, for example, the criminal statute
regarding police use of deadly force is materially different from Delaware’s standard. In
New York, a police officer is barred by the criminal code from using deadly force unless
he “reasonably believes that such other person is using or about to use deadly physical
force.” New York Penal Law § 35.15 (emphasis added). Thus, in New York prosecutors
and juries are permitted to assess the reasonableness of a police officer’s decision to use
deadly force in criminal actions, whereas in Delaware they are not.
6

 The following chronology of the facts surrounding Mr. McDole’s death is drawn
from three primary sources: interviews with witnesses after the incident occurred, review
of audio evidence (the 911 call made by the woman who first saw Mr. McDole), and the
Wilmington Police Department Communications Center (WILCOM) tape reflecting
statements made by dispatchers and officers in real time (prior to, during, and after the
incident), and video evidence derived from a cell phone video taken by a civilian during
the incident. Although DOJ collected video from a number of other stationary sources
around the site of the shooting, none of those videos appear to show any footage of Mr.
McDole immediately preceding, following, or surrounding the incident.5 Some of the
stationary videos show officers – including S/Cpl Dellose – arriving in the area of the
shooting and approaching the incident area, and one of the stationary videos appears to
show6 S/Cpl Dellose firing his shotgun (without Mr. McDole or any of the other officers
in camera range), but the other videos do not show the area of the actual shooting. As
further discussed below, the cell phone video appears to begin, based upon matching it up
with the WILCOM recording, approximately one minute after the first police officer on
the scene made contact with Mr. McDole. There is a second, short video taken from the
same cell phone which shows Wilmington Police Department officers attempting to
resuscitate Mr. McDole.
Mr. McDole’s Activities Prior to the 911 Call
Mr. McDole’s activities during the hours prior to the 911 call that summoned
police to AutoZone (the area where the shooting occurred) did not factor into DOJ’s
analysis of the officers’ criminal liability. The police officers’ liability is based upon
what they knew and believed at the time they discharged their weapons, and there is no
evidence that any of the officers who discharged their weapons had any knowledge of
Mr. McDole’s activities prior to the 911 call when they arrived at the scene of the
shooting.7 His activities earlier in the day are discussed briefly here, and in more detail
5

Although they do not show any footage of Mr. McDole, the videos collected from the
areas around the shooting are posted on the web site created by DOJ for viewing of
photographic, video and audio evidence from this incident,
http://attorneygeneral.delaware.gov/executive/Wilmington092315.shtml. Footage from
approximately 3 p.m. to 3:30 p.m. is posted from these surveillance videos. The original
cell phone video is also posted on the web site, as is a portion of the video enhanced by
the Federal Bureau of Investigation in order to make more clear the footage of Mr.
McDole just prior to his shooting.
6
The stationary video was taken from the surveillance camera of a local business. The
video films the officer in question from behind, but based upon S/Cpl Dellose’s filmed
actions in the cell phone video where he can be identified, the footage appears to be of
S/Cpl Dellose.
7
One witness has alleged that Mr. McDole claimed that a white police officer had been
following him earlier in the day on the day that he was shot. However, to the extent that
Mr. McDole’s whereabouts earlier in the day are known, there is no evidence that any of
the four officers were anywhere near Mr. McDole. DOJ’s review of this issue included a
7

 below, because of concerns expressed by Mr. McDole’s family that the shooting incident
may have been prompted by activities that occurred earlier in the day.
Mr. McDole appears to have spent part of the morning and possibly early
afternoon of September 23 with an individual who identifies himself as Mr. McDole’s
godfather. As further detailed below, this individual was interviewed after Mr. McDole’s
shooting, and stated that he had been with Mr. McDole on the morning of September 23,
and that he had wheeled Mr. McDole to the Browntown section of Wilmington that
morning so that Mr. McDole could get a gun and PCP-laced cigarettes known to the
individual as “dippers.” This individual did not actually see Mr. McDole purchase a gun
during that trip, but was not with him at all times. He claims to have left Mr. McDole’s
company before the incident outside AutoZone.
There is a Downtown Visions camera that shows Mr. McDole intermittently –
from 11:54 to 12:56 – on September 23, 2015 on Rodney Street. In that video footage, he
does not appear to be engaging in any unusual activity. There is no firsthand evidence
(e.g. videotape, third party witness sightings) known to DOJ of Mr. McDole’s activities
immediately prior to the time when a woman called 911 to report that Mr. McDole had
discharged a weapon.
The Original Call to 911
The original 911 call to police came from a woman near the AutoZone who also
happened to be acquainted with Mr. McDole.8 The woman who called 911 was
interviewed subsequent to the incident, and described what she saw and heard that caused
her to dial 911.9
When interviewed after the incident, the 911 caller stated as follows. She heard
two gunshots while standing outside of a residence located to the rear of AutoZone. She
heard a third gunshot, and simultaneously saw Mr. McDole’s wheelchair tip over,
causing Mr. McDole to fall to the ground. She saw Mr. McDole remain motionless for a
short period of time, before he began trying to get back into his wheelchair. She did not

review of each of the service calls that the four officers were involved in on September
23 prior to responding to the scene of Mr. McDole’s shooting.
8
As discussed in more detail below, some individuals made allegations to DOJ that the
911 call was placed by a woman named Kim as part of an effort to cover up a robbery of
Mr. McDole. However, the identity of the person who called 911 is known to DOJ
investigators, and it is not the individual who those individuals believe to have made the
call.
9
A second individual attempted to call 911 from the area where Mr. McDole was shot at
around the same time as the first 911 call. The second individual had been with the first
911 caller when they heard gunshots. The second individual’s call was disconnected
before she could speak to an operator, but she was located at the scene and interviewed
that day.
8

 actually see a gun. The witness assumed from everything that she had heard and seen
that Mr. McDole shot himself.
Based on this belief, the witness made the following call to 911, which is
reproduced here in material part. (An audio recording of the entire 911 call is available
on a web site that DOJ has established in connection with this report,
http://attorneygeneral.delaware.gov/executive/Wilmington092315.shtml.) In reading the
transcript, it is important to note that some of the statements captured on the tape from
persons on both ends of the call – the caller and the operator – were being made to other
persons in their physical presence, rather than to the person to whom they were speaking
on the phone.
CALLER: The ambulance on, what street is this?
OPERATOR: Police, can I help you?
CALLER: By Autozone on Lancaster and Scott. Yes we need police, we need an
ambulance, a man just shot his self, by the, in the Autozone parking lot he shot his
self.
OPERATOR: He shot his self?
CALLER: He was sitting and he shot his self and he rolling out of the wheelchair
and he laying here on the ground.
OPERATOR: Okay.
CALLER: Please send the ambulance and the police, please.
OPERATOR: Okay, okay I’m just, look I’m, I just you to stay on the line with
me.
CALLER: Okay, the Autozone at Scott Street.
OPERATOR: Stay on the line with me, okay.
CALLER: Autozone at Scott Street.
OPERATOR: Stay on the line with me.
CALLER: Please send somebody, oh my God! Please send somebody quick!
Autozone and Scott Street.
OPERATOR: He shot himself, ma’am?
CALLER: Yes, yes! Please and he still has a gun, please and he is moving a little
bit but he shot his self! He is on the ground and he’s moving around and he has a
weapon in his hand! Please get somebody here!
OPERATOR: All right ma’am, we getting officers coming up there right now.
CALLER: Back up [unintelligible], he still got a gun! Back up!
OPERATOR: We got a shooting, or homicide, or suicide, the uh [unintelligible].
CALLER: Hello! Back up because he still got a gun!
OPERATOR: Yeah it looks like it. Looks like they saying he shot himself. At
Autozone.
CALLER: Say it again! Yes please he shot his…oh my God!
OPERATOR: Autozone parking lot. He’s down.
CALLER: Yes, at the back gate. Please send somebody here.
OPERATOR: All right ma’am, I’m going to transfer you over to the ambulance,
he may have some, all right never mind I got you.
CALLER: Oh, I can’t!
9

