New York Attorney General Letitia James’ Office of Special Investigation released its report on the death of David Wandell in Elmira, Chemung County.
Following a thorough and comprehensive investigation, including interviews with police officers and civilian witnesses, and close review of radio transmissions, ballistics testing, crime scene evidence, photographs, and body-worn camera (BWC) footage, OSI concluded that a prosecutor would not be able to disprove beyond a reasonable doubt at trial that the officers who shot Mr. Wandell were justified.
On August 21, 2021, Mr. Wandell was the subject of an officer safety alert sent to members of all law enforcement agencies in Chemung County, which advised officers he was wanted for a parole violation and to use caution if they encountered him because of his documented history of violence. On August 27, 2021, a New York State Police (NYSP) investigator saw Mr. Wandell walking in the Eldridge Park area of Elmira and radioed for assistance. An Elmira Police Department (EPD) officer who had heard the request for help over the radio passed Mr. Wandell in her cruiser and got out, intending to take him into custody. Mr. Wandell pointed what appeared to be a gun at her. The EPD officer fired shots at Mr. Wandell and then stumbled backward as Mr. Wandell fled the area. Though it does not appear that the EPD officer’s bullets hit Mr. Wandell, other responding officers saw Mr. Wandell point a gun at the officer, heard gunfire, and saw the officer fall. Presuming the EPD officer had been shot, another nearby officer reported over the radio that Mr. Wandell had shot an officer. In response, the dispatcher then transmitted a call to all county units for assistance because of “shots fired at officers.”
Officers from multiple county agencies followed Mr. Wandell and converged on him in Woodlawn Cemetery, shouting at him to drop his weapon and show his hands. Mr. Wandell, taking cover behind a tree, raised the gun toward the officers, and five officers — an NYSP trooper, an EPD investigator, a sergeant and a deputy from the Chemung County Sheriff’s Office, and a parole officer with New York State Department of Correction and Community Supervision — fired at Mr. Wandell.
A medical examiner’s analysis found Mr. Wandell was struck five times, and two of the shots were fatal. The recovered bullet fragments were not able to be matched with specific officers’ guns. When the officers approached, they found an airsoft pistol on the ground next to Mr. Wandell’s body. The requisite orange paint on the tip that would have distinguished it from a normal firearm had been removed.
Under New York’s justification law, a person may use deadly physical force to defend against the imminent use of deadly physical force by another. When the defense of justification is raised at trial, the prosecutor must disprove it beyond a reasonable doubt. In this case, the officers who fired at Mr. Wandell saw him raise what appeared to be a regular gun at them, had heard over the radio that he had fired at an officer in Eldridge Park minutes earlier, and had been warned days before that he had a history of violence. Based on the law and the evidence, OSI determined that criminal charges could not be pursued against the officers.
“In each and every case we review, my office remains committed to conducting thorough, fair, and transparent investigations,” said Attorney General James. “After an extensive review of the facts of this case, OSI determined that a prosecutor would not be able to disprove beyond a reasonable doubt that these officers’ actions were justified.”