Police Review Board Was Denied Docs, Interviews in 2015 Shooting Review

Public Safety

Police Review Board Was Denied Docs, Interviews in 2015 Shooting Review

A recently unsealed report on the 2015 shooting of an unarmed man in the Midway district shows SDPD leadership denied Internal Affairs investigators’ request to interview the officer involved, and that the DA’s office withheld documents the board hoped to consider in its review.

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

When the watchdog group that investigates officer-involved shootings by the San Diego Police Department reviewed the 2015 case of Fridoon Nehad, an unarmed man shot by an officer in the Midway district, it did so without being able to consider key materials.

The review board’s report, which was recently unsealed by a federal judge overseeing a civil lawsuit filed by the victim’s family, highlights the extent to which the community review board’s investigations are limited by current policies – just as San Diego voters prepare to vote on a measure to expand the board’s powers and amid surging interest in police reform efforts.

But the review also suffered from SDPD’s own inability to investigate the shooting. An SDPD captain rejected a request from Internal Affairs to interview the officer who shot Nehad, the review shows.

The Community Review Board on Police Practices reviews all SDPD officer-involved shootings and in-custody deaths. The board’s report on the death of Nehad, who was shot by San Diego Police Officer Neal Browder, was submitted as evidence in the family’s lawsuit against the city. The report was for years hidden under a protective order, but that order was recently overturned after a joint request from the city and the Nehad family’s attorneys.

“Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement,” the parties wrote in their request to unseal the documents.

Browder shot Nehad in the early morning hours of April 30, 2015, after a 911 caller reported a knife-wielding man threatening people. Browder shot Nehad within seconds of arriving on the scene, and without activating the lights on his police cruiser or identifying himself as a police officer. Nehad turned out to be holding a pen.

Browder did not activate his body-worn camera before confronting Nehad, but a security camera at a nearby business captured the shooting.

When the community review board – then known as the Citizens Review Board – investigated the shooting, it reviewed that security camera footage, as well as witness statements, police reports, photos from the scene, SDPD policies and other materials.

But the board makes a special note at the beginning of the report that those were not all the materials it sought to review.

Then-District Attorney Bonnie Dumanis commissioned an outside review of the case, but declined to make that report available to SDPD. Thus, the review board didn’t have access to it either. The report was later made public. inewsource reviewed 155 officer-involved shooting investigations in 2016 and found that the Nehad case was the only one in which the DA’s office commissioned a special outside report on the incident.

The review board report also notes “other investigation materials that originated from the DA’s office were unavailable for Team 4 to review including audio tapes of witness interviews by DA investigators of Galindo, Nelson and Brewer.”

After a judge ordered that the district attorney make the surveillance video of the shooting public, following legal intervention from Voice of San Diego and other local media outlets, Dumanis released the video but edited it so that it was overlaid with dispatched audio recordings and included closed captioning. “Although Team 4 thought this would be useful to view to better understand the sequence of events, we were not permitted to do so,” the report states.

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There was additional information the review board would have inspected if it could, the report notes. But unlike the material withheld from the DA’s office, this wasn’t information that was being kept from the review board – it was information that didn’t actually exist.

The report notes that the police sergeant leading the department’s Internal Affairs investigation of the shooting sought to interview Browder. His request was denied, and he was told instead to rely on the homicide team’s interview with Browder.

“IA Captain Anastasia Smith declined Sergeant Waldheim’s request since she determined that the answers to the additional questions would not affect the findings in this case,” the report states.

Lt. Shawn Takeuchi, a spokesman for SDPD, said he couldn’t comment on the specifics of the Nehad case because of the ongoing litigation but that generally, Internal Affairs investigators are able to request interviews with officers involved in shootings so that they don’t have to rely on the homicide investigator’s interview alone because they’re looking for different things. Whereas homicide investigators are investigating the criminality of the act itself, Internal Affairs investigators are looking at whether policy and procedure might have been violated, Takeuchi said – therefore they are likely to ask different questions.

But in Browder’s case, the Internal Affairs investigator wasn’t allowed to ask those questions, according to the review board report.

A November ballot measure to reform the review board would make the board more powerful and independent by allowing it to subpoena witnesses and documents, and to investigate incidents independently without relying on SDPD’s Internal Affairs department.

Andrea St. Julian, a co-chair of San Diegans for Justice who wrote the reform measure, said that if the measure was in place when the board was investigating the Nehad shooting, it would have made a difference.

“Under the new commission, commissioners would have the full power to subpoena witnesses and to obtain documents,” St. Julian said.

The new commission, if approved, would have the ability to recommend discipline for officers, but those decisions would ultimately rest with the police chief.

Browder said in a deposition for the case that he faced no internal reprimands or discipline, and that the shooting didn’t even come up in his yearly performance review.

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The review board report ultimately concluded that Browder’s actions were reasonable only if he’d shouted verbal commands to Nehad prior to shooting him.

In an interview with homicide investigators, Browder couldn’t say whether he’d given any commands, according to police records, and because he failed to turn on his body-worn camera, the review board decided “Officer Browder should be awarded the benefit of the doubt. While Team 4 agrees that while Officer Browder’s use of deadly force therefore appears to be within policy, Team 4 has questions regarding whether it was necessary to fire as quickly as he did.”

The review board recommended that its policy committee should reconsider SDPD’s practice of allowing officers to view footage of an incident from sources other than their own body-worn camera, prior to being interviewed about the incident.

Sharmaine Moseley, the executive director of the Community Review Board on Police Practices, said that review “resulted in a significant revision to SDPD’s [body-worn camera] policy to require officers to turn on their [body-worn cameras] and a new practice adopted by Internal Affairs that no officer shall view other officers video prior to being interviewed.”

SDPD did adopt a new policy requiring officers to turn on their body-worn cameras after the Nehad shooting, but Takeuchi, the SDPD spokesman, said he didn’t know of any current policies barring officers from viewing videos of incidents before being interviewed about them.

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