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If the 2015 shooting of Fridoon Nehad played out today under the exact same circumstances, everything from how prosecutors weighed the police officer’s actions to which records were available to the public would be handled differently.
When SDPD Officer Neal Browder shot Fridoon Nehad, a mentally ill man, in the Midway district in the early morning hours of April 30, 2015, several elements of the case troubled observers: Nehad was unarmed. Browder didn’t activate his body-worn camera, or identify himself as an officer before opening fire. Security camera footage of the incident was withheld from the public for months. The district attorney’s office, at every turn, blamed Nehad’s actions – not Browder’s – for his death.
Many of the gnarly, systemic issues underlying such shootings persist and have motivated millions of Americans to protest in the streets of cities across the country in recent months. The police review board that investigated the shooting was limited in its probe by the DA’s withholding of documents and the limitations imposed by the Internal Affairs investigations on which the board relies, challenges that still exist but would be changed under a November ballot measure to reform the board.
Yet a number of changes relevant to the Nehad shooting have since been addressed by SDPD’s own policies, as well as state law.
If the same shooting played out today under the same circumstances, everything from how prosecutors weighed Browder’s actions to what materials about the shooting were available to the public would be handled differently.
In her letter clearing Browder of wrongdoing following the shooting, then-District Attorney Bonnie Dumanis said she believed it was reasonable for him to have believed he was in imminent danger, and therefore the shooting was lawful.
The 9th U.S. Circuit Court of Appeals, in weighing in on the Nehad family’s civil lawsuit against the city, had a much different interpretation of what happened.
It found there were questions “regarding the reasonableness of Browder’s use of deadly force” and legitimate 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 court’s emphasis on whether Nehad truly posed an imminent threat, and the degree to which Browder’s own actions contributed to the shooting, are both issues addressed by AB 392, a state law passed last year that changed the standards guiding police use of deadly force.
“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,” David Loy, legal director of the ACLU of San Diego & Imperial Counties, told me last year.
AB 392 raises the standards for when it’s legally defensible for an officer to shoot, and allows officers to deploy deadly force only “when necessary in defense of human life.” Because Nehad did not have a weapon, and had slowed his approach just before Browder shot him, it’s not clear whether Browder’s actions would clear this higher bar.
AB 392 also addresses the fact that an officer’s own actions can contribute to escalating a situation.
The speed with which Browder opened fire on Nehad after arriving on the scene has long troubled people familiar with the case.
An employee of the business that recorded the security camera footage of the incident told police that the video “was shocking to me and, I believe, to anyone else who sees it. … The shooting appeared to be unprovoked; Officer Browder appeared to shoot Fridoon hastily.”
A longtime Los Angeles Sheriff’s deputy who served as an expert witness for Nehad’s family in their civil case said in a deposition that “Officer Browder had obvious reasonable alternatives that he was required to take rather than opt for the use of lethal force in this set of facts. They include (but are not limited to) simply not confronting Fridoon one-on-one (back-up units were due to arrive in seconds), tactically repositioning to cover to gain time and properly assess the true nature of any perceived threat, using the less lethal weapon(s) in his possession, etc.”
In the time since the shooting, legislators and even SDPD itself have implemented policies meant to ensure officers make every possible attempt to reduce the need to use force.
SB 230, a companion bill to AB 392, requires departments to re-write their use-of-force policies and to emphasize de-escalation in their training guidelines.
In June, following nationwide protests over the police killing of George Floyd in Minneapolis, SDPD announced a new de-escalation policy urging officers to create a buffer zone between themselves and suspects, establish communication with the subject and consider other available resources – like mental health units.
None of those techniques was employed before Browder shot Nehad.
Hundreds of pages of documents shedding light on the case, including the Citizens Review Board report on the shooting, have only recently been made public following a judge’s decision to unseal a protective order that had long kept them hidden.
Both parties agreed to unseal the documents, and acknowledged in court documents that a new state law, SB 1421, forced their hand: “To the extent that Protective Order No. 2 is intended to prevent the public from accessing records related to incidents of officer-involved shootings and uses of force resulting in great bodily injury or death, it is contrary to current public policy as determined by the California Legislature in enacting SB 1421.”
The law, which went into effect at the beginning of 2019, makes public police investigative records in a limited set of circumstances: if an officer used force, an officer lied or if an officer was involved in a shooting or sexual misconduct.
It still does not cover a wide range of issues the public might be interested in learning about; for example, after the Nehad shooting, Browder accidentally fired his weapon into a baby’s crib. Details about that incident are not disclosable under the law, SDPD has determined, because there was no target or victim.
Sen. Nancy Skinner, the author of SB 1421, this year introduced a bill to expand the law to include other types of incidents – that measure is making its way through the Legislature.
Browder was outfitted with a body-worn camera at the time of the shooting, but didn’t activate it before he shot Nehad.
If he had, the footage could have shown whether Browder gave any commands before firing his gun – a major factor used by prosecutors and police in determining whether his actions were reasonable. Browder himself told investigators he didn’t remember whether he shouted any commands before shooting.
SDPD policy at the time advised that officers “should” activate their body-worn cameras prior to arriving at a call.
Though it wasn’t necessarily mandated that Browder turn on his body-worn camera, the watchdog group that reviews officer-involved shootings in the city noted that because he had time to confirm with dispatchers that he was approaching a man who fit the description of the suspect he was looking for, “he had ample time to activate his [body-worn camera].”
Following recommendations released by the review board, SDPD changed its body-worn camera policy to require that officers “shall” activate their cameras prior to arriving to a call, replacing the language saying they “should” do so.
Yet despite the policy change, officers have continued to fail to record critical footage of deadly incidents.
In a 2016 incident, for example, SDPD Officer Wade Irwin turned on his camera only after he’d shot suspect Jesse Gomez, who’d shot both Irwin and his partner Jonathan De Guzman, who died in the incident.
Though Browder didn’t activate his body-worn camera, officers who arrived at the scene after the shooting had theirs on, and private security footage also captured the incident.
SDPD, the city and the district attorney’s office sought to keep that footage hidden from public view until it was mandated by a court order to make it public, following legal intervention from Voice of San Diego and other local media outlets.
At the time, then-Police Chief Shelley Zimmerman had said she had no intention of willingly releasing body camera footage of controversial incidents – though the technology was sold to the public as a transparency tool – unless doing so would prevent a riot.
In 2016, law enforcement officials developed a countywide protocol that said footage from officer-involved shootings wouldn’t be released publicly until the district attorney had finished an investigation. But just a few months after that policy was released, officials essentially threw it out the window by releasing body camera footage of a high-profile shooting of an unarmed man in El Cajon – before the investigation was complete.
The most recent version of the protocol, signed by law enforcement leaders from across the county, similarly says that audio and video recordings will for the most part be released to the public following the DA’s review of the incident, but notes vaguely that “there may be instances where the audio or video is not released.” The protocol also leaves room for officials to release footage before an investigation is complete, if doing so “is in the interests of justice and public safety.”
A state law that went into effect in 2019, meanwhile, requires the release of body camera recordings within 45 days of an incident. The law allows agencies to request 30-day extensions, and includes an exception if they can demonstrate “clear and convincing evidence that disclosure would substantially interfere with the investigation.”
Whether they’ll move as swiftly to release footage of more contested circumstances remains to be seen.