Two very similar killings at the hands of the police result in two very different findings on responsibility of police to de-escalate before using deadly force;
Collier County Sheriff’s Office Professional Responsibility Bureau (PRB) Investigation into killing of Nicolas Morales, released last week, recommends “finding of exoneration.” Report turns blind eye to deputies’ failure to de-escalate or recognize mental health crisis, deems brutal shooting and mauling “successful,” concludes use of deadly force “lawful, reasonable and within policy”;
Meanwhile, California District Attorney charges police officer in similar shooting death with felony manslaughter, calls shooting “unreasonable use of deadly force”; DA finds officer’s “failure to attempt other de-escalation options… rendered his use of deadly force unreasonable and a violation” of state law.
Last week, local CBS affiliate WINK-TV received a copy of the Collier County Sheriff’s Office (CCSO) internal investigation into the brutal killing of Nicolas Morales last September in the Farmworker Village neighborhood of Immokalee. The summary report was issued by the CCSO’s Professional Responsibility Bureau (PRB), the department within the CCSO that “works to ensure members abide by Agency values and makes certain each member maintains high standards of conduct and professionalism.” Dedicated to the principle that, “The public has the right to efficient, fair and impartial treatment,” the PRB reviews allegations of police misconduct and takes “corrective measures… when members are found to be non-compliant with Agency policy and procedures.”
Remember those words: “when members are found to be non-compliant with Agency policy and procedures.” We’ll be coming back to them.
The report’s conclusions were sadly predictable. After interviewing the deputies involved in the killing, as well as a small handful of witnesses, the PRB investigation concluded that Corporal Pierre Jean’s decision to use deadly force and fire three bullets at close range into Nicolas, a farmworker and single father of a 13-yr old son, was “lawful, reasonable, and within policy.” Specifically, the report concluded that Cpl. Jean’s decision to kill Nicolas — who was holding only pruning shears in his hand at the moment he was shot (shears so small that one of the two officers standing closest to Nicolas failed to notice them) — met both the elements of the “two-fold test” necessary to authorize the use of deadly force. The two elements are as follows:
“The suspect poses an imminent threat of death or serious physical injury to the Deputy or to others; and the failure of the Deputy to use deadly force poses an imminent threat of death or serious physical injury to the Deputy or others.”
The PRB recommended that Cpl. Jean, as well as the two other sheriff’s deputies present at the time of Nicolas’s killing, be fully exonerated of any legal wrongdoing.
Death in a vacuum…
The PRB report, which you can read for yourself here, is riddled with investigative holes and contradictory findings that render its conclusions highly questionable, if not down right contrived.
Of the three officers present at the time of Nicolas’s killing, only Cpl. Jean chose to employ deadly force, while one of his colleagues chose consciously not to shoot his weapon, for fear of harming bystanders, but to release his K9 instead, and the other actually holstered his weapon, preparing for a physical confrontation because he did not see any reason for deadly force, when Cpl. Jean fired his. The simultaneous and contrasting decision-making of the three deputies would indicate that the use of less lethal force was not only possible, but appropriate. [In fact, while the PRB report claims that the K-9 officer released his dog simultaneously with Cpl. Jean’s firing of his weapon, and that the dog took Nicolas to the ground, the video below shows clearly that the dog had not been released when Cpl. Jean fired his first shots, that it was not in fact released until the third shot had been fired, and that Nicolas had already fallen to his knees when the dog attacked his shoulder, meaning that Cpl. Jean resorted to the use of lethal force even before his colleague deployed the less lethal K-9, and that the release may have actually been precipitated by the escalation created by the very shooting itself rather than by the threat posed by a man already shot at close range and falling to the ground.] The investigative decisions and methods recounted in the report also appear questionable, designed to favor the conclusion that the shooting was justified rather than to arrive at an objective, disinterested analysis of the night’s events.
But there is no need to litigate here the details of Nicolas’s death at the hands of the police and the report’s accounting of those details, the courts will surely hear this case in the months and years ahead and render judgment on the legality of his killing (as Nicolas Morales Jr’s attorney has already stated publicly that a lawsuit is planned). Rather, we want to focus today on what the report fails to mention, on the considerations of professional responsibility around Nicolas’s tragic death that are conspicuously absent from the PRB’s analysis. The police procedural mechanics of Nicolas’s final moments alive on this earth are probed extensively, if not necessarily thoroughly, in the PRB report, but what of the officers’ decisions and actions before killing Nicolas? How did Cpl. Jean end up just feet from Nicolas that night, just seconds after arriving on the scene, his service weapon drawn, Nicolas moving as if in a dream? What could have been done differently to save Nicolas’s life that night, to ensure that Nicolas Jr. could continue growing up with his father’s love and guidance rather than live the rest of his young life as an orphan?
