SAN DIEGO (CN) – A federal judge tossed a highly publicized lawsuit against the San Diego Police Department over the shooting death of an unarmed homeless man.
U.S. District Judge William Hayes granted summary judgment on Monday to the SDPD, Officer Neal Browder and Police Chief Shelley Zimmerman. The case had been filed by the family of Fridoon Nehad.
Hayes found in his 18-page order Browder acted reasonably when he shot and killed Nehad just after midnight on April 30, 2015 in the Midway area of Point Loma after receiving a “hot call” from dispatch that a man was threatening people with a knife. Nehad was killed less than five seconds after Browder exited his patrol vehicle and within 33 seconds after the officer arrived on the scene, according to Hayes’ summary of the case.
Nehad was unarmed; a shiny metallic object he’d threatened a store clerk with and was “fiddling with” at the time of the shooting turned out to be a pen.
Former District Attorney Bonnie Dumanis investigated the shooting and declined to file any criminal charges against Browder.
Browder did not activate his department-issued body-worn camera during the shooting, but a security camera on the building next to the alley where the shooting happened captured the incident.
When the SDPD refused to release the video after media outlets filed a public records request, the media petitioned the court to unseal the video. Hayes agreed. Shortly after, the department changed its policy on releasing body-worn camera and other shooting footage captured on cellphones or surveillance cameras to make it more accessible to the public.
Nehad family attorney Daniel Miller of Miller Barondess said in an email the family plans to appeal.
“This ruling is wrong. A jury, not this judge, must decide whether the shooting was reasonable. Anyone who looks at the video would conclude this shooting was unnecessary and unreasonable,” Miller said.
In the days leading up to and the night of the shooting Nehad “had convinced multiple people that he was armed with a knife,” Hayes noted in his order.
The judge found Browder had to “make a split-second decision to use deadly force,” though witness testimony cited in the order said Nehad was not moving the pen “in an aggressive manner.”
“The opportunity to warn and the opportunity to consider using less intrusive force were necessarily limited by the less than five seconds that elapsed from the time Officer Browder left his police car and the shooting,” Hayes wrote.
“The objective, undisputed facts in this record support Officer Browder’s perception that Nehad posed an immediate threat to his safety under the facts and circumstances presented,” Hayes added.
But when Browder gave a statement to police immediately after the shooting, he said he didn’t see any weapons on Nehad at the time of the shooting. Browder later contradicted his initial statement in a formal interview with investigators less than a week later.
Hayes ticked off a list of what Browder did in the 33 seconds leading up to the shooting, including confirming the suspect description with dispatch and giving commands for Nehad to, “Stop. Drop it” as Nehad approached Browder in the alley. He found Browder was entitled to qualified immunity and that there was no custom or practice, including a policy or deficient training, within the SDPD that caused the shooting.
“While experts may offer the opinion that Officer Browder should have waited another second or allowed Nehad to advance another few feet before using deadly force, Officer Browder could have reasonably believed that Nehad posed a risk of serious injury or death. The court concludes that Officer Browder’s use of force was not obviously unlawful,” Hayes wrote.
San Diego City Attorney Mara Elliott agreed with the ruling. “In reviewing this tragic death of a homeless man with mental health issues, the judge was correct to not compound the tragedy by finding fault with the police officer who acted to defend himself and others,” she said in a statement.