Editor: The following commentary by our colleague Doug Porter on the over-use of deadly force by San Diego area law enforcement was originally posted a week ago at SDFP, but it is as relevant today as last week.
By Doug Porter /San Diego Free Press
It should surprise no one that County District Attorney Bonnie Dumanis called a press conference [November 9th] announcing that charges will not be filed against the San Diego Police officer who shot and killed Fridoon Rawshan Nehad in the Midway District last April.
Her conclusion may or may not be reasonable. The DA said Officer Neal Browder’s fear for his life was reasonable, based on the totality of evidence. She also said the dead man was mentally ill and DRUGS! were found in his system.
So there you have it. A “drug-crazed foreigner” got what was coming to him. Today we’ll look at developments in that case and one Customs and Border Patrol story in the news.
A Pen, Not a Knife
From the Union-Tribune coverage of the press conference:
Dumanis said the officer’s decision to shoot was reasonable, based on the evidence, and that he was in fear for his life at the time.
“With the benefit of hindsight, we now know it was it a pen, but Mr. Nehad was not holding the object like a pen,” Dumanis said. “He rotated it in a manner consistent with opening or closing what’s known to law enforcement as a butterfly knife.”
She said Browder, who has been in law enforcement 27 years, reported later that there was no doubt in his mind that Nehad was going to stab him. Two other witnesses told authorities they believed Nehad was holding a knife.
Toxicology tests showed that Newad had marijuana in his system.
From NBC7 News:
An independent expert outside of San Diego County examined the case. According to Dumanis, the investigator found Browder’s actions were “consistent with those of a trained and reasonable officer, including using deadly force to defend against the immediate threat to his life that Mr. Nehad threatened…”
…The review does not examine the officer’s compliance with the policies and procedures of law enforcement, ways to improve training or any issues related to civil liabilities.
Browder, a 27-year veteran of the SDPD, was the only officer at the time of the shooting, and it was the first time he used his gun in an officer-involved shooting, Dumanis said. Browder’s failure to turn on his body camera forced the department to change its policy regarding those devices.
What is the Truth?
The ACLU issued a statement following the press conference saying:
San Diego District Attorney Bonnie Dumanis appears to be protecting a police officer from public scrutiny….”
…It is hard to respect the district attorney’s positions when all evidence is hidden from the public.
The killing of Fridoon Nehad, justified or not, points out the many flaws existing in checks and balances when it comes to oversight of the police.
The problem here is that we–the people who pay taxes to support the police–will never know if this claim of no culpability really is the case. The relationship between DA’s office and the folks in blue is such that an admission of error or criminal liability would be more damaging to prosecutorial process than any public outcry could ever be.
Oversight for law enforcement is conducted by people dependent on continuing cooperation with the agencies and officers being investigated. Add in the sense of an ‘us against the world mentality’ and you have a formula likely to find no fault.
Make no mistake: the law enforcement establishment fears outsider involvement more than just about anything else.
In the face of multiple instances of officer-involved cases of sex crimes over the course of years, crimes that obviously had been covered up, the most the SDPD could agree to was a voluntary audit of procedures by a private entity hired by the justice department. No subpoenas, no testimony under oath and no unfettered access to personnel was allowed.
When a victim in one of those sex crime cases refused to settle for just money and demanded actual ongoing monitoring of police behavior, private investigators were hired to track (and photograph) her movements and the City Attorney went crying to the media about what a gold-digger she was. (She eventually gave up.)
Let us not forget police chief Shelly Zimmerman’s decision that all footage from the much-vaunted body-cams instituted in the wake of these scandals is to be unavailable to the public unless it meets the “riot standard:”
“It could be again for public safety. It could be, as we have seen in other cities where public safety is at risk, where people are damaging property, assaulting people, in a riot type situation. There could be exceptions, yes. And that’s where you’d have to weigh the public safety versus the due process of whoever that individual is.”
In the case of Fridoon Nehad, the officer who shot him failed to turn on his body cam. There was, as it turns out, video from a private security camera of the confrontation that was turned over to police shortly afterwards.
A young man, who was concerned that the tape didn’t match up with police accounts circulated in the media, called numerous public officials and reporters to let them know of its existence. The police responded by sending out detectives to interview him about what he saw on a tape the department already had in its possession.
Here’s a snip from last summer’s Union-Tribune editorial on the subject:
But Wesley Doyle, who then worked for KECO, a nearby business that had a surveillance camera that videotaped the shooting, tells a different story. Doyle says he watched the video of the incident 20 to 30 times and it doesn’t show Nehad behaving in a threatening manner at all, only Browder hastily shooting the man.
Yet the city, in its response to a wrongful-death lawsuit filed by Nehad’s family, stands by the account of Browder, who returned to patrol duty June 1. The department will not provide the video to the media, saying it has no legal obligation to do so.
But the department doesn’t have any legal requirement to keep the evidence under wraps.
Police elsewhere routinely release relevant video footage. Between this fact, Doyle’s account of what the video shows and Doyle’s assertion that he was subjected to an aggressive, intimidating interview by two homicide detectives, the San Diego Police Department is inviting the belief that it is executing a cover-up. The video should be released as soon as possible – whatever the embarrassment or fallout – because not releasing it is also generating embarrassment and fallout.
It’s (Almost) Over. Or Not.
