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'He didn't deserve to be shot. He wasn't any kind of threat.'
By LEE WILLIAMS, The News Journal
Posted Wednesday, November 15, 2006
The News Journal/DAN GARROW
Elaine Hale, widow of Derek J. Hale, has retained a Wilmington attorney to monitor the investigation into her husband's death.(Buy photo) The News Journal/WILLIAM BRETZGER
Fred Mixson, standing on the steps where Derek J. Hale was killed, was working nearby on the day of the shooting. "They could have grabbed him," Mixson said.(Buy photo) The News Journal/DAN GARROW
The 25-year-old man shot to death last week by a Wilmington officer never threatened police, according to five witnesses working nearby and a sixth witness standing next to the victim when the confrontation began.
Derek J. Hale, a U.S. Marine who served two tours in Iraq, died on the front steps at 1403 W. Sixth St. after a Wilmington police officer fired three .40-caliber rounds into his chest. He was killed after receiving multiple shocks from electronic Tasers.
"He didn't deserve to be shot. He wasn't any kind of threat," said Fred Mixson, 53, a contractor working in the home next door who watched the shooting unfold from across the narrow street. From the initial confrontation with police to the fatal shooting, only two to three minutes elapsed, witnesses said.
Four members of Mixson's work crew witnessed the shooting from a variety of angles and distances, although Mixson was the only one interviewed by investigators after the shooting and the only one willing to allow his name to be used for this article.
But in interviews with The News Journal last week, all five said Hale did not pose a threat.
"No matter what his background was, he didn't deserve that," Mixson said. "They had him surrounded. They could have grabbed him."
The News Journal canvassed the neighborhood. Residents across the street and living next door said they either were away or saw nothing of the events.
Police said Hale, who had recently joined the Pagans Motorcycle Club, was a "person of interest" in a recent drug investigation conducted by the Delaware State Police. The U.S. Department of Justice classifies the Pagans as an outlaw motorcycle gang with a history of violence and drug offenses, but Hale, police have said, has no arrest record in Delaware. At the time of his death, Hale had a valid permit in Virginia to carry concealed weapons, according to the clerk of Circuit Court in Manassas.
Concealed-carry permits in Virginia are issued only to people who never have been convicted of a felony, narcotics or a domestic violence charge and who have no history of mental illness or substance abuse.
Two days before the shooting, officers searched the residence as part of a wide-ranging drug and weapons investigation and had charged the owner. According to a written statement by state police, Hale was seen Nov. 6 moving items from inside the house to a vehicle and officers "had reason to believe he was preparing to flee." Mixson said he saw Hale place a large Tupperware container into the vehicle.
"It was during the attempt to take Hale into custody outside of the residence that a confrontation ensued, and Hale was fatally shot," police said. Hale never displayed a weapon, police said, but a spokesman for the Wilmington police said officers found a can of pepper spray and a switchblade knife in Hale's pockets after the shooting.
Hale's stepbrother, Jason Singleton, who lives in Missouri, never knew his brother to carry a switchblade. "The last time I saw Derek, he had a small Swiss Army knife. To my knowledge, I've never seen Derek with anything like a switchblade."
In a written statement issued last week, Wilmington police Master Sgt. Steven Elliott said Hale was shot three times because an "officer in close proximity to the developments feared for the safety of his fellow officers and believed that the suspect was in a position to pose an imminent threat. That officer then utilized deadly force."
Wilmington police denied a request from The News Journal for their use-of-force policy, which addresses how and when officers may use deadly force and less-than-lethal weapons such as Tasers. They cited an August 2005 Freedom of Information request in which the Attorney General's Office found that the policies are not public documents.
Asked if Hale ever threatened the officers, Elliott said in an interview last week: "In a sense, when he did not comply with their commands" to show him his hands. Wilmington police Chief Michael Szczerba did not respond to calls, e-mails or messages left with his staff about the shooting, although Elliott handled press calls after the incident.
Friday night, John Rago, spokesman for Wilmington Mayor James M. Baker, issued a "joint statement" attributed to Baker, Szczerba and Public Safety Director James N. Mosley.
"The incident that occurred in the 1400 Block of West 6th Street is being investigated internally by both the Wilmington Police Department and City Solicitor's Office," the statement reads. "All information from those investigations will be shared with the Delaware Attorney General's Office which conducts its own investigation and issues its own determination of the action of the officer involved. This is standard practice with regard to shootings involving police officers to ensure that all matters related to the incident are given a thorough review."
The News Journal informed city and police officials that it had received eyewitness accounts that questioned the need for Hale's shooting. In his written statement, Rago said: "If the News Journal, or any other organization or individual, has information regarding this incident that can be helpful to the investigation, it is recommended that they present that information to the Wilmington Police Department, the City Solicitor's Office or to the Delaware Attorney General's Office to aid in the thoroughness of the investigation."
