Judge Rules Officer Reasonable in Use of Deadly Force Against Unarmed Fridoon Nehad in 2015 Midway Shooting

by on December 21, 2017 · 2 comments

in Ocean Beach

It’s been over two and a half years since an unarmed man, Fridoon Nehad, was shot to death by San Diego Police Officer Neal Browder at night in an alley in the Midway District. The fatal shooting on April 30, 2015 occurred after a mere 33-second encounter between Nehad and Officer Browder.

Nehad, a transient and recent immigrant from Afghanistan, struggled with mental issues. Before the police encounter, a clerk at a nearby shop had felt threatened by him and had made the call to the police. Within five seconds of getting out of his patrol car, Browder fired on Nehad, hitting him in the chest.

During the investigation of the case, Browder stated he thought Nehad had a knife; he didn’t – he had a shiny pen. Browder also had failed to turn on his body camera, although a nearby surveillance camera caught the incident.

Understandably, Nehad’s family sued the City of San Diego, police Chief Shelley Zimmerman and the officer.

Just this week, on Monday, December 18th, a federal judge ruled that the officer acted reasonably in his use of deadly force, and dismissed the family’s civil suit. The City had brought a motion for summary judgement – a typical legal maneuver in civil suits – which is a claim by one side that there are no facts in contention and they should win by matter of law; this throws the decision-making solely onto the shoulders of the judge – and not a jury.

U.S. District Judge William Hayes reportedly ruled:

“The Court concludes that the objective facts in this record support Officer Browder’s belief that the suspect was advancing toward him with a knife and posed an immediate threat to his safety.”

San Diego Union-Tribune reported:

Lawyers for Nehad’s family argued that the officer created a tactically unsafe environment from the start and that Nehad posed no reasonable threat when he was shot. The investigation found that Nehad was about 17 feet away when the shooting occurred, more than enough space for the officer to have used other less-than-lethal devices, argued Dan Miller, one of the family’s attorneys. The officer also could have moved farther away, taken cover behind his patrol car or waited for backup, the lawyer added. …

Miller, of Miller Barondess LLP in Los Angeles, said the family will appeal.  This ruling is wrong,” the family’s lawyer said in an email. “A jury, not this judge, must decide whether the shooting was reasonable. Anyone who looks at the video would conclude this shooting was unnecessary and unreasonable.”

The case became quite controversial; there were public demonstrations , and obstructions by law enforcement. The FBI and the U.S. Department of Justice both launched investigations into the shooting. For months, the San Diego Police refused to release the video surveillance tape of the incident – and local media had to go to Federal Court to get it released.  Here’s our August 26, 2015 report:

The Voice of San Diego, KPBS, KGTV, the San Diego Union-Tribune, and inewsource have joined together in filing a motion in court seeking a court order allowing the media to have access to the videotape.

The motion, filed in Federal Court a week ago, demands that the video – a security camera video – taken by a business near the alley where the fatal shooting took place – be made public and be released under the First Amendment and federal court rules. A statement about the shooting made by the police officer involved is also being sought.

… San Diego Police have refused to release the video publicly, declaring that it was part of an ongoing investigation, citing a section of the state Public Records Act that exempt those kinds of records from disclosure.

The videotape has been released to the family of Rawshan Nehad, which is suing the City and Browder in federal court for civil rights violations.  Right now the video and cop statement are under a court order restricting any of the parties from releasing them.

The OB Rag – which has been following the shooting and its aftermath – agrees with the motion that in the current national debate about police shootings of unarmed citizens, the public has a right to see the video, and that right outweighs any privacy or confidentiality issues. The victim’s family does not object to its release either.

