When Police Can Kill

Sept, 29, 2015. San Diego, CA. USA| The Hi-Lite Theater’s alley way where police shot and killed a manI.|Photos by Jamie Scott Lytle.Copyright.

We’re awaiting a decision from U.S.  District Judge William Q. Hays on whether he’ll allow the release of a surveillance video in the April 30 police shooting of an unarmed, mentally ill man in San Diego’s Midway neighborhood.

If it’s made public, the video will provide insight into the city’s official version of what happened versus the perspective of those who have seen the footage. Beyond that, the situation opens a window into understanding how police officers’ use of deadly force is judged and what might have been done to prevent something like this from happening.

Lawyers for the city have said that Fridoon Rawshan Nehad threatened San Diego police officer Neal Browder with a metallic pen that looked like a knife before the officer shot and killed him in an alleyway. But an employee of a nearby boat equipment business who watched the business’ surveillance footage said the video shows Nehad didn’t threaten Browder. The shooting, the employee said, was hasty and unprovoked. Nehad’s family shares that opinion and filed a wrongful death lawsuit against the city.

These are the big issues to understand before the potential release of any video.

How will the district attorney decide whether to prosecute Browder?

San Diego police have forwarded their investigation into Browder’s actions to District Attorney Bonnie Dumanis, who is still weighing the case for potential criminal charges. Her decision to prosecute will be based on a relatively straightforward precedent from two U.S. Supreme Court cases from the 1980s.

Law enforcement officers can use deadly force if they believe there’s an imminent threat of deadly force against them or someone else. Crucially, the standard is taken from what a so-called “reasonable officer” would believe at the time, not with the benefit of hindsight. In this case, for instance, it matters less that Nehad didn’t end up having a knife and more whether a reasonable officer in the same position as Browder would think Nehad had one.

“It’s going to come down to whether there was a reasonable belief that he had a blade and that he was close enough to use it,” said Phil Stinson, a professor at Bowling Green State University in Ohio and an expert in officer-involved shootings.

What was Browder doing before the shooting?

Everything that Browder did before the instant he shot Nehad has no bearing on whether the shooting was justified under the law. Again, what matters is what Browder felt at the time of the shooting and whether that belief was reasonable.

Browder arrived at the scene in response to a 911 call saying that a man with a knife was threatening people. The city hasn’t said much about the officer’s actions prior to the shooting. But Wesley Doyle, the boat business employee who watched the surveillance video, said the police cruiser’s emergency lights weren’t turned on when Browder arrived in his car, Browder stepped out of the car around the driver’s side door leaving nothing between him and Nehad and took a relaxed stance before suddenly raising his weapon and shooting Nehad.

Even if Browder’s initial decisions aren’t considered factors in any possible criminal case against him, it doesn’t mean they were good ones. Police departments around the country are beginning to recognize this concern, according to a recent report from the nonprofit Police Executive Research Forum, and are considering holding officers accountable if they failed to de-escalate a situation before it reached a point where deadly force was necessary.

Video recordings of police shootings from across the country are fueling this change, the report said.

“In many of these cases, the officers’ use of force has already been deemed ‘justified,’ and prosecutors have declined to press criminal charges,” the report said. “But that does not mean that the uses of force are considered justified by many people in the community.”

San Diego Police Chief Shelley Zimmerman has not indicated whether Browder did anything wrong, though she did change departmental policy to require officers to turn on body cameras prior to initiating contact with suspects – Browder’s wasn’t on during the shooting. Browder also returned to active duty in early June.

What was Nehad doing before the shooting?

By contrast, Nehad’s actions before the shooting are important in any case against Browder. It matters whether Nehad was a threat.

Here, there’s a major discrepancy between the city’s take and others’. In its response to the lawsuitfiled by Nehad’s family, the city implies that Nehad was rushing toward the officer. Doyle said the video shows Nehad was slowing his walking and might have even stopped completely before the shooting. The lawyer for Nehad’s family, who has also seen the video, characterized Nehad’s pace as “strolling or ambling along” and said he stopped before he was shot.

How much does the distance matter?

Probably a lot.

For decades, law enforcement officers across the country have been taught that a suspect armed with a knife could stab an officer before a cop could draw and fire his gun if the suspect was within 21 feet. At a May conference of police chiefs, department leaders worried that officers have used the 21-foot rule by itself to justify shooting and killing suspects who were within that distance. That perspective, the chiefs said, was outdated and needed to change in favor of promoting de-escalation tactics.

Still, in this case, the distance between Nehad and Browder is a big point of contention. The city claims Nehad was 10 to 15 feet away from Browder when the shooting happened. Doyle said the two were about 15 feet away from each other. The lawyer for Nehad’s family says the distance was approximately 25 feet when the shooting occurred.

It’s unknown if the video footage will reveal the exact distance between Browder and Nehad when the shooting happened.

What is not in the video?

By all accounts, the video is high quality and provides a clear picture of what happened. It is, however, lacking sound. This is another cause of dispute. The city says Browder was yelling at Nehad to drop the knife. The Nehad family lawyer says Browder said he didn’t remember whether he said anything before the shooting.

The video also will provide just one perspective of the shooting. Indeed, Zimmerman has argued the video should stay sealed because it’s one piece of evidence, not the entirety of the case.

Liam Dillon is senior reporter and assistant editor for Voice of San Diego. He leads VOSD’s investigations and writes about how regular people interact with local government. What should he write about next? Please contact him directly at[email protected] or 619.550.5663.