Yahim Harris Lawsit

Case 1:21-cv-00023-LPS Document 1 Filed 01/11/21 Page 1 of 44 PageID #: 1
IN THE UNITED STATES DISTRICT COURT

FOR THE STATE OF DELAWARE
YAHIM HARRIS, : COMPLAINT FOR DAMAGES
:
Plaintiff, : Civil Action No.:
:
VS. : DEMAND FOR JURY TRIAL
:
CITY OF WILMINGTON, :
:
JAMES MacCOLL, in his individual capacity :
and in his official capacity as an employee and :
officer of the Wilmington Police Department, :
:
GUY DEBONAVENTURA, in his individual :
capacity and in his official capacity as an :
employee and officer of the Wilmington Police :
Department, :
:
THOMAS CURLEY, in his individual capacity :
:
PAUL CIBER, in his individual capacity and in :
his official capacity as an employee and officer :
of the Wilmington Police Department, and :
:
ROBERT TRACEY, in his individual capacity :
:
Defendants. :
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COMPLAINT AND DEMAND FOR JURY TRIAL
COME NOW Plaintiff Yahim Harris (“Plaintiff” or “Mr. Harris”), by and through his
attorneys, Aman K. Sharma, Esquire, and Igwe & Sharma, LLC, for their causes of action against
the Defendants for violating rights under the United States Constitution and state law, seeking
compensatory and punitive damages, complain and allege as follows:
I. NATURE OF ACTION
1. This civil action for money damages is brought under 42 U.S.C. § 1983, 1985, 1986
and 1988; the Fourth and Fourteenth Amendment to the United States Constitution; and the
common, statutory and constitutional laws of the State of Delaware.
2. This action is brought to redress injuries, damages, and other losses Plaintiff
suffered as a result of the violation of Plaintiff’s right to be free from excessive use of force by
Wilmington police officers during his arrest.
II. JURISDICTION AND VENUE
3. This Court has jurisdiction over this action because it is brought pursuant to 42
U.S.C. § 1983, 1985, 1986 and 1988, and the Fourth and Fourteenth Amendments to the United
States Constitution. Jurisdiction is founded upon 28 U.S.C. § 1331, 1343, 1367 and the
aforementioned statutory provisions.
4. Plaintiff invokes the supplemental jurisdiction of this Court to hear claims arising
under state law. Written notice of Plaintiff’s claims was timely served upon the Mayor of
Wilmington, as required by applicable state and municipal law.
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5. This Court is the proper federal venue for this action because Defendants reside in,
and Plaintiff’s claims arose within, the geographical boundaries of the District of Delaware within
the meaning of 28 U.S.C. § 1391(b).
III. PARTIES
6. Mr. Harris is an adult male resident of Wilmington, Delaware.
7. Defendant City of Wilmington (“City”) is a duly incorporated or formed municipal
or local government in the State of Delaware and is the employer and principal of the defendant
police officers named herein. At all times material to this complaint, the defendant police officers
named herein were acting under color of state laws, and/or ordinances, regulations, statutes,
customs and usages of the City of Wilmington and with complete authority and ratification of their
principal, City.
8. Defendant Corporal James MacColl (“Cpl. MacColl”), Defendant Corporal Guy
Debonaventura (“Cpl. Debonaventura”), Defendant Sergeant Detective Thomas Curley (“Sgt. Det.
Curley”), Defendant Lieutenant Paul Ciber (“Lt. Ciber”), and Defendant Chief Robert Tracy
(“Chief Tracy”), at all times relevant to this complaint, are duly appointed and acting police
officers of the Wilmington Police Department.
9. Cpl. MacColl, Cpl. Debonaventura, Sgt. Det. Curley, Lt. Ciber, and Chief Tracy
engaged in the conduct complained of in said complaint in the course of their employment under
color of law and are being sued in both their individual and official capacity.1
1
Throughout the body of this Civil Action Complaint, Plaintiff shall refer to the defendants,
Corporal James MacColl, Corporal Guy Debonaventura, Sergeant Thomas Curley, Lieutenant
Paul Ciber, and Chief Robert Tracy as “police officers” or “officers”. No disrespect is intended
by these designations.
3
10. At all times relevant hereto, City was the employer of Defendants Sgt. Det. Curley,
Lt. Ciber, and Chief Tracey who were Cpl. MacColl and Cpl. Debonaventura’s supervisorial
officers. Defendants Sgt. Det. Curley, Lt. Ciber, and Chief Tracey were managerial, supervisorial,
and policymaking employees of the Wilmington Police Department.
IV. ALLEGATIONS OF FACT AS TO ALL CAUSES OF ACTION
11. Ms. Quinette Brown, resident of 622 West 31st Street, Wilmington, Delaware
19802, called 911. To the 911 dispatcher, Ms. Brown reported the theft of her car, a 2002 white
Toyota Camry (“Camry”) with a Pennsylvania license plate.
12. Cpl. MacColl, among other officers, responded to the alert about the possible
carjacking.
13. On the morning of Saturday, February 2, 2019, Cpl. MacColl was working by
himself on a traffic shift in patrol vehicle 2065, a police-marked Chevrolet Caprice sedan while
wearing a winter police uniform.
14. After reporting for roll call and the morning briefing, Cpl. MacColl fueled his
vehicle and was headed to the direction of his normal duties. His shift began at 6 a.m. and was set
to conclude at 5 p.m.
15. At around 6:30 a.m., Cpl. MacColl was at the intersection of 4th and Walnut Streets
(adjacent to Wilmington Police Headquarters). Appearing on both his WilCom dispatch radio and
on-board computer, CAD, was an alert of an alleged carjacking.
16. The dispatcher advised that a stolen vehicle was last seen on Madison Street and
West 31st Street, approximately two and a half miles away from Cpl. MacColl’s then-location.
17. Over WilCom, Cpl. MacColl could hear other officers putting themselves en route
to the last location of the stolen car. Cpl. MacColl decided to do the same.
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18. At the intersection of 24th and Tatnall Streets was the Camry. Cpl. MacColl saw
that it was occupied by two black male occupants. It displayed a Pennsylvania license plate. It
proceeded from Cpl. MacColl’s left and to his right side, in a northbound direction of travel.
19. Cpl. MacColl continued behind the Camry at 27th and Moore Streets, in
Wilmington, Delaware. Ahead of Cpl. MacColl on 27th Street heading eastbound in the direction
of Market Street was the white Toyota Camry.
20. The Camry traveled slightly beyond Moore Street, and parked on the south side of
the block behind a black, four-door sedan.
21. Cpl. MacColl stopped his police car in the middle of the road and illuminated the
Camry by activating: (i) his overhead 360 degree red and blue lights, (ii) his two front-facing
“takedown” lights, and (iii) the spotlight on the A-pillar of his vehicle. All the while, Cpl. MacColl
left on his normal front headlights.
22. Cpl. MacColl then stepped out of his vehicle, drew his pistol, and pointed it in the
direction of the Camry.
23. Cpl. MacColl stepped out and to the left of the driver’s side of his police car.
24. Nothing obstructed Cpl. MacColl’s view of the Camry or its occupants.
25. Cpl. MacColl saw the driver of the Camry, Mr. Harris, (i) open the driver’s side
door to the Camry with his left hand, (ii) step out of the Camry, and (iii) turn to face Cpl. MacColl
while closing the door to the Camry with his right hand.
26. Cpl. MacColl could observe that Mr. Harris had nothing in his hands.
27. Cpl. MacColl could observe that Mr. Harris was not pointing anything at him.
28. Cpl. MacColl could observe that Mr. Harris made no threatening movements or
gestures of any kind toward him or anybody else.
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29. Cpl. MacColl did not give Mr. Harris a verbal warning that deadly force would be
used prior to shooting Mr. Harris four (4) times and he did not provide appropriate commands to
Mr. Harris.
30. Cpl. MacColl, within an instant of Plaintiff stepping out of the vehicle, opened fire
and shot Plaintiff.
31. Cpl. MacColl shot four (4) shots to Plaintiff’s chest in rapid succession—all four (4)
bullets being fired within approximately one (1) second—as soon as Plaintiff got out the Camry,
despite the fact that Plaintiff had nothing in hands and made no threating movements of any kind
and despite the fact that there were other, less than lethal, options available.
32. Cpl. MacColl’s four (4) bullets all hit the body of Mr. Harris.
33. Medical records compiled by Christiana Care Emergency Department note the
presence of four (4) gunshot wounds to Mr. Harris’ body. One of these gunshot wounds is just
above Mr. Harris’ heart. One of these gunshot wounds is just below Mr. Harris’ heart. One of these
gunshot wounds is to the inferior aspect of Mr. Harris’ left axilla. One of these gunshot wounds is
at the mid-left flank of Mr. Harris torso.
34. Cpl. MacColl had no justification for opening fire on Plaintiff the instant he stepped
out of the Camry.
35. Surveillance video footage from a store known as “Pete’s Pizza” showed that
Plaintiff had nothing in his hands at the time he was shot by Cpl. MacColl.
36. Surveillance video footage from a store known as “Pete’s Pizza” showed that Mr.
Harris’ arms were pumping in a manner commensurate with the customary biomechanics of an
individual running while he was mid-way in the street.
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37. Surveillance video footage from a store known as “Pete’s Pizza” showed that, when
Mr. Harris is mid-way in the street, Cpl. MacColl is visible. However, no muzzle flashes or vapor
trail can be seen coming from Cpl. MacColl’s weapon.
38. Surveillance video footage from a store known as “Pete’s Pizza” showed that, when
Mr. Harris is mid-way in the street, Cpl. MacColl is holding his pistol in his hands—toward the
sky—elbows bent.
39. In a recorded statement he gave to Sgt. Det. Curley approximately two (2) weeks
after this shooting on February 19, 2019, while he was represented by counsel, Mr. Eugene J.
Maurer, Jr., and after he was read Miranda warnings, Cpl. MacColl alleged that he shot Mr. Harris
only after Mr. Harris (i) began running and was mid-way in 27th Street, (ii) straightened his left
upper extremity toward him while running, and (iii) presented a black object in his extended left
hand.
40. According to Cpl. MacColl’s version: “as he [Mr. Harris] is moving, he extends his
left arm towards me.” As he gave his characterization in the video of the recorded statement, Cpl.
MacColl extended his own left arm to demonstrate what he alleged Mr. Harris was doing. In
showing this, Cpl. MacColl straightened his left arm—elbow unbent—and directed his closed hand
to his left at a 90-degree angle from his face. Cpl. MacColl performed this demonstration several
times in the video. Cpl. MacColl continued, stating, “and he [Yahim] has a black object in his hand
and all that went through my head is ‘holy sh*t, he’s going to shoot me.’”2
2
Throughout the body of this Civil Action Complaint, quotes are repeated from the Recorded
Statement of Cpl. James MacColl, February 19, 2019, 53:25 in length.
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41. Later in the recorded statement, even Cpl. MacColl admitted that his
characterization of Mr. Harris pointing at him as he was running from him seemed to defy logic
based on his own prior experiences. As Cpl. MacColl admitted:
and again, going back to, I’ve been in, conservatively, dozens of foot chases. I’ve chased
guys who’ve been armed with guns. I’ve never had somebody point at me while they were
running from me. Even guys who were trying to discard firearms; I’ve never had somebody
look at me, point at me with an object in their hand.
42. Sgt. Det. Curley further reinforced Cpl. MacColl’s narrative by then asking Cpl.
MacColl where Mr. Harris was when the four (4) shots were fired. Cpl. MacColl replied, “he’s in
the middle of the street about the time I start shooting. That’s about the time it took him to get out
of the car, take a step or two, and then extend that arm toward me.” Sgt. Det. Curley followed up
by asking “do you feel like the arm extended like a couple steps away from the car?” to which Cpl.
MacColl replied:
if he was bringing it up, you know, I recognized that arm was up as about the time he was
mid-street. So now he’s out of my spotlight, headlight, takedown light. So, he’s changed
from being in bright light to a little bit more darker area as he’s moving through that
transitional lighting zone is when I make the decision to start shooting.
43. Cpl. MacColl added, “I fired until he started to stumble as he hit the sidewalk and
then fell into the alleyway.”
44. Cpl. MacColl further committed to his narrative that Mr. Harris was in the middle
of the street when he began shooting by alleging “the backdrop when I started shooting was the
brick front porch of five [referencing a house to his left on the north side of the street using number
designations seen in the crime scene photo].”
45. In other words, effectively everything that Cpl. MacColl said committed him to the
narrative that he shot while Mr. Harris was mid-way in 27th Street, Mr. Harris’ left arm locked
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and unbent, extended in his direction, pointing a black object in his left hand at Cpl. MacColl while
simultaneously running from Cpl. MacColl.
46. After just being shot four (4) times in the chest, Mr. Harris ran in the direction of
an alleyway on the north side of the street. There, Mr. Harris collapsed to the ground.
47. As Cpl. MacColl made his way to the location of Mr. Harris’ collapse in the
alleyway, he was joined almost immediately by Corporal Corey Brown (“Cpl. Brown”).
48. In the alleyway, Cpl. Brown crouched down and handcuffed Mr. Harris.
49. A moment ago, Cpl. Brown handcuffed the passenger of the Camry while being
covered by Patrolwoman Angeline DiFebo (“Ptlwm. DiFebo”) on the south side of 27th Street mere
feet from the Camry.
50. Cpl. Brown applied pressure to Mr. Harris’ gunshot wounds.
51. Cpl. Brown and Cpl. MacColl were joined by several other officers of WPD
including Cpl. Debonaventura, Patrolwoman Michelle Lee (“Ptlwm. Lee”), Patrolman Isaiah
Dennison (“Ptlm. Dennison”), and others in the alleyway at various points in the aftermath of the
shooting.
52. In a recorded statement he gave to Sgt. Det. Curley, Cpl. Brown remembered Mr.
Harris crying out in pain, telling the officers he had never been shot before, and asking if he was
going to die.
53. Cpl. Brown stated he never heard Mr. Harris make any statements about having a
gun or discarding a gun while in the alley. Cpl. Brown stated he never heard Mr. Harris make any
statements about recently having committed any crime.
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54. Indeed, when pointedly asked by Sgt. Det. Curley if Mr. Harris said anything about
having a gun, Cpl. Brown responded, “No. He didn’t mention anything about the previous crime
that we had heard. Nothing. Never said anything about that.”3
55. No other officer, in their written reports, stated they heard Mr. Harris make any
statements about having a gun, discarding a gun, or having recently committed a crime while in
the alley.
56. Indeed, when initially asked by Sgt. Det. Curley if Mr. Harris had made any
statements as he was lying in the alley, Cpl. MacColl remembered only that Mr. Harris had asked
for an ambulance and had alerted the officers in the alley that he had been shot.
57. At the close of his interview while the recording was still playing, Sgt. Det. Curley
ordered Cpl. Brown not to write a supplemental report about the shooting.
58. After shooting Mr. Harris four (4) times in the chest, Cpl. MacColl, Cpl.
Debonaventura, Sgt. Det. Curley, Lt. Ciber, or other officers or employees of City did not provide
or summons timely medical attention for Mr. Harris, who was bleeding profusely and had obvious
serious injuries; Cpl. MacColl, Cpl. Debonaventura, or other officers or employees of City did not
allow and prevented responding medical personnel on-scene to timely render medical aid to Mr.
Harris.
59. Cpl. Brown recalled the ambulance taking at least twenty (20) minutes to arrive and
stated that “it felt like forever.” Until the ambulance arrived, Cpl. Brown applied pressure to Mr.
Harris’ wounds while Mr. Harris was in a seated position. Cpl. Brown also remembered Mr. Harris
3
Statement of Cpl. Brown, February 5, 2019, 25:21 in length.
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started to feel cold and lost consciousness at least once which necessitated Cpl. Brown to slap the
side of Mr. Harris’ face and instruct Mr. Harris to keep talking.
60. Ptlwm. DiFebo responded to the report of the suspected carjacking. Ptlwm. DiFebo
turned on her police car’s 360 lights and headed south of her location, at that time 31st and Market
Streets, toward the direction of Cpl. MacColl and the pursuit. She blocked traffic by parking in the
east end and middle of 27th Street, opposite from Cpl. MacColl and the Camry.
