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Case 1:04-cv-01254-GMS

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Appendix Page B-166 Deposition of THOMAS CLIFTON DEMPSEY taken pursuant to notice at the law offices of Richards, Layton & Finger, One Rodney Square, Third Floor, Wilmington, Delaware, beginning at 10:00 a.m. on Tuesday, May 9, 2006, before Kathleen White Palmer, Registered Professional Reporter and Notary Public.

Page 43 18 I stopped in the 400 block of Harrison, 19 mainly because as soon as we got all in that area, 20 those two officers jumped out of their vehicles, and 21 if I entered the intersection, I was afraid I might 22 hit them, so I just stopped short of the intersection, 23 probably about two feet, and I bailed out of my 24 vehicle.

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Appendix Page B-167 Page 59 22 Q. Do you recall whether the lights and siren were 23 left on your car after you exited? 24 A. Yes, they were.

Page 60 9 Q. As you looked down the street and you saw the 10 vehicle Smith was driving, were the lights and siren 11 on that car? 12 A. The lights were on. I don't know if the siren 13 was on. I couldn't hear. 14 Q. What about the lights on the two patrol cars 15 following the stolen vehicle? 16 A. I don't recall. 17 Q. You don't necessarily recall hearing sirens 18 from them? 19 A. No. At that point the only siren I was hearing 20 was mine because it was right next to me.

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Appendix Page B-168 Page 44 16 At which time approaching John's car, the 17 vehicle was stopped for -- I noticed -- I observed 18 that the suspect vehicle was stopped for a short 19 amount of time. I observed that several officers were 20 starting to get out of their vehicles behind the 21 suspect car. A feeling that now he was not going to 22 be able to go anywhere now with the fact that the two 23 vehicles were blocking the intersection behind him.

Page 46 14 I proceeded -- he was approximately three 15 to five feet away from me at one point. I waited, 16 actually, a second because of a crossfire situation 17 between myself and several officers down the block. 18 Once he started to pass me and I had a 19 better backdrop of buildings and nobody was in the 20 area, I started -- proceeded to fire my handgun at the 21 driver's side window of the vehicle shattering same. Page 87 23 Q. After you exited your vehicle up until the time 24 that the stolen car stopped. So the time period

Page 88 1 between when you exited your vehicle on Harrison 2 Street near the intersection of 5th and the time that

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Appendix Page B-168(a)

3 the stolen vehicle operated by Harry Smith stopped, 4 did you see any other police officers other than 5 Officers Kurten and Ciritella? 6 A. I saw for a very -- probably a second, if not 7 less than, a few officers getting out of cars behind 8 the suspect vehicle. I don't know who they were or 9 where they went, but I just saw the doors opening and 10 saw officers exiting.

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Appendix Page B-169 Page 45

4 Upon approaching the rear -- or the front 5 of, actually, John Ciritella's vehicle, the suspect 6 vehicle started to proceed forward at actually, for 7 the short distance he had, at a high rate of speed 8 towards John Ciritella. I observed that. I observed 9 John starting to back up from him, attempting to get 10 out of his way, at which time he was also basically 11 heading in my direction, also. 12 I had a vehicle I believed that would 13 protect me at that time, but I had a vehicle between 14 me and the car at that time, so I backed up a little 15 slower than John into the intersection, at which time 16 he was -- what I could observe, he got past John. 17 John had to move out of the way or get hit. And he 18 ran into the -- I believe it was a white Cherokee 19 which I was standing just a few feet behind.

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Appendix Page B-170

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17 Q. Even with the driver's side front door, was 18 there any point at which during this incident you were 19 able to see directly into the vehicle because your 20 body was actually positioned at the driver's side 21 door? 22 A. Yes.

For reference made in Brief at paragraph 68, please also see page 126 of the portion of the Appendix filed Under Seal.

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Appendix Page B-171 Page 64 13 Where was Mr. Ciritella the next time you 14 saw him shoot his gun? 15 A. John Ciritella and I were pretty much on a 16 parallel course, him on the sidewalk, me on the street 17 on the rest of the situation. I kept him in my 18 peripheral vision at all times mainly to not cause a 19 crossfire situation and hit Officer Ciritella by 20 accident. So I wanted to keep him in my field of view 21 at all times while we both continued to walk up the 22 roadway. 23 Q. Let's use an X3 for Officer Kurten. Where did 24 you first see or where was Officer Kurten when you

Page 65 1 first saw him shoot his gun? 2 A. I never did. 3 Q. You never saw him shoot his gun? 4 A. No, no. 5 Q. Do you recall seeing him after you got out of 6 your car? 7 A. The only time I observed Kurten was parking, 8 exiting, because he was the main reason I decided to 9 park here because he exited, I didn't want to hit him. 10 And he ran to the front. And that's the last time I

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Appendix Page B-172 11 saw Matt Kurten. 12 Q. Okay. But then is it fair to say that from the 13 time that Mr. Kurten exited his vehicle and moved in 14 the direction of 5th Street or onto 5th Street, that 15 you didn't see him again until you got down to the 16 police station? 17 A. True.

