Use of deadly force raises questions

A bullet fired from a state trooper's gun sits just to the right of Keith Schueller's spine. Too close for surgeons to safely remove, the 40-caliber bullet chipped off fragments of a vertebra in Schueller's lower back.

A police press release on the Feb. 19 police shooting says Schueller tried to evade police – first leading them on a car chase that ended when Schueller struck another car and fled on foot. Police say the officers caught up to Schueller near a barn where he picked up a shovel and threatened the pursuing officers; one trooper fired one round from his weapon striking Schueller in the "upper body."

Schueller says he never picked up the shovel and was fleeing when police shot him in the back.

Regardless of which story is right, the incident raises questions about how Schueller was shot, when deadly force is justified and why police used the term upper body when the bullet was in the lower back.

When first asked to clarify the term upper body, Delaware State Police Spokesman Sgt. Paul Shavack said it referred to the torso. When asked if that included the back, Shavack said only that police were using the term upper body.

"We utilized the upper body, which the lower back is still a portion of the upper body," he said. "There's no conspiracy theory here that you're trying to dig up. There's no concealment going on."

Schueller, who has been in isolation at Vaughn Correctional Center since his shooting, freely shares his story when given the chance. During an April court appearance, Court of Common Pleas Judge Kenneth Clark asked the wheelchair-bound Schueller how he was doing and what had happened.

"I was shot in the back," Schueller said.

A court employee interjected that Schueller was involved in a police shooting; Clark gave Schueller a second extension to secure private counsel before guards promptly wheeled him out of the courtroom.

The force continuum

Schueller's case could be included in the ongoing debate over police use of deadly force and under what conditions it is justified.

Shavack said police use a "force continuum" to determine when to use deadly force.

"When a Trooper is in a situation that puts them in a serious risk of serious bodily harm or death, they are trained to utilize the force continuum to respond to that threat, including the use of deadly force. It's less about shooting to kill, and more about shooting to eliminate and neutralize the threat. We are trained to shoot center mass, meaning the center portion of the body," he said.

In Schueller's case, Shavack said, the location of the gunshot wound is consistent with the rotation of Schueller's body after he swung a shovel at Trooper Brett Cordrey, one of two officers who pursued Schueller on foot following a car chase.

"It is consistent with a swinging motion as witnesses have stated," he said. Shavack also said the Health Insurance Portability and Accountability Act – HIPAA – prevents police from revealing specific parts, injuries or locations of the body.

Cordrey, a three-year officer on the force, was put on administrative leave following the shooting. State police investigated the shooting and returned Cordrey to his patrolman duties in early May.

"If we felt there was an issue with what had happened, he would not be returned to full duty," Shavack said.

Use of a deadly weapon

The key charges in Schueller's case are aggravated menacing, a felony, and possession of a deadly weapon during the commission of a felony – in this case, menacing.

A shovel is the deadly weapon; police said Schueller picked it up and swung at Cordrey while fleeing apprehension.

It is the charges related to the chase and shooting that hold the most weight in a laundry list of charges against Schueller that are mostly theft and traffic violations.

Schueller denies he ever picked up the shovel. He said he was running away, and the officer was about 30 feet behind when he was shot in the back.

"All I wanted to do was flee," Schueller said, during an interview at Vaughn Correctional Center in Smyrna.

After he was shot, he said, he fell on his back. He said a second officer ran up and yelled, "Where's the weapon?"

The officer then told Schueller to turn over, he said.

But Schueller said he couldn't move.

"I'm not saying I never made mistakes, but the trooper made a mistake when he shot me in the back," Schueller said.

The Attorney General's Office is conducting a use-of-force investigation into the shooting. Spokesman Jason Miller said the investigation began on the day of the shooting and involves Trooper Cordrey. The final police report on the shooting is part of the AG's investigation, but the office also can conduct independent reviews, he said.

"It may take months," Miller said, adding a public report will be released at the conclusion.

Miller would not comment on the location of Schueller's gunshot wound.

Previous record

Schueller, 42, is no stranger to prison. A crack addiction landed him there in 2006 following a series of thefts at businesses along Route 1. A relapse in February leading up to the shooting followed a similar pattern.

In an interview March 28 at James Vaughn Correctional Center in Smyrna, Schueller said a series of personal setbacks in February left him vulnerable. A pending visit with his 11-year-old twins, whom he had not seen in eight years, added a layer of anxiety.

When a friend offered him the means to forget it all, the door of addiction was reopened. Committing petty crime and theft during his periods of addiction are part of a self-destructive routine; Schueller said he has never robbed or victimized anyone.

Court records on his 2005 arrest, however, show a different pattern. Records state Schueller attacked the arresting officer who found him after his crime spree. He pleaded guilty to second-degree felony assault for punching the officer; his resulting eight-year prison sentence was later reduced to one year in addition to drug counseling and probation. In 2011, he violated probation, but his home confinement was lifted in April 2012, according to court records.

In an ironic twist of fate, Schueller was scheduled for a court hearing 1 p.m. Feb. 19 – the same time he was involved in the police chase that landed him in his latest legal troubles – and in a wheelchair. The hearing was cancelled because "defendant paid as agreed," according to court records.

Same charges, different circumstances

Schueller's current situation followed his past pattern with one exception – the gunshot wound to the back.

Now, the former personal trainer who once operated a Healthyu302 personal training business said he fears he may never fully recover.

