- It was a prosecution that was borne of a viral video that depicted the violent Southbridge arrest, spurring demonstrations and public calls for justice.
- The bulk of the evidence against Waters revolved around Sept. 21, 2021, and his arrest of Southbridge native Dwayne Brown.
- To convict Waters of assault, prosecutors had to show he caused physical injury and that he acted intentionally or in a way that knowingly disregarded the potential for injury.
- The jury convicted Waters of third-degree assault and official misconduct for his handling of Brown, but it was Waters’ official report of the arrest that saw him convicted of the most serious charge
The guilty verdicts for excessive force and lying against former Wilmington Police Officer Samuel Waters mark the first time in recent memory that a Delaware cop has been convicted by a jury of an assault during an arrest.
The prosecution of Waters is similarly a rare instance where state authorities bring charges for an officer’s potentially deadly use of force and those charges actually make it to a jury before a plea deal.
In the four-year tenure of Attorney General Kathy Jennings, two officers — one New Castle County officer and one Dewey Beach officer — have taken plea deals tied to violence against citizens. The Dewey Beach officer pleaded to a felony.
On Monday, Waters was convicted of both misdemeanor assault and felony tampering with public records for smashing a man’s head against the wall of a Southbridge convenience store and then lying about the circumstances around that arrest in official reports.
After a week of trial testimony, the jury also acquitted Waters of assault tied to another arrest days before the convenience store assault.
It was a prosecution that began with a viral video that depicted the violent Southbridge arrest, spurring demonstrations and public calls for justice.
And the case itself was made by the damning testimony of Waters’ fellow officers, as well as close investigative scrutiny around both Waters’ post-arrest reports and body camera footage − police accountability measures that are generally available for the public to review in many states, but not in Delaware.
‘Next time … you will listen’
The bulk of the evidence against Waters revolved around Sept. 21, 2021, and his arrest of Southbridge native Dwayne Brown.
That morning, workers at a local community and daycare center called the police. Waters spoke to workers there who said a man had on multiple occasions made unwanted and sexual comments toward them both in the center and in passing, including that morning.
One of the women showed Waters a picture of the man and, out a window, pointed him out walking down the street toward the 3 C’s Food Market on New Castle Avenue.
Waters’ body camera was not activated, which another officer testified was against department policy, but security-camera footage from inside the store shows Brown making a purchase before Waters enters and confronts him.
The footage has no sound. Within seconds, Brown is pressed against a plexiglass dividing wall where Waters grabs the back of Brown’s head and drives it multiple times into the glass before appearing to go to the ground.
Brown told the jury there was no attempt by Waters to peacefully talk. Instead, he said the conversation “started at ‘Turn around, put your hands behind your back.’”
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“That’s not initiating a conversation; that’s a demand,” Brown told the jury.
After the head bounce, Waters escorts Brown outside and places him under arrest for harassment and resisting arrest, charges that were ultimately dropped.
Outside, his body camera is activated. As Waters has Brown pinned against an outside wall, he tells him: “Maybe next time” he will “listen, instead of being a jackass.”
Brown angrily tells him “You smashed my face into the glass for nothing.”
“That is not (expletive) proper procedure, dude,” Brown tells Waters in the footage. “I wasn’t doing anything but asking you questions. You were wrong.”
‘Deadly force’
To convict Waters of assault, prosecutors had to show he caused physical injury and that he acted intentionally or in a way that knowingly disregarded the potential for injury. Police are also afforded special defenses to such claims, so prosecutors also had to show Waters had not exhausted other “reasonable” means of arresting Brown.
“There was nothing that was going on where that level of force was required,” testified Officer Joseph Leary, who has spent more than a decade training Wilmington Police cadets and officers on how to apply force within the bounds of the department’s policy.
Leary walked the jury through the department’s use-of-force policy. He testified it mandates officers apply force on a continuum: as the suspect’s level of aggression increases, the officer is allowed to increase the type of force they are using. He said Waters unreasonably jumped right to deadly force by smashing the man’s head.
He told the jury that department training and policy does not endorse bouncing a suspect’s head off a wall generally. Force to the face, neck and back area are regarded as “red zones,” because of the potential to cause serious and permanent injury.
Narrating excerpts of the video for the jury, Leary testified that Waters’ handling of Brown would be regarded as “deadly force” that can’t be justified given Brown’s movements and that there were several alternative ways the officer could have approached the situation.