The DA’s investigation of this shooting is now closed. And the video won’t be released unless a lawsuit brought by various media outlets ultimately triumphs.
Nehad’s family has filed a claim against the city, alleging use of excessive and unreasonable force and a violation of his civil and other legal rights.
…What the claim states:
- Nehad was getting treatment for PTSD but would become manic.
- Nehad was walking downtown in the Midway District April 30 when San Diego police officer Neal Browder responded to a 911 call from an adult bookstore that had come in at midnight.
- Nehad was not carrying a weapon and not doing anything wrong. Browder did not activate his siren, lights or body camera.
- Nehad’s pace slowed when the officer approached and he was about 20 feet away when the officer shot him.
The law firm filing the claim is asking for $20 million in damages, and says the San Diego Police Department is refusing to release a video from a local surveillance camera in an attempt to cover up the truth.
We Interrupt This Story for Some Racial Profiling News
The ACLU of San Diego and Imperial Counties are holding a city hall press conference on Thursday asking for the release of information on racial and ethnic profiling in police stops.
Reporting by VOSD’s Liam Dillon and Megan Burks in 2014 brought to light the fact that the SDPD–after being a pioneer in the practice– no longer collected racial data at traffic stops. The SDPD brass didn’t think racial profiling was a problem anymore.
The hue and cry coming out of that situation, in which numerous people including then-mayoral candidate David Alvarez said they felt they’d been profiled, led to an in-progress study of now-collected SDPD data by San Diego State University criminologist Joshua Chanin.
The initial analysis was to have been presented Thursday at the Public Safety & Livable Neighborhoods committee. Two weeks ago Councilwoman Marti Emerald abruptly announced she’d decided to hold off on releasing the report until June 2016, even though SDSU –according to the ACLU– has completed its analysis and is ready to report.
From Megan Burks, via Speak City Heights at KPBS:
The decision was made in private and discussed only in a non-agenda public comment at Wednesday’s public safety committee meeting.
American Civil Liberties Union attorney Kellen Russoniello told the committee the decision contradicts earlier rhetoric promising transparency. Emerald ordered the study by San Diego State researchers in February in response to months of public scrutiny of the department.
“SDPD has consistently kicked the can on providing any meaningful analysis of the data,” Russoniello said, referring to previous reports by the department that offered raw data but no analysis. “SDPD and this committee both committed to open, honest dialogue about this data and other community concerns by promising to hear the results this fall. The public deserves to have the information as it is available.”
The press conference will be at 1pm. The Public Safety & Livable Neighborhoods committee meets at 2pm, 12th Floor Committee Meeting Room, City Hall.
Federal Building Protest for Anastasio Hernandez Rojas
The SDPD isn’t the only agency with use of force issues. Activists rallied outside the Federal Building in downtown San Diego yesterday, protesting the use of force by the officers of the Customs and Border Patrol.
Last Friday, representatives from Department of Justice Civil Rights Division met with the family of the Hernández Rojas family to inform them the government had decided to close the investigation into the death of Anastasio Hernández Rojas and not pursue federal charges against the border agents involved in his death.
From the response by the San Diego Immigrant Rights Consortium:
Hernández Rojas was brutally beaten and Tasered on May 28, 2010 at the San Ysidro Port-of-Entry while agents were attempting to repatriate him to Mexico. Hernández Rojas died three days later from complications related to the brutal beating he endured. The medical examiner ruled his death a homicide.
Here’s the deal. This incident was caught on cell phone video. Oh, and the media’s had stories about amphetamines in his toxicology report.
The family of Rojas is pressing their case in the civil courts.
A spokesman for CBP said the agency could not comment on pending litigation in order to preserve due process.
CBP has come under increasing pressure from the public and lawmakers to increase transparency and improve oversight of agents’ use of force. Since Hernandez-Rojas died, the Southern Border Communities Coalition, a watchdog group, has documented 30 civilian deaths at the hands of Border Patrol and CBP agents.
A report conducted last year by the independent Police Executive Research Forum found that some agents appeared to intentionally block the escape route of assailants in order to justify the use of deadly force. CBP, which commissioned the report, had refused to make it public even after the Los Angeles Times leaked its contents earlier this year.
At least 70 times, agents fired the devices at people who were running away, even though there was no struggle or clear indication that agents were in danger, according to use-of-force reports. At least six times, agents used the weapons against people who were trying to climb over the border fence back into Mexico.
Two people were shocked while they were handcuffed. Two were hit with five cycles of the weapon, even though the agency’s policy says no one should receive more than three.
Three people died after being hit by Tasers wielded by border agents or customs officers. In one episode, 24-year-old Alex Martin, who had led agents on a car chase, burned to death after a border agent smashed his car window and fired a Taser inside. The device ignited an explosion and fireball.
Oh, and MSNBC reported yesterday:
An internal review conducted by the U.S. Customs and Border Protection rejected body cameras as an unnecessary enforcement tool, even in light of heightened scrutiny into cases where agents used excessive – and even deadly – force while patrolling the U.S.-Mexico border.
The yearlong staff report, reviewed by the Los Angeles Times and Associated Press, found a host of issues with implementing a wide-scale body camera program, from financial costs, to damage to agent morale and ineffectiveness in the field, the news organizations reported.
The first step towards fixing a problem is realizing that you have a problem in the first place. Today’s vignettes show that we have a long way to go in addressing issues surrounding the use of force by law enforcement officers.