 OPERATOR: I got your phone number and everything, ma’am.
CALLER: The man still has a weapon in his hand.
OPERATOR: Okay.
CALLER: He’s moving a little bit, I can’t, I don’t want to go close to him because
I don’t know if he’s crazy or not.
OPERATOR: Yeah, I would say that he probably is if he did that.
CALLER: Oh my God, please can you just get the police here. Please get the
cops here.
OPERATOR: He’s still moving and the handgun’s in his hand.
CALLER: Yes. He’s right here in a wheelchair.
OPERATOR: Where did he shoot himself ma’am?
CALLER: He’s trying to pull his self up into his wheelchair.
OPERATOR: Okay, where did he shoot himself, could you tell?
CALLER: I don’t know, I’m not that close to him.
OPERATOR: Okay, okay.
CALLER: I’m standing here looking.
OPERATOR: Okay, okay
CALLER: He has a weapon in his hand. I’m not crazy, I’m not going next to
him.
OPERATOR: He’s pulling himself up in his wheelchair and he got it in his hand
still.
CALLER: Yes.
OPERATOR: You see the police officers there?
CALLER: Please hurry up and get somebody here! Back up! Back up!
OPERATOR: Okay yeah, keep those people away. Keep them away for me.
CALLER: Back up. Please get the police here.
OPERATOR: All right Stevie just make sure they 1039, he still got the gun in his
hand.
CALLER: Yo, he still got a gun in his hand, he shot his self. He shot, he was
over there shooting and he shooting his self. He shooting his fucking self.
OPERATOR: All right ma’am, just keep those people back for me I appreciate it,
thank you.
CALLER: He shooting his self. He got a gun.
OPERATOR: All right, watch yourself ma’am.
CALLER: He got a gun in his hand right there in that wheelchair and he shot his
self.
OPERATOR: Please watch yourself
CALLER: Back up.
OPERATOR: I can’t tell she doesn’t know where he shot himself and he did
shoot himself and he fell out of the chair but he pulled himself back up in it. So
he’s armed. I don’t know he might try to take one of the guys out.
CALLER: Back up baby back up we ain’t trying to get shot.
OPERATOR: Yeah watch the police officers too, ma’am. I can hear them
coming up there. They’re going to take him out.
CALLER: Oh my Jesus, don’t kill him!

10

 ***
The officers who responded to the 911 call were not privy to any of the above
exchange. They heard only what is on the WILCOM audiotape, i.e. the dispatcher’s
voice and the voice of S/Cpl Silva, the first officer to respond to the scene (an audio
recording of the WILCOM transmissions is also reproduced in its entirety at
http://attorneygeneral.delaware.gov/executive/Wilmington092315.shtml). Nevertheless,
the 911 call raised a concern at DOJ as to why the operator who took the call said
“They’re going to take him out,” when there is no evidence that the operator had any
communication with the police officers or other information that would lead him to make
such a statement.
DOJ was able to locate and interview the 911 operator who took the 911 call. The
911 operator explained that his statement about the police “taking out” Mr. McDole was
not made to police on scene or the 911 caller, but rather to his colleague in the dispatch
room, and it was his speculation as to what might happen at the scene based on his belief
from the phone call that Mr. 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.10
Wilmington Police Respond Following the 911 Call
The audio tapes of real-time communications between the officers and the
Wilmington Police dispatcher, along with post-incident interviews with police officers
(those who discharged their weapons and those who did not) and civilian witnesses, have
allowed DOJ to reconstruct the portions of this incident that precede the widelypublicized cell phone video of the incident. In comparing radio dispatches from
WILCOM to the video, it appears that officers first arrived at the scene and saw Mr.
McDole approximately one minute before the cell phone video begins.
Following the receipt of the 911 call, Wilmington Police Department officers
were first alerted to an incident by a call from WILCOM that stated “1700 block of
Lancaster, 1700 block of Lancaster in AutoZone parking lot, for a possible IK, some
mention it might be self-inflicted.”11 A number of units responded that they were en
route. Dispatch then stated “Be advised the subject is down there, there is some mention
he possibly still has the handgun in his hand.”
The first officers to arrive at the scene, less than a minute after the call went out
from WILCOM, were Senior Corporal Thomas Silva, a 19-year veteran of the
Wilmington Police Department, and a rookie police officer with whom he was partnered
that day. As S/Cpl Silva and his partner arrived at the scene, he broadcast to WILCOM
The 911 operator is heard using the same terminology later in the 911 tape, saying “I
think they just took him out Stevie” to the dispatcher sharing a room with him.
11
“IK” is an alphabetical code used by Wilmington Police Department to indicate shots
fired.
10

11

 “We are coming up to the scene and will advise.” Seconds later, he said “We’re being
flagged down on Tulip Street, we will advise.”
S/Cpl Silva recounted the following day that as he and his partner arrived in the
area of the AutoZone, they were flagged down by a woman who pointed to Mr. McDole
and said “He’s right there, he’s still got the gun.” In a later interview, the woman who
had initially placed the 911 call confirmed that she was also the person who flagged
down S/Cpl Silva. Two other officers, arriving soon after S/Cpl Silva, encountered a
civilian witness repeatedly yelling (in one case) “baby get down, he has a gun!” and (in a
second case) “he’s got a gun.”
Less than ten seconds after reporting that he was being flagged down, S/Cpl Silva
radioed to WILCOM “we have a subject in a wheelchair, looks like he’s taking off again
here, stand by, will advise.” S/Cpl Silva recounted the following day that when he first
saw Mr. McDole, Mr. McDole was attempting to climb from the ground into a
wheelchair. This was the first time that S/Cpl Silva became aware that Mr. McDole used
a wheelchair. S/Cpl Silva also recalled that after Mr. McDole lifted himself back into his
wheelchair, S/Cpl Silva began attempting to communicate with Mr. McDole. S/Cpl Silva
claims that he repeatedly asked Mr. McDole to “let me see your hands,” and that Mr.
McDole first reached into a bag next to the wheelchair, and then began moving slowly in
the wheelchair out of a grassy area where S/Cpl Silva first saw him. S/Cpl Silva’s
partner, who was also interviewed after the incident, provided an accounting of this initial
contact with Mr. McDole consistent with S/Cpl Silva’s account.
Approximately twenty seconds after radioing that he had seen Mr. McDole, S/Cpl
Silva radioed to WILCOM “Stand by, this guy’s reaching for something. It’s unknown
right now. The wheelchair is on Tulip Street.”
S/Cpl Silva, concerned for his rookie partner and not wanting her to make, in his
words, “an irrational decision,” grabbed her by her gun belt and asked her to stay behind
him as they both took cover behind some parked cars.
S/Cpl Silva then once again instructed Mr. McDole to put his hands up, while
simultaneously radioing updates about the evolving situation to central dispatch.
Approximately 15 seconds after his dispatch stating that Mr. McDole was reaching for
something, S/Cpl Silva radioed to “have the units come in.”12 Approximately 30
seconds after this dispatch, S/Cpl Silva radioed “stand by, the subject is moving again,
he’s going to be coming right there in the middle of the street. Units down there east of
us, west of us, stand by. He’s reaching into his waist again. Stand by.”
S/Cpl Silva’s description the following day of events that appear to have been
occurring during this series of radio transmissions is excerpted here at length:

