In a ruling last week, a federal appeals court harshly criticized the San Diego Police Department's response to an officer’s 2015 shooting of Fridoon Rashawn Nehad, an unarmed man who was walking in an alley in the Midway District.
However, despite a new state law aimed at increasing transparency of police investigations, the public will not be able to access the records detailing this case any time soon.
The Ninth Circuit Court of Appeals detailed mistakes made by San Diego Police Officer Neal Browder, who said he shot and killed Nehad because he thought he was armed with a knife. Nehad was actually carrying a pen.
"Even if Browder had reasonably perceived Nehad as holding a knife, a reasonable factfinder could conclude that Nehad did not pose a danger to anyone," the appeals court judge stated in his ruling.
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Nehad’s case clearly falls within the scope of SB 1421. The law, which went into effect in January, allows public access to police records when an officer shoots someone, uses force that results in serious injury or death, or is found to have lied during an investigation or committed sexual assault.
The San Diego District Attorney's Office ruled Browder's shooting of Nehad was justified and Browder will not face criminal charges. However, Nehad's family is pursuing a civil lawsuit against the city over his death.
Because of that lawsuit, the city says the United States District Court has established a protective order over the records, said Matthew Halgren, a First Amendment attorney with Sheppard Mullin who is representing KPBS and other media outlets seeking to get police records.
“The city has stated that it will not disclose records relating to the shooting of Mr. Nehad while litigation regarding that shooting is ongoing because, it says, the court has issued a protective order prohibiting disclosure of those records.”
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Halgren said anyone wanting access to the records would have to challenge the protective order in court.
Laila Aziz with the advocacy group Pillars of the Community said the reasoning that records should be kept private because of ongoing investigations or open lawsuits goes against the spirit of the law.
"That ongoing investigation excuse is just another reason to withhold information and to keep the people from having access to that information," she said.
Aziz said protective orders could also prevent public access to cases of other people killed by police.
The San Diego city attorney's office said they're reviewing the appellate court ruling.