The PRB investigator, whose mandate is to review allegations of police misconduct and determine “when members are found to be non-compliant with Agency policy and procedures,” chose to focus almost exclusively on the final seconds of the deputies’ actions that night, and to limit his procedural analysis to one Agency policy, the “two-fold test.” But had the investigation widened its lens to the officers’ conduct from the moment they received the call from dispatch to the moment Cpl. Jean fired his gun, and focused on policies and procedures beyond the “two-fold test” that are also material to Nicolas’ death — including policies on de-escalation, mental health awareness, and the deployment of lethal force — the PRB report would have almost certainly reached a different conclusion.
And that’s the problem with the PRB report in a nutshell: It examines Nicolas’s brutal killing in a vacuum, reducing his death to a single decision made within a timeframe of just a few seconds, when in fact Cpl. Jean’s decision to pull his trigger four times and kill Nicolas was in fact just the final link in a long chain of decisions and actions that led inexorably to the moment pictured at the top of this post. Here, below, for your review in light of the PRB’s myopic investigation, is the extended and annotated video from that night:
WARNING: The raw dash cam footage from police patrol cars in the video above contains moments that are graphic and truly devastating to watch. While it is crucial to know exactly what happened that night to understand the deep injustice of Nicolas’s violent death at the hands of the police, and to know what must be done to combat that injustice now and in the future, please be advised that the events captured in the video are deeply painful, and heart-wrenching, to witness.
The tragic chain of cause and effect on that early morning in September began with the neighbor’s call to dispatch — where clear indications of Nicolas’s mental health crisis were surfaced but not recognized, as was his identification as an Hispanic male — and continued through the arrival of Cpl. Jean and Deputy Tarazona on the scene and their decisions to, 1) reach for their guns, rather than less lethal tasers, upon arrival, 2) scream orders at Nicolas in a language he doesn’t understand, and 3) aggressively close-in on him while failing to recognize still more glaringly obvious indicators of Nicolas’s mental health crisis. The chain ended when the sum total of those decisions placed Nicolas within just a few feet of an officer who found himself with his finger on the trigger of a deadly weapon, and who, for reasons only Cpl. Jean knows, decided to squeeze that trigger four times, when other officers in his same circumstances chose not to use the lethal force at their disposal.
The true tragedy of that night lies in this simple fact: At any moment along that chain of the officers’ decisions and actions, of cause and consequence, a different action, a better decision, could have saved Nicolas’s life
“Policies and procedures” are the thin blue line between the reasonable and unreasonable use of force, between life and death…
Had dispatch recognized, and communicated to the responding officers, the signs of Nicolas’s mental health crisis, or had the officers themselves seen the obvious signs upon their arrival, a less lethal approach to helping a citizen in crisis could have been deployed — in keeping with CCSO policy and procedure — and Nicolas would be alive today. Had Cpl. Jean and his colleagues employed the proven and respected de-escalation techniques of their training — in keeping with CCSO policy and procedure — after assessing Nicolas’s mental state and the scene in the otherwise empty streets of Farmworker Village that night, Nicolas would be alive today. Had Cpl. Jean reached for his taser, instead of his service weapon, upon stepping out of his patrol car that night — in keeping with CCSO policy on the use-of-force continuum — Nicolas would be alive today.
All of those decisions and actions, and all of those policies and procedures, are not only relevant, but absolutely indispensable, to any adequate analysis of the officers’ professional responsibilities that night, yet the PRB investigator chose not to examine them. And that’s because the PRB report was not an investigation, it was a whitewash.
And while that may seem like a harsh conclusion, the official legal analysis by a California District Attorney of a police shooting in that state earlier last year would seem to support it. That DA’s legal analysis — involving a shooting with remarkably similar circumstances to Nicolas’s killing, including a victim experiencing a mental health crisis, holding a baseball bat just feet away from a police officer, before being shot to death by the officer less than a minute after the officer’s arrival on the scene — in fact took the officer’s failure to deploy effective de-escalation efforts into consideration, and so arrived at a very different recommendation.
California District Attorney: Officer’s “failure to attempt other de-escalation options… rendered his use of deadly force unreasonable and a violation” of state law.
Here is an extended excerpt from the New York Times article on the article on the California case (“Officer Charged in Fatal Shooting of a Black Man in a California Walmart,” September 2, 2020):
A California police officer was charged on Wednesday with felony manslaughter for fatally shooting a Black man inside a Walmart in April in a swift confrontation that the district attorney said displayed an unreasonable use of deadly force.
District Attorney Nancy E. O’Malley of Alameda County said in a statement on Wednesday that charging Officer Jason Fletcher of the San Leandro Police Department “is not a decision that is made lightly, nor rashly.” She faulted the officer for “his failure to attempt other de-escalation options,” which “rendered his use of deadly force unreasonable and a violation” of state law.
According to the district attorney, the encounter on April 18 between Officer Fletcher and the victim, Steven Taylor, 33, unfolded in a matter of seconds. “From the time Officer Fletcher entered the store to the time he shot and killed Mr. Taylor, less than 40 seconds elapsed,” the statement said…
… Around 3 p.m., the police in San Leandro, a city south of Oakland, received a call from a security guard at a local Walmart store who reported that a man, Mr. Taylor, was holding an aluminum baseball bat and a tent and was trying to leave the store without paying.