Page 49 23 Q. When you arrived back at central, what 24 happened?

Page 50 1 A. I was escorted to the detective conference room 2 or we were told to go to the detective conference 3 room. Lieutenant Mulrine took us up there and pretty 4 much at that point along we were in there awaiting our 5 interviews. And that's pretty much all we did. We 6 just sat in there awaiting our interviews. 7 Q. Your interview occurred about 1:00 in the 8 morning? 9 A. I can't give you -- I know it was after one, 10 but I can't give you exact time.

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Appendix Page B-173 Page 32 8 Q. Did you write a report? 9 A. No. 10 Q. Why? 11 A. I was told not to. 17 Q. Any other situations in which you were told you 18 didn't have to write a report? 19 A. No.

Page 67 7 Q. Do you know, was there any point at which you 8 stopped firing your weapon once you started firing? 9 Did you pause at all, or did you just fire 13 shots? 10 A. I fired 13 shots until the vehicle stopped and 11 until I locked and loaded, which happened at the exact 12 same time. 13 Q. So you fired it 13 shots in a row without 14 pausing? 15 A. Correct. 16 Q. Why did you fire 13 shots in a row without 17 stopping? 18 A. Because 13 shots, he was still not stopping. 19 And if I reloaded and he was continuing, probably 20 would have been more. But as soon as I reloaded, he 21 stopped. The car had started to back up.

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Appendix Page B-174 22 Q. Were you able to see any portion of his body as 23 you were firing? 24 A. His head and shoulders.

Page 68 22 Q. So you were walking up the hill firing your 23 gun? 24 A. We don't run firing our gun; we walk.

Page 69 23 At paragraph 25 on page 4 of the answer 24 filed under your name, on your behalf, it says: "It

Page 70 1 is admitted that Defendants Ciritella, Dempsey, and 2 Kurten ran up the hill and fired their weapons." 3 Is that correct or not, sir? 4 A. I never run anywhere. 5 Q. Did you see Defendant Ciritella run up the 6 hill? 7 A. No. 8 Q. Did you see Defendant Kurten run up the hill? 9 A. I didn't see Kurten.

Page 72 21 Q. Who else did you see other than Officer 22 Ciritella and Harry Smith as you're shooting 13

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Appendix Page B-175 23 bullets? 24 A. No one else.

Page 73 1 Q. Did you see any other police officers at all? 2 A. No. 3 Q. Did you see the woman on the porch who ended up 4 getting shot? 5 A. No. 6 Q. Did you see the little girl who was playing on 7 the sidewalk? 8 A. No.

Page 75 9 Who told you he had a shotgun? 10 A. No one has to tell me that. I'm a supervisor 11 for the City of Wilmington for the street that those 12 officers were on. They all take shotguns out to their 13 vehicles. 14 Q. So is it fair, sir, no one told you he had a 15 shotgun; correct? 16 A. I am -- I'm aware that my patrol officers have 17 shotguns in their vehicles or they are not properly 18 equipped. 19 Q. I'm not disagreeing with you that the proper 20 equipment for a police vehicle might be a shotgun.

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Appendix Page B-176 21 My question simply is: Isn't it true that 22 at no time did someone tell you -23 A. They didn't have to tell me that. 24 Q. You walked up to the car after Mr. Smith was

Page 76 1 shot; correct? 2 A. Yes, I did. 3 Q. Did you see a shotgun in the car? 4 A. No, I did not. 5 Q. So he didn't have a shotgun, did he? 8 A. I don't know that. He was supposed to have a 9 shotgun. That vehicle is supposed to have a shotgun. 10 Put it that way.

Page 78 1 Q. Well, why didn't you ask? 2 A. I'm sorry? 3 Q. Why didn't you ask? 4 A. I don't have to ask. I'm the supervisor of 5 that platoon. All my officers take shotguns out to 6 their cars.