Browder also said that he was never interviewed by anyone in the district attorney’s office, or anyone in internal affairs, although both offices investigated the incident. The documents do not say whether internal affairs completed its review, and SDPD said it won’t respond to questions because of the pending litigation. The city attorney’s office directed all inquiries to SDPD.
Because California has one of the strictest laws in the nation when it comes to when details on officer discipline must be made public, civil lawsuits like the one filed against Browder and SDPD by Nehad’s family represent the rare instance when the public can see how – or if – the department is punishing or otherwise addressing officer behavior.
In April 2015, Browder fielded a call about a man threatening patrons of an adult books store with a knife. He reached the scene – an alley in the Midway area – alone, and seconds later, shot Nehad. It turned out Nehad was not carrying a knife, but a ballpoint pen.
The shooting was recorded by a security camera from a neighboring business. Dumanis released the video after a court ordered it to be made public, following a legal intervention by Voice of San Diego and other local media outlets. The graphic video showed Browder arrived at the scene without his police lights on, got out of the car and shot Nehad, who had been walking toward him, in fewer than five seconds.
In his deposition, Browder said he took a four-hour, in-classroom training program on de-escalating situations to avoid having to use force. He couldn’t remember when he took the course, but said it was a long time ago.
Browder acknowledges in his deposition a few other areas where he might not have fully complied with SDPD policy, or didn’t follow what he was taught to do in the academy.
For example, the incident wasn’t captured on Browder’s body-worn camera, because he didn’t turn it on.
The department later changed its policy – mandating body-worn cameras must be turned on before an officer arrives to the scene of an incident.
Nonetheless, Browder said he never heard a peep from anyone in the department about having made a mistake.
Likewise, when Browder shot Nehad, he had already disregarded a tactic he says was part of his academy training.
Browder exited his car and left the door opened, but then stepped away from the door – leaving no barrier between him and Nehad. He pulled the trigger a few seconds later.
“As far as our training goes, as far as how we’re taught in the police academy and it’s always ingrained in us as far as, you know, when you’re completing a citation, stand behind the door and provide a little bit of protection, a little bit of – not necessarily concealment so that when you’re completing your citations, those things, and – and that’s how it was to us as far as training goes,” he said.
Browder also acknowledged he didn’t turn on his cruiser’s red and blue lights before arriving on the scene. In his deposition, he said he didn’t announce himself using the car’s megaphone when he arrived and he can’t remember if he told Nehad to stop or announced himself as a cop – three witnesses, however, reported they heard him tell Nehad to drop the knife, or stop. Browder said it never occurred to him Nehad might not have known he was walking toward a police car.
In the deposition, Browder also confirms that he initially told homicide investigators hours after the incident that he did not think Nehad had a knife in his hands when he shot him, and that there were no other weapons at the scene of the crime. Browder’s lawyer immediately ended that interview; five days later, Browder told investigators he thought Nehad was carrying a knife and that he’d feared for his life.
Brian Marvel, president of the San Diego Police Officers Association, said the dynamic situations police encounter don’t lend themselves to hard-and-fast rules.
“You don’t want to stay behind the door so much that something happens and you get stuck in the car,” he said. “It might give you an advantage, but it might not. This sort of Monday morning quarterbacking is extremely difficult.”
Unlike criminal prosecutions, however, the bar for internal reprimands is low.
Browder himself received a reprimand 20 years ago for a minor use-of-force incident, as he describes in the deposition.
Then, Browder and other officers responded to a domestic violence call. The suspect resisted while being transported to the car, and Browder struck him twice with his baton, once in the stomach and once on his calf.
Internal affairs reviewed the incident and issued a written reprimand, Browder said.
Browder said the reprimand concluded the type of force he used was improper and that he should have opted for a different one. It didn’t specify which one he should have used, just that his wasn’t right.
Michael Crowley, a San Diego-based civil rights and criminal defense lawyer who is not involved in the case, wasn’t surprised that internal affairs was willing to issue a vague reprimand on a minor incident but declined to wade into the high-profile shooting.
“That’s a cultural thing: They’re going to take a hardline stance when somebody is dead, compared to a minor issue when it’s just a baton,” he said. “If a shooting is found righteous by the DA, that’s that.”
Crowley said it was unusual, however, that internal affairs didn’t conduct its own interview with Browder.
“How can they decide that he is justified without talking to him? It shows a failing of our system,” Crowley said. “These things never get a fair hearing.”
Crowley also pointed court to the Supreme Court’s 1985 ruling in Lybarger v. City of Los Angeles, which created what’s known as the Lybarger waiver. It says an officer compelled to answer questions from internal review can’t have those responses used against him in a criminal case. It’s intended to allow the public agency a chance to learn of problems in its system and correct them with new policies or protocols, even if it doesn’t result in criminal charges for a specific individual.
The city’s Citizens’ Review Board on Police Practices, similarly, doesn’t have its own investigative or subpoena power. It relies on internal affairs investigations when it makes policy or procedure recommendations to the chief of police. An incomplete investigation limits its potential policy fixes.
“If you have an ineffectual internal affairs investigation that leads to no administrative charges, a byproduct is you also can’t use it to make protocol recommendations,” Crowley said. “Even if in this case it’s a justifiable shooting, maybe there’s training or protocols we can do that prevents a dead person laying on the ground.”
Marvel said it’s too early to say whether changes have been made. Even if there was a new policy or procedure to learn from this experience, it takes time to test those principles in training scenarios before they’re suitable for the field.
“We have to look at everything after the whole thing has run its course,” he said. “As a whole law enforcement as a whole does a good job of reviewing instances.”
Last year, a third-party review prompted by the Justice Department found the San Diego Police Department had systemic problems in the way it disciplined officers.
Complaints slipped through the cracks, officers didn’t have adequate supervision and the department often didn’t hold officers accountable even when it knew of problems, the report from the Police Executive Research Forum found.
The city has implemented a series of policies to address the inadequacies. But it’s still hard to get information about whether those policies are working.
Crowley’s point that incidents can lead to improved procedures, even if its determined an officer didn’t break the law – is similar to a conclusion from a report last year from the Police Executive Research Forum, the same group that performed the third-party review of SDPD, which aimed to re-orient the way departments train officers in use-of-force.
“As we look back at the most controversial police shooting incidents, we sometimes find that while the shooting may be legally justified, there were missed opportunities to ratchet down the encounter, to slow things down, to call in additional resources, in the minutes before the shooting occurred,” the report said.