61. Ptlwm. DiFebo explained that Cpl. MacColl shot Mr. Harris as soon as the latter
exited the Camry by stating “he’s [Mr. Harris] exiting the vehicle. Shots are fired . . . [h]e opened
his door. I guess it – I guess it would be at the same time. I heard shots fired.” 4
62. Ptlwm. DiFebo was pointedly asked if she recalled seeing anything in Mr. Harris’
hands as he ran toward the alley. Ptlwm. DiFebo replied that she did not.
63. After the shooting, Ptlwm. DiFebo left her police vehicle and headed toward Cpl.
MacColl.
64. Cpl. MacColl was approaching the alley and alerted Ptlwm. DiFebo to direct her
attention back toward the Camry’s passenger. Diverting her attention, she trained her drawn pistol
at the passenger, who was by now already outside of the Camry, hands in the air.
65. Ptlwm. DiFebo approached the passenger, directed him to lay on the ground, spread
his arms, and not move. After Cpl. Brown handcuffed the passenger, Ptlwm. DiFebo remained there
while Cpl. Brown headed toward the alley to the location of Mr. Harris.
66. At about the same time, Ptlwm. Lee and Senior Corporal Guy Debonaventura
arrived to Ptlwm. DiFebo’s location beside the passenger.
4
Statement of Ptlwm. DiFebo, February 5, 2019, 31:25 in length & from Veritext Transcription of
October 30, 2019 Proceedings in Family Court of the State of Delaware for New Castle County.
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67. With the passenger now in handcuffs, Ptlwm. DiFebo holstered her pistol. She
checked the body of the passenger for any weapons numerous times. Ptlwm. Lee, who was with
Ptlwm. DiFebo, also patted down the passenger and checked him for weapons. Ptlwms. Lee and
DiFebo then stood the passenger up to his feet and took him east to Ptlwm. Lee and Cpl.
Debonaventura’s police car.
68. No officer—not Ptlwm. DiFebo, Ptlwm. Lee, Cpl. Brown, or Cpl.
Debonaventura—identified, in any report or testimony, to seeing a black revolver with a rose-gold
cylinder lying a mere one (1) or two (2) feet in front of the passenger’s head underneath the Camry
as he lay down in the sidewalk placed under arrest and repeatedly frisked for weapons.
69. Ptlwm. DiFebo stated she was ordered not to write a report following the shooting.
70. The passenger was moved to the police vehicle of Ptlwm. Lee and Cpl.
Debonaventura. The passenger was in handcuffs; Mr. Harris was in handcuffs bleeding laying in
the alley from his gunshot wounds. Neither the passenger or Mr. Harris had an opportunity at this
point to destroy evidence or to reach for objects within their control within the Camry.
Nevertheless, at that time Cpl. Debonaventura began a search of the Camry.
71. Cpl. Debonaventura’s search of the Camry was done without a warrant.
72. Cpl. Debonaventura did not mention searching the Camry in his official report.5
73. WPD Detective Matthew Geiser (“Det. Geiser”) would later write an Affidavit of
Probable Cause in support of a search warrant of the Camry, just a few hours later the same day
of February 2, 2019.
5
Throughout the body of this Civil Action Complaint, quotes are repeated from various officers’
official reports.
12
74. Cpl. Debonaventura began his search by opening the door to the passenger’s side
of the Camry. He took the passenger’s gold iPhone with a black case from the passenger’s seat of
the Camry. He held that gold iPhone with the black case in his left hand as he walked around the
rear of, and toward the driver’s side front door, of the Camry. There, he opened the driver’s side
front door and again reached inside in the Camry.
75. Cpl. Debonaventura removed the passenger’s black cell phone case from its iPhone.
Cpl. Debonaventura then placed the passenger’s gold iPhone in the driver’s side front interior door
and closed the driver’s side door to the Camry. At this point, Cpl. Debonaventura had the black
cell phone case in his possession. As he walked to the alley where Mr. Harris lay, Cpl.
Debonaventura held up with his right hand the black cell phone case toward his fellow.
76. Cpl. Debonaventura stopped briefly and then entered the alley.
77. At this point, Cpl. Debonaventura had no reason to enter the alley as the crime scene
was fully secure and Mr. Harris was being provided emergency medical treatment.
78. Cpl. Debonaventura planted the black cell phone case in the alley nearby Mr.
Harris’ body in order to give the appearance that Mr. Harris had that object on or about his person
in order to justify the actions of Cpl. MacColl.
79. At the time it was photographed by WPD officers, the black cell phone case had
snow inside of it.
80. Det. Geiser, following his successful application for a search warrant for the Camry,
confirmed the locations of each iPhone in the Camry—the one belonging to the passenger and Mr.
Harris. Det. Geiser found the gold iPhone (belonging to the passenger) without its black case in
the driver’s side front door slot; the rose iPhone (belonging to Mr. Harris) was found, on the front
driver’s seat.
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81. Patrolman Richard Verna (“Ptlm. Verna”) assisted the Forensic Services Unit
(“FSU”) following the application of search warrants. He noted the passenger’s gold iPhone was
recovered with latent fingerprint lifts collected on a 3x5 fingerprint card.
82. The aforementioned latent fingerprint was never tested at all.
83. No police officer has offered an explanation as to why Mr. Harris would have had
the passenger’s cell phone case—but not the cell phone itself—in his hands at the time he left the
Camry.
84. Cpl. Debonaventura specifically wrote in his report that Cpl. MacColl “had fired
his Departmentally issued firearm and struck the subject [Mr. Harris].”6
85. Cpl. Debonaventura specifically wrote in his report that he was among the officers
who rendered aid to Mr. Harris.
86. Cpl. Debonaventura specifically wrote in his report that he “attempted to remove
Officer MacColl from the scene but Officer MacColl wanted to assist in rendering aid to the subject
[Mr. Harris].”
87. Sometime after the Camry vacated, a revolver was allegedly found by WPD in
between the passenger’s side front and passenger’s side rear doors to the Camry.
88. At the time it was recovered and photographed by WPD officers, no snow was
found disturbed alongside the revolver as if it had been thrown, skidded through snow, and landed
in its found location. Instead, soft, undisturbed snow was found between the car’s tires adjacent to
the revolver.
89. Sgt. Det. Curley ruled out Mr. Harris as having thrown the revolver to its found
location by WPD officers, stating, “[t]here’s no way that gun was thrown by Mr. Harris.”
6
Emphasis supplied.
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90. The revolver was tested for DNA. DNA samples were concurrently taken of Mr.
Harris. The DNA could not demonstrate Mr. Harris’ DNA to have been on the revolver.
91. WPD alleged to have recovered a ski mask from Mr. Harris sometime after the
shooting had occurred. The alleged recovery of the ski mask gave rise to the State of Delaware
charging Mr. Harris with wearing a disguise during the commission of a felony.
92. The ski mask was never DNA tested.
93. At no point in any officers’ report or testimony is there an indication given as to
when, if at all, Mr. Harris wore this ski mask or where exactly it was recovered from.
94. At the time Cpl. MacColl gave his recorded statement on February 19, 2019, he
was already cleared of all criminal wrongdoing into the shooting of Mr. Harris. Cpl. MacColl had
time to carefully review the evidence gathered and consult with his fellow officers and supervisors
regarding the events of that early morning.
95. At no point in his recorded statement should Cpl. MacColl have had any reason to
give anything other than a truthful retelling of his actions.
96. After the shooting, Cpl. MacColl falsely stated that he used his service-issued,
unmodified, Smith & Wesson, 40 caliber M&P handgun to shoot Plaintiff.
97. At no time from the scene of the shooting did Cpl. MacColl submit his handgun to
a superior ranking officer.
98. Cpl. MacColl failed to remove himself immediately from the crime scene once the
same was secured.
99. Sometime after the shooting, Cpl. MacColl was taken back to central by Sergeant
Peter Leccia (“Sgt. Leccia”).
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100. At central, Cpl. MacColl asked to speak with Fraternal Order of Police President
Harold Bozeman.
101. Sgt. Det. Curley, among other officers of WPD, then requested Cpl. MacColl to
respond back to the scene of the shooting where a “walk through” was conducted.
102. After the “walk through,” Cpl. MacColl was returned a second time to central.
103. The Delaware State Police investigated the shooting of Plaintiff and found that Cpl.
MacColl switched the barrel of his firearm sometime between the shooting of Plaintiff and the
Delaware State Police (“DSP”) examination.
104. The pistol given to DSP’s forensics team, alleged to have been used by Cpl.
MacColl during the shooting of Mr. Harris, was found to have five (5) lands and five (5) grooves
in its barrel, right twist. A pistol with five (5) lands and five (5) grooves would be consistent with
a standard-issue WPD barrel. Also sent to DSP’s forensics team were three (3) spent projectiles
and four (4) casings recovered at the crime scene.
105. On February 18, 2019, DSP’s forensics team published their report. Of the three (3)
recovered projectiles, the caliber and number of lands and grooves from one could not be
determined. Of the remaining two (2), however, these were determined to have been fired from a
firearm with six (6) lands and six (6) grooves, right twist. Indeed, all three recovered spent
projectiles were eliminated as having been fired from the .40 pistol alleged to have been used by
Cpl. MacColl during the shooting of Mr. Harris.
106. The very next day, on February 19, 2019, Sgt. Det. Curley returned to the crime
scene and located a fourth spent projectile missed by officers at the crime scene.
107. This hollow point bullet was examined by DSP’s forensics team on February 25,
2019. It was found to have been fired from a firearm with six (6) lands and six (6) grooves, right
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twist. It, too, was fired from the same firearm as the identifiable two bullets of whose findings
were published on February 18, 2019.
108. The Delaware Attorney General’s office acknowledged that Cpl. MacColl lacks
credibility and consistently displayed a lack of candor during the entire investigation.
109. In their Entry of Nolle Prosequi, the Delaware Attorney General’s office stated, “it
is reasonable to conclude the discrepancy between the projectiles and Corporal MacColl’s WPD
issued firearm is that the barrel was switched after the February 2, 2019 shooting and prior to the
Delaware State Police examination.”
110. In their Entry of Nolle Prosequi, the Delaware Attorney General’s office identified
that Cpl. MacColl gave a number of statements to WPD in the aftermath of the shooting. With the
exception of the February 19, 2019 statement, no other statement of Cpl. MacColl was turned over
to Mr. Harris’ attorneys during the pendency of the criminal charges.
111. Any reports, data, or findings of Sgt. Det. Curley as he allegedly found the fourth
spent projectile at the crime scene on February 19, 2019, too, were not turned over at any time to
Mr. Harris’ attorneys during the pendency of the criminal charges.
112. The Attorney General and WPD failed to check make reasonable inquiries to
determine if Cpl. MacColl had a second firearm the morning of the shooting—one that has never
been turned over to proper authorities.
113. At approximately 1 p.m. on February 3, 2019, just one (1) day after he was shot, Mr.
Harris was questioned by Sgt. Det. Curley at Christiana Hospital. Mr. Harris had just recently
undergone numerous procedures all designed to save his life including an exploratory laparotomy,
left hemi diaphragm repair, segmental colon resection, and surgical repair of the liver. These
involved prolonged stays in the trauma bay unit and surgical intensive care unit.
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114. At the time of this questioning, the eighteen (18) year old Mr. Harris was:
• handcuffed at his wrists and ankles to his hospital bed,
• extubated just thirty (30) minutes earlier,
• placed on supplemental oxygen,
• still connected to an EKG machine,
• approximately seven (7) hours out from receiving his most recent dose of a
continuous drop of propofol, a general anesthesia medication designed to put a
patient to sleep,
• approximately seven (7) hours out from receiving his most recent dose of a
continuous drop of fentanyl, an opioid pain medication,
• approximately five and a half (5 ½) hours out from receiving an intravenous
injection of dilaudid, an opioid pain medication,
• approximately five and a half (5 ½) hours out from receiving his most recent dost
of liquid Tylenol, a pain medication,
• approximately ninety-eight (98) minutes out from receiving his most recent dose of
oxycodone, an opioid pain medication, and
• recovering from a lacerated liver, placement of abdominal staples, several comminuted
rib fractures and multiple bullet fragments still lingering in his chest cavity as seen by
CT scans and x-rays.
115. Sgt. Det. Curley recorded his questioning of Mr. Harris. However, he did not
announce at the start of his recording the location, date, and time of the recording.
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116. During Det. Sgt. Curley’s questioning of Mr. Harris at Christiana Hospital, an
audible beeping noise from the EKG machine can be heard in the background at the outset of the
interrogation.
117. Sgt. Det. Curley, either unaware or unconcerned that this machine is designed to
monitor Plaintiff’s vital signs, at first tried to turn off the EKG machine on his own.
118. When Sgt. Det. Curley was unable to turn off the EKG machine, he called for and
received assistance from hospital staff, and the EKG machine was turned off or otherwise silenced.
119. At three (3) separate times during the questioning, Mr. Harris was heard producing
a “death rattle,” a sign his body was struggling to clear fluids accumulating in his throat and upper
chest.
120. Sgt. Det. Curley’s actions in, first, turning off (or giving the appearance of the same)
a life-saving medical device in order to secure Mr. Harris’ compliance and, second, persisting in
questioning in spite of the cumulative effect of grievous injuries treated by various perception and
memory altering medications, were outrageous and unwarranted.
121. Mr. Harris remained at Christiana Hospital until his eventual discharge eleven (11)
days later on February 13, 2019.
122. Upon discharge from the hospital, Mr. Harris was sent to prison where he remained
until early March 2020 when the State of Delaware formally withdrew the charges against him.
123. While Mr. Harris remained in prison awaiting trial, the City of Wilmington, through
its employees and representatives, engaged in a campaign of defamation.
124. Published on November 4, 2019 was the Final Report of the Delaware Department
of Justice Office of Civil Rights and Public Trust (“OCR Report”) regarding the use of deadly
force by Cpl. MacColl.
19
125. The OCR report contained a number of omissions and misrepresentations,
including, specifically:
• Misrepresentation that Cpl. MacColl opened fire on Yahim and struck him
“approximately twice in the upper left torso”,
• Omission as to the facts surrounding when and how the revolver was found
underneath the Camry but implying that it was found at the time the passenger was
placed under arrest by Ptlwm. DiFebo,
• Omission as to whose black cell phone case was “recovered” in the alley; when and
how the passenger’s black cell phone case was allegedly found, namely that was it
was found with packed snow inside of it after it was alleged to have fallen from Mr.
Harris’ hands or body,
• Misrepresentation that the fingerprints on the passenger’s gold iPhone were tested
“but no match was made,” and,
• Misrepresentation that “all four [bullet] casings were confirmed to have been fired
from Corporal MacColl’s service weapon, a Smith & Wesson .40 Cal semi-
automatic pistol.”7
126. The OCR Report had the effect of causing bad feelings or opinions about Mr.
Harris; it lowered Mr. Harris’ estimation in the community and/or deterred third-parties from
associating or dealing with him.
7
Delaware Department of Justice, Office of Civil Rights and Public Trust, “Final Report of the
Department of Justice Use of Deadly Force by Wilmington Police Department,” November 4,
2019 (https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/11/Harris-Use-of-
Force-Report-11-4-19.pdf).
20
127. Defendants intended to communicate the OCR Report to someone other than Mr.
Harris, thereby constituting a publication of that report.
V. LEGAL CLAIMS
COUNT I – PLAINTIFF v. CPL. MacCOLL