Since his release from Christiana Hospital Feb. 27, he has been in isolation in the prison's infirmary. Christiana Hospital doctors outlined specific directions upon Schueller's release. They wrote Schueller would need "aggressive physical and occupational therapies while in the prison infirmary," according to Schueller's medical records obtained by his mother.

During the Cape Gazette's prison visit, Schueller said he had yet to see a doctor. A nurse comes to his cell a couple of times a day and gives him what he believes is pain medication, but he said he wasn't sure what kind of medicine it is. Prison guards allowed Schueller to take off a brace and his shirt to show a round entry wound in his lower back. Only a few scabs remained as visible evidence of his injury.

Schueller said he tries to exercise throughout the day with pull-ups and similar calisthenics, but the former fitness buff is surprised how quickly he gets tired. After 30 minutes, he said, he has to lie down to ease the pain starting in his lower back and running down his leg. Numbness is another problem, particularly in his ankle and foot which he cannot independently move.

"Before this I never realized how much you depend on your ankle to get around," he said.

Schueller's medical report from Christiana Hospital describes a gunshot wound to the right lumbar. The L3 vertebra has a comminuted fracture, when the bone is splintered or crushed; there is a spinous process fracture involving the L2 and L3 vertebrae; right lower-extremity paralysis; and inferior vena cava disruption.

"CTA of the abdomen and pelvis showed a bullet tract which courses through the right paraspinal musculature, L3 vertebral body and through the inferior vena cava," medical records state. "Plain views of the lumbar spine showed several bullet fragments involving the L3 level."

Police shooting

Schueller was a suspect in a series of thefts and burglaries along Route 1 when a state trooper spotted him driving Feb. 19. According to court records, Schueller had stolen money and lottery tickets from several convenience stores and establishments in a crime spree that began 10 days earlier. Police say he first stole $2,000 from his stepfather and later failed to pay after pumping gas at a Rehoboth Beach station, where his debit card was declined.

A video recording at a Route 1 location during Schueller's alleged crime spree captured his image and provided police a description of his car days before the shooting. Police later impounded his car after finding it parked in Rehoboth.

About 15 minutes before the police shooting, Schueller found his Jeep in a New Road tow yard and forcibly removed it, court records state.

Leaving the tow yard, Schueller turned onto Postal Lane where a trooper spotted him. Schueller refused to pull over after police turned on their emergency lights; he turned in to Sandy Brae neighborhood, crossing several lawns before returning to Postal Lane where he crashed into another car at the intersection of Plantation Road. From there, Schueller got out and ran with police in pursuit. A Taser failed to make contact, after which, police said, they chased Schueller near a shed where he grabbed a shovel and swung it at the officers in a threatening manner.

"Schueller picked up a large, flat-nose garden shovel and swung same at Tfc. Cordrey placing Tfc. Cordrey in fear for his life. Suspect Schueller continued to swing the shovel," the affidavit of probable cause states.

That's when police said Cordrey fired one round of his police-issued weapon and struck Schueller in what police describe as the upper body.

Prison isolation

Schueller is now represented by Wilmington defense attorney Joseph Hurley.

In an interview before he took the case, Hurley said he could not ever recall a suspect shot in the back by police in Delaware.

"I don't think I've ever represented anyone who was shot by police," he said. "It's usually a dead-dog losing case."

However, Hurley's since changed his mind; Schueller's mother, Martha Owers, retained his services in early April.

Hurley will represent Schueller on his criminal charges. He said he is waiting to see what the state's case against Schueller is.

While a shovel certainly can be a deadly weapon, he said, the gunshot to the back puts a different perspective on the case.

"It shows the moment of threat has passed," Hurley said.

Schueller said he wants to pursue a civil case against the state of Delaware.

From the moment he was shot, information about Schueller's case and condition has been difficult to obtain. Christiana Hospital, where Schueller was sent after Beebe Medical Center found he needed a higher level of trauma care, said it had no record of someone by his name. Owers was denied access to her son while he was in the hospital because he was in police custody. By the time she figured out how to set up a prison visit, he had been sent to Vaughn Correctional Center in Smyrna.

"I was told I would hear from the police if he died," she said.

On March 21, Schueller made the trip from Smyrna to Georgetown for his first court appearance in the Court of Common Pleas; he never actually appeared in court because guards said it was difficult to bring him into the courtroom in his wheelchair. He was given a two-week extension to obtain private counsel.

During his second appearance, guards rolled him into the courtroom through the public entrance. Before Judge Clark granted Schueller another extension to find private counsel, he asked why his family was having difficulty obtaining counsel.

"I'm in total isolation," Schueller said. "I can't talk to my family so it takes a little longer."

He said he couldn't even buy a stamp from the commissary because the prison shop had been closed during a holiday.

In the end, the case could come down to the shovel.

Schueller stands firm that he never picked it up; he said he is confident his fingerprints will not be found on it.

"I'm praying that science and forensics will prove I'm innocent," Schueller said.

Police, on the other hand, say he threatened an officer with the shovel before the shooting; Shavack says they have witnesses to prove it.

"You follow the force continuum," Shavack said. "If that trooper is in fear for his life, he'll take the appropriate action to neutralize the threat."

Regardless, Schueller's mother believes police used excessive force.

"I know he did some wrong, but not enough to deserve to be shot in the back," Owers said.