Marcos Bretón

The DA cleared the deputies in a fatal shooting, no surprise. Our acceptance of it is.

It came as no surprise that the Sacramento County District Attorney last week cleared three county Sheriff’s deputies for killing an emotionally disturbed African American man on the shoulder of Highway 50.

What’s seems preposterous is the decision took 18 months after the fatal shooting of Mikel McIntyre on May 8, 2017. DA Anne Marie Schubert made her expected call of clearing cops who killed in the line of duty. Declining to prosecute cops when they kill is what Schubert has done in every fatal use-of-force case her office has reviewed since she was elected DA in 2014.

And DAs across the country do that in almost every instance. State and federal laws heavily favor law enforcement in use of deadly force and DAs have enormous conflicts of interest in reviewing the fatal results of their partners in crime (fighting).

“DAs are dependent on deputies to work their cases. They are very vulnerable to police,” said John Burris, the lawyer representing McIntyre’s family and a former prosecutor himself. “You almost have to have a special unit that only investigates (police use of force cases). DAs flat out lack courage. That’s what it is.”

The conflicts of interest between DAs and cops are real – and legal.


As Phillip Reese of the Bee reported in May: “Incumbent Anne Marie Schubert drew almost $100,000 in new contributions in May, mostly from law enforcement organizations and lawyers. The Sacramento County Deputy Sheriff’s Association gave Schubert another $25,000 this month, bringing their total contributions to nearly $70,000.”

And you know what’s funny? When you point out this obvious conflict of interest, people in Schubert’s office get angry. I’ve been told more than once that people in Schubert’s office wonder why she even talks to me. That just raising the obvious conflicts makes me a “hater.”

Law enforcement expecting to be treated as if it is above reproach is truly dangerous. Because law enforcement has the ability to take our lives and our freedoms and it doesn’t have to be right. The law says if cops have reasonable fear of us, they can kill us or arrest us.

But let’s not turn this discussion into something that its not: Law enforcement officers have dangerous jobs and they deserve to be protected. I don’t dispute this. Burris doesn’t dispute this. Most reasonable people would not dispute this. I admire law enforcement, have friends in law enforcement, have been humbled by meeting families of officers killed in the line of duty.

This is not about “hating” law enforcement. This is about making sure we have checks and balances on it.

The Mikel McIntyre case proves we have glaring lack of societal guard rails to prevent excessive force abuses by cops in the line of duty.

Why did McIntyre have to be killed? He hit one deputy in deputy in the head with a rock and ran. While running away, he threw another rock and it struck a police dog and another cop in the leg. Then he kept running.

He was otherwise unarmed. He was shot in the back as he ran away. Yes, in the back.

Meanwhile, K-9 units, CHP cars, and police helicopters swarmed.

Why not take him alive? Because he hit a cop in the head with a rock and ran? Yeah, that’s terrible. That’s a felony. That deserves prosecution and time in prison, no question.

But in this case, the punishment was death. In this case, you had a man who was not in his right mind, who was on medication. He had Diazepam in his system, which treats anxiety and seizures among other things.

A reasonable person could conclude, under some circumstances, deputies would have been justified if they had killed McIntyre right after he struck deputy Jeffrey Wright in the head with a rock. McIntyre, 32 and an East bay resident, was in town visiting family. He was in bad shape. His family feared him. He was acting strangely. Brigett McIntyre, his mother, said he was deeply depressed and suffering from anxiety.

The failure of our mental health system creates dangerous scenarios. Cops like Wright are first responders to people suffering a mental health crisis. Did McIntye hurt Wright? Yes. Did Wright have a reasonable fear for his life in that moment after being struck in the head? Yes. Did McIntyre kill Wright? Thankfully, no.

But McIntyre was killed anyway, despite running away and despite being unarmed. Was this an undeclared execution? Was this street justice by some cops after a colleague had been hit in the head?

“What good is our system of due process when everyone isn’t allowed to utilize it?” Tanya Faison, founder of Black Lives Matter’s Sacramento branch, asked.

People who hit cops pose a greater danger to society, but this guy was outnumbered and out of rocks when his life ended. Schubert’s office brought in a consultant on this case, which I can’t remember her doing before. The consultant, David Blake, is a retired cop.

Schubert’s office didn’t respond to a request for information on why Blake was hired.

Schubert’s report noted that Blake “opined” that it was “reasonable and in line with contemporary police practices” for three deputies shooting at McIntyre – Wright, Ken Becker and Gabriel Rodriguez – to fire 28 shots at McIntyre.

Rodriguez fired 18, some while crossing lanes of Highway 50. Rodriguez told investigators that he kept shooting because he feared McIntyre would cause a collision on the freeway. And Blake found this “reasonable and in line with contemporary police practices.”

OK, but didn’t deputy Rodriguez create hazards by shooting so many rounds on a major regional artery at the end of rush hour? Omitted from Schubert’s was a detail contained in the investigation of the shooting by the Inspector General of Sacramento County.

That report noted that Rodriguez paused firing to let a car go by and then resumed.

Curiously, Schubert’s review makes a few subtle references to how, with 20/20 hindsight, the McIntyre case might have turned out differently if the deputies chasing McIntyre had employed different tactics.

But of course, the DA doesn’t comment on tactics.

Who does? Rick Braziel, the IG. But we all know how that went down. In August, Braziel filed his report and questioned whether deputies needed to kill McIntyre. Sheriff Scott Jones threw a hissy fit and locked Braziel out of his buildings.

That means that Braziel can’t do his job. It means that the series of recommendations that Braziel made to avoid killing someone else next time have been completely disregarded.

Jones says he is not subject to oversight. He made a crack to my colleague Anita Chabria that it’s all good, they haven’t killed anyone on the freeway in more than a year.

Yeah, boy, that’s hilarious. And that is how people lose faith in law enforcement.

A killing happens, cops investigate cops, their partner the DA finds they were lawful, the sheriff thumbs his nose at legitimate questions.

Is the video of the McIntyre shooting available to the public? No. Jones gets to keep it from the public and no one can do anything about that. He still locks Braziel out of his buildings and, on Dec. 4, county supervisors will continue debating what to do next.

Is all of this a reason to despair and give up on the idea of pushing back against a system so stacked in favor of law enforcement?

No way.

The county needs to establish a video policy similar to the city. Videos of fatal shootings by deputies should be released in a timely manner. The McIntyre case might be viewed much differently today if the public could see how he was killed.

The public needs to show up at the Sacramento County Board of Supervisors meeting to demand that Braziel be allowed to do his job as IG.

Legislators in Sacramento, such as Assemblyman Kevin McCarty, need to push for laws that tighten the rules on use of force by cops and open up their service records to public scrutiny.

State Attorney General Xavier Becerra needs to use his authority to make Jones accept the input from the county IG.

Change only happens when good people demand it. And the way fatal police shootings are handled in Calfornia must change now.

Related stories from Sacramento Bee