VIOLATION OF 42 U.S.C. § 1983, 1985, 1986; FOURTH & FOURTEENTH
AMENDMENTS
128. Each foregoing paragraph is incorporated as if restated fully herein.
129. Plaintiff did not physically resist or assault Cpl. MacColl in any way nor did he
pose an immediate threat to the safety of Cpl. MacColl or others.
130. The actions of Cpl. MacColl constituted an excessive, unreasonable, and
unjustifiable force against Plaintiff, and therefore violated his clearly established rights to be free
from excessive, unreasonable force, and unreasonable search and seizure.
131. Cpl. MacColl actually knew that shooting directly at Plaintiff after he stepped out
of the vehicle helpless, unarmed and non-threatening, had a substantial risk of serious injury or
death.
132. The actions of Cpl. MacColl in continuing to shoot Plaintiff, after he stepped out
of the vehicle, helpless, unarmed, and non-threatening, were grossly inappropriate in light of the
risk.
133. Cpl. MacColl recognized his actions were wrong and could have caused the death
of Plaintiff. Cpl. MacColl’s response to the knowledge noted above was so inadequate as to show
deliberate indifference.
134. The conduct of Cpl. MacColl, in shooting Plaintiff after he alighted from the
vehicle, helpless, unarmed, and non-threatening, shocks the conscience and is fundamentally
offensive to a civilized society.
21
135. The actions of Cpl. MacColl amount to callous, reckless, or deliberate indifference
to the constitutional rights of Plaintiff and caused Plaintiff constitutional deprivation.
136. The actions of Cpl. MacColl violated clearly established and well settled
constitutional rights of Plaintiff, including, but not limited to:
i. freedom from the unreasonable seizure of his person; and
ii. freedom from the excessive, unreasonable and unjustified force against his person.
137. The acts of Cpl. MacColl were done in reckless disregard of Plaintiff’s rights, or
were grossly negligent, or were deliberately indifferent to the rights of Plaintiff.
138. The acts of Cpl. MacColl were committed maliciously, wantonly, willfully, without
probable or reasonable cause, excuse, or justification, and done with reckless disregard and
therefore warrant the imposition of exemplary and punitive damages in addition to compensatory
damages.
139. As the result and proximate cause of the excessive use of force by Cpl. MacColl,
Plaintiff suffered, and will continue to suffer, emotional distress, humiliation, embarrassment, and
other injuries, damages, and losses.
140. There is an affirmative causal link between the actions of Cpl. MacColl and the
particular injuries and losses suffered by Plaintiff.
141. Cpl. MacColl is liable for infliction of excessive, unreasonable force and infliction
of unreasonable seizure, in violation of Plaintiff’s clearly established rights under the Fourth
Amendment, and applied to state actors by the Fourteenth Amendment, to the United States
Constitution, through 42 U.S.C. § 1983, to be free from infliction of excessive, unreasonable force,
and unreasonable seizure.
22
142. As a direct and proximate result of the said acts of Cpl. MacColl, Plaintiff suffered
damages, including but not limited to, the following:
i. violation of Plaintiff’s constitutional rights under the Fourth and Fourteenth
Amendments to the United States Constitution to be free from unreasonable seizure
of his person and cruel punishment;
ii. physical pain and suffering; and
iii. emotional trauma and suffering.
143. Cpl. MacColl committed the following acts and/or omissions in violation 42 U.S.C.
§ 1983 and the United States Constitution:
a. used an unreasonable amount of force on the body of Plaintiff;
b. improperly restrained Plaintiff using an unreasonable amount of force.
COUNT II – PLAINTIFF v. CPL. MacCOLL, CPL. DEBONAVENTURA, SGT. DET.

