Case Law & Resources: Delaware
Citation
Issue Presented & Facts
Schueller v. Cordrey, 2017 WL 3635570, C.A. No. N14C-10-201EMD, (Aug. 23, 2017)
Whether a police officer, the State of Delaware, and the Department of Public Safety are liable for battery, gross negligence, and intentional infliction of emotional distress following an officer-involved shooting.
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Cpl. Cordrey was in pursuit of Mr. Schueller, who was holding a shovel. Cpl. Cordrey chased Mr. Schueller around a barn, and upon seeing Mr. Schueller waving the shovel around "like a crazy person", shot him.
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The court heard competing experts on police policy, with one expert claiming that Cpl. Cordrey was not entitled to use deadly force because he created the zone of danger and should have de-escalated. The court found opposing testimony more helpful.
Holding
Mr. Schueller failed to carry his burden on the negligence and emotional distress claims. The Court found Cpl. Cordrey did commit intentional and unpermitted bodily contact, but that the contact was not excessive or unnecessary force under the circumstances, thus meaning Cpl.
Cordrey was not liable for battery.
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The Delaware State Police Use of Force Policy was an exhibit. This is probably the Response to Resistance Policy or a prior version, but cannot confirm.
Ferguson v. Town of Dewey Beach, 2006 WL 1174017, C.A. No. 04C-08-004, (April 25, 2006)
Whether summary judgment is appropriate in case of 1983, Malicious Prosecution, False Arrest, Emotional Distress, and Gross and Wanton Negligence Claims; whether a lack of training or exceeding written policies can support the claims.
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Plaintiff threw a chicken wing at a police vehicle, was ordered to stop, and upon refusal the officer knocked the wings out of his hand, put his arm around Plaintiff's neck, and tackled him. Two other officers wrestled his hands to handcuff him, and at some point he was pepper sprayed.
Plaintiff did not have a claim for False Arrest or Malicious Prosecution. Fact issues on the remaining state claims required a jury to resolve where plaintiff has evidence officers did not follow force continuum and may have directly violated Department policy. (No subsequent case history available).
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Court held that failure to follow force continuum, police manual, and/or violations of Department policy was sufficient to support a claim for wanton negligence, or could support willful or malicious intent on the part of the officers.
Waters v. Department of Public Safety, 2020 WL 4501945, C.A. No. 18-cv-266-RGA, (Aug. 5, 2020)
Whether defendant is entitled to summary judgment on state law claims where an officer deployed a taser three times and plaintiff claims that the third deployment was excessive and constituted battery and gross or wanton negligence.
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Defendant officers were searching for a suspect with warrants when Waters was seen through a window and opened his door stating he had a weapon. After 20-30 seconds of refusing to put the weapon down, an officer deployed their taser and Waters and the gun dropped. Waters tried to sit up and was again tasered. Waters was then in the process of being secured, but tasered a third time when officers thought he began to move. Medical attention was called for, but before EMS arrived Waters entered cardiac arrest and died 3 weeks later.
Defendant was not entitled to summary judgment on battery claim because a genuine issue of fact existed as to the circumstances and reasonableness of the third taser burst, but was entitled to summary judgment on the negligence claim insofar as it concerned following the taser manual and calling ems. However, the court denied summary judgment on the negligence claim as to the treatment plaintiff received between the ems call and arrival.
Case Law
Resources
Citation
Summary and Notes
IV. B. De-Escalation. 1. An officer shall use de-escalation techniques and/or other alternatives prior to using higher levels of force consistent with his or her training whenever possible and appropriate. 2. Whenever possible and when such delay will not compromise the safety of the officer or another and will not result in the destruction of evidence, escape of a suspect, or commission of a crime, an officer shall allow an individual reasonable time and opportunity to submit to verbal commands before force is used.
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IV. C. Use of Less Lethal Force. 2. Where feasible, the officer shall identify himself or herself as a law enforcement officer and warn of his or her intent to use force.
Relevant Excerpt
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Sections 15.28, 15.29.2, and 15.34 identify de-escalation training as a type of instruction to be used during Communication & Crisis Intervention, Procedures/ Officer Survival, and Defensive Tactics trainings.
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Identified an insufficient de-escalation policy and lack of available crisis training as a factor in the use of deadly force against Jeremy McDole. Indicated, however, that state law prevented criminal prosecution. Identified a potential civil suit over sufficiency of the policy as a constitutional matter.
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Identifies that Wilmington settled with the McDole family, meaning de-escalation issue was never litigated on merits.olicy as a constitutional matter.
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Identifies that Delaware law (i.e., 11 Del.C. §467) makes charging police officers with use of force violations difficult, meaning that, as of June 2020, no criminal trials have occurred for 15 years (explaining lack of caselaw)
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