UPDATE: Wednesday, Dec. 16, 2015:
U.S. District Judge William Hayes ruled Wednesday morning that the family of Fridoon Rawshan Nehad, who was fatally shot by a San Diego police officer, can release to the public a security camera video that captured the incident on April 30.
Hayes did not order the government to release the video to the news media, which had sought it, but he said Nehad’s family is no longer prohibited by the court from making it public.
The judge, however, did give time for his ruling to be appealed. The city of San Diego and a lawyer for Officer Neal Browder, who shot Nehad, both opposed making the video public and could appeal. Here is what Hayes said:
“It is further ordered that this order is stayed for seven days in order to allow any party the opportunity to file a Notice of Appeal.”
A majority of City Council members said on Wednesday they do not support an appeal. Voice of San Diego reported that council members David Alvarez, Chris Cate, Myrtle Cole, Todd Gloria and Scott Sherman opposed appealing the ruling.
Council President Sherri Lightner’s office did not immediately return a call late Wednesday asking whether she would schedule a meeting to vote on an appeal.
“Absent the City Council directing us otherwise, the City Attorney’s Office has no plans to appeal,” said Gerry Braun, a spokesman for City Attorney Jan Goldsmith.
The lawyer for Officer Browder did not respond Wednesday to a request for comment on whether he would appeal.
The news organizations seeking the video’s release are KPBS, inewsource, The San Diego Union-Tribune, 10News and Voice of San Diego.
Read the judge’s opinion:
Oral arguments were heard in federal court Tuesday on the question of publicly releasing a video of a San Diego police officer fatally shooting an unarmed man in the Midway District.
Officer Neal Browder, a 27-year law enforcement veteran, shot Fridoon Rawshan Nehad, 42, on April 30. Authorities have said that Browder feared for his life when he shot Nehad because police radio calls had said he was armed with a knife. It turned out he was waving a metallic pen, authorities said.
The officer was wearing a body camera but did not turn it on when he responded to the call in the Midway District. Shortly after the shooting, Police Chief Shelley Zimmerman changed the department’s policy to require officers start recording on their cameras before arriving on calls that likely would involve “an enforcement contact.”
The security camera video remains under a protective order and cannot be made public with a judge’s approval. Guylyn Cummins, the attorney representing the news media, asked U.S. District Judge William Hayes to vacate that order, arguing there isn’t “good cause” for keeping the video sealed.
Outside the courthouse, Cummins said, “We think the camera is one neutral view of what happened that night, and the public is entitled to see it.”
Attorneys representing Browder and the city of San Diego argued against releasing the video, saying the news media would use it to create “noise” that could taint an internal police investigation and prejudice a potential jury pool.
“It’s premature to release it now,” Deputy City Attorney Keith Phillips said. “We want to litigate this case in a court of law, not in the media.”
Nehad’s family filed a wrongful death lawsuit in June against Browder and the city.
Last month, District Attorney Bonnie Dumanis announced she would not file criminal charges against Browder. Based on the situation the officer encountered, Dumanis said, his “decision to shoot Mr. Nehad was reasonable and he therefore bears no criminal liability for his actions.”
Cummins argued in court that the public has a clear interest in seeing how this shooting occurred, noting that videos of similar incidents — including one that captured a fatal shooting by a Chicago police officer — have been made public.
The judge said he would issue a written decision by the end of the week on whether to release the San Diego video. In addition to KPBS and inewsource, The San Diego Union-Tribune, 10News and Voice of San Diego have sued to make the video public.