CURLEY & LT. CIBER
VIOLATION OF 42 U.S.C. § 1983, 1985, 1986; FOURTH & FOURTEENTH
AMENDMENT
145. The denial of medical care by Cpl. MacColl, Cpl. Debonaventura, Sgt. Det. Curley,
and Lt. Ciber at the scene of the shooting deprived Mr. Harris of his right to be secure in his person
against unreasonable searches and seizures as guaranteed to Mr. Harris under the Fourth
Amendment to the United States Constitution and applied to state actors by the Fourteenth
Amendment.
146. The denial of medical care by Sgt. Det. Curley at Christiana Hospital deprived Mr.
Harris of his right to be secure in his person against unreasonable searches and seizures as
guaranteed to Mr. Harris under the Fourth Amendment to the United States Constitution and
applied to state actors by the Fourteenth Amendment.
23
147. As a result, Mr. Harris suffered extreme mental and physical pain and suffering.
Cpl. MacColl, Cpl. Debonaventura, Sgt. Det. Curley, and Lt. Ciber knew that their failure to
provide timely medical treatment to Mr. Harris could result in further significant injury or the
unnecessary and wanton infliction of pain, but disregarded that serious medical need, causing Mr.
Harris great bodily harm and emotional suffering.
148. The conduct of Cpl. MacColl, Cpl. Debonaventura, Sgt. Det. Curley, and Lt. Ciber
was willful, wanton, malicious, and done with reckless disregard for the rights and safety of Mr.
Harris and therefore warrants the imposition of exemplary and punitive damages.
COUNT III – PLAINTIFF v. ALL DEFENDANTS