In November, 2015, then-DA Bonnie Dumanis rejected filing any charges against Browder, claiming that he had a right to fear for his safety and should have no criminal liability. (Dumanis is currently a candidate for County Supervisor.) Finally, in December that year, Hayes, the federal judge, ruled it would no longer be under a protective order, and the video was released. More from our report:

District Attorney Bonnie Dumanis, SDPD Chief Shelley Zimmerman and an attorney for Browder argued against releasing the video. Just last week, U.S. District Court Judge William Q. Hayes ruled officials could not block the video’s release.

Dumanis on Tuesday released surveillance video showing the moment Browder shot Nehad, along with body camera video from another officer, additional store surveillance footage, enhanced video of Nehad, still frames and a transcript of the dispatch officer communication from before, during and after the shooting. [CAUTION: Graphic violence]  More.

Both Police Chief Shelley Zimmerman and City Attorney Mara Elliot made comments favorable to the ruling. Zimmerman, who was sued, is resigning next year, stated:

“Our officers put on their uniforms every day to protect and serve our community. This case was no different. We are pleased the judge looked at the facts and made the right decision in this tragic situation.”

Elliot stated:

“In reviewing this tragic death of a homeless man with mental health issues, the judge was correct to not compound the tragedy by finding fault with the police officer who acted to defend himself and others. Not many of us would have entered a dark alley under these circumstances.”

San Diego Union-Tribune

Of course, Nehad was not the first homeless man with mental health issues shot to death by San Diego Police, nor was he the first unarmed man to also meet that fate at the end of a police gun barrel. Here’s a report from February 2016, on “Past Fatal Shootings of Civilians by San Diego Police”:

In the early and mid 1990s there was a series of fatal shootings by police of local citizens who were unarmed – or lightly “armed”. In one year along, about 8 or 9 people were gunned down – way above average for the department.

One man had a garden trowel, another had a tomato stake, one had a screw driver, another man was totally unarmed. They included local OBcean Tony Tummania who was fatally shot in an OB parking lot. After he had been assaulted by 2 police officers next to his vehicle, Tummania had grabbed a cop’s nun-chucks when the shots were fired. All of the civilians were killed. …

Police Shootings of Homeless Men

This recent call by the ACLU and groups for a Federal investigation into police shootings of mentally challenged people echoes a similar outrage of over a decade ago. Back then, in the early years of this century, there was another series of fatal shootings by police of men with mental problems – all of whom were homeless.

Within a period of three years, 4 homeless men – most under severe mental distress or even illness – died at the hands of police. This included several in the Ocean Beach area.

  • A man swinging a tree branch in the Midway District was shot and killed by police;
  • Using a shopping cart, a mentally-challenged young man, rammed a couple of store windows in a small shopping mall on Rosecrans – police arrived and shot him dead within minutes;
  • A man was fatally shot by an officer after several women reported a man masturbating under a bridge near Robb Field;

The most famous case of police shooting a homeless man with mental issues was the killing of a well-known homeless guy known as Daniel “Walking Man” Woodyard in February 2003. The fatal shots by two cops occurred in front of hundreds of OBceans as they watched in horror as the tragedy unfolded. A large protest organized by the OB Grassroots Organization followed the shooting where up to 500 protesters marched down Abbott Street to the bottom of Newport for a rally.

Neither of these shooting series – the early nineties shootings or the homeless shootings this century – resulted in any police officer being fired or even reprimanded.

Meanwhile, Nehad’s family says it will appeal, so we haven’t heard the last of this.

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{ 2 comments… read them below or add one }

retired botanist December 21, 2017 at 2:42 pm

Incredible. I just watched this footage-I hope the family files an appeal.
And fwiw, regarding the recent fatality in OB, I looked up officer Richard Butera (apparently a trained sniper) online- turns out the bodycam footage of his shooting in Jan 2016 has still not been released… wonder how long the public will wait for footage of his latest “life-threatening” event?
Thanks for keeping this subject on the radar. These decisions of ‘reasonable” need to become decisions of a jury and the public, not a judge.

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Tommy B December 25, 2017 at 8:01 am

Thank you for writing such well researched article about persons generally forgotten and ignored.

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