12

Shortly after this dispatch from S/Cpl Silva, the voice of what appears to be another
male officer is briefly heard on the WILCOM recording, but the words are not audible.
12

 INTERVIEWER: Okay when you’re telling me that you’re giving
commands, what are you saying?
CORPORAL SILVA: I’m telling him to stop what you’re doing, keep
your hands up, let me see your hands, let me see your hands. I’m not
approaching yet because I don’t know what I have, I don’t know what’s
going on with it. The lady screaming behind me that the witness he’s got
a gun, he’s got the gun. I got nothing to go with besides what she’s telling
me, he’s not reacting or acting the way I want him to react.
***
INTERVIEWER: Okay. So you’re giving commands, he doesn’t hear you
or responding, uh what are your concerns at this point?
CORPORAL SILVA: My concern is that he is looking for a gun. He is
looking for whatever it is that the caller initially called in regards to. I
gave more verbal commands then, let me see your hands, let me see your
hands. I’m not approaching, you know uh advancing on him cause I don’t
know what he’s got or what he’s doing or he’s disoriented or he’s not
responding whatsoever, not even with words, or his actions where he’s
just saw coming towards me.
INTERVIEWER: Could you see any other officers?
CORPORAL SILVA: I … once the scene, it felt like forever and then in
reality, it was shorter than I think it was. Um I saw Officer [NAME
REDACTED] come from my uh my side, my right side. And I couldn’t
see my partner, my rookie partner. I don’t think she was behind the
building. So [NAME REDACTED] was next to me and I told her hey just
stay right here make sure we’re okay, you know you’re covering me in
case we have to approach….
Corporal James MacColl arrived at the scene subsequent to S/Cpl Silva’s arrival,
but prior to any shots being fired. He responded to the initial dispatch notice of a
possible self-inflicted gunshot wound in the AutoZone parking lot, along with a trainee
officer who was with him that day. As Cpl MacColl was en route to the scene, he began
to hear the above-referenced dispatches from S/Cpl Silva who had already arrived,
reporting that the subject was in a wheelchair. Cpl MacColl parked his car, exited the car
with his trainee officer, and began approaching on foot. As he exited the car, he could
hear S/Cpl Silva shouting to Mr. McDole “show me your hands’ or something to that
effect,” and he saw Mr. McDole in a wheelchair. As Cpl MacColl got closer, he saw
S/Cpl Silva behind a car with a handgun pointed at Mr. McDole, and another officer
moving forward in the middle of the street from the opposite direction with a shotgun
pointed toward Mr. McDole. Cpl MacColl took cover behind the same car that S/Cpl
Silva was using for cover, and joined S/Cpl Silva in yelling to Mr. McDole to “show me
your hands.” Cpl MacColl describes Mr. McDole as follows:

13

 He’s moving his arms in front of his body, uh, he’s reaching to his legs
and appears to be rearranging his legs on the chair. I don’t know the
extent of his injuries or (unintelligible) in the wheelchair. He appears to
be moving his legs in the chair, he’s putting his hands on the armrests of
the chair and pushing his body completely off of the chair….He
repositioned himself in the chair, um, he’s not saying anything, he’s not
making eye contact with anyone.
Senior Corporal Dellose Fires His Shotgun
Some time after S/Cpl Silva arrived at the scene and began interacting with Mr.
McDole and radioing other officers, Senior Corporal Joseph Dellose arrived at the scene.
S/Cpl Dellose heard the WILCOM dispatch and heard that there had been a shot fired by
the individual in question and perhaps a self-inflicted gunshot wound. He stated the next
day that he had not been dispatched to the scene, but responded anyway. The day after
the shooting, S/Cpl Dellose recalled hearing some of S/Cpl Silva’s dispatches on
WILCOM en route to the scene – he said “I vaguely remember someone saying on the
radio that the subject was possibly in a wheelchair and that he was now, possibly
westbound….”
S/Cpl Dellose parked his car at the other end of the block from S/Cpl Silva and
the other officers who had already responded, and ‘unracked’ his shotgun. S/Cpl
Dellose’s description the following day of what he observed and did as he progressed up
the street was, along with the cell phone video of his actions, the basis for the preliminary
determination that the state should attempt to gather sufficient evidence to pursue a
felony assault charge:
DELLOSE: At that point, I couldn’t see a suspect, all I know is he was
possibly on Tulip Street coming in my direction.
INTERVIEWER: Did you see any other officers?
DELLOSE: I could see other officers and they were further east on Tulip
Street.
INTERVIEWER: Okay, at that point could you tell who they were?
DELLOSE: At this point, no, I really couldn’t. I couldn’t tell who they
were.
***
DELLOSE: Then the guys that were pointing out said no up a little
further.
INTERVIEWER: Okay, did, as this was going on, is there still
communication coming across your radio?
DELLOSE: At this point, if there is, I don’t hear it, I was kind of deaf to
it.
***
DELLOSE: So I move up to where the people are pointing and I think it
was like a silver-colored Mercedes sedan and I saw a guy sitting in a
wheelchair and he was like directly behind the sedan.
14

 INTERVIEWER: Okay
DELLOSE: I figured this may be the suspect right here.
INTERVIEWER: You said he’s in a wheelchair?
DELLOSE: Yes, he was sitting in the wheelchair.
INTERVIEWER: All right.
DELLOSE: At that point I could hear, I could kind of see the other
officers out of the corner of my eye and they were hollering. I don’t know
exactly what they were hollering, but they, I assume they were some kind
of commands. At this point, I put my shotgun on target, told the suspect
to, show me his hands, show me your hands, I believe that’s what I was
saying. I was screaming as loud as I could.
***
DELLOSE: I could see his hands fidgeting you know by his waist.
INTERVIEWER: OK
DELLOSE: He wasn’t responding to my commands. I could tell he
looked at me, and at that point I could see his right hand and I could see
that handle of a weapon of a gun.
INTERVIEWER: OK
DELLOSE: Again, I gave more commands he just didn’t look like he was
responding to anything. I couldn’t see his hands, he kept moving around
his waist. At that point, I felt I was in danger, my life was in danger if he
picked up that gun and started shooting. He could shoot the other officers,
he could shoot me, and bystanders that were point out to him, they were in
the line of his fire as well. That’s when I decided I had to fire one round.
In S/Cpl Silva’s statement the day after the shooting, S/Cpl Silva disclosed that he
was actually yelling at S/Cpl Dellose to retreat from where he was (in addition to yelling
to Mr. McDole to show his hands).
The cell phone video does not provide a view of Mr. McDole from exactly the
same perspective as S/Cpl Dellose’s at the time of the shooting, and in particular, it is
impossible to tell with certainty from the video whether the butt of a gun was or was not
visible to S/Cpl Dellose. It should also be noted that at the moment of the shooting, the
cell phone video pans to the ground. What is clear from the cell phone video is that (1)
Mr. McDole’s hands were on the arms of his wheelchair when he was shot, and (2) S/Cpl
Dellose gave Mr. McDole two commands to “show me your hands” in the space of
approximately two seconds before he discharged his shotgun.
S/Cpl Dellose’s discharge of his shotgun fundamentally changed the dynamic of
the incident involving Mr. McDole. Less than five seconds after S/Cpl Silva’s last radio
dispatch (“He’s reaching into his waist again. Stand by.”), S/Cpl Silva radioed into
WILCOM “shots fired, shots fired, shots fired.” In hindsight, it is now known that the
“shots” referred to in this dispatch was the single shotgun shot from S/Cpl Dellose.
Interviews with officers the following day, however, indicate that there was uncertainty
as to who had discharged a weapon. Cpl MacColl reports that just as he was taking cover
beside S/Cpl Silva, he heard a shotgun discharge, which he assumed to be S/Cpl
15

