The 31-page order for the Ninth Circuit panel by U.S. District Judge Dean Pregerson partially reversed U.S. District Judge William Hayes’ summary judgment in favor of Officer Neal Browder, former San Diego Police Chief Shelley Zimmerman and the city of San Diego. The panel found general disputes regarding the Fourth Amendment claim filed by the family of Fridoon Nehad.
Browder shot and killed Nehad shortly after midnight April 30, 2015, after receiving reports of a man threatening people with a knife. Upon arriving at an alley of an adult bookstore in the Midway District of Point Loma and exiting his police cruiser, Browder shot and killed Nehad within five seconds, according to Pregerson’s recount of the facts, which are disputed.
Nehad turned out to be holding a metallic pen, not a knife.
Surveillance video of the event shows Nehad walking toward Browder at a slow pace and Browder putting on his cruiser’s high-beams but not the vehicle’s siren or police lights. Browder also failed to activate his department-issued body camera before exiting his cruiser or identify himself as a police officer.
The panel of Pregerson, Chief U.S. Circuit Judge Sidney Thomas and U.S Circuit Judge Michael Daly Hawkins found triable issues remained regarding the Fourth Amendment claim of unreasonable search and seizure. They found a jury should decide whether Browder was credible, Nehad posed a significant threat, the severity of Nehad’s actions warranted the use of deadly force and commands were given or resisted.
Also, the jury should decide the significance of Browder’s failure to identify himself as a police officer and whether less obtrusive means could have been used to subdue Nehad, the panel found.
Browder’s credibility appears to be a particular concern for the panel.
Three hours after the shooting, homicide investigators questioned Browder on the scene. He told the investigators he did not see any weapons and didn’t mention feeling threatened by Nehad. But five days later with his attorney present, Browder reversed course and said Nehad had a knife and was “aggressing” toward his police cruiser.
“These possible inconsistencies, along with video, eyewitness and expert evidence that belies Browder’s claim that Nehad was ‘aggressing,’ are sufficient to give rise to genuine doubts about Browder’s credibility,” Pregerson, sitting by designation from the Central District of California, wrote for the panel.
The panel also questioned whether Browder’s belief Nehad had a knife was a “reasonable mistake,” citing a policing expert obtained by the family who testified officers are trained to identify if someone is carrying a weapon. The panel also pointed to statements by a homicide investigator who claimed the lighting in the alley was sufficient to identify “the color blue in the pen.”
But Pregerson found whether Browder believed Nehad was carrying a knife did not necessarily make lethal force reasonable, especially in light of witness testimony and Browder’s own testimony Nehad didn’t pose a threat to others.
“Even if Browder had reasonably perceived Nehad as holding a knife, a reasonable fact finder could conclude that Nehad did not pose a danger to anyone,” Pregerson wrote.
The panel also found the severity of the alleged crime of brandishing a knife – a misdemeanor – “did not render Browder’s use of deadly force reasonable.”
Browder’s failure to warn Nehad of imminent lethal force before firing his gun could also support a finding the shooting was unreasonable, Pregerson added.
Finding the trial court never “afforded plaintiffs an opportunity” to be heard on their negligence and wrongful death claims and that disputed facts precluded summary judgment on qualified immunity grounds, the panel also reversed summary judgment of the Nehad family’s state law claims.
“In light of the evidence that Browder could have taken more time to evaluate the situation, Browder’s brief observation of Nehad before using lethal force only makes Browder’s conduct less reasonable,” the panel held in finding Browder was not entitled to qualified immunity.
The panel did affirm summary judgment on the claim for violation of the family’s 14th Amendment rights for loss of the companionship of their child, finding “the police officer’s use of force, even if unreasonable, did not evidence a subjective purpose to harm.”
The Nehad family attorney, Dan Miller of Miller Barondess in Los Angeles, did not respond to email and phone requests for comment.
Hilary Nemchick, a spokeswoman for the City Attorney’s Office, said their office would review the ruling and work with their client on how to proceed.
All three members of the Ninth Circuit panel are Bill Clinton appointees.