Lee Deante Brown: The final briefing, part two

On Feb. 28, an investigator briefed the Community Police Review Commission in Riverside about his investigation into the fatal officer-involved shooting of Lee Deante Brown which happened at the Welcome Inn of America on April 3, 2006.

Commissioners listened carefully as Butch Warnberg of the Baker Street Group in San Diego outlined his investigation over a 90 minute period. Unlike his previous briefings involving the shooting of Terry Argow and the incustody death of Terry Rabb not to mention Brown, Warnberg appeared more tentative and particularly cautious about offering any form of analysis of the factual evidence he was presenting.

In recent months, the power of the CPRC to investigate officer-involved deaths has been under much scrutiny by the police department, the city manager's office, the Riverside County District Attorney's office and the city attorney's office. Before the investigation into the fatal shooting of Brown, none of these agencies paid much attention to what the CPRC was doing, nor did any of their representatives attend any of its meetings discussing incustody deaths except for a designated liaison between the police department chief's office and the CPRC.

The lone exception was during the CPRC's investigation into the Summer Marie Lane shooting in 2005. That autumn, representatives from the police department's internal affairs division began attending the meetings. Several weeks after that, the commission voted unanimously that this shooting had violated the department's use of force policy.

Representatives from all these agencies sat in the meeting which attracted attention from both commissioners and community members who sat in the audience. Their attendance simply affirmed that the Brown shooting case is different than all the rest of the cases which have preceded it.

The briefing presented by Warnberg pointed out some of the reasons why.


According to the narrative, the incident began at about 1:26 p.m. when the police department received the first of at least six complaints from city residents who said that engaging in bizarre behavior including jumping on cars, lying in the street, kissing the pavement and removing his clothes.

At 1:52 p.m. Michael Paul Stucker had been driving on University Avenue by the motel when he was flagged down by witness and motel resident Kenneth Williams. Williams told Stucker that he believed Brown was on "water", a name for PCP. Stucker requested backup officers and walked towards Brown who was lying on the pavement in the parking lot of the motel. When Brown saw Stucker, he retreated to the corner of the building and went into an alcove. Stucker removed his M26 taser from his car and walked towards the direction Brown had gone.

When Stucker encountered Brown, he pointed his taser at Brown and issued verbal commands at Brown who was yelling about Jesus, the devil and his daughter, Mariah. When Brown stepped towards Stucker, the officer deployed his taser. Brown fell on the ground, but one of the taser probes had fallen off onto the ground.

At 1:55, Officer Terry Ellefson arrived at the motel and walked towards Brown, who was on the ground. Ellefson told Stucker to turn his taser off so he could handcuff Brown. Ellefson got one handcuff on Brown's wrist but then Brown pushed Ellefson off of his back and got off the ground.


Stucker then pulled his spent cartridge off of his taser and tried to contact stun Brown. Brown grabbed Stucker's arm and at that point, Ellefson tried to deploy his own X26 taser. One probe apparently hit Brown, and the other hit Stucker, who felt an electric shock move through both arms. Stucker turned away to address that issue, his back to both Brown and Ellefson. He pulled the taser probe out of his finger on his left hand and then put his own taser away. When he turned around, he saw Brown squatting or sitting on the ground with the taser in his hands. Ellefson had lost it during the struggle with Brown.

Ellefson stated that he had seen Brown reach down near his feet to grab the taser before standing up and lunging towards Ellefson with the taser in his hands. Ellefson fired two shots from the hip, striking Brown.

Stucker stated that he had pulled out his expandable baton, extended it and hit Brown twice on the left shin area as he squatted or sat with the taser in his hands. As Stucker was preparing to deliver a third strike, he heard the gunshots.

Five of the six civilian witnesses said that Brown was sitting when he was shot and Williams said he was standing. All six witnesses said they didn't see anything in his hands when he was shot.



"So many conflicting statements from the civilian witnesses. From the officers," Warnberg said, "The question is what position was Brown in when he was shot."



The only possible answer Warnberg could provide came from an analysis of three possible scenarios of the shooting, which were if Brown had been standing, squatting or sitting.

According to Doreen DeAvery of Applied Graphic Science, she believed that based on the trajectory of the two bullets that Brown had either been squatting or sitting when he was shot. Ellefson and Williams were the only people present who said that Brown had been standing, according to Warnberg's report.


Both officers had activated their department issued digital audiorecorders at the time of the incident, even though the current department policy did not require them to do so.



"Get on the ground. (Sounds of taser) Put your hands behind your back. Do it now."

---Officer Michael Paul Stucker, according to his belt recording transcript



Warnberg played a portion of the recording taken from Stucker's recording for the commissioners. The recording began when Stucker was issuing orders to Brown to put his hands on the wall, just before he discharged his taser from 10 feet away. After being tased, Brown said, "okay" when asked to put his hands on the wall and turn around. Stucker orders him to get on the ground. At first his voice was even, but further in the recording, it became louder and higher pitched. In portions, what sounded like fear appeared in his voice while he was issuing orders.

When Ellefson arrives, he's also giving commands to Brown before he discharges his own taser. Both officers continue to issue commands, while Brown shouts for one of his daughters.