When Officer Fletcher arrived, Mr. Taylor was standing near several shopping carts. Officer Fletcher “did not wait for his cover officer and immediately contacted Mr. Taylor,” according to the district attorney’s office.
After briefly conferring with the security guard, Officer Fletcher confronted Mr. Taylor, the office said. The officer pulled out his gun “at the same time” he tried taking the bat away from Mr. Taylor, according to the office.
“Mr. Taylor pulled the bat from Officer Fletcher’s grasp and stepped away from Officer Fletcher,” the office said. “From a distance of approximately 17 feet, Officer Fletcher drew his Taser with his left hand and pointed it at Mr. Taylor.”
Then, Officer Fletcher yelled at Mr. Taylor to “drop the bat man, drop the bat.” As Mr. Taylor moved toward the officer, he shot him with his Taser, the office said.
At that point, Mr. Taylor “clearly experienced the shock of the Taser” and was “struggling to remain standing as he pointed the bat at the ground.”
Then, for reasons that are unclear, Officer Fletcher shot Mr. Taylor in the chest, according to the office. The shooting occurred “just as” a backup officer arrived at the store, according to the office. Mr. Taylor died at the scene.
Mr. Taylor “posed no threat of imminent deadly force or serious bodily injury to defendant” nor “anyone else in the store,” the statement said… (Read the article in its entirety here)
The District Attorney decided to charge the officer with felony manslaughter despite the fact that the officer actually deployed his taser before shooting Mr. Taylor; despite the nearly 3 times longer period of time between the officer’s arrival and Mr. Taylor’s shooting than in Nicolas’s killing; and despite the fact that the incident took place in a crowded store instead of an empty residential street, all elements that, given the conclusions of the PRB report, one would have to assume would be used by the CCSO to only further justify Nicolas’s shooting. But unlike the PRB, and unlike State’s Attorney Amira Fox in Florida, the CA District Attorney correctly analyzed the incident from the assumption that the officer’s professional duty to de-escalate is in fact material to his decision to use deadly force, and that the state must hold the officer accountable for his failure to do so if justice is to be done and the epidemic of needless police shootings in this country is ever to subside.
PRB report is Exhibit A in the case for an Immokalee-specific Citizen Review Panel and mobile mental health response teams in Collier County…
In summary, the PRB report is a woefully inadequate analysis of the events leading up to Nicolas’s brutal killing last September, and should not be considered a serious instrument in either determining accountability for Nicolas’s preventable death at the hands of the police or in guiding efforts to ensure the prevention of similar tragedies in the future.
The report reads like an answer to the question: “What can we do to exonerate the deputies for Nicolas Morales’s death?“ And toward that end, it sets an artificially limited timeframe for its analysis, and an absurdly myopic view of the policies and procedures to be considered in weighing the officers’ accountability. And it does so because that is the only path to a possible exoneration.
But that is the wrong question to ask, of course, and never has it been more wrong than in today’s world, caught up in a long-overdue reckoning for decades of unchallenged police misconduct. Instead, the PRB should have asked the question: “Was Nicolas’s Morales’s killing preventable?” And if so, “What could or should have been done differently to prevent it?”
Those are the questions that a truly independent inquiry would have asked, and that is why the PRB report is Exhibit A in the CIW’s argument for the creation of a real citizen review board specific to Immokalee. Only an independent panel would be free of the fear of legal liability seemingly clouding the CCSO’s approach to the investigation, and let the chips fall where they may. Only a panel made up of residents of the unique farmworker community of Immokalee, sensitive to the need for culturally-aware policing in a town made up primarily of immigrant, low-wage workers, would identify the full range of mistakes made by the deputies that night in Farmworker Village.
But that’s not all. The video of Nicolas’s killing, far from an exemplary police procedural video, could serve as the perfect, real-life training tool for teaching new deputies three crucial lessons of effective policing: 1) How to recognize the signs of a mental health crisis, 2) When to deploy the de-escalation techniques of their training, and, most importantly, 3) The tragic consequences that ensue when officers fail to carry out those essential duties on the job. With its failure to acknowledge any of those three crucial lessons, or hold the officers accountable for their glaring failures that night, the PRB report is also Exhibit A in the CIW’s argument for the urgent creation of mental health crisis intervention teams in Collier County like those found in a growing list of other cities around the country. Those teams would pair mental health professionals with specially-trained deputies who — rather than traditional road patrol deputies — would have received the call from dispatch based on the indicators of a mental health crisis provided by Nicolas’s neighbor. And those teams would have cared for Nicolas upon arriving at the scene, not killed him.
This story is far from over. If you haven’t read it yet, be sure to check out the Rolling Stone Magazine’s recent article on the life and death of Nicolas Morales and the Immokalee community’s campaign to honor Nicolas’s life with long-overdue, and critically important, police reforms.