Sacramento Report: Police Shooting Case Highlights What AB 392 Would Change - Voice of San Diego

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Sacramento Report: Police Shooting Case Highlights What AB 392 Would Change

A recent appellate court ruling in a San Diego police shooting case drove home just how differently officer-involved shooting cases might be evaluated in the future.

A San Diego police officer shot an unarmed, mentally ill man in this alley in San Diego’s Midway neighborhood. / Photo by Jamie Scott Lytle

Last week, the 9th U.S. Circuit Court of Appeals revived a civil lawsuit against a San Diego Police Department Officer who shot and killed an unarmed man in the Midway district in 2015.

Though San Diego Assemblywoman Shirley Weber’s bill to change the standards guiding police use of deadly force is not yet law – and would not apply to this case even if it becomes law – the appellate court’s ruling drove home just how differently officer-involved shooting cases might be evaluated in the future.

Officer Neal Browder shot and killed Fridoon Nehad in April 2015. Video from the incident – which VOSD went to court to make public – shows Browder exited his vehicle and almost immediately opened fire on Nehad. Nehad was walking toward the officer, but was slowing his pace and might have even stopped entirely before he was killed.

Then-District Attorney Bonnie Dumanis declined to prosecute Browder, and said it was reasonable for Browder to believe Nehad was an imminent threat.

The 9th Circuit had a different assessment:

At a broad level, a triable issue remains regarding the reasonableness of Browder’s use of deadly force.  More specifically, there are genuine disputes about: (1) Browder’s credibility; (2) whether Nehad posed a significant, if any, danger to anyone; (3) whether the severity of Nehad’s alleged crime warranted the use of deadly force; (4) whether Browder gave or Nehad resisted any commands; (5) the significance of Browder’s failure to identify himself as a police officer or warn Nehad of the impending use of force; and (6) the availability of less intrusive means of subduing Nehad.

The appellate court’s emphasis on whether Nehad truly presented a threat, and how Browder’s own actions contributed to the shooting, are both elements that AB 392 seeks to address.

“If AB 392 had been in effect when the officer killed Fridoon Nehad, it would have provided a significantly different lens for the district attorney’s office to evaluate the legality of the killing,” said David Loy, legal director of the ACLU of San Diego & Imperial Counties.

AB 392 stipulates that deadly force is authorized “To defend against an imminent threat of death or serious bodily injury to the officer or to another person” (emphasis mine) and clarifies that “an imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.” Because Nehad was unarmed, and wasn’t advancing toward Browder, it’s not clear whether he represented an imminent threat.

It also says that “Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.” The 9th Circuit noted that Browder did not verbally identify himself as a police officer, offer any warnings to Nehad. He also did not activate the lights or sirens on his vehicle to indicate that he was a police officer.

“It’s very important to write that into the code to acknowledge that in some circumstances, the officer’s own actions can contribute to the danger,” Loy said.

There’s No Inoculating Yourself Against This Debate

Nothing combines my love of celebrities and my love of politics quite like vaccine policy.

This week, since the feud between actor Rob Scheiner and San Diego Assemblywoman Lorena Gonzalez reignited in a big way, I wrote a brief history of their long-running beef.

SB 276, the measure causing the latest dust-up, will be considered as part of the Assembly Appropriations Committee’s suspense file hearing on Aug. 29.

Though vaccine policy debates tend to highlight many anti-vaxxer celebs – Jessica Biel notably stopped by the Capitol to oppose SB 276 – for what it’s worth, there do exist pro-vaccine celebrities.

Housing Streamlining Measure Could Use Some Streamlining

The city of San Diego’s struggle to build middle-income housing is a result of its lengthy approval processes, Development Services Department director, Elyse Lowe, told the Assembly Select Committee on Housing Affordability for the Middle and Working Class at a hearing on Wednesday.

Getting a project approved isn’t like climbing a ladder, Lowe explained, it’s more like traversing an “extensive jungle gym,” including a pre-application meeting, a completeness review and a staff analysis.

San Diego knows it needs more middle-income housing, but the current mechanism for streamlining the process is rarely used — and can be potentially harmful, Lowe said at the meeting, which was held at the San Diego Housing Commission and convened by Assemblyman Todd Gloria.

The state’s Permit Streamlining Act is meant to urge city officials to keep the approval process flowing. If they don’t, the law states, developers can get automatic approval on a project before meeting all requirements typically needed.

“It sounds great in everyone’s dreams,” Lowe said. “Except for the folks that want to ensure safety of the building and the adherence to land use plans and other regulations.”

To emphasize how complicated it can be, Lowe said the city had to make a 13-page manual just to explain the larger manual on project submission requirements.

“One of the obstacles to middle-income housing production really is the time to process,” she said. One solution, Lowe said, is to let more projects be approved without requiring special permission from elected officials, which is what the city has sought to do by updating its community plans and reforming other citywide regulations that allow city staffers to sign off on projects if they meet predetermined requirements.

In other words, streamline the streamlining process so developers can get projects approved faster.

Gloria said the Permit Streamlining Act could use some fixes and updates. He also said the committee should take Lowe’s suggestions into consideration for future legislation.

Lowe also said that she supports CEQA, California’s landmark environmental law, but said complying with it can delay projects even further, and suggested condensing some of its requirements.

“Keep the rules simple to follow for local governments,” Lowe said. “The more complex, the more difficult it is to achieve meaningful gains.”

Katy Stegall

There Are Still Hundreds of All-Male Corporate Boards

About 10 months after Gov. Jerry Brown signed SB 826, requiring California-based public corporations to have at least one woman on their board of directors by 2020, plenty of companies … still don’t.

Hundreds of companies that will be subject to the law don’t yet comply, according to a report released by the secretary of state, including more than 20 in San Diego County.

State Treasurer Fiona Ma has set up a registry in hopes of connecting qualified women with companies in search of board members.

Golden State News

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