Fatal shooting by police officer leads to unusual move by San Diego DA
A still frame taken from surveillance video footage that recorded the April shooting of Fridoon Nehad. San Diego County District Attorney's Office.

Fatal shooting by police officer leads to unusual move by San Diego DA

Over the past 11 years, the District Attorney’s Office has investigated more than 150 police-involved shootings across San Diego County.

Each investigation has concluded with a formal letter summarizing the findings. These letters analyze evidence and eyewitness statements and, in the end, explain why the officers who pulled the trigger were not charged with a crime.

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How prosecutors investigate deadly confrontations between citizens and police officers has become the subject of nationwide scrutiny.

If you scan through them all, you’ll notice that every letter follows much the same script — except the most recent one.

An inewsource review of the 155 police-involved shootings since 2005 found that the investigation of the fatal shooting of an unarmed man in April in San Diego’s Midway District represents the only time the DA’s Office has consulted an outside expert to help determine whether a shooting was justified.

Some legal experts said the unusual decision to consult an outside expert, rather than keeping the determination in-house, appears to be a politically calculated move. It illustrates how carefully District Attorney Bonnie Dumanis has handled what has become a high-profile case at a time when police shootings are under increased scrutiny nationwide.

“It’s incredibly rare to go to an outside expert to see whether or not you want to prosecute someone,” said Shaun Martin, a professor at the University of San Diego School of Law. “If you’re a cynic, it’s political cover.”

Martin added that tapping an outside expert is “absolutely a product of where we are today” with police shootings across the country. “It’s because police shootings nowadays are so controversial and so politicized that you see this incipient movement to maybe go to outside experts,” he said.

Officer cleared, but questions remain

In November, Dumanis concluded in a 15-page letter that veteran San Diego Police Officer Neal Browder “bears no criminal liability” for shooting and killing 42-year-old Fridoon Rawshan Nehad outside an adult bookstore.

Based on the evidence, Dumanis wrote, “Officer Browder’s decision to shoot Mr. Nehad was reasonable.”

Over the past several months, the case has attracted much media attention, in part because Nehad was unarmed.

Additionally, a surveillance video that recorded the shooting shows Nehad walking slowly toward the officer before being shot, leading some to believe that Nehad didn’t pose a serious threat to Browder or anyone else.

The DA initially refused to make the video public. It wasn’t until after a judge ruled in December that the family of Nehad could release the video — a judgment made in response to a motion filed by news organizations — that Dumanis held a news conference a few days before Christmas to go public with the video in what she called, “a responsible way.”

During the news conference, which pre-empted the family’s release of the video, the DA showed reporters the video and other selected evidence. But Dumanis did not release Browder’s statement about what happened the night of the shooting.

The day after the DA’s news conference, the attorney for Nehad’s family made public a report showing two conflicting statements Browder made during interviews with police. In the first interview, Browder said he didn’t notice that Nehad was carrying a weapon. In the second interview, the officer said he saw a metal object that he believed to be a knife.

A ‘defensive’ move?

To help analyze whether the shooting was justified, Dumanis turned to Jeffrey Martin, a former San Jose police sergeant who now runs his own consulting firm. The district attorney paid Martin a total of about $6,000 — $200 an hour — to review evidence, including the surveillance video.

“Officer Browder’s actions in this incident ‘were consistent with those of a trained and reasonable officer, including using deadly force to defend against the immediate threat to his life that Mr. Rawshan Nehad presented,” the district attorney quoted Martin as saying in the letter.

According to the letter, Martin said using a less-than-lethal use of force, such as a Taser or a baton, “would not have protected the officer or the civilians who were nearby.”

This fee agreement shows that the San Diego County District Attorney paid former San Jose police sergeant Jeffrey Martin $200 per hour to review the Fridoon Nehad shooting.

Jeffrey-Martin-Expert-Witness-Fee-Agreement (Text)

While Martin acknowledged that it’s not all that common for district attorneys to consult outside experts like himself to review deadly use of force by police, he said it’s not unheard of.

For example, he cited the Santa Clara County district attorney’s use of three outside experts in its 2010 review of an arrest during which a man was beaten with batons and zapped with a Taser by San Jose police officers. More recently, county prosecutors in Ohio consulted two outside experts to weigh in on the police shooting of 12-year-old Tamir Rice, who was killed by a Cleveland police officer who mistook the boy’s toy gun for a real weapon.

“It’s really important for prosecutors to get outside experts,” especially when reviewing complicated use-of-force cases, said Martin, who was unable to discuss specifics of the Nehad case beyond what was included in the DA’s letter. “There are certain things we know to look for.”

The DA’s response to an inewsource Public Records Act request confirmed that the Nehad shooting investigation was the only time county prosecutors asked an outside expert to weigh in on a police deadly use-of-force case in the past 11 years.

The DA’s Office declined an interview request to discuss why.

Skip Miller, the attorney representing Nehad’s family in a federal wrongful death lawsuit against the San Diego Police Department, said the decision to consult an outside expert was clearly political.

“My view is the DA did this to just try to bolster and backfill her decision not to … file charges,” he said. “I think it’s filler.”

Michael Crowley, a local civil rights and criminal defense attorney described the use of an outside expert in this case as “totally out of the ordinary.” But he said the move appears to square with the way Dumanis has handled this shooting overall.

“This is defensive on her part,” Crowley said. “It’s part of an overall picture to justify not bringing charges.”

In a statement, DA spokeswoman Tanya Sierra wrote, “Each use of force incident reviewed by the District Attorney’s Office comes with a different set of facts and evidence requiring various levels of investigation and analysis.”

Officer-Involved shootings in San Diego County

This database lists all 155 police-involved shootings since 2005 — both fatal and nonfatal — that have been investigated by the San Diego County District Attorney’s Office. It includes links to each of the letters summarizing the DA’s review.
Source: San Diego County District Attorney’s Office
Credit: Chris Young and Joe Yerardi/inewsource
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About Chris Young:

Chris Young
Chris Young was a reporter at inewsource. To contact inewsource with questions, tips or corrections, email contact@inewsource.org.
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