John Malik, Waters’ defense attorney, called his own expert to defend Waters’ handling of Brown. Rick Torres is a retired Delaware State Police officer and trained state officers on self defense and other uses of force.
His defense of Waters emphasized what he called “pre-assault indicators” that he said would have put Waters on the defensive before he even approached Brown, as well as his assertion that “good people” immediately comply with police directives.
He noted that workers at the daycare told Waters that the suspect had a knife clipped into his pocket, though he was never accused of brandishing it in any way. As well, he said Brown turned toward Waters as he was being placed against the wall, a common indicator Brown was preparing to resist.
One witness who was in the store at the time said Brown was asking Waters what was going on and why he was being placed under arrest. That man, a potato-chip delivery worker, said he generally regards police as “awesome” and “backs the blue,” but described Waters as “out of control.”
Torres said the head slam isn’t a technique that is taught, but nonetheless acceptable.
“The minimal contact he made with the window, I saw it as a disruptive move,” he said. “He is disrupting Brown.”
In his closing statement to the jury, Deputy Attorney General David Skoranski emphasized that any resistance Brown showed did not justify the face slams.
“If he was afraid that Mr. Brown was going to hurt him, he could have waited two minutes for backup,” Skoranski told the jury.
An official lie
The jury convicted Waters of third-degree assault and official misconduct, both misdemeanors, for his handling of Brown, but it was Waters’ official report of the arrest that saw him convicted of the most serious charge: felony tampering with public records, as well as a misdemeanor for falsifying business records.
In bringing the case, prosecutors theorized that Waters knew he was too violent in arresting Brown and sought to justify his conduct with lies in his official report about the arrest.
In the report, Waters wrote that before he confronted Brown, daycare workers showed him a picture of the suspect and he immediately recognized him as Dwayne Brown. Waters then included in the report information about how Brown was a known drug dealer and had an “extensive” history of resisting arrest and other crimes.
Throughout the trial, Malik used this as the backdrop of Waters’ interaction with Brown, emphasizing to the jury that drug dealers frequently have weapons and are prone to resist police orders.
However, prosecutors showed the jury body camera footage that depicts Waters transporting Brown to a local hospital after the assault and arrest.
In the video, he warns what appear to be other officers and security personnel at the hospital that his body camera is running. One asks the identity of the man Waters arrested and Waters replies: “I have no idea; he won’t give me his name and his fingerprint scanner isn’t working.”
Malik reasoned that Waters could have known the man by sight, not by name, and that Waters could have explained that in the report had he been more thorough. A detective that was working as an internal investigator for the department testified that he had a different view.
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“In my estimation it was more than careless,” Detective Robert Fox told the jury. “In my estimation, it seemed intentional.”
Skoranksi told the jury that Waters lied about recognizing Brown in his official report so it read as though he was approaching a man he had reason to believe was a serious danger.
“He needed Mr. Brown to be a bad guy, because if he is the bad guy, you can do whatever you want to him,” Skoranski told the jury.
While convicting Waters of lying in his official report, the jury acquitted him of felony perjury for including the same statement in a sworn arrest affidavit, which is written for a judge to approve officially charging someone.
That crime requires prosecutors show the lie was material to the proceeding in which it was made − in this case, justification for arresting Brown. Malik argued it was not material.
‘Did not see active aggression’
While Waters was convicted of assaulting Brown, the jury also evaluated an arrest that occurred nine days earlier for assault charges as well.
The jury was shown body camera video of the incident in which several police are responding to a domestic violence report. When Waters arrives on scene, officers are escorting a man away to be handcuffed as the man calls a bystander a liar.
They take him to the hood of a parked car and he tells them they will have to handcuff him standing up. An officer then pushes his torso and head onto the car and another begins handcuffing him.
At that point, Waters takes his nightstick and places it perpendicular to and across the back of the man’s neck as the cuffs are going on. At one point, he uses the stick to force the man’s head onto the hood of the car, prompting the man to shout.
“I ain’t even moving,” the man says. “Why are you pushing my face down like that?”
He is then cuffed and escorted to a police cruiser where his pockets are cleared. Waters orders him into the back of the car, where he turns and asks “For what?” prompting Waters to shove him into the car and slam the door.
