San Diego Union Tribune Quotes Dan Miller in Article on Police Shooting Case

By Greg Moran, Contact Reporter (April 18, 2017, 7:10 PM | SAN DIEGO) — A police practices expert hired by the family of a man fatally shot by San Diego police in 2015 concluded 75 percent of officer shootings over a three-year period were avoidable and unnecessary uses of force.

Roger Clark, a nationally recognized authority on policing and use of force issues, based his conclusions on a review of thousands of pages of internal police records for 20 officer involved shootings between 2013 and 2015.

Clark did the review on behalf of the family of Fridoon Nehad, an unarmed man who was shot to death by San Diego Police Officer Neal Browder in an alley in the Midway district near midnight on April 30, 2015. The family filed a civil rights suit against the city alleging the shooting was unnecessary and also contending the city has a longstanding practice of “whitewashing” police shootings and not disciplining officers.

In court motions filed over the past several weeks the city has sought to throw out portions of the case — and also is trying to prevent Clark from testifying about his review of the prior shootings at a trial.

They say he’s unqualified to talk about how shooting investigations are conducted, and that his method for reviewing the prior shootings was “insufficient and unreliable.”

The court filings provide a glimpse into the evidence and some of the testimony that could come out as the high-profile case moves forward. No trial date has been set yet, but it could happen some time later this year.

Clark was hired by the Nehad family lawyers to review police shootings and how the city investigated them. He ended up reviewing thousands of pages of records from 20 shootings.

He concluded that in 15 of the incidents the use of lethal force was “avoidable and thus not necessary,” he wrote in a court declaration. He called the rate “unacceptably high.”

Moreover, Clark said that the investigations into those shootings by both homicide detectives and Internal Affairs were inadequate, with “an evident bias in favor of the shooting officer.”

The city is vigorously challenging that conclusion. City lawyers argued Clark only had limited experience investigating officer involved shootings when he was working, and was not involved in Internal Affairs work. They also argued he hastily reviewed over 15,000 pages of documents relating to the 20 shootings — spending an average of 20 minutes per case file.

Clark, a Santee resident, has consulted on more than 1,250 use of force cases in his career as a consultant. Among them was for the family of Tamir Rice, a 12-year-old boy carrying a toy gun who was shot to death by Cleveland police in 2014. Clark concluded that shooting was an unreasonable use of force.

“The integrity of our criminal-justice system requires far higher standards than the junk science offered by this witness, who has no expertise in these kinds of investigations, said Gerry Braun, chief of staff for City Attorney Mara Elliott. “For a court to require that evidence be scientifically valid does not favor one side or another; it favors the interest of justice.”

But lawyers for the Nehad family said that Clark’s conclusions should be allowed, and that the city is simply trying to keep embarrassing and damaging information out of the case.

“The way that SDPD and the chief of police have handled this shooting, and prior officer-involved shootings, is very disturbing,” said Dan Miller, one of the family lawyers.

Nehad, who had a troubled history of mental illness that came to light after the shooting, was shot in an alley behind an adult bookstore.

Browder was responding to a call about a man with a knife threatening people. When he pulled into the alley, Nehad was walking toward the car, which did not have its light bars flashing.

Two witnesses said when Browder got out of the car he ordered Nehad to stop, but he did not. He held a shiny object in his right hand. Within seconds after exiting the car, as Nehad appeared to slow down but not stop, Browder fired a single fatal round.

Browder later said he believed Nehad had a knife. It turned out to be a metallic pen. The sequence was captured on the security camera of a nearby business, but not on Browder’s body-worn camera because he did not turn it on. A federal judge later ordered the security video released to the public.

District Attorney Bonnie Dumanis later concluded the shooting was justified because Nehad didn’t obey commands to stop and Browder considered him an imminent threat.

The lawsuit contends that the department has a culture of “whitewashing” investigations into officer shootings and not disciplining officers. That culture emboldens officers to use lethal force knowing they won’t be held accountable, the suit contends.

Other information in the filings includes:

Police Chief Shelley Zimmerman said in a deposition that she has not disciplined a single officer in any of the 18 shootings that have occurred while she has been chief since 2014.

Zimmerman also said the city changed its policy regarding whether officers can review videos taken by third parties before being interviewed by investigators.

Browder was allowed to review the security camera video for nearly a half hour with his lawyer before making a statement to investigators, five days after the shooting. Zimmerman testified that the policy changed after the Nehad shooting, and that officers are not allowed to view video from any source beside body-worn cameras.