 Dellose’s shotgun though he did not see the gun fired, because it sounded like a shotgun
and he did not see any other shotguns at the scene. But Cpl MacColl stated the following
day that he did not see any immediate physical reaction from Mr. McDole that would
have established that Mr. McDole had been shot – a statement that is consistent with the
video. Similarly, S/Cpl Silva reported the next day that he did not know where the
gunshot had come from, and thought that it might even have come from Mr. McDole.
Corporal Thomas Lynch responded with his partner to the initial dispatch call that
indicated a possible self-inflicted gunshot by a person who still had a gun. Before Cpl
Lynch had even arrived at the scene, the shotgun had been fired and S/Cpl Silva was
broadcasting reports of “shots fired” to other officers. When Cpl Lynch arrived, he took
up position and attempted to provide cover for the officer who had fired the shotgun, and
began giving Mr. McDole commands.
As events unfolded from the moment of S/Cpl Dellose’s single shotgun discharge,
officers on the scene now believed that they were not only interacting with a person who
possessed a gun and had discharged it prior to their arrival, but operating in an
environment where live gunfire had just occurred and there was uncertainty as to whether
the gunfire came from a fellow officer, Mr. McDole, or an unknown third party.
Events Following The Firing of the Single Shotgun Shot
The next WILCOM report from S/Cpl Silva, approximately 30 seconds after his
report of “shots fired,” stated “he’s still in a wheelchair, not moving.” The movement of
officers and instructions given to Mr. McDole following S/Cpl Dellose’s shotgun
discharge are captured on the cell phone video. After some initial commands to Mr.
McDole to “drop the gun” (which were consistent with the belief of some officers that he
may have fired a gun), the audio on the cell phone video reflects multiple officers
instructing Mr. McDole to “put your hands up.” During the seconds prior to other
officers discharging their firearms, multiple commands to Mr. McDole to “put your hands
up” are heard on the video, and there are no further instructions to “drop the gun.” The
cell phone video depicts, and the officers recalled the next day, Mr. McDole responding
to these commands by alternately repositioning himself in his wheelchair and moving his
hands on the armrests of his wheelchair, prior to the act that prompted the other three
officers to fire their weapons.
Approximately 22 seconds after reporting that Mr. McDole was still in his
wheelchair and not moving, S/Cpl Silva radioed “shots fired, he’s down.” The time of
these radio dispatches corresponds to the images on the cell phone video, reflecting that
just under one minute elapsed from when S/Cpl Dellose discharged his shotgun to when
the three other officers discharged their weapons at roughly the same time.

16

 The three police officers who shot Mr. McDole approximately 52 seconds after
the initial shotgun blast13 have somewhat different recollections of what they saw that
prompted them to shoot, but each of their decisions was based on a change in Mr.
McDole’s movement of his hands which is also reflected in the cell phone video. The
officers’ later recollections are less relevant for purposes of reciting what Mr. McDole
did, given that Mr. McDole’s actions were captured on videotape, than they are for
purposes of recounting what the officers thought they were seeing, which is what is
relevant to their potential criminal liability under Delaware’s deadly force justification
statute for law enforcement officers.
The videotape of the incident shows Mr. McDole reaching into his pants and
beginning to pull his hands out of his pants just prior to the gunshots, as opposed to his
gestures prior to that point on the videotape where his hands had been in view. The DOJ
web site shows still photographs of Mr. McDole in the seconds before S/Cpl Silva, Cpl
MacColl, and Cpl Lynch discharged their firearms, showing Mr. McDole reaching into
his pants. An enlarged video segment (drawn from the original cell phone video) of this
time period just prior to the officers firing their weapons is also included at the web site
http://attorneygeneral.delaware.gov/executive/Wilmington092315.shtml. The full cell
phone video is also included on the web site for purposes of comparison.


In his interview the day after the shooting, S/Cpl Silva reported that
after the first gunshot, Mr. McDole was “digging into” his right side,
propping himself up in his wheelchair, and then “go[ing] into the
center.” S/Cpl Silva continued to give verbal commands to Mr.
McDole. S/Cpl Silva stated, “[H]e’s trying to like push up, he goes to
the side again, props himself up in the chair and at this point, this is
when I told myself, he’s reaching for a gun, he’s got to be reaching for
a gun the way he’s positioning himself and I made a conscious
decision that I think he’s got a gun.” S/Cpl Silva said he placed “a lot
of weight” in making that determination on the fact that the witness
when he arrived at the scene told him that Mr. McDole had a gun.
S/Cpl Silva said “Now at this point, he did, he did almost two or three
times, the second or third time when he reached to the side and
dropped himself to the chair again, he reached into the middle as if he
was trying to grab something, and as he’s coming up, he did one of
these numbers with his fist, at that point, I thought he was coming out
with a gun and I shot the first shot.” S/Cpl Silva believes that he
ultimately fired four times.



Cpl Lynch, when interviewed the following day, recalled Mr. McDole
putting his right hand inside his waistband, and believes that he saw a
small black object coming up from Mr. McDole’s underwear when
Mr. McDole began to draw his hand out, which caused him to

13

S/Cpl Dellose does not appear to have discharged his shotgun again after his initial
discharge.
17

 discharge his weapon. Cpl Lynch stated after the shooting that the
initial report he had received that Mr. McDole was armed and had
already discharged a weapon prior to the 911 call, the radio broadcast
of “shots fired” as he was en route to the scene, and Mr. McDole’s
motions just prior to Cpl Lynch’s discharge of his weapon led Cpl
Lynch to believe that Mr. McDole was drawing a weapon.


Cpl MacColl claims that he saw Mr. McDole “reach down to his right
hand side with his right hand and he pulls his arm back and when he
comes back he has a handgun in his hand….I couldn’t tell you what
make or model handgun it was, dark, black in color. As he comes
back where I can view it, I began to fire.”

Delaware criminal law – recognizing the exigent circumstances in which
law enforcement officers often find themselves – does not require either accurate
observations or accurate recollections by police officers who use deadly force. It
simply requires that officers who did not act recklessly in gathering information
truly believed that they needed to use deadly force.
As with the shooting itself, the officers’ recollections of the moments
immediately after Mr. McDole was shot differed somewhat the following day
when they were interviewed, and in some cases differed from the videotape. The
videotape of Mr. McDole’s shooting shows him slowly falling out of his
wheelchair and to the ground after he is shot.


S/Cpl Silva recalled the following day that he and Cpl MacColl took
Mr. McDole out of his wheelchair as Mr. McDole began falling off of
it. He believes that as they were taking Mr. McDole to the ground,
that Mr. McDole’s pants came off and that he could see the barrel of a
gun in Mr. McDole’s underwear. He recalls giving orders to provide
medical assistance to Mr. McDole, and then “backing away” from Mr.
McDole.



Cpl Lynch recalls Mr. McDole toppling out of the wheelchair as a
result of the gunshots. He then approached Mr. McDole with a group
of officers, saw Mr. McDole lying face-down, began to “check his
pants and attempt to flip him over,” and states that he observed the
barrel of a handgun sticking out of the right side of Mr. McDole’s
boxers on the bottom as he was doing so. Cpl Lynch states that Mr.
McDole’s pants had fallen down to mid-leg, and that the officers had
used Mr. McDole’s pants to roll him over, and that they had done so
slowly and deliberately in order to not disturb any firearm that might
be concealed. Cpl Lynch said that he could not identify the type of
gun until he later observed it lying on the ground. Cpl Lynch then
proceeded to perform CPR on Mr. McDole.

