Changing Delaware’s use-of-force law

In 2015, Jeremy McDole was shot and killed by a Wilmington police officer — just two seconds after the officer shouted, “Show me your hands!” Prosecutors wanted to charge Sr. Cpl. Joseph Dellose with reckless conduct, but concluded Delaware’s use-of-force law would essentially “immunize” him from prosecution.

WHYY’s Cris Barrish recently dug into every police shooting in Delaware since 2005 and while officers have shot 56 people in that time, no officer has ever been charged. Cris also found that Black people make up less than a quarter of Delaware’s population, but almost half of its police shooting victims.

Now, the protests over the police killing of George Floyd have the state’s top prosecutor and some lawmakers pushing to change the state’s use-of-force law.

Interview Highlights

On why the officer who shot Jeremy McDole was never charged

Sgt. Joe Dellose is not called to the scene, but he hears the call on the radio. He rushes to the scene, parks his car, goes into his trunk, takes his shotgun … He rushes to the scene, approaches McDole, about 20 feet away. You can see on a video shot by a bystander, Sgt. Dellose rushes to the scene, says “Show me your hands! Give me your hands!” and then shooting McDole within two seconds … The other three officers rush up, the officers who are right there, they try to get him to show his hands and said it appears like he’s going for his waistband where they believed he had a gun. He kept doing that, and each of those officers shot him a few times as well …

The [state Attorney General’s] Office wanted to charge [Dellose], but they were hamstrung by this 70-year-old law that governs use of deadly force in Delaware.

On how Delaware’s use-of-force law currently works

The [2015 report by then-state Attorney General Matt Denn into McDole’s fatal shooting] laid out that the law is based on the officer’s subjective belief that they or someone at the scene was in imminent danger of death, kidnaping, serious injury. And that’s different than some other states that have a clause that said it’s an objective standard, what another person in a similar situation would do based on all the evidence that’s available. It said an officer doesn’t have to, and put the words in bold, actually be in danger. They just have to believe that they were in danger. And that’s a really almost an impossible threshold to get over if you want to charge an officer that you think broke the law.

On how the state’s new AG Kathy Jennings wants to change the law

She’s proposing to insert the word reasonably, just like New York has and New Jersey has and other states have, before the word believe. Her draft that she submitted to lawmakers to try to get put on the on the agenda would have the phrase reasonably believes an officer is in danger. What it does is creates the objective standard. In other words, in the McDole case, if that reasonable standard was in place, it might have led to Joe Dellose being charged …

There’s been a lot of pressure on politicians in Delaware to enact some police reforms. I think she’s reacting to the moment — there is some speculation she might want to run for governor. I don’t know if she is or not. You know, she says it’s long past time to change some of these laws and she’s gonna get behind it. The key is whether it will happen. There’s a lot of proposals that just die in the night in the Legislature. So the legislative season ended Tuesday, June 30. This bill that she proposed on June 10 never even got submitted. A bill like this will come under severe pushback from the police lobby in Delaware.