VIOLATION OF 42 U.S.C. § 1983, 1985, 1986; SUBSTANTIVE DUE PROCESS
150. Mr. Harris had a cognizable interest under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution to be free from state actions that deprive him of life,
liberty, or property in such a manner as to shock the conscience, including but not limited to,
unwarranted state interference involving excessive and brutal use of physical force.
151. As a result of the excessive force used by Cpl. MacColl, Mr. Harris was deprived
of his constitutional right to be free from state actions that deprive him of life, liberty, or property
in such a manner as to shock the conscience, including but not limited to, unwarranted state
interference involving excessive and brutal use of physical force.
152. Mr. Harris had a cognizable interest under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution to be free from state actions that deprive him of life,
liberty, or property by state actors acting under color of state law.
153. Cpl. MacColl, acting under color of state law, thus violated the Fourteenth
Amendment rights of Mr. Harris to be free from unwarranted state interference involving excessive
24
and brutal use of physical force that was applied to him in such a manner as to shock the
conscience.
154. Cpl. Debonaventura, Sgt. Det. Curley, and Lt. Ciber, acting under color of state
law, thus violated the Fourteenth Amendment rights of Mr. Harris to be free from unwarranted
state interference involving intentional acts of harm or with deliberate indifference to his rights in
such a manner as to shock the conscience.
COUNT IV – PLAINTIFF v. CPL. DEBONAVENTURA

VIOLATION OF 42 U.S.C. § 1983; FIFTH AND FOURTEENTH AMENDEMENTS
DUE PROCESS – FABRICATION OF EVIDENCE
156. Cpl. Debonaventura performed the above-described acts of fabricating evidence
against Mr. Harris under color of state law, in bad faith, deliberately, and recklessly without regard
for Mr. Harris’ clearly established constitutional rights and innocence. No reasonable officer
would have believed this conduct was lawful.
157. As a direct and proximate result of fabrication of evidence by Cpl. Debonaventura,
Mr. Harris suffered injuries, including but not limited to loss of liberty, physical injury, emotional
distress, and he continues to suffer emotional distress.
COUNT V – PLAINTIFF v. ALL DEFENDANTS

VIOLATION OF 42 U.S.C. § 1983; FIFTH AND FOURTEENTH AMENDEMENTS
FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
159. In the manner described above, by their conduct and under color of state law, the
Defendants deprived Mr. Harris of his constitutional rights to be free from deprivation of liberty
without due process of law. Sgt. Det. Curley, Lt. Ciber, and Chief Tracey, in conspiracy with
others, deliberately withheld exculpatory evidence. In doing so, the officers violated their clearly
25
established duty to report to prosecutors all exculpatory materials. No reasonable officer would
have believed their conduct was lawful.
160. Absent misconduct by the officers, Mr. Harris would not have remained in
detention. The misconduct of the officers directly led to the unjust and wrongful detention of Mr.
Harris. The officers thus denied him his constitutional rights to be free from deprivation of liberty
without due process of law in violation of the Due Process Clauses of the Fifth and Fourteenth
Amendments to the United States Constitution.
161. As a direct and proximate result of this violation of his constitutional rights to be
free from deprivation of liberty without due process of law, Mr. Harris suffered injuries, including
but not limited to the loss of liberty, physical injury, and emotional distress, and he continues to
suffer emotional distress.
COUNT VI – PLAINTIFF v. CITY OF WILMINGTON