18

 

Like Cpl Lynch, Cpl MacColl recalled that “after the initial volley of
fire [Mr. McDole] kind of slumps forward in his wheelchair and then
falls over onto the ground.” Cpl MacColl recalled that another officer
rolled Mr. McDole onto his back, and that “There was a gun laying
between his legs close to his right leg caught because his pants had
fallen off when he fell off the wheelchair and the gun had gotten
caught in the, his pants and his boxer shorts.”



Three officers who did not discharge their weapons also reported
seeing a gun on Mr. McDole’s person immediately after he was shot.
One officer who had been at the scene but did not discharge her
weapon recalls being the officer who first attempted to turn Mr.
McDole over after he fell from his wheelchair. She recalls Mr.
McDole’s pants being partly down when she turned him over, and
seeing a heavy object in his boxers as she turned him. She also recalls
saying “where’s the gun, where’s the gun” as she was turning him.
After seeing the heavy object in his boxers, she recalls that she reached
in and grabbed a weapon. She picked up the gun and, at the
instruction of another officer, put it down on the ground behind her,
out of Mr. McDole’s reach. She then began to assist performing chest
compressions on Mr. McDole. A second officer who did not shoot her
weapon was also present when Mr. McDole was rolled over, and
reports seeing the barrel of a gun poking out of the right side of his
boxer shorts after he was rolled over. A third officer who did not
discharge her weapon recalls approaching Mr. McDole after he had
been shot, and seeing a gun coming out of the bottom of Mr. McDole’s
boxers after other police officers had rolled Mr. McDole over.



In addition to the above, swabs were taken of Mr. McDole’s hands.
These swabs were sent to R.J. Lee Group for microscopic analysis to
determine if gunshot residue (GSR) was present on Mr. McDole’s
hands. After performing this analysis, R.J. Lee Group issued a report
documenting the presence of GSR on Mr. McDole’s right hand. While
the presence of GSR on Mr. McDole’s hand does not establish where
or at what target he discharged a firearm – and there is no evidence
that he discharged a firearm after police arrived in response to the 911
call – it is consistent with Mr. McDole having had a gun on his person
and firing that gun at some time prior to the incident with the police.

In short, six officers – three of whom had discharged their weapons, and
three of whom had not – stated on the day after Mr. McDole’s shooting that they
had seen a handgun on his person immediately after he was shot. One of those
officers who had not discharged her handgun also stated that she was the person
who had removed the gun from Mr. McDole’s person as a safety precaution.
(After being told by a member of Mr. McDole’s family that there was evidence
that the gun in question had been placed at the shooting scene after the shooting,
19

 DOJ interviewed the persons who claimed to have this evidence, but as detailed
below, no evidence was produced).
The gun recovered from Mr. McDole was later examined by the
Wilmington Police Department and found to be “an ‘Armscor’ 38 cal. (6) six shot
revolver….The cylinder had (4) four spent and (2) two unspent ‘Winchester’ 38
cal. Bullet cartridges.” A trace on the gun was conducted by the federal Bureau
of Alcohol, Tobacco, and Firearms, and the search determined that the gun had
been legally purchased in South Carolina in 2009. The ATF conducted an
extensive investigation into the changes in ownership of the gun since 2009, and
ultimately discovered that the gun had been stolen from the glove compartment of
the truck of the last known owner in South Carolina (and the theft reported to
local police).
Mr. McDole died from injuries sustained from the multiple gunshots.
Questions Regarding Mr. McDole’s Gun
DOJ received some second and third-hand reports during its investigation alleging
that Mr. McDole either had no gun at the time he was shot, or had a different type of gun
than the one that the Wilmington Police Department reported finding on his person. DOJ
thoroughly investigated these claims, as they implicated the integrity of the shooting
scene. After following up on each of these indirect reports, DOJ found no evidence to
call into question the uniform testimony of the Wilmington Police Department officers at
the scene with respect to Mr. McDole’s gun, i.e. that the gun described in the ballistics
evidence report was found in Mr. McDole’s boxer shorts after he was shot.
DOJ did find evidence that Mr. McDole was in possession of a different handgun
(specifically a .22 caliber handgun) at some time prior to his shooting. Witnesses at
Hillside House report seeing Mr. McDole with such a weapon on the day prior to Mr.
McDole being shot. Additionally, a patient at Hillside House told police following Mr.
McDole’s shooting that he had seen the butt of a gun protruding from Mr. McDole’s
backpack when Mr. McDole left Hillside House at approximately 8:30 a.m. on the day of
the shooting; the patient alternately described the gun as looking either like “a 22” or “a
miniature 45” based upon the size of the grip.
However, Mr. McDole’s prior possession of a different gun does not contradict
the testimony of the six police officers that he was in possession of a .38 caliber gun
when he was shot. In fact, according to the statements of two witnesses, Mr. McDole had
told an individual at Hillside House to whom he was trying to sell a gun that he had
access to multiple types of firearms. Consistent with these post-incident statements, on
September 21, 2015 – two days before the incident under investigation – Wilmington
Police were summoned to Hillside House by hospital staff who were concerned about
reports that Mr. McDole had a weapon in the facility. A report completed by responding
officers indicated that a patient told police that Mr. McDole had displayed a .22 caliber
handgun to the patient and told the patient that if the patient wanted to purchase a gun,
20

 “Any kind you want I can get.” Additionally, as was discussed above, the individual who
was with Mr. McDole on the morning prior to his shooting said that Mr. McDole was
seeking a different gun that morning. Therefore, information received by DOJ that the
gun found on Mr. McDole’s person after he was shot was different from the gun he was
seen carrying earlier in the day is consistent with statements by Mr. McDole that he had
access to different types of firearms, and the statement by the person who was with him
the morning of the shooting that Mr. McDole was actively seeking a different gun on the
day he was shot.
DOJ also investigated allegations that the gun officers stated they found on Mr.
McDole’s person was actually planted at the scene of the shooting by Wilmington Police
Department officers after Mr. McDole was shot. Specifically, DOJ received second-hand
allegations that a videotape existed of a gun being placed at the scene of Mr. McDole’s
shooting after the incident. However, when the person alleged to have such a video was
asked, he denied having any such video or having witnessed such an incident. Multiple
New Castle County paramedics and St. Francis EMTs who responded to the scene
immediately after the shooting reported seeing a gun next to Mr. McDole on the ground.
In sum, despite diligently pursuing each source provided by persons alleging that
the scene of Mr. McDole’s shooting was altered, DOJ was not able to find any person
who witnessed anyone tampering with the shooting scene or any video showing the
shooting scene being altered – either in the immediate aftermath of the shooting or in the
following hours. To the extent that specific people were alleged to have seen or filmed
any such activity, they denied it when asked. Altering or preparing false physical
evidence at a potential crime scene can be a criminal offense, and if any concrete
evidence is produced in the future that this occurred in this case, DOJ will vigorously
follow up on that evidence – but no such evidence has been provided or located to date.
Some of the reports that DOJ received regarding Mr. McDole having a different
type of gun earlier in the day were commingled with allegations that he had been robbed
just prior to his encounter with the Wilmington Police Department, and that the 911 call
to the police had been an effort by one of those involved in the robbery to create a
distraction from the robbery itself. The only person willing to give a recorded statement
to DOJ investigators regarding this subject was a relative of Mr. McDole’s.14 Mr.
McDole’s relative claims to have seen Mr. McDole on the morning of the day when Mr.
McDole was shot. Mr. McDole’s relative claims that Mr. McDole spent the day with a
person named “OJ” from New York, and that Mr. McDole and “OJ” came and went
14

