San Diego Police Chief Shelly Zimmerman says the release of video showing a fatal, officer-involved shooting could jeopardize that officer's life and provoke violence against his law enforcement colleagues.
In a declaration filed late last week in federal court, Zimmerman also claims that public release of video of the April 30 shooting of Fridoon Nehad could “inflame violent and unstable elements, leading to threats and violence in San Diego.”
The police chief clarified – and hardened – her position on the public release of police body-camera video. In her four-page declaration, Zimmerman said her department will uniformly reject requests made under the state’s Public Records Act for copies of “body-camera” and other “third-party” videos because those videos are “investigative records” and thus exempt from disclosure.
“Indeed, the SDPD does not (unless compelled by court order or governing law) release any body-worn-camera videos to the media – even when a video paints the SDPD and its officers in a positive light, or casts the Department’s detractors in a negative light,” Zimmerman explained.
That statement appears to contradict comments the chief made last year at a public forum, where she indicated that there may be situations in which the public should see body-camera video of her officers’ interactions with the public.
Zimmerman’s declaration is one of several lodged in federal court by the San Diego City Attorney and lawyers for SDPD Officer Neal Browder, who shot and killed Fridoon Nehad on April 30 in the Midway District.
Nehad’s family filed a $20 million lawsuit against the city and Browder, claiming the officer used excessive and unreasonable force in the deadly confrontation.
The city claims Browder mistook a pen that Nehad was holding for a knife before firing his service weapon. Nehad’s family also say Nehad had a history of mental illness.
The shooting is being investigated by the SDPD homicide detectives and the district attorney’s office, which is standard procedure in all officer-involved fatal shootings.
Browder did not activate his department-issued body-camera before the shooting, but surveillance video from a nearby business did capture the deadly encounter.
A man who saw that video described the shooting as “unprovoked” and “shocking”.
That surveillance video is now the subject of an legal dispute in federal court.
Attorneys for several local media outlets are asking a judge to made the video public, arguing that it’s a public record and that Browder is a “public official whose conduct is subject to public scrutiny.”
Attorneys representing the city, Browder and the district attorney’s office disagree. In legal responses filed late last week, they argue that the California Public Records Act exempts those items from disclosure because they’re part of an “investigative file.”
The lawyers also say the surveillance video and other evidence in the Nehad shooting are not public documents because they are not on file with the court and have only been exchanged between the two sides in the lawsuit.
The lawyers argue that releasing the video and other evidence would compromise the investigation, taint potential witnesses and “prejudice Officer Browder’s right to a fair criminal trial, should the DA determine that his conduct was not lawful, and prosecute him…”
To buttress their position, Browder’s attorneys had Zimmerman submit a sworn statement, in which she expresses concern that the “manipulation, distortion and misrepresentation” of the video and Officer Browder’s statement to investigators about the shooting “could cause far more than mere annoyance, embarrassment, oppression, or undue burden or expense – it could (1) result in threats and possibly violence against Officer Browder and his family and (2) jeopardize his due process rights in various ongoing and future investigations and other proceedings regarding the shooting.”
But the ACLU of San Diego questioned Zimmerman's motivation in withholding the video, asking if it was from fear of retaliation or fear of accountability.
"As the Department has acknowledged, nothing in California law requires SDPD to withhold the video," the ACLU wrote in a statement. "Despite the Chief's claims, the release of the video would not hamper investigation into the shooting nor would it threaten the privacy of any other party."
The ACLU's complete statement is below.
In her declaration, Zimmerman reveals that her officers are already a target of citizen violence.
Citing department statistics, Zimmerman says there were 319 assaults against SDPD officers in 2014, an increase of 67 over the 252 assaults in 2013.
According to the chief, SDPD officers were assaulted 254 times in the first seven months of this year, which is 73 more times that the same period in 2014, and more than the entire year of 2013.
“These increases appear to coincide with recent widespread media and Internet attention to police-involved shootings around the country,” Zimmerman wrote.
In her declaration, Zimmerman also revealed the existence of a YouTube video, denouncing the Nehad shooting as police "terrorism."
She says the anonymous maker of that video demands that Browder be arrested and charged with murder and warns that “We do not forgive. We do not forget. SDPD, you should have expected us.”
“Fanning the flames of hatred against Officer Browder and other officers, which I believe the release of the video and statement would do, not only endangers the officers and their families, but also places an undue burden on the SDPD and City of San Diego, in the form of the cost and time of mobilizing and maintaining additional security to protect its police officers and citizens whom we serve.”
Click here to read Zimmerman's full declaration.
A court hearing on the media’s request for public release of the surveillance video and Browder’s statement to investigators is tentatively scheduled for Sept. 21.
The ACLU has joined the call to release the video of the fatal shooting. Here is their complete statement, sent to NBC 7 on Tuesday:
"In her declaration to the court, Chief Zimmerman argues that the community cannot be trusted with the truth. It would be too dangerous, the Chief claims, to allow the public to view the video that captured a fatal shooting by an SDPD officer in a dark alley in the Midway District earlier this year. Does the SDPD fear retaliation or accountability? The ACLU has repeatedly urged the Department to release the video to demonstrate its commitment to transparency. As the Department has acknowledged, nothing in California law requires SDPD to withhold the video. Despite the Chief's claims, the release of the video would not hamper investigation into the shooting nor would it threaten the privacy of any other party. The officer and Fridoon Rawshan Nehad, who died there, were alone in that alley. The officer inexplicably and in violation of SDPD policy failed to turn on his body camera. In this case, the public's interest in understanding what happened outweighs the privacy interests of those involved. A man is dead; the involved officer has already been identified. The video will simply show what happened. The Department's decision to urge the court to keep the video hidden sends a strong message that the SDPD is more interested in circling the wagons than committing to transparency with the community it serves."