MONELL CLAIM AGAINST THE CITY OF WILMINGTON
163. On and for some time prior to February 2, 2019 (and continuing to the present date),
defendants deprived Plaintiff of the rights and liberties secured to him by the Fourth and Fourteenth
Amendments to the United States Constitution, in that said defendants and their supervising and
managerial employees, agents, and representatives, acting with gross negligence and with reckless
and deliberate indifference to the rights and liberties of the public in general, and of Plaintiff and
of persons in his class, situation, and comparable position in particular, knowingly maintained,
enforced, and applied official recognized customs, policies, and practices as described hereto.
164. Before the events giving rise to this civil action, Cpl. MacColl had prior direct
involvement in police shootings. Cpl. MacColl was among the group of officers who participated
in the shooting of wheelchair-bound African-American Jeremy McDole on September 23, 2015.
26
By way of brief background regarding that nationally publicized tragedy, a Wilmington resident
called 911 about a local man who, according to her, shot himself, was moving around, and still
had a gun. When police arrived, they found 28-year old Mr. McDole sitting stationary in his
wheelchair. A video taken by a local bystander shows Mr. McDole grimacing in pain and holding
his hands to his body as Wilmington Police Department (“WPD”) officers approached him. WPD
officers had their firearms drawn and ordered the wheelchair-bound man to put his hands up.
Unable or unwilling to comply, Mr. McDole was fired upon by the four (4) WPD officers—among
whom was Cpl. MacColl.
165. The officers involved justified their actions in the aforementioned slaying of Mr.
McDole by alleging to have recovered a pistol about the person of Mr. McDole although no firearm
is visible anywhere about or falling from Mr. McDole as the bystander’s video captures his lifeless
body collapsing out of his wheelchair to the street.
166. Although the Delaware Attorney General (“DDOJ”) decided to immunize Cpl.
MacColl from criminal charges with respect to his involvement in the shooting, the DDOJ did find
that at least one of the officers involved in that shooting had engaged in “extraordinarily poor
police work that endangered both the public and his fellow officers.”8
167. It is the custom, practice and policy of police officers and/or their
supervisors/agents and/or other employees of the City of Wilmington to perform the following acts
and/or omissions:
i. City of Wilmington police officers have committed acts of excessive force against
civilian individuals;
8
Delaware Department of Justice, Department of Justice Press Release, “DOJ Releases Report
on Wilmington Police Use of Force,” posted May 12, 2016:
(https://news.delaware.gov/2016/05/12/uof/).
27
ii. City of Wilmington police officers have violated or ignored internal customs,
practices, and policies otherwise designed for public safety when adhering to the
same would put their fellow officer in a negative light;
iii. Supervisory individuals from the City of Wilmington fail to properly discipline
City of Wilmington police officers that have committed an act of excessive force
against civilian individuals;
iv. Supervisory individuals from the City of Wilmington fail to provide mental health
services to a police officer who had prior direct involvement in the use of deadly
force against an individual;
v. Supervisory individuals from the City of Wilmington fail to hold police officers
accountable when they use deadly force unjustifiably by means of criminal charges
or internal disciplinary measures;
vi. Supervisory individuals from the City of Wilmington fail to remove an officer from
the crime scene after he has used deadly force upon determining that any injured
persons are being properly attended to;
vii. Supervisory individuals from the City of Wilmington fail to seize the firearms at
the crime scene from all officers, especially those officers who used deadly force,
upon determining that a crime scene is secure;
viii. Supervisory individuals from the City of Wilmington fail to prevent police officers
from unnecessarily entering or leaving a crime scene to ensure the integrity of the
crime scene;
28
ix. Supervisory individuals from the City of Wilmington fail to test evidence, including
fingerprint samples and articles of clothing in this particular case, against those of
officers or other persons to investigate sources of possible evidence tampering;
x. Supervisory individuals from the City of Wilmington fail to prevent evidence
tampering or fabrication of evidence;
xi. Supervisory individuals from the City of Wilmington fail to properly investigate a
complaint of excessive force perpetrated by a police officer, in this case they even
instructed at least two (2) defendant police officers not to write a report;
xii. Supervisory individuals from the City of Wilmington fail to provide a procedure
for reasonable questioning of criminal suspects with due respect to their sanctity of
life after they have been involved in an altercation with the police that involved the
use of excessive force by the officer;
xiii. Supervisory individuals from the City of Wilmington fail to require officers to
provide the location, date, and time of their questioning to criminal suspects to
ensure the integrity of their interrogations;
xiv. Supervisory individuals from the City of Wilmington else fail to discipline officers
who refuse to honor the requirement of officers to provide the location, date, and
time of their questioning to criminal suspects to ensure the integrity of their
interrogations;
xv. Supervisory individuals from the City of Wilmington fail to prevent their officers
from fabricating a narrative to a criminal suspect about what he allegedly did when
his medical condition would make him especially vulnerable to suggestion;
29
xvi. Supervisory individuals from the City of Wilmington direct or order officers not to
write statements when those statements could prove damaging to other officers
involved in acts involving excessive force;
xvii. Supervisory individuals from the City of Wilmington fail to prevent the defamation
of a criminal suspect who was the victim of excessive force;
xviii. Supervisory individuals from the City of Wilmington continue to teach and train
City of Wilmington police officers it is acceptable to shoot at unarmed individuals
despite overwhelming evidence that so doing comprises an act of excessive force
upon another, often resulting in injuries or fatalities;
xix. Supervisory individuals from the City of Wilmington fail to discipline officers for
incompetency or inefficiency in the performance of their duties;
xx. Supervisory individuals from the City of Wilmington fail to check or require that
officers are using their assigned, standard-issue equipment;
xxi. Supervisory individuals from the City of Wilmington do not provide proper training
to police officers to ensure the proper use of their guns or other means of deadly
force;
xxii. Supervisory individuals from the City of Wilmington do not provide provision of
non-lethal means of arrest or apprehension and/or proper training to police officers
to ensure the proper use of non-lethal means of arrest or apprehension;
xxiii. Supervisory individuals from the City of Wilmington do not provide body cameras
or training for the same to police officers;
30
xxiv. Supervisory individuals from the City of Wilmington fail to require their officers
to not merely sign reports, but to determine if the reports are complete and accurate
before signing them;
xxv. Supervisory individuals from the City of Wilmington fail to prohibit their officers
from making willful and material false statements, whether orally or in writing;
xxvi. The City of Wilmington’s failures, acts, and/or omissions create a custom, usage,
or unwritten policy that allows City of Wilmington police officers to engage in acts
of excessive force without being held accountable, which results in the injury to
civilians.
xxvii. The City of Wilmington’s failures, acts, and/or omissions create a custom, usage,
or unwritten policy that allows City of Wilmington police officers to engage in acts
of excessive force without being held accountable, which results in the injury to
civilians. The above-described policies and customs demonstrate a deliberate
indifference on the part of policymakers of the City of Wilmington to the clearly
established constitutional rights of persons within the city and were the cause of the
violations of Plaintiff’s clearly established rights alleged herein.
168. The above-described policies and customs demonstrate a deliberate indifference on
the part of policymakers of the City of Wilmington to the clearly established constitutional rights
of persons within the city and state and were the cause of the violations of Plaintiff’s clearly
established rights alleged herein.
169. As a result of the misconduct permitted by the custom, practice and policy of the
City of Wilmington, through its employees, Plaintiff suffered serious injuries as alleged in this
complaint.
31
COUNT VII – PLAINTIFF v. CITY OF WILMINGTON

MUNICIPAL LIABILITY AGAINST THE CITY OF WILMINGTON
FAILURE TO TRAIN
171. While acting under color of state law and within the course and scope of his
employment as police officers for the City police department, Cpl. MacColl’s shooting of Mr.
Harris, who was unarmed, deprived Mr. Harris of his rights and liberties secured to him by the
Fourth and Fourteenth Amendments as stated herein.
172. The training policies of the defendant City police department were not adequate to
train its police officers, including but not limited to Cpl. MacColl, with respect to use of deadly
force. As a result, City police officers, including Cpl. MacColl, are not able to handle the usual
and recurring situations with which they are presented, including making contact with unarmed
individuals. These inadequate training policies existed prior to the date of this incident and
continue to this day.
173. Defendant City police department was deliberately indifferent to the known or
obvious consequences of its failure to train its police officers, including Cpl. MacColl, adequately
with regards to using deadly force. This inadequate training includes failing to teach officers to
give a verbal warning when feasible prior to using deadly force, to give commands when feasible
prior to using deadly force, to take cover when the officers believe an individual is armed, to
distinguish unarmed persons from armed persons, to announce themselves as police, to use less
than lethal options, prior to resorting to the use of deadly force.
174. Defendant City was aware that failure to implement some sort of training with
respect to their officers’ use of deadly force and dealing with unarmed suspects would result in
32
continuing to have numerous unreasonable officer-involved shootings of unarmed individuals with
regularity.
175. The failure of Defendant City police department to provide adequate training with
regards using deadly force caused the deprivation of the Plaintiff’s rights by Cpl. MacColl. In other
words, the Defendants’ failure to train is so closely related to the deprivation of the Plaintiff’s
rights as to be the moving force that caused the ultimate injury.
176. By failing to provide adequate medical training to City’s police officers, including
Cpl. MacColl, Cpl. Debonaventura, Sgt. Det. Curley, and Lt. Ciber, Defendants acted with an
intentional, reckless, and callous disregard for the life of Mr. Harris and his constitutional rights.
Each of Defendants’ actions were willful, wanton, oppressive, malicious, fraudulent, and
extremely offensive and unconscionable to any person of normal sensibilities.
COUNT VIII – PLAINTIFF v. CPL. MACCOLL

VIOLATION OF DELAWARE CONSTITUTIONAL LAW, ARTICLE I, § 6 AND 11
178. Article I, Sections 6 and 11 of the Delaware Bill of Rights, prohibits unreasonable
seizures and cruel punishments.
179. The deadly force Cpl. MacColl used against Plaintiff was unnecessary,
unreasonable, and excessive.
180. The force Cpl. MacColl used against Plaintiff constitutes an unreasonable seizure
of and cruel punishment of Plaintiff in violation of Article I, Sections 6 and 11 of the Delaware
Bill of Rights.
181. As a result of the actions of Cpl. MacColl, Plaintiff has suffered severe and
permanent damages.
33
COUNT IX – PLAINTIFF v. ALL DEFENDANTS

FALSE IMPRISONMENT
183. Defendant Cpl. MacColl, while working as police officers for City, and acting
within the course and scope of their duties, intentionally deprived Plaintiff of his freedom of
movement by use of force, threats of force and unreasonable duress when they shot Plaintiff and
later prevented the timely arrival of emergency medical response in order to detain him. At the
time of the shooting, Cpl. MacColl was not privileged to effect the confinement.
184. Defendants Cpl. Debonaventura, Sgt. Det. Curley, Lt. Ciber, and Chief Tracey
while working as police officers for City and acting within the course and scope of their duties,
intentionally deprived Plaintiff of his freedom of movement by use of force, threats of force and
unreasonable duress when they prevented the timely arrival of emergency medical response. At
the time of their forced confinement of Plaintiff, they were not privileged to effect said
confinement.
185. Plaintiff did not knowingly or voluntarily consent to his detention or attempted
arrest. Plaintiff did not feel that he was free to leave as he lay bleeding on the ground in the alley.
By shooting Plaintiff, Cpl. MacColl deprived Plaintiff, who was unarmed, of his liberty without
justification.
186. The conduct of Defendants was malicious, wanton, oppressive, and accomplished
with a conscious disregard for the rights of Plaintiff.
187. Plaintiff is entitled to recover against Defendants under the common law of
Delaware for Plaintiff’s injuries and losses.
34
COUNT X – PLAINTIFF v. CPL. MacCOLL

