Delaware Supreme Court has affirmed a lower court ruling against a Rehoboth Beach man who was shot by a Delaware State Police officer in February 2013.
The five-justice panel heard oral arguments Sept. 26 in the case of Keith Schueller, 48, before deciding the case two days later.
Schueller, who was seeking to have the case remanded back to Delaware Superior Court, was shot in the back by Cpl. Brett Cordrey while Cordrey was arresting Schueller. Schueller was wanted by police for illegally retrieving his car from a tow yard and had outstanding warrants for petty thefts.
During the chase, Schueller crashed his car into an SUV, got out and started running from police. During the pursuit, Scheuller picked up a shovel. Cordrey and another witness, Kelly Boyer, told Schueller to stop; court documents state Schueller turned around with the shovel in both hands and began swinging. Cordrey reached for his gun and shot Schueller.
The sides disagree as to whether Schueller was facing Cordrey or running away when he was shot. Scheuller’s entry wound was in the back, leading his attorney, Stephen Norman, to say Scheuller was running away. Cordrey’s attorney, Michael McTaggart, said Schueller was facing Cordrey and that the shot in the back likely occurred as Schueller swung the shovel.
During the criminal case, Schueller accepted a guilty plea to felony resisting arrest, third-degree burglary, disregarding a police officer’s signal, shoplifting and theft of services. He is currently serving a four-year prison sentence. But in November 2014, Schueller filed a civil suit in Delaware Superior Court in Wilmington accusing Cordrey of battery, gross negligence, excessive force, infliction of emotional distress and negligence. After a five-day bench trial in August 2017, Judge Eric Davis ruled in favor of Cordrey.
During oral argument before the Supreme Court, Norman acknowledged that Schueller has had credibility issues, but he said his client has been consistent that he was walking away from Cordrey before Cordrey shot him. On questioning from Justice Gary Traynor, Norman said Cordrey has never explained how Schueller ended up with a gunshot wound to the back if Schueller was facing him. Norman said Boyer’s testimony backed up Schueller’s claim that he was running away when he was shot.
Norman tried to argue that Cordrey’s self-defense is not an affirmative defense against charges of gross negligence. An affirmative defense is a defense entered by a defendant that negates civil liability even if it is proven that the defendant committed the acts they are being sued over.
Norman said his strongest evidence was Schueller’s wound to the back. Norman said Cordrey’s testimony is not plausible because Schueller could not have been shot the way Cordrey said he was.
In his presentation, McTaggart said the trial court found Schueller evasive in his testimony, and found many of the defense expert witnesses unhelpful. He said Cordrey tried to use his Taser before he shot Schueller. McTaggart said the shooting was justified because Schueller was approaching and waving a shovel. McTaggart said an expert testified at trial it was possible for Schueller to be shot from the front and have a wound in the back.
In its opinion, written by Chief Justice Leo Strine, the Supreme Court unanimously found Schueller’s argument was without merit and affirmed the Superior Court’s ruling in Cordrey’s favor.