Federal Appeals Court Re-Opens Case Against San Diego Police Officer in Midway Fatal Shooting

by on July 17, 2019 · 1 comment

in Civil Rights, Ocean Beach

A Federal Appeals Court has breathed new life into a lawsuit filed by the family of Fridoon Rashawn Nehad, shot and killed by a San Diego police officer in the Midway District in 2015.

The Ninth Circuit Court of Appeals overturned the decision by a District Court that had the case thrown out with the new ruling stating the plaintiffs – the Nehad family – deserved to be heard in a trial. KPBS

Ocean Beach residents may recall the case of Fridoon Rashawn who was walking, unarmed, in an alley in the Midway District a little after midnight in April 2015 when San Diego police officer Neal Browder drove up in a patrol car. He was responding to a report of a man with a knife.

But within seconds Browder shot and killed Nehad. A video camera from a local business recorded Nehad’s last seconds; it showed him walking slowly through the alley towards the police car, with his arms by his sides. Then 17 feet away from the police officer – he’s shot – within seconds of Browder arriving.

No knife – indeed – no weapon – was found on or near Fridoon Nehad’s body – although he did have a pen.

Nehad was a refugee from Afghanistan and had a history of mental illness

The OB Rag covered the shooting and case extensively – through all its twists and turns – such as when DA Bonnie Dumanis spun the news and refused to charge Officer Browder – or when Officer Browder’s story changed; from the start it appeared to us then that there was a miscarriage of justice.

So, in order to avoid claims of left-wing bias in further reporting this story, we repost below the news report of the Ninth Circuit’s decision from Courthouse News Service:

Ninth Circuit Revives Suit Over San Diego Police Shooting
By Bianca Bruno / Courthouse News Service /July 11, 2019

Reversing summary judgment in favor of a police officer in a shooting case, the Ninth Circuit found Thursday there is a genuine dispute whether the officer’s use of force in shooting and killing a mentally disabled man was reasonable.

The 31-page order for the Ninth Circuit panel by U.S. District Judge Dean Pregerson partially reversed U.S. District Judge William Hayes’ summary judgment in favor of Officer Neal Browder, former San Diego Police Chief Shelley Zimmerman and the city of San Diego. The panel found general disputes regarding the Fourth Amendment claim filed by the family of Fridoon Nehad.

Browder shot and killed Nehad shortly after midnight April 30, 2015, after receiving reports of a man threatening people with a knife. Upon arriving at an alley of an adult bookstore in the Midway District of Point Loma and exiting his police cruiser, Browder shot and killed Nehad within five seconds, according to Pregerson’s recount of the facts, which are disputed.

Nehad turned out to be holding a metallic pen, not a knife.

Surveillance video of the event shows Nehad walking toward Browder at a slow pace and Browder putting on his cruiser’s high-beams but not the vehicle’s siren or police lights. Browder also failed to activate his department-issued body camera before exiting his cruiser or identify himself as a police officer.

The panel of Pregerson, Chief U.S. Circuit Judge Sidney Thomas and U.S Circuit Judge Michael Daly Hawkins found triable issues remained regarding the Fourth Amendment claim of unreasonable search and seizure. They found a jury should decide whether Browder was credible, Nehad posed a significant threat, the severity of Nehad’s actions warranted the use of deadly force and commands were given or resisted.

Also, the jury should decide the significance of Browder’s failure to identify himself as a police officer and whether less obtrusive means could have been used to subdue Nehad, the panel found.

Browder’s credibility appears to be a particular concern for the panel.

Three hours after the shooting, homicide investigators questioned Browder on the scene. He told the investigators he did not see any weapons and didn’t mention feeling threatened by Nehad. But five days later with his attorney present, Browder reversed course and said Nehad had a knife and was “aggressing” toward his police cruiser.

“These possible inconsistencies, along with video, eyewitness and expert evidence that belies Browder’s claim that Nehad was ‘aggressing,’ are sufficient to give rise to genuine doubts about Browder’s credibility,” Pregerson, sitting by designation from the Central District of California, wrote for the panel.

The panel also questioned whether Browder’s belief Nehad had a knife was a “reasonable mistake,” citing a policing expert obtained by the family who testified officers are trained to identify if someone is carrying a weapon. The panel also pointed to statements by a homicide investigator who claimed the lighting in the alley was sufficient to identify “the color blue in the pen.”

But Pregerson found whether Browder believed Nehad was carrying a knife did not necessarily make lethal force reasonable, especially in light of witness testimony and Browder’s own testimony Nehad didn’t pose a threat to others.

“Even if Browder had reasonably perceived Nehad as holding a knife, a reasonable fact finder could conclude that Nehad did not pose a danger to anyone,” Pregerson wrote.

The panel also found the severity of the alleged crime of brandishing a knife – a misdemeanor – “did not render Browder’s use of deadly force reasonable.”

Browder’s failure to warn Nehad of imminent lethal force before firing his gun could also support a finding the shooting was unreasonable, Pregerson added.

Finding the trial court never “afforded plaintiffs an opportunity” to be heard on their negligence and wrongful death claims and that disputed facts precluded summary judgment on qualified immunity grounds, the panel also reversed summary judgment of the Nehad family’s state law claims.

“In light of the evidence that Browder could have taken more time to evaluate the situation, Browder’s brief observation of Nehad before using lethal force only makes Browder’s conduct less reasonable,” the panel held in finding Browder was not entitled to qualified immunity.

The panel did affirm summary judgment on the claim for violation of the family’s 14th Amendment rights for loss of the companionship of their child, finding “the police officer’s use of force, even if unreasonable, did not evidence a subjective purpose to harm.”

The Nehad family attorney, Dan Miller of Miller Barondess in Los Angeles, did not respond to email and phone requests for comment.

Hilary Nemchick, a spokeswoman for the City Attorney’s Office, said their office would review the ruling and work with their client on how to proceed.

All three members of the Ninth Circuit panel are Bill Clinton appointees.

{ 1 comment… read it below or add one }

sealintheSelkirks sealintheSelkirks July 23, 2019 at 12:43 pm

How is it that local DAs have forgotten (or maybe never learned?) the legal concept of seeing ‘justice served’ rather than seeming to be far more concerned with protecting killer cops or worrying more about what their own conviction rate is? But then re-election is personally very important after all.

Over and over again we see this happening all across the country and rarely is the killer held responsible for their actions. I mean, like the Eric Garner murder in New York for selling loose cigarettes. He gets put into an illegal chokehold, dies, and the DA doesn’t want to prosecute him any more than the San Diego DA wanted to hold this cop responsible for his actions. Add in the changing story and you end up with what? Whitewash!

Is this what is called Right wing bias? A mistaken belief that guys wearing badges and carrying guns after 8 weeks of training are never in the wrong? We have pounded into our brains by society from childhood to take responsibility for our own actions but for certain segments of the population, they don’t have to be bothered. Yep, must be right wing bias!

sealintheSelkirks

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