ASSAULT
189. Cpl. MacColl, while working as a police officer for City police department and
acting within the course and scope of his duties, intentionally shot Plaintiff four (4) times, while
he was unarmed. Further, Cpl. MacColl did not give any verbal warnings or commands prior to
shooting Plaintiff. The use of deadly force was excessive and unreasonable and there were less-
than-lethal options available. As a result of the actions of Cpl. MacColl, Plaintiff suffered severe
mental and physical pain and suffering and loss of enjoyment of life. Cpl. MacColl had no legal
justification for using force against Plaintiff and said defendant’s use of force while carrying out
his official duties was an unreasonable use of force especially in light of Plaintiff being unarmed.
190. Cpl. MacColl’s actions caused Plaintiff to be in fear of immediate harmful or
offensive contact and at no time did Cpl. MacColl have or attempt to obtain Plaintiff’s consent.
191. The conduct of Cpl. MacColl was malicious wanton, oppressive, and accomplished
192. Plaintiff is entitled to recover against Cpl. MacColl under the common law of
COUNT XI – PLAINTIFF v. CPL. MACCOLL

BATTERY
194. Cpl. MacColl, while working as a police officer for City police department and
acting within the course and scope of his duties, intentionally shot Plaintiff four (4) times, while
he was unarmed. Further, Cpl. MacColl did not give any verbal warnings or commands prior to
35
shooting Plaintiff. The use of deadly force was excessive and unreasonable and there were less-
than-lethal options available. As a result of the actions of Cpl. MacColl, Plaintiff suffered severe
mental and physical pain and suffering and loss of enjoyment of life. Cpl. MacColl had no legal
justification for using force against Plaintiff and said defendant’s use of force while carrying out
his official duties was an unreasonable use of force especially in light of Plaintiff being unarmed.
195. Cpl. MacColl’s actions caused Plaintiff to experience harmful or offensive contact
and at no time did Cpl. MacColl have or attempt to obtain Plaintiff’s consent.
196. The conduct of Cpl. MacColl was malicious wanton, oppressive, and accomplished
197. Plaintiff is entitled to recover against Cpl. MacColl under the common law of
COUNT XII – PLAINTIFF v. ALL DEFENDANTS

NEGLIGENCE
199. The actions and inactions of the Defendants were negligent, including but not
limited to:
i. The failure to properly and adequately train employees, including Cpl. MacColl,
with regards to the use of force, including deadly force;
ii. The failure to properly and adequately assess the need to detain, arrest, and use
force, including deadly force against Plaintiff;
iii. The negligent tactics and handling of the situation with Plaintiff, including the post-
shooting provision of medical care and investigation of the scene of the shooting;
36
iv. The negligent detention, arrest, use of force, including deadly force, against
Plaintiff;
v. The failure to provide and or summons prompt medical care to Plaintiff;
vi. Shooting an unarmed citizen who had nothing in his hands and made no threatening
gestures or movements of any kind to another person;
vii. Failure to train with respect to distinguishing between unarmed and armed citizens;
viii. Failure to give a verbal warning or any kind of command prior to shooting; and
ix. The failure to properly train, supervise, and discipline employees, both professional
and non-professional, including Cpl. MacColl.
200. As a direct and proximate result of the Defendants’ conduct as alleged above, and
other undiscovered negligent conduct, Plaintiff was caused to suffer severe pain and suffering,
among other damages.
201. City is vicariously liable for the wrongful acts of Cpl. MacColl as the latter was
acting in the course and scope of his employment at the time of his actions.
COUNT XIII – PLAINTIFF v. CPL. MacCOLL & SGT. DET. CURLEY

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
203. The conduct of Cpl. MacColl and Sgt. Det. Curley was so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
204. The conduct of Cpl. MacColl and Sgt. Det. Curley was committed with an intent to
cause severe emotional distress or reckless disregard with respect to causing emotional distress.
37
205. As a result of the actions and conduct of Cpl. MacColl and Sgt. Det. Curley,
Plaintiff was caused to suffer severe emotional distress.
206. The actions of Cpl. MacColl in shooing Plaintiff in the chest four (4) times was "'so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.”
207. The actions of Det. Sgt. Curley in turning off, or giving the appearance he was
turning off, Plaintiff’s EKG machine while in the hospital and in need of medical attention and
treatment was “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.”
COUNT XIV – PLAINTIFF v. CPL. MacCOLL

GROSS OR WANTON NEGLIGENCE
209. At all relevant times alleged herein, Cpl. MacColl owed Plaintiff a duty of care to
use only the amount of force necessary to apprehend and detain plaintiff.
210. Cpl. MacColl breached his duty to Plaintiff by arresting him without probable
cause.
211. Cpl. MacColl breached this duty by shooting Plaintiff four (4) times with a firearm
on a public street after he exited his vehicle.
212. Cpl. MacColl breached his duty to Plaintiff by failing to use a reasonable amount
of force to subdue a suspect who simply exited his vehicle and did not act in a threatening manner.
38
213. Cpl. MacColl acted with reckless indifference to the welfare of Plaintiff and his
actions in shooting him four (4) times with a firearm when he exited his vehicle, when there was
a clear path to retreat, and when he had given Plaintiff no verbal warnings or commands.
214. As a direct and proximate result of the grossly negligent actions of Cpl. MacColl,
Plaintiff sustained both serious and permanent injuries.
215. Cpl. MacColl was acting within the course and scope of their employment with the
City of Wilmington at the time of the incident, which is the basis of this lawsuit.
216. Defendant, City of Wilmington is responsible for the conduct of Cpl. MacColl
under the doctrine of respondeat superior due to the master- servant relationship which existed at
the time of the incident, and which is the basis of this lawsuit.
217. Plaintiff’s allegations of gross or wanton negligence against Cpl. MacColl is not
barred by the Delaware State Tort Claims Act (10 Del. C. § 4001) as sovereignty is not a valid
defense to allegations of gross or wanton negligence.
218. Cpl. MacColl had a duty to conduct himself as reasonably prudent police officer
flowing the standard operating procedures and training of the Wilmington Police Department.
219. Cpl. MacColl had a duty to avoid seizing and arresting Plaintiff without
justification.
220. Cpl. MacColl had a duty to avoid applying physical force to Plaintiff without
justification.
221. Cpl. MacColl breached these duties by using a firearm against Plaintiff without
justification, and wantonly violating other standard operating procedures and training of the
Wilmington Police Department.
39
222. As a result, Plaintiff suffered serious and permanent injuries and Cpl. MacColl is
liable to Plaintiff including for exemplary and punitive damages.
COUNT XV – PLAINTIFF v. ALL DEFENDANTS

DEFAMATION
224. Defendants falsely gave, or permitted to be given with their consent and after their
consultation, without limitation and especially in a November 4, 2019 publication entitled “Final
Report of the Delaware Department of Justice Office of Civil Rights and Public Trust,” the
following omissions, mischaracterizations, and distortions:
i. Misrepresentation that Cpl. MacColl opened fire on Plaintiff but struck him
“approximately twice in the upper left torso;”
ii. Omission as to the facts surrounding when and how the revolver was found
underneath the Camry but implying that it was found at the time the passenger was
placed under arrest by Ptlwm. DiFebo;
iii. Omission as to whose black cell phone case was recovered in the alley; when and
how the passenger’s black cell phone case was allegedly found, namely that it was
found with packed snow inside of it after it was alleged to have fallen from
Plaintiff’s hands or body to the ground;
iv. Misrepresentation that the fingerprints on the passenger’s gold iPhone were tested
“but no match was made;” and
v. Misrepresentation that “all four [bullet] casings were confirmed to have been fired
from Corporal MacColl’s service weapon, a Smith & Wesson .40 Cal semi-
automatic pistol.
40
225. The Defendants’ false statements were never retracted.
226. The Defendants’ false statements refer to Mr. Harris.
227. The Defendants’ false statements were published and communicated to third
parties, including, without limitation, the police department, the public, the community, readers
and listeners of US News, The News Journal, WHYY, delawarepublic.org, and WDEL.
228. The Defendants’ statements are false and defamatory.
229. The Defendants’ false and defamatory statements were made with knowledge that
they were false and/or with reckless disregard for their truth.
230. The Defendants’ false and defamatory statements have harmed Plaintiff’s
reputation and diminished the esteem, respect, and goodwill and confidence in which he is held
including, without limitation, by labeling him as a violent criminal.
231. The Defendants’ false defamatory statements lower Mr. Harris in the estimation of
the community and have deterred third-parties from associating or dealing with him, including,
without limitation, by causing the public, the community, and media consumers to view Mr. Harris
as a violent criminal.
232. As a result of Defendants’ false and defamatory statements, Mr. Harris’ reputation
has been harmed, his standing in the community has been lowered, and he has suffered personal
humiliation and mental anguish and suffering.
233. Defendants’ false and defamatory statements impute Mr. Harris with a crime and
therefore constitute defamation per se.
COUNT XVI – PLAINTIFF v. ALL DEFENDANTS

