           IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEITH M. SCHUELLER,                      §
                                         §      No. 485, 2017
      Plaintiff Below,                   §
      Appellant,                         §      Court Below: Superior Court
                                         §      of the State of Delaware
      v.                                 §
                                         §
BRETT CORDREY et al.,                    §      No. N14C-10-201EMD
                                         §
      Defendant Below,                   §
      Appellee.                          §

                           Submitted: September 26, 2018
                           Decided:   September 28, 2018

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices; constituting the Court en Banc.

                                      ORDER

      This 28th day of September 2018, it appears to the Court that:

      (1)    In this civil action, plaintiff sued a police officer for battery after being

shot by the officer while fleeing from police, refusing to heed instructions to desist

from resisting arrest, and waving a shovel at the officer in a threatening manner when

the officer shot him. The Superior Court found for the officer, holding that the

plaintiff had not proven out his claim.1




1
 Schueller v. Cordrey, C.A. No. N14C-10-201EMD, 2017 WL 3635570, at *12 (Del. Super. Aug.
23, 2017).
       (2)     On appeal, plaintiff’s only argument is that the Superior Court did not

have a proper basis in the evidentiary record to sustain its findings.2 Because

plaintiff consented to a bench trial, we review “the sufficiency of the evidence and

[ ] test the propriety of the findings below. We do not, however, ignore the findings

made by the trial judge. If they are sufficiently supported by the record and are the

product of an orderly and logical deductive process, in the exercise of judicial

restraint we accept them, even though independently we might have reached

opposite conclusions.”3

       (3)     Admittedly, there was conflicting testimony about what occurred. The

Superior Court was admirably candid in finding that aspects of the officer’s own

story were less than fully convincing,4 but it also found the plaintiff’s version of

events suspect.5 The record supports the Superior Court’s finding that the plaintiff

was fleeing from and resisting arrest, had struck a vehicle during his flight, had

refused to stop resisting after demands from the officer, and was wielding a shovel

at the officer from a close distance when the officer shot him.



2
  Opening Br. at 7–20.
3
  Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
4
  Schueller, 2017 WL 3635570 at *9 (“The Court finds that Cpl. Cordrey provided credible
testimony up and until the time of the shooting . . . . Cpl. Cordrey does not seem to remember
exactly what happened when he pulled the trigger on his firearm or exactly what Mr. Schueller
was doing at that point in time.”).
5
  Id. (“[T]he Court finds that Mr. Schueller is not a credible witness. Mr. Schueller has provided
various accounts of the facts of the incident. Moreover, Mr. Schueller’s testimony at trial (and in
depositions) is not supported by the testimony of other fact witnesses.”).

                                                2
        (4)     The Superior Court also found that immediately before the shooting,

“Schueller again turned to face [ ] Cordrey,” while “waiving the shovel around ‘like

a crazy person.’”6 Because the shovel was a “dangerous instrument” in Schueller’s

hands, the Superior Court found that the officer legitimately “was in fear for his

safety” and “felt ‘the greatest fear [he has] ever had in [his] life.’”7

        (5)     Plaintiff’s sole argument is that the officer could not have feared for his

life because he shot Schueller in the back.8 The Superior Court acknowledged this,

but found that “Cordrey believed, at the time, that he shot [ ] Schueller in the chest”

and that Cordrey “did not use excessive or unnecessary force under the

circumstance” because he feared for his life.

        (6)     This finding is supported by the record and logically follows from the

Superior Court crediting the officer’s testimony and discrediting Schueller’s

testimony. Although reasonable minds may differ on what evidence to credit, by

crediting the officer’s testimony the Superior Court could logically conclude that the

officer employed reasonable force in light of the threat. Acknowledging the inability

of either party to provide “a reasonable explanation for how exactly [ ] Schueller got

shot in the back,”9 the Superior Court’s process—of crediting certain testimony and




6
  Id. at *10.
7
  Id.
8
  Id.
9
  Id.

                                              3
discrediting others—logically supported his finding for the officer and we must

accept it.

       (7)     For these reasons, we affirm the judgment of the Superior Court as the

sole argument the plaintiff makes on appeal is without merit.10

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.


                                               BY THE COURT:
                                               /s/ Leo E. Strine, Jr.
                                               Chief Justice




10
   Interesting issues emerged from the record. Namely, in a civil case does a defendant like the
officer bear the burden of persuasion on the defense of self-defense? And, if so, do the elements
of that match the criminal standard and did the Superior Court appropriately apply that standard
by using the provisions of 11 Del. C. § 467(c) that govern the type of force the officer used in this
case, i.e., deadly force? These are interesting issues, but this case is not one fit to address them for
a simple reason: the plaintiff did not raise any of them below or in his brief on appeal. The issues
are thus waived.

                                                   4