The last command made by Ellefson on Stucker's recording is, for Brown to put his hands behind his back. His words are followed by two gunshots in quick succession. Ellefson's own recording ended differently, with an unidentified speaker saying, "drop the gun". Warnberg did not address that issue in his presentation until prompted by a question from Commissioner Jim Ward, who was confused by the statement because neither officer had ever called the taser a gun and neither officer had mentioned that they had made this statement in their interviews with investigators.

Afterwards, Ellefson is asked where Brown was shot and he said in the chest and lower abdomen.


(excerpt, transcript from Ellefson's belt recording)


Unidentified Male: ...Are you okay, man?

Ellefson: Yeah, I'm good.

Unidentified Male: Which way?

Ellefson: He came up with the taser and touched me as I backed up.

Unidentifed male: Okay. How many rounds?

Stucker: Two down.

Unidentified male: Two down.



Both officers discharged their tasers but neither had appeared to impact Brown in any way. Stucker had discharged his taser first, but at some point before Ellefson arrived, one of the probes that had struck Brown had fallen on the ground. When Ellefson arrived, he told Stucker to turn off the taser so he could handcuff Brown without getting shocked. When Stucker disengaged his taser, Ellefson had just handcuffed one of Brown's wrists before Brown flung him off of his back, according to Ellefson's statement.

Both Taser International, Inc. and the expert retained by Warnberg advised that one officer should have tased Brown and then the officer should handcuff and restrain Brown while he is incapacitated during the taser cycle. The material provided by Taser International, Inc. which is utilized by the police department to train its own officers calls this the "window of opportunity", with the first tasing being for behavioral change, the second for apprehension.

Marc Fox of the San Diego Regional Law Enforcement Training Academy stated in Warnberg's written report that one officer should apply the taser and one or more should handcuff the individual while the taser is being cycled. However, if one of the probes which had struck Brown had fallen on the ground before Ellefson's arrival, it's not likely that the taser would be effectively cycled again.

Ellefson's taser was not effectively discharged in that one probe had struck Brown, the other had struck Stucker's left hand and lodged into one of his fingers. Stucker experienced enough shock to affect both of his arms, and it's not clear whether or not the electric shock from the tasing had any effect on Brown, but it did not appear to, according to the officers.

Both officers attempted to do contact stuns, which is a means of "pain compliance" rather than a means to incapacitate an individual. Stucker attempted one contact stun with his taser but at the time he tried to deploy it, he had been struck by the errant probe from Ellefson's taser.

Ellefson tased Brown twice, after removing the cartridge from his taser, according to his statement but neither tasting appeared to have any effect. The data downloaded from his taser showed seven cycles in all. The last four recorded occurred within a 28 second period. All of them occurred within 47 seconds.

Williams had said that Brown was on PCP that day and that was why he was acting strangely. Several motel residents said he appeared to be a "51-50" or mentally ill. However, Brown's toxicology tests which were conducted by Bi-Tox Laboratories showed that while he had marijuana byproducts in his system, there was no methamphetamine , PCP or other drugs detected.

According to interviews conducted by Brown's fiancee, he had been diagnosed with paranoia scitzophrenia. He had been prescribed medication to treat this condition but it wasn't clear if he had been taking it regularly. He also had used marijuana and methamphetamine in the past.


Several of the commissioners had questions after the presentation, mostly based on what position Brown had been when he was shot and where he was pointing the taser.



"I don't know where he was pointing it," Warnberg said.



Warnberg said that during Ellefson's interview with the department's investigators he had told them that Stucker had kicked the taser away from Brown after the shooting. Stucker had said in his interview that he hadn't seen the taser after the shooting but that he believed it had been located in Brown's hands which were tucked underneath his body while he'd been lying on his stomach. So much so that he warned both Ellefson and medical personnel about it when they arrived on the scene. The taser was eventually recovered about 20 feet away from Brown's body.


"It was found 20 feet away," Warnberg said, "How it ended up there, we're not certain."



On Ellefson's belt recording, Stucker at one point had asked about the taser approximately four minutes after the shooting, just before the medical personnel were entering the parking lot of the motel.



Stucker: Where's your taser?

Ellefson: Right there.



The CPRC will be drafting its public report next month and will hold further discussions on that process at future meetings. Then it will review the administrative review done by the department before going behind closed doors to render its own finding on whether or not the shooting violated the department's policy.

By this time, the CPRC would have brought in its two new members, Steve Simpson and Peter Hubbard and lost two other members, Bob Garcia who termed out and Bonavita Quinto who declined to be reappointed.




The state court of appeals affirmed a Riverside County Superior Court judge's decision to dismiss two misdemeanor cases earlier this year, according to this article in the Press Enterprise.

In January, Judge Gary Tranbarger dismissed the two cases because he could not assign them a courtroom for trial before the deadline came to dismiss them. The Riverside County District Attorney's office appealed that decision but lost in a higher court. It plans to look into its options to appeal the case.

At the time of the hearing, all of the criminal and civil courtrooms were currently busy hearing criminal trials. There have been no civil trials in several months.

The judges are holding firm behind Tranbarger who supervises the criminal courts.


(excerpt)


When it came to using family law, probate and other courts, Tranbarger also refused, "Because if we go down that road, it is apparently never ending," he said during the January hearing.


As this situation appears to indeed be "never ending", stay tuned for future updates.