MALICIOUS PROSECUTION
234. Each foregoing paragraph is incorporated as if restated fully set herein.
41
235. Defendants initiated and continued against Mr. Harris, with malice and without
probable cause, various felony offenses. In so doing, City police department officers:
i. Acknowledged, but refused to concede, one of their own used excessive force
without justification;
ii. Gave false, deceitful, inaccurate, or misleading reports or were in some instances
ordered specifically not to provide reports at all;
iii. Fabricated and planted evidence against Plaintiff;
iv. Refused to test or examine all relevant evidence at the scene of the shooting;
v. Refused to provide exculpatory evidence to Plaintiff;
vi. Otherwise acted with malice as further discovery will demonstrate.
236. The proceedings were instituted and pursued but for the purpose of protecting Cpl.
MacColl and other officers within the City police department, especially in their jobs as
government officials and against allegations of misconduct and criminal charges. That constitutes
the proceedings to have been instituted and pursued with malice.
237. The felony offenses with which Mr. Harris was charged terminated in his favor.
238. Mr. Harris suffered damages as a result.
COUNT XVI – PLAINTIFF v. ALL DEFENDANTS

ABUSE OF PROCESS
240. Defendants caused the criminal legal process to issue against Mr. Harris.
241. Defendants’ willfully used the legal system against Mr. Harris primarily to
accomplish a purpose for which the system is not designed—namely that of attempting to convict
him of crimes to protect their City and its police officers. Thus, the Defendant’s purpose was
improper and wrongful.
42
242. Defendants’ willful act in the use of the system is not in the regular conduct of legal
proceedings.
COUNT XVII – PLAINTIFF v. CITY OF WILMINGTON

SUPPLEMENTARY CLAIM FOR RESPONDEAT SUPERIOR
243. All foregoing paragraphs are incorporated herein by reference as though fully set
forth.
244. The aforesaid acts of the defendant police officers were in the scope of their
employment as police officers and therefore the City of Wilmington, as principal, is liable for the
actions of its agents under the doctrine of respondeat superior.
WHEREFORE, for each count stated herein, Plaintiff demands judgment against the
Defendants for damages, exemplary and punitive damages, costs, attorneys’ fees, and such other
additional relief, as this Court deems equitable and just.
VI. REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully request that this Honorable Court advance their case
on the docket, orders a speedy trial, and causes this case to be in every way expedited, and, upon
hearing, grant them judgment against the defendants, jointly and severally:
A. Ordering defendants to make whole Plaintiff from the adverse effects of the
unlawful acts and practices complained of herein by providing relief that includes compensatory
damages, pre- and post-judgment interest, exemplary and punitive damages, and any other
damages as provided by law to compensate Plaintiff for injuries, damages and other losses suffered
as a result of the deprivation of the constitutional and other rights of Plaintiff, including, but not
limited to, pain and suffering, lost income, mental distress, emotional distress, emotional trauma,
43
mental pain and suffering, fright, fear, anxiety, anguish, personal indignity, humiliation,
embarrassment, discomfort, and other personal injuries, damages and losses;
B. Retain jurisdiction over this action to assure full compliance with the Orders of the
Court;
C. Grant Plaintiff attorneys' fees, court costs, expert witness fees, and other
disbursements; and
D. Grant such other and further relief as the Court deems just and proper.
PLAINTIFF HEREBY REQUESTS A TRIAL BY A SIX PERSON JURY
IGWE & SHARMA, LLC

Aman K. Sharma (DE Bar # 5706)
[email protected]
One Commerce Center
1201 N. Orange St., Suite 502
Wilmington, DE 19801
ph: 302-842-2470
fax: 302-440-3746
Attorney for Plaintiff Yahim Harris
Appearance for Plaintiff pending pro hac vice application:

THE IGWE FIRM, LLC
Emeka Igwe, Esquire
[email protected]
Two Penn Center
1500 JFK Blvd., Suite 1900
Philadelphia, PA 19102
ph: 215-278-9898
fax: 215-893-3812
44

Yahim Harris Lawsit

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Yahim Harris Lawsit

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Case 1:21-cv-00023-LPS Document 1 Filed 01/11/21 Page 1 of 44 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

COMPLAINT AND DEMAND FOR JURY TRIAL

compensatory and punitive damages, complain and allege as follows:

common, statutory and constitutional laws of the State of Delaware.

Wilmington police officers during his arrest.

II. JURISDICTION AND VENUE

aforementioned statutory provisions.

Wilmington, as required by applicable state and municipal law.

the meaning of 28 U.S.C. § 1391(b).

6. Mr. Harris is an adult male resident of Wilmington, Delaware.

7. Defendant City of Wilmington (“City”) is a duly incorporated or formed municipal

8. Defendant Corporal James MacColl (“Cpl. MacColl”), Defendant Corporal Guy

officers of the Wilmington Police Department.

and policymaking employees of the Wilmington Police Department.

IV. ALLEGATIONS OF FACT AS TO ALL CAUSES OF ACTION

Toyota Camry (“Camry”) with a Pennsylvania license plate.

wearing a winter police uniform.

on-board computer, CAD, was an alert of an alleged carjacking.

of Market Street was the white Toyota Camry.

the block behind a black, four-door sedan.

left on his normal front headlights.

direction of the Camry.

gestures of any kind toward him or anybody else.

and shot Plaintiff.

at the mid-left flank of Mr. Harris torso.

out of the Camry.

individual running while he was mid-way in the street.

trail can be seen coming from Cpl. MacColl’s weapon.

based on his own prior experiences. As Cpl. MacColl admitted:

then fell into the alleyway.”

designations seen in the crime scene photo].”

simultaneously running from Cpl. MacColl.

feet from the Camry.

50. Cpl. Brown applied pressure to Mr. Harris’ gunshot wounds.

statements about recently having committed any crime.

that we had heard. Nothing. Never said anything about that.”3

arrived to Ptlwm. DiFebo’s location beside the passenger.

Debonaventura’s police car.

68. No officer—not Ptlwm. DiFebo, Ptlwm. Lee, Cpl. Brown, or Cpl.

Debonaventura—identified, in any report or testimony, to seeing a black revolver with a rose-gold

Nevertheless, at that time Cpl. Debonaventura began a search of the Camry.

front door and again reached inside in the Camry.

in order to justify the actions of Cpl. MacColl.

snow inside of it.

recovered with latent fingerprint lifts collected on a 3x5 fingerprint card.

82. The aforementioned latent fingerprint was never tested at all.

who rendered aid to Mr. Harris.

92. The ski mask was never DNA tested.

93. At no point in any officers’ report or testimony is there an indication given as to

regarding the events of that early morning.

give anything other than a truthful retelling of his actions.

unmodified, Smith & Wesson, 40 caliber M&P handgun to shoot Plaintiff.

a superior ranking officer.

same was secured.

Peter Leccia (“Sgt. Leccia”).

Delaware State Police (“DSP”) examination.

and four (4) casings recovered at the crime scene.

Cpl. MacColl during the shooting of Mr. Harris.

were published on February 18, 2019.

Delaware State Police examination.”

to Mr. Harris’ attorneys during the pendency of the criminal charges.

Mr. Harris’ attorneys during the pendency of the criminal charges.

been turned over to proper authorities.

• handcuffed at his wrists and ankles to his hospital bed,

• extubated just thirty (30) minutes earlier,

• placed on supplemental oxygen,

• still connected to an EKG machine,

continuous drop of propofol, a general anesthesia medication designed to put a

continuous drop of fentanyl, an opioid pain medication,

• approximately five and a half (5 ½) hours out from receiving an intravenous

injection of dilaudid, an opioid pain medication,

of liquid Tylenol, a pain medication,

oxycodone, an opioid pain medication, and

• recovering from a lacerated liver, placement of abdominal staples, several comminuted

CT scans and x-rays.