On Monday, Nov. 6, Mixson arrived at the 1400 block of W. Sixth St. just before 4 p.m., quitting time for his work crew, which was renovating one of the row houses next door to the shooting.
Mixson parked across the narrow street from 1403 and was standing by the driver's door of his work van when a black SUV sped up the wrong way of the one-way street and screeched to a halt in the middle of the road.
Several police officers jumped out and ran to where Hale was sitting on the steep steps of 1403, approximately six feet higher than the sidewalk.
Mixson and his crew had barely noticed Hale before he was confronted by police. Hale, they said, was chatting with Sandra Lopez and two children at the top of a 10-step concrete stoop. Hale was seated on the third step from the top. Mixson and another witness were standing across the street from 1403, while others were on the sidewalk in front of a row house adjacent to the site of the shooting.
The officers ordered Hale to take his hands out of the front pockets of his hooded sweat shirt.
"About a second later, they Tasered him," Mixson recalled. "He was just sitting there. He didn't do anything."
A compressed air charge in the Taser cartridge launched two metal barbs, attached to wires trailing back to the hand-held device, at a speed of more than 160 feet per second. On impact, a strong electric charge was carried into Hale's body, which caused what the manufacturer, Taser International, describes as "an immediate loss of the person's neuromuscular control and the ability to perform coordinated action for the duration of the impulse."
The witnesses said Hale shook violently from the charge, as if sitting on an electric chair. His right hand came out of the front of his sweat shirt and was shaking violently.
Seconds later, police repeated their command for Hale to show them his hands, and they Tasered him a second time.
Mixson and others said Hale, who was still seated on the steps, rolled onto his left side and vomited into a flower bed.
"My brother yelled at the police that this was overkill. That this was crazy," Mixson said. "They told him to 'shut ... up,' or they'd show him overkill."
Hale rolled back to his right, into a sitting position, still shaking, and police Tasered him a third time, Mixson said.
Lopez, who lived at the home where Hale was killed and was talking to Hale when police arrived, told her attorney Hale was trying to show police his hands. Lopez was standing with her two young children until police ordered her to move.
"He indicated he was trying to comply," said Wilmington attorney Thomas S. Neuberger, who has spoken with Lopez. She declined to be interviewed by The News Journal.
Neuberger's firm has been retained by Hale's widow, Elaine, to monitor the investigation into her husband's death.
Witnesses recalled that at this point, both of his hands were visible.
Mixson remembered that Hale's left hand was near the pocket of his hooded sweat shirt. Hale's right hand was shaking violently and clearly visible, Mixson and his four co-workers said. The witnesses were not sure whether this was an attempt by Hale to dislodge the Taser wires from his chest, or as a result of the three powerful electric shocks.
After being Tasered the third time, Hale rolled onto his back, and then leaned slightly forward, witnesses said. At this point, an officer whom police will not name fired three times, striking Hale each time in the chest. Hale fell forward down the steps, landing on his head six feet below.
"It sounded like a coconut smacking the ground," Mixson said. "He didn't lunge or make any move at the police. They shot him for no good reason."
It became quiet after the gunfire.
An officer checked for a pulse at Hale's neck and announced, "He's gone," Mixson said.
Minutes later, a police officer addressed the stunned work crew.
"He asked if any of us saw anything," Mixson said. "I told them I saw them kill this young man."
Mixson was taken to the police department and interviewed.
He said Wilmington Detective Sgt. Thomas Spell conducted the interview. Spell did not return a call for comment.
"He tried to trip me up," Mixson said. "He tried to make it out that I couldn't see from where I was standing, but I saw what I saw. They killed this man for no reason."
Hale lived in Manassas, Va., with his wife.
She was in Wilmington Friday, picking up her husband's car and personal effects from the police department. His wedding ring and POW/MIA bracelet are missing.
She became physically ill when she learned what the witnesses said about her husband's death.
"It makes me want to throw up, and it outrages me at the same time," she said.
Neuberger has spoken with police officials about the killing.
He was told police will conduct two investigations. The department's criminal investigators will first try to determine whether a crime was committed by the officer. After that, the department's internal affairs unit conducts its own probe.
"Based on past precedent, nothing will be made public unless criminal charges are filed against the officer," Neuberger said. "Short of criminal charges, nothing will be made public."
He, too, couldn't understand why investigators never interviewed all of the witnesses.
"I at least hope somebody is taking statements from all the cops that were there," he said.
Jules Epstein, associate professor at the Widener University School of Law, said it's common for police departments to investigate their own shootings.
"But there is no bar for the FBI getting involved. That's within their discretion," he said. "There's no bar for the state AG getting involved, because there could be, arguably, a civil rights violation."
If a police shooting occurred outside of policy and the law, Epstein said, the officer could be fired and prosecuted.
"As to the likelihood of it happening, that's a wholly different issue," he said. "It's a scary job being a cop. It's a hard job being a cop. But at the other end of that spectrum, we train police; since we give them the authority to use deadly force, the authority needs to be scrutinized."
