Family Of Man Killed By San Diego Police Has Suit Reinstated
KPBS Midday Edition Segments / July 12, 2019
A lawsuit filed against the City of San Diego, by a man killed by police four years ago, was found to have merit by the Ninth Circuit Court of Appeals.
Speaker 1: 00:00 A federal appeals court has reinstated the lawsuit filed by the family of Free Dune Mahad who was killed by San Diego police back in 2015 the ninth us circuit court of Appeals says there are questions about the officer's credibility and whether the use of force was objective Lee reasonable. The decision also puts into question how San Diego police investigate their shootings. Greg Moran is a reporter with the San Diego Union Tribune who has been covering this and joins us with more on the new development. Greg, welcome. Hi Jane. Remind us again the circumstances around the shooting death of free Dune Jihad and what happened the night he was shot.
Speaker 2: 00:39 Yeah. This was a, a shooting, a federal shooting in an alleyway in the midway, just after midnight on April 30th, 2015. So this case has been going on for awhile. There had been a report. The officer involved was responding to report of a, a man, uh, with a knife threatening people. And the officer Neil Browder, um, drove his a police car, uh, to the top of an alley, put his spotlight on down the alley a and saw a man walking towards him, confirmed that, that the matched the identity of the, uh, uh, individual who was allegedly threatening people. And, uh, within seconds, really it really took a less than a half a minute for all this to unfold. He ended up drawing his weapon, stepping out of his car, drawing his weapon, and shooting, uh, the individual who was for doing Ohad the single shot to the chest and killing him
Speaker 1: 01:29 after the shooting. The police department and former district attorney Bonnie demand is found. The shooting was justified, but then the family filed a civil rights lawsuit. So on what grounds did the Ninth Circuit Federal Appeals Court say the lawsuit could in fact move forward?
Speaker 2: 01:43 Well, what had happened was at the end of, uh, 2017, the trial judge, the District Court judge here, William Hayes, uh, dismissed the lawsuit at the city's request. And he found that the evidence that had been presented to him showed that the shooting was reasonable. And that the officer had done qualified immunity under the law and that there was no path forward to the suit. The appeals court issued a decision issued yesterday. Really, I'm reversed almost all of that finding. What's important to remember here is that this lawsuit is at this stage in, in these cases called summary Judgment, uh, which is sort of a pretrial, um, uh, motion, uh, to, to end the suit. And when that happens, judges are supposed to look at the evidence, uh, in the case in the ruling yesterday that the, the appeals court basically said, look, we look at this evidence, we look at the record of this thing. There are a lot of factual disputes here that, uh, can't be dismissed by a judge before trial, but really ought to go to a jury to decide what happened, what the facts were and who's, uh, who's at fault if anyone.
Speaker 1: 02:49 And can you talk about a couple of the factual disputes and mentioned there? There are a couple apple,
Speaker 2: 02:54 uh, one was the, the court, uh, the appeals court said that there are some questions here about what termed at neo Browder's that the officer's credibility and, and, and particularly they talked about in this, in the hours right after the shooting, he told a police investigators on the scene that he didn't see any weapons when he was interviewed by police investigators. And that was five days later. Uh, and after he had consulted with his attorney and both he and his attorney had been able to see a video tape that had captured, uh, the, the shooting incident. He then said, well, uh, that Mr Nihar did have a knife. He was, uh, coming towards him. He didn't obey commands. Uh, and that he was a, as the officer said, he was aggressing him. The court said, look, these are contradictory, uh, statements. You know, somebody has to figure out which one is accurate.
Speaker 2: 03:46 That's one. There was another one about, uh, whether the, he had properly identified himself as a police officer. Another about a, if he had had, you know, his, uh, at acted properly, if he had considered kind of less lethal taser or, or other kinds of, uh, weapons to stop an Ohad. Overall I think the court said, look, you can't say based on this evidence and looking at it in a, in a light that's most favorable to Nahamah and his family, you can't say that the, that this was eight objective, really reasonable shooting. There are just too many questions, too many unknowns. So the judge also, I reinstated a broader claim in the suit. That's right. And to me that, that was a really interesting part of both his lawsuit and the decision yesterday. It's called up manel claim, but it's basically, um, a claim that broadens the lawsuit beyond just sort of the actions of the individual officer and, and the investigation of the incident to kind of make an argument that says, look, this shooting is the product in some ways of a accustom or a practice, a culture, if you will, within this agency that allows this stuff to happen.
Speaker 2: 04:59 In other words, they kind of calls into question or, or allows the plaintiff's to explore. There's larger issue of how San Diego Police, uh, investigate officer involved shootings, how officers are disciplined if they are at all. That does two things. I think in the lawsuit, one, it kind of exposes the city to a larger potential, you know, monetary judgment because if you're a warning money based on a, on an entire agency's failure, that's larger than an individual officers. But two, it really kind of opens up sort of this what could be a very interesting exploration about this very issue, which is, you know, has been in the news a lot about how the police police themselves. This kind of claim is, is a very interesting one. Uh, and could prove to be interesting if the case ever goes to trial as the city said, how it plans to proceed.
Speaker 2: 05:51 They have not, um, you know, the decision just came out yesterday at 10:00 AM it's 30 some pages. Sure they're going to go over it. They have some options. They can ask a, a larger panel of the ninth circuit to review this particular ruling that sometimes can be a long shot, but, um, it can work. Uh, they could, I, I guess theoretically they could petition the Supreme Court, the U S Supreme Court to, to review this, but a, that's less likely, or they can just say, fine, and come back here to federal court in San Diego and start the case again, or restart the case and probably get, you know, get a court date in, in pretty short order. I've been speaking with Greg Moran, a reporter with the San Diego Union Tribune. Greg, thank you so much. You're welcome.
Speaker 3: 06:36 [inaudible].