Other persons gave both formal and informal statements to DOJ investigators regarding
a possible robbery of Mr. McDole that preceded the incident with the police, but when
asked for the source of their information, they attributed the information to either Mr.
McDole’s relative or the individual who videotaped the shooting. Both the statement of
Mr. McDole’s relative and the statement of the individual who videotaped the shooting
are described in full, with respect to the alleged robbery, in this report. In short, Mr.
McDole’s relative attributes the information to the man who videotaped the shooting, and
the man who videotaped the shooting denies having seen any robbery.
21

 several times during the day. Mr. McDole’s relative claims that a girl or woman named
“Kim” whose last name he does not know told him that “OJ” had robbed and shot Mr.
McDole. Mr. McDole’s relative did not see “OJ” shoot Mr. McDole, but believes “OJ”
shot Mr. McDole because “if he didn’t he would have been to my house afterwards, I
haven’t seen him since.” Mr. McDole’s relative claimed that an unknown man witnessed
the robbery and assisted Mr. McDole back into his wheelchair. DOJ investigators later
identified this unknown male as the individual who took the cell phone video. When the
individual who took the cell phone video was interviewed by DOJ, he stated that he was
detailing a car in a driveway adjoining Tulip Street, and that he went out into the street
after he heard sirens and emerged to see police cars coming up and Mr. McDole in a
wheelchair rolling out into the street. He denied witnessing a robbery or assisting Mr.
McDole in any way. The individual who took the cell phone video specifically stated
that he had not seen Mr. McDole before hearing the sirens.
Finally, Mr. McDole’s relative alleged that a woman named “Kim” who lived
near the AutoZone was involved in robbing Mr. McDole, and had called 911 in order to
cover up the robbery. However, no 911 calls were received that day from a person
named Kim, and the person who made the completed 911 call did not reside in the area of
the shooting.
DOJ also located a person identified by Mr. McDole’s family as having claimed
on social media to have overheard S/Cpl Dellose boasting about having shot Mr.
McDole. DOJ located the individual identified by Mr. McDole’s family, and the
individual said, when interviewed, that he had overheard S/Cpl Dellose using a racial
epithet in a bar when discussing a shooting incident, but that S/Cpl Dellose had been
referring to a prior shooting incident in which he had been involved rather than the
incident involving Mr. McDole. The person interviewed stated that the only reference he
recalled overhearing relating to Mr. McDole was S/Cpl Dellose stating that he was
getting time off as a result of the shooting. The individual interviewed, who claims to
have known S/Cpl Dellose for 15 years, believes that S/Cpl Dellose was intoxicated
during the conversation that he overheard. DOJ contacted the person with whom the
interviewee recalled S/Cpl Dellose having the conversation he overheard, and that second
individual confirmed that the facts of Mr. McDole’s shooting were not discussed during
the conversation. The second individual was specifically asked if he recalled S/Cpl
Dellose using a racial epithet, and said that he did not recall S/Cpl Dellose doing so.
Alleged Prior Encounter Between Mr. McDole and Wilmington Police
Officers Involved in Shooting
DOJ received some second-hand reports from members of the community that
Mr. McDole had been involved in a previous, hostile encounter with one of the officers
involved in the shooting. DOJ conducted an exhaustive search to determine if Mr.
McDole had met any of the officers in the past, including computerized searches of
known interactions of Mr. McDole with Wilmington Police Department officers in the
past, and incidents with the officers in question where the officers were either the subject
of a citizen complaint or alleged that a citizen had acted inappropriately toward the
22

 officer. There is no record of any such encounter. None of the individuals who DOJ
interviewed claimed to have seen such an incident.
Legal Conclusions With Respect to Officers Silva, MacColl and Lynch
As noted above, all four of the officers who shot Mr. McDole were entitled under
Delaware law to discharge their firearms without criminal consequences if they believed
that such force was necessary to protect themselves against death or serious physical
injury. 11 Del.C. § 464(c). The only relevant exception to this law is if the defendants
were reckless in acquiring or failing to acquire information needed to form this belief
about the need to protect themselves. 11 Del.C. § 470(a).
The State would not be able to establish that S/Cpl Silva, Cpl MacColl, or Cpl
Lynch acted recklessly in acquiring or failing to acquire information necessary to make
judgments about the need to discharge their firearms. Again, recklessness is defined in
the Delaware Criminal Code as being aware of and consciously disregarding a substantial
and unjustifiable risk, where the risk is of such a nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a reasonable person would
observe in the situation. 11 Del.C. § 231(e). The evidence described above establishes
that S/Cpl Silva responded to a call regarding a man who had discharged and was still in
possession of a gun, that he took steps upon arriving at the scene to assess the situation
and to attempt to communicate with Mr. McDole, and that he prepared to advance on Mr.
McDole only after he heard a gunshot whose origin he could not precisely place. Cpl
MacColl arrived at the scene just prior to the shotgun being discharged, and also
describes being confused as to the origin of the gunshot noise. Cpl Lynch did not arrive
at the scene until after the shotgun had been discharged, and heard S/Cpl Silva announce
“shots fired” over the WILCOM broadcast. Given their belief that Mr. McDole was
armed, the fact that a weapon had been discharged, the uncertain origin of the gunshot,
the presence of multiple officers and civilians, and the officers’ stated belief, as supported
by the cell phone video, that Mr. McDole was reaching into his pants just prior to the
shots being fired, it cannot be said that any of these three officers were aware of and
consciously disregarded a substantial and unjustifiable risk, where the risk is of such a
nature and degree that disregard thereof constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the situation with regard to their
efforts to acquire sufficient knowledge to form a belief about the necessity of using
deadly force.
Given that these three officers did not act recklessly, as that term is defined in the
Delaware Criminal Code, in acquiring the necessary information, the only way that they
could be charged with criminal conduct for discharging their weapons would be if the
state could prove that they did not believe that that such force was necessary to protect
themselves against death or serious physical injury. There is no evidence to suggest that
these three officers did not have a sincere belief in the necessity of discharging their
firearms. Although their recollections of Mr. McDole’s conduct just prior to their
shooting are different, the officers all believed that Mr. McDole had a weapon and had
already discharged that weapon at least one time, and they all observed Mr. McDole
23

 reaching into his pants and beginning to draw his hand out just prior to discharging their
weapons.
Consideration of Criminal Charges Against Senior Corporal Dellose
Unlike the other three officers who discharged their firearms, the Attorney
General determined that probable cause could exist to pursue felony assault charges
against S/Cpl Dellose, and that the state should determine the feasibility of bringing
criminal charges.15 Specifically, the Attorney General determined that S/Cpl Dellose’s
decision, after seeing other officers on the scene and eventually noting that they were
yelling things he could not hear, to nevertheless advance immediately up the middle of
the street without seeking cover or assessing the situation could constitute reckless
conduct as that term is defined in the Delaware criminal code, and that his decision to
discharge his firearm at Mr. McDole after giving Mr. McDole only two seconds to
respond to verbal instructions could also constitute reckless conduct.
A determination of probable cause, however, is only the first decision that must
be made by DOJ in deciding whether to charge a person with a crime. The second
decision that must be made is whether there is any possibility that a conviction will result
from such a charge. Although it is not binding on Delaware prosecutors, the American
Bar Association’s Criminal Justice Standards for the Prosecutorial Function provides a
useful description of this responsibility:
A prosecutor should seek or file criminal charges only if the prosecutor
reasonably believes that the charges are supported by probable cause, that
admissible evidence will be sufficient to support conviction beyond a
reasonable doubt, and that the decision to charge is in the interests of
justice.
ABA Criminal Justice Standards (Fourth Ed.) § 3-4.3 (emphasis added). Therefore,
having determined that the lower standard of probable cause could exist, the next
decision for DOJ to make was whether admissible evidence would be sufficient to
support a conviction of S/Cpl Dellose by a jury.
To ensure that this decision would be made in an impartial manner and, if a
decision was made to present a case against S/Cpl Dellose to a grand jury, to ensure that
the presentation appeared to be and was free of any bias because of DOJ’s daily working
relationship with the Wilmington Police Department, DOJ retained a former federal
prosecutor from Philadelphia to act as a Special Deputy Attorney General exclusively for
purposes of this case. Judson Aaron, who served as an Assistant United States Attorney
in Philadelphia from 1995 through 2005 and is now in the private practice of law in the
“Probable cause” is defined in Delaware as a reasonable ground for belief of guilt,
Maryland v. Pringle, 540 U.S. 366 (2003), cited in State v. Arnold, 2006 WL 488619
(Del. Super. 2006) (Graves, J.), lying somewhere between suspicion and sufficient
evidence to convict. Thompson v. State, 539 A.2d 1052 (Del. 1988).
15