“He’s being a (expletive),” either Waters or one of the other officers then says.
Acquitted of assault
Leary, the Wilmington Police use of force expert, testified that the man was initially resisting when he refused to bow over the front of the car. Once he is pushed onto the hood, the resistance appears to end, Leary testified.
“It appears to me he is just trying to keep himself from getting his face smashed into the car, which is pretty common with someone trying to protect himself from injury,” Leary told the jury.
He added that Waters’ use of the nightstick as a neck lever was not a technique endorsed by the department’s training, considered deadly force, unnecessary and not proportional to the actions of the suspect.
Torres, the defense expert, said the man shouting at others on the scene was a “pre-assault indicator” that would have put Waters on alert. He added that it appeared the man was resisting as he was being cuffed.
“You make a split second decision: it is not a technique that was taught but it did seem to keep (the man) down so he could be handcuffed,” he said.
Thomas Geisel, the Wilmington Police officer that was handcuffing the man when the slam occurred, testified that he didn’t feel the man was resisting as the cuffs were going on.
In addition to employing Torres to testify that Waters’ use of force was reasonable, Malik also argued that prosecutors had not proven that Waters’ actions injured the man’s lip. He argued the man’s statements created the possibility that his lip was injured in the domestic disturbance that led police to the scene.
The man subjected to Waters’ force in the arrest did not testify.
A matter of trust
Waters also chose not to take the witness stand to try to justify his actions.
Instead, a handful of people who know him, including his wife, were called to testify about his character, stating he is an honest man. But some of the most damning character testimony came from a witness called by the defense.
Officer Daniel Moore, who was Waters’ supervisor during the nightstick incident, was called by Malik to raise questions about whether the man from the nightstick arrest might have actually had his lip busted in an altercation with a woman before the arrest.
But on cross examination, he told the jury Waters had also tried to mislead in his reports about the nightstick arrest. Moore told the jury he looked at Waters’ report about the arrest as Waters drafted it that day. He said the report included terminology that suggested the man being arrested was flailing his arms and actively running away.
He told the jury he informed Waters that was not his understanding of how the arrest occurred and that he should review his body camera footage and make sure his report is accurate. Moore said Waters then excised the inaccuracies from his report. He was not charged with lying in reports about the nightstick arrest.
A window of transparency
Trial testimony showed that internal affairs officials for Wilmington Police were aware of Waters’ use of force with the nightstick shortly after it happened. Additionally, it was clear from testimony that the use of force was considered egregious by the department’s foremost expert on defense and use of force.
But it is not clear to what extent that incident was investigated and why Waters was still on patrol when he assaulted Brown nine days later.
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Delaware is unique among states in how much power its police have to conceal records detailing their work. Police disciplinary records are among police documents that remain hidden barring a court order.
The Delaware General Assembly is considering a bill that will allow some public insight into those records in situations where internal police investigators determine an officer violated rules or polices through dishonesty, sexual assault or harassment, discharge of a firearm or use of force that results in “serious physical injury.”
Under the revisions, individual police departments would still have ultimate power to determine what claims violate policy.
In cases where such violations are not sustained by internal investigators, the public would still be shut out from knowing what investigative measures those investigators took, what evidence was reviewed and why they deemed a complaint or potential infraction as illegitimate.
Supporters say the proposed changes are a “first step” to introduce more transparency into law enforcement. Critics say it is more likely a final and inadequate step toward accountability.
Claims of excessive force by law enforcement, including correctional officers, are not uncommon in Delaware, particularly in court filings. And Waters’ prosecution is unique because it consisted of a public airing of both body camera footage and his official reports.
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Similar to police disciplinary documents, Delaware’s public records law allows departments to conceal police reports and body camera footage showing their work in perpetuity. Court cases and Delaware Department of Justice investigations provide a limited window into some cases.
And so it’s unclear whether Waters’ conduct would have ever been publicly aired had the surveillance store video of Brown’s not been widely circulated outside of police control, prompting protests and prosecutors’ investigation.
Waters was fired from the department months after the convenience store arrest went viral and prosecutors began investigating. He faces zero to eight years in prison when he is sentenced in August.
Reporting for Esteban Parra contributed to this article.
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter. Delaware prisoners may also contact Xerxes Wilson on the GettingOut app.
