DOVER, Del. (AP) — A Delaware judge on Tuesday refused to dismiss a lawsuit involving the death of a mentally ill woman who was killed by a state trooper in 2021 after she fired a shotgun at him.

Raymond Rooks contends that state police used excessive force in shooting his 51-year-old sister, Kelly Rooks, and that they violated her rights under the Americans with Disabilities Act and the federal Rehabilitation Act.

At a hearing earlier this year, Deputy Attorney General Nicholas Picollelli Jr. argued that police did not intentionally discriminate against Rooks, and that the lawsuit does not allege any pattern or practice of troopers mistreating people with disabilities. He also argued that the police agency and its senior staff cannot be held vicariously liable for the actions of the officers involved in the shooting. And he contended that police are entitled to qualified immunity from liability for actions taken in their official capacities.

In his ruling, Superior Court Judge Jeffrey Clark noted that, when considering a motion to dismiss, the court must accept the factual allegations in a lawsuit as true and draw all reasonable inferences in favor of the plaintiff. He also noted that, under Delaware law, an allegation in state court can survive a motion to dismiss if it is deemed “reasonably conceivable,” a less rigorous threshold than the “plausibility” pleading standard in federal court.

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The lawsuit accuses Trooper Dean Johnson of using excessive force in shooting Rooks. It also claims two other troopers on the scene failed to intervene to prevent Johnson from shooting her. The complaint also seeks to hold Delaware State Police and its executive staff liable for the actions of the officers, claiming that the police agency has failed to properly train officers on how to deal with emotionally disturbed people.

The only claim Clark dismissed was a failure-to-intervene claim against Cpl. Brandon Yencer. A similar claim against Trooper Jermaine Cannon, while “not plausible,” is nevertheless “conceivable,” and thus survives a motion to dismiss, he said.

Patrick Gallagher, an attorney for Raymond Rooks, argued at a March hearing that troopers knew Rooks was mentally unstable, given several previous interactions they had had with her in the days leading up to the shooting. Instead of trying to de-escalate the situation, however, the troopers were “angry, hostile and aggressive” when they arrived, Gallagher alleged.

“It was never a call for police. It was a call for medical help,” he said.

According to the complaint, Rooks suffered from bipolar disorder, and an increase in the dosage of lithium she was taking shortly before the shooting was making her “more depressed, more anxious, and more paranoid.”

A report by the state attorney general’s office concluded that Johnson was justified in using deadly force against Rooks after she asked, “Which one of you pigs wants to die tonight?” raised a shotgun toward Johnson and fired. The report concluded that Johnson reasonably felt in fear for his life and the lives of others when he shot Rooks.

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