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 state of Pennsylvania, was appointed as a Special Deputy Attorney General for purposes
of this case.
After carefully analyzing all the evidence, the Special Deputy Attorney General
concluded that, given the prosecution’s unshifting burden of proof, prosecuting a felony
assault case against S/Cpl Dellose could only be successfully done if the prosecution was
able to retain a credible expert to rebut the inevitable expert testimony from the defendant
that S/Cpl Dellose’s conduct was reasonable under the circumstances. Again, S/Cpl
Dellose’s subjective judgment that he needed to fire his weapon could only be questioned
if it could be established that he had acted recklessly (under the rigorous standard
established for criminal recklessness under Delaware law) in finding himself in the
situation where he needed to make his decision whether or not to fire his gun, and the
case would not be able to survive unrebutted testimony from a defense police expert that
S/Cpl Dellose had acted reasonably in the time leading up to discharging his weapon.
DOJ then proceeded to conduct a national search for an expert who would be able
to testify in support of a felony assault conviction. The first expert DOJ consulted with
was Jeffrey Noble, former Deputy Chief of the Irvine Police Department in California
and a law school graduate, who has been involved in over one thousand police use-offorce investigations and, in November 2015, authored an expert opinion on behalf of
Tamir Rice’s family that criticized the expert opinions of the Cleveland District Attorney
and argued that the Cleveland police officer who shot Tamir Rice should be held
responsible for his death. DOJ obtained Mr. Noble’s name from public documents
associated with the Tamir Rice case – Mr. Noble was one of two experts who offered
expert reports on behalf of Tamir Rice’s family arguing that the officer who shot Tamir
Rice should face criminal charges. A review of Mr. Noble’s report in that case suggested
that he had specific expertise in the issue likely to be central in any prosecution of S/Cpl
Dellose, i.e. proper precautions for an officer to take when arriving at a crime scene
where there has been a report of a person holding a gun. Mr. Noble’s role in the Tamir
Rice case also indicated that he was willing, when the evidence supported it, to take
expert positions adverse to police departments in use of force cases.
After reviewing all of the material evidence in DOJ’s possession, Mr. Noble
concluded that he could not testify that S/Cpl Dellose acted recklessly in the time leading
up to and including the discharge of his shotgun. This finding by Mr. Noble had two
implications for a possible criminal prosecution of S/Cpl Dellose. First and most
obviously, it meant that an expert use-of-force witness known to have a conservative
view of tactical approaches to situations like Mr. McDole’s would not be able to provide
testimony that was necessary for a successful criminal prosecution. Second, if the state
did decide to pursue a criminal case with a different expert, the state would be obliged
under federal and state law to disclose to S/Cpl Dellose that Mr. Noble did not believe
S/Cpl Dellose’s actions to have been reckless, and that information would be used in
cross-examination of the state’s witnesses, including any expert that DOJ was able to
later retain.
DOJ sought a second expert, in order to ensure that it had thoroughly explored all
25

 avenues toward pursuing a case where a determination had been made that probable
cause could exist. The second expert consulted by DOJ, Roger Clark, was located in
precisely the same manner as the first expert was located: he had submitted an expert
report in the Tamir Rice case arguing that the officer in that case be charged with a crime.
Mr. Clark was the former head of the Los Angeles Sheriff Department’s North Regional
Surveillance and Apprehension Team, had been retained as a consulting expert 1,400
times, the majority of them for cases involving the use-of-force, and, like Mr. Noble,
authored an expert opinion last year on behalf of Tamir Rice’s family that criticized the
expert opinions of the Cleveland District Attorney and argued that the Cleveland police
officer who shot Tamir Rice should be held responsible for his death.
After reviewing the case materials over a period of weeks, however, Mr. Clark
also informed DOJ on May 1, 2016 that he too had concluded that S/Cpl Dellose’s
conduct was not reckless under the standard established by Delaware law.16
On May 2, 2016, having approached two credible experts who had previously
demonstrated a willingness to offer use of force testimony adverse to law enforcement
officers when appropriate, and having been informed independently by both experts that
they did not believe criminal charges against S/Cpl Dellose were justified under
Delaware law, DOJ determined that it could not successfully prosecute criminal charges
against S/Cpl Dellose, and with that knowledge, that it could not properly or ethically
initiate such charges.
Non-Criminal Aspects of Senior Corporal Dellose’s Conduct
The fact that DOJ cannot pursue criminal charges against S/Cpl Dellose should
not be mistaken for DOJ’s approval of his actions on September 23. At best, S/Cpl
Dellose’s actions demonstrated extraordinarily bad judgment. S/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, S/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. To the extent S/Cpl Dellose was surprised
or alarmed by seeing Mr. McDole, this was a surprise of his own making.
It is a matter of public record that this is the second use-of-force investigation that

16

Mr. Noble and Mr. Clark were asked to provide expert opinions only on the issue of
whether S/Cpl Dellose ‘s conduct could constitute a crime under Delaware law. They
were not asked to give opinions on the adequacy of the Wilmington Police Department’s
policies and procedures, S/Cpl Dellose’s employment status, or his actions on the day in
question except as to whether the actions constituted a criminal offense under Delaware
law.
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 S/Cpl Dellose has been involved in over the past six years. In the prior case17, although
DOJ did not find that criminal charges were warranted against S/Cpl Dellose or any of
the other officers involved, one of the officers interviewed described S/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.
DOJ is not responsible for making personnel decisions for the Wilmington Police
Department. But S/Cpl Dellose’s extremely poor judgment in this situation, combined
with the history described above, causes us to conclude that he should not be employed
by the Wilmington Police Department in any job that involves the handling of a firearm
in public.
Preventing Future Incidents
Mr. McDole’s family has filed a civil action against the City of Wilmington
relating to Mr. McDole’s death, and issues involving the legal adequacy of the
Wilmington Police Department’s policies and training will presumably be litigated and
resolved in the context of that lawsuit. However, DOJ’s investigation into the criminal
law issues presented by this shooting has caused it to carefully review the Wilmington
Police Department’s policies and training, and to conclude that improvements in those
areas could materially reduce the possibility of future shootings by police officers.
1.

