A cop is legally cleared for killing someone in the line of duty when it is determined the life of the officer or the lives of others were endangered by the suspect. This standard has been upheld by the courts for years.
Few cops across America are charged for using deadly force. No Sacramento-area cop has been charged in recent memory.
But this standard is going to be tested in Sacramento in the case of an emotionally disturbed African American man who was shot and killed by Sacramento County sheriff’s deputies on Highway 50.
The May 8, 2017, killing of Mikel McIntyre is different from other high-profile police shootings because a respected third-party arbiter is calling into question whether county deputies needed to use deadly force in a fatal shooting.
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Rick Braziel, former chief of the Sacramento Police Department, concluded the “number of rounds fired at McIntyre were excessive, unnecessary and put the community at risk.”
Braziel served Sacramento PD with distinction for 30 years before retiring as chief. He is now the inspector general of Sacramento County and does reviews on all lethal force shootings by the Sacramento County Sheriff’s Department.
The McIntyre case is the first time he has called into question the actions of deputies in a fatal shooting. Braziel is a national expert on organizational assessments and critical incident reviews. He was part of a team tapped by the U.S. Department of Justice to review law enforcement practices after widespread rioting in Ferguson, Missouri. He recently traveled to Canada with a federal State Department delegation to share with Canadian cops the lessons learned from his reviews of critical incidents handled by U.S. law enforcement agencies.
In his review of the McIntyre incident, Braziel wrote: “There were adequate resources on the ground with three officers on foot, six officers driving marked vehicles, and a canine for a total of nine law enforcement officers, to isolate and contain McIntyre without firing additional shots. ... There was also a (California Highway Patrol) fixed-wing aircraft above, a Sheriff’s department helicopter responding as well as additional officers.”
“With the number of officers and police vehicles at the scene, the barriers provided by the freeway sound wall, and the distance McIntyre would have to run to get across the freeway or up the on-ramp, an escape was unlikely,” the report found.
The distance between the deputies shooting at McIntyre was at times more than 100 feet, Braziel concluded from his review of evidence in the case. This was critical because, as Braziel wrote, “as the distance between McIntyre and the deputies increased, the risk of serious injury or death decreased, and with it, the need for deadly force.”
With the publication of Braziel’s report, all eyes now turn to the office of Sacramento County District Attorney Anne Marie Schubert.
Since 2014, Schubert’s office has reviewed and opted not to prosecute law enforcement in 28 officer-involved shooting cases. In each case, Schubert’s office concluded from the evidence that the officers had lawfully discharged their weapons.
That’s why Braziel’s report is so significant. Based on the evidence, he concluded that McIntyre was far enough away from the deputies pursuing him, “where options existed to avoid the additional use of deadly force.”
It should be noted that dash cam video of the McIntyre killing has not been made public. Unlike the city of Sacramento, which mandates police make a video public in a timely manner or that they stand before the city council and explain why they can’t, the county has no such policy.
The deputies firing on McIntyre discharged a total of 28 rounds as he ran away from them. One deputy, Gabriel Rodriguez, fired 18 rounds, all of which were found on Highway 50.
It’s not unreasonable to wonder how horrific the imagery of this incident would be if we saw it. The video of two Sacramento city cops killing Stephon Clark in March sparked national outrage.
According to Braziel’s report, McIntyre – a 32-year-old Bay Area native – was hit seven times: in the back, the right arm, the left forearm, the right thigh, the left thigh, the head and the left hand. At the time of his killing, McIntyre was in Sacramento visiting a relative. His family said he was suffering an emotional breakdown.
His mother, Brigett McIntyre, told The Sacramento Bee that she tried twice on the day he was killed to have her son placed on an involuntary psychiatric hold. But she was told by deputies and medical personnel that he did not fit the criteria.
In Braziel’s report, he wrote: “To keep him away, the family used pepper spray.”
Later, CHP and sheriff’s deputies, contracted to provide police services in Rancho Cordova, responded to a 911 call that a man was beating and choking a woman outside a department store on Olsen Drive, according to Braziel’s report. A deputy began following McIntyre on foot as he walked away and then ran away. Deputy Jeffrey Wright tried to grab McIntyre. When he didn’t comply, Wright drew his handgun, according to Braziel’s report.
“Deputy Wright realized that he had no cause to use deadly force, so he holstered the gun and attempted to grab McIntyre as they moved,” Braziel wrote.
A struggle ensued and as McIntyre attempted to flee, McIntyre hurled a rock at Wright and struck him on the head. Wright fired two rounds at McIntyre but stopped for fear of striking a bystander, according to Braziel’s report.
As McIntyre fled on the westbound shoulder on Highway 50, he threw a rock at Deputy Ken Becker. The rock struck Becker’s canine partner in the muzzle and Becker’s left leg. As McIntyre ran, Becker fired at him.
“After firing several rounds, Deputy Becker paused briefly to adjust his aim and then continued shooting as McIntyre ran away from him,” Braziel wrote.
“In his statement, Deputy Becker believed that he struck McIntyre because of the way (his) body moved.” Flash forward as Deputy Rodriguez ran across westbound lanes in pursuit of McIntyre: “About halfway through a volley of rounds, Deputy Rodriguez stopped firing as a light-colored vehicle on the on-ramp passed behind McIntyre. Once the car cleared the area, Rodriguez continued to fire until he ran out of rounds,” Braziel wrote.
In his assessment, Braziel wrote: “While chaos in these situations is a reality, the ability to make sound decisions is essential.
“The distance in this situation was enough to allow the officers to react to any new threats of a rock thrown without placing themselves or others in jeopardy. ... When McIntyre was close, and armed with a rock in his hand ready to throw, he was an imminent threat of great bodily harm or death. As the distance between McIntyre and the deputies increased, the risk of serious injury or death decreased, and with it, the need for deadly force.”
Braziel made 16 policy recommendations in the wake of this shooting. The report encourages the sheriff’s department to conduct robust assessments of critical incidents, place greater emphasis on de-escalating confrontations and provide additional training that further educates deputies on transitioning between use of force options.
Sacramento Sheriff Scott Jones dismissed Braziel’s report as the work of a layman, which is a terribly disappointing statement given Braziel’s background and reputation. But Braziel doesn’t need me to stick up for him.
The question now is: What will Schubert do?
Until her office finishes its review of the McIntyre killing, we won’t know the results of an autopsy by the Sacramento County Coroner’s Office. We don’t know which officer fired the fatal shot.
But what if the coroner’s report is inconclusive or shows that McIntyre was killed by bullets fired at him from 100 feet? Then the argument of imminent danger to the officers is greatly diminished.
Braziel’s report concluded that there were an ample number of cops on the ground to corral McIntyre and arrest him alive once he had run away. Jones’ department could argue they feared for motorists but it was their deputy – Rodriguez – who ran across the freeway, paused from shooting as a car passed McIntyre and only to continue firing. Braziel’s report said the prolonged firing put the public at risk.
These facts muddy the “we were afraid for the public” reasoning.
Schubert’s office has been under intense scrutiny since before Clark was killed in March. Black Lives Matter Sacramento, some leaders in the African American community and civil rights groups felt she could have prosecuted prior cases and didn’t. The rap against her office and many DA’s across the country is that they are too close to cops to prosecute them.
Now you have a case where the favored justification for cops who kill – that they fear for their lives – has been questioned by the inspector general of Sacramento County. What’s the DA going to do?