Use of Force Policy.18 The Wilmington Police Department’s ‘continuum of
force’ provisions in its use of force policy are effectively meaningless for police
officers. The “Continuum” section of the Department’s current Use of Force
section states:
The use of force should follow a prescribed continuum: physical
presence, verbal direction, soft empty hand techniques, hard empty
hand techniques, intermediate weapon…and finally, if necessary,
the use of deadly force….However, members should be mindful that
the force needed to control an incident may not fall on the
prescribed continuum sequentially in all circumstances. Therefore,
members should use their discretion to quickly and safely apply the
necessary level of force to meet situations involving arrest, safety of

A copy of the August 5, 2010 report on S/Cpl Dellose’s prior use of deadly force can
be found on the Department of Justice website at
http://attorneygeneral.delaware.gov/documents/deadlyforce/WPD_Barnes,Pierce,Vanama
n,Dellose,Cancila_WHITE.pdf.
18
DOJ’s discussion of policies and training materials in this section of this report is based
upon the City of Wilmington’s production of those materials in response to subpoenas
requesting them. DOJ’s report assumes that the City of Wilmington fully complied with
the subpoenas.
17

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 citizens or officer self-defense.
Wilmington Police Department Directive 6.7 (May 22, 2015), Section IV
(emphasis added). In other words, the Department has instructed officers that they
have the discretion to ignore the continuum of force directive in any situations
involving “arrest, safety of citizens or officer self-defense,” which would likely
cover virtually all of the situations where force might be employed, without any
instruction as to how to use that discretion.
The vagueness of Wilmington’s policy stands in stark contrast to policies such as
the one adopted by the City of Seattle last year, entitled “De-Escalation” and
addressing the same issues as Wilmington’s but with far more guidance for
responding officers:
De-escalation tactics and techniques are actions used by
officers, when safe and without compromising law enforcement
priorities, that seek to minimize the likelihood of the need to use
force during an incident and increase the likelihood of voluntary
compliance.
When safe and feasible under the totality of circumstances,
officers shall attempt to slow down or stabilize the situation so
that more time, options and resources are available for incident
resolution.
When time and circumstances reasonably permit, officers shall
consider whether a subject’s lack of compliance is a deliberate
attempt to resist or an inability to comply based on factors
including, but not limited to:
* Medical conditions
* Mental impairment
* Developmental disability
* Physical limitation
* Language barrier
* Drug interaction
* Behavioral crisis
An officer’s awareness of these possibilities, when time and
circumstances reasonably permit, shall then be balanced against
the facts of the incident facing the officer when deciding which
tactical options are the most appropriate to bring the situation to
a safe resolution.
Mitigating the immediacy of threat gives officers time to utilize
extra resources, and increases time available to call more
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 officers or specialty units.
The number of officers on scene may increase the available
force options and may increase the ability to reduce the overall
force used.
Other examples include:
* Placing barriers between an uncooperative subject and an
officer
* Containing a threat
* Moving from a position that exposes officers to potential
threats to a safer position
* Decreasing the exposure to potential threat by using
- Distance
- Cover
- Concealment
* Communication from a safe position intended to gain the
subject’s compliance, using:
- Verbal persuasion
- Advisements
- Warnings
* Avoidance of physical confrontation, unless immediately
necessary (for example, to protect someone, or stop dangerous
behavior)
* Using verbal techniques, such as Listen and Explain with
Equity and Dignity (LEED) Training, to calm an agitated
subject and promote rational decision making
* Calling extra resources to assist or officers to assist:
- More officers
- CIT officers
- Officers equipped with less-lethal tools
* Any other tactics and approaches that attempt to achieve law
enforcement objectives by gaining the compliance of the subject
Seattle Police Department Manual Section 8.100. The Seattle ‘continuum of force’
policy contains a myriad of directives that would potentially have been relevant to
the incident involving Mr. McDole, including its emphasis on slowing down and
stabilizing a situation when safe and feasible, its emphasis on trying to determine
the reason for a suspect’s failure to comply when time and circumstances permit,
and its discussion of threat containment, cover, concealment, and communication
from a safe position for officers.
A second example of a use of force standard that, unlike the Wilmington Police
Department’s policy, provides concrete and useful guidance to officers is the policy
that has been mandated for the Cleveland Police Department as part of a federal
29

 legal settlement with the United States Department of Justice. The settlement
agreement between the United States Department of Justice and Cleveland requires
that Cleveland’s use of force policy provides that:
Officers will use de-escalation techniques whenever possible and
appropriate, before resorting to force and reduce the need for force.
De-escalation techniques may include verbal persuasion and
warnings and tactical de-escalation techniques, such as slowing
down the pace of an incident, waiting out subjects, creating
distance (and thus the reactionary gap) between the officer and the
threat, and requesting additional resources (eg. specialized CIT
officers or negotiators). Officers will be trained to consider the
possibility that a subject may be noncompliant due to a medical or
mental condition, physical or hearing impairment, language
barrier, drug interaction, or emotional crisis….
United States of America v. City of Cleveland Settlement Agreement, May 26,
2015, Paragraph 45(b).
Again, whether the City of Wilmington’s policy – which was apparently
sufficient for it to receive accreditation from the Commission on Accreditation for
Law Enforcement Agencies (CALEA) – meets constitutional standards will be
determined in the context of the civil litigation between the McDole family and the
City of Wilmington. But even if the city’s policy does meet minimum
constitutional standards, the department and the city would be well served by the
department’s adoption of a more robust use of force continuum policy that would
provide better guidance for its officers. The policy as written gives no concrete
guidance to officers.
2.

Training and Policies on Interaction With Persons With Mental Illnesses or
Disabilities. The DOJ subpoenaed from the Wilmington Police Department, as
part of its criminal investigation, thousands of pages of documents relating to
training of its officers, and the Wilmington Police Department represented to DOJ
that it had turned over all documents relating to training with respect to
interaction with persons with mental illnesses or disabilities and training with
respect to de-escalation generally. Not surprisingly, given the absence of explicit
written policies in these areas, DOJ located no Wilmington Police Department
training materials relating to specific de-escalation techniques of the types
described in Seattle and Cleveland’s policies above, nor did it locate any training
materials relating to interaction with persons with mental illness or cognitive
impairments other than a single training flier that related to interactions with
persons who were acting in an outwardly aggressive fashion. The Wilmington
Police Department indicates that it sends officers to a statewide crisis intervention
training offered to all police agencies, but there is no indication that the four
officers involved in this case attended. In addition, Wilmington advised that it
sends 8 officers to the training 2 times per year. It appears that the program has
30

 been in place since 2014; even at a rate of 16 officers per year, it would take 20
years for the Department’s authorized officers to receive this training.
Because of the deficiencies in policy and training described above, Wilmington
Police Department officers are currently working in an environment where they have
little or no specific guidance on proper escalation and de-escalation tactics with respect to
the use of force. It is DOJ’s belief that Wilmington Police Department should remedy
these deficiencies immediately.
Conclusion
At the conclusion of this extensive investigation, DOJ has determined that there are
serious deficiencies in the way in which the Wilmington Police Department prepares its
police officers to deal with situations like the one that Mr. McDole presented, and DOJ
has also strongly recommended that Senior Corporal Joseph Dellose not be permitted by
the Wilmington Police Department to be in a position in the future where he carries a
gun. With respect to criminal charges, DOJ did not find probable cause to believe that
Senior Corporal Thomas Silva, Corporal Thomas Lynch, or Corporal James MacColl had
violated Delaware criminal law. With respect to S/Cpl Dellose, the Attorney General did
believe that the state should attempt to gather sufficient evidence to pursue a felony
assault charge. However, after consulting with two national police use-of-force experts
who had recently recommended criminal charges against the Cleveland police officer
who shot Tamir Rice, and receiving opinions from both of those experts that S/Cpl
Dellose’s actions did not constitute criminal conduct under the Delaware Code, DOJ
concluded that it could not proceed with a criminal prosecution against S/Cpl Dellose
given that the defense would present unchallenged expert testimony that S/Cpl Dellose’s
conduct was reasonable.

31