Lee Deante Brown: The report take three

This week, the Community Police Review Commission will meet to draft its public report on the case of a mentally ill Black man who was shot and killed by a Riverside Police Department officer on April 3. The report is based on the investigation conducted by the CPRC's own investigator, Butch Warnberg.

Lee Deante Brown, 31, died after being shot at the Welcome Inn of America on University Avenue near Ottawa. According to the department, Officer Terry Ellefson had shot Brown twice in the upper body because he had grabbed Ellefson's taser, stood up and lunged towards the officer with it.

In his interview with detectives from the department's officer involved shooting team, Ellefson provided his version of the final seconds leading up to his decision to use lethal force.


(excerpt, Warnberg's report)


"...and as I moved away, the suspect stood--kind of pushed forward and lunged toward directly at me with the taser."


Then this happened.


(excerpt, Warnberg's report)


"...As I was pushing away, I saw that he was bringing the taser towards me. And I drew my duty weapon and fired two shots towards his center body mass."


Officer Michael Paul Stucker had originally responded to 911 calls regarding a man acting strangely while walking through a neighborhood and then down University Avenue until he reached the motel. When Stucker had arrived, Brown had been lying on the pavement in the parking lot talking to himself. As Stucker approached Brown with his taser in his hand, Brown had retreated to an alcove in the motel's western section and leaned against the wall.

Of his actions just before the shooting, Stucker had provided the following account.


(excerpt, Warnberg's report)


"...and I pulled out my expandable baton, extend it and I hit the suspect on the lower part of the leg, below the knee, twice. And as I'm preparing to do it again, I hear two gun shots."



Before that, Stucker had said that he had turned around to face Brown and had seen him squatting or sitting on the ground with his legs in front of him with Ellefson's taser in his hand. Realizing that his taser had not been effective, Stucker had tucked it in his belt in the back and had taken out his baton. And considering that he had been accidentally struck by a probe from Ellefson's taser during deployment and shocked for at least 10 seconds or two taser cycles, it wouldn't be surprising that he would decide that he was done with the device.

Two officers, at least two problematic taser deployments. And within 30 seconds, Brown was lying on the pavement, his heart bleeding out after being perforated by a bullet.

Before that, Ellefson had been behind Brown trying to grab Brown's arm with the handcuff hanging off its wrist, when he said that he realized that his taser had been knocked out of his hand. He said that he could not see where it had landed because Brown's body blocked his view of the area around his feet. Ellefson then saw Brown reach down for the taser and pick it up. He then moved around to where he stood to the right of Stucker, who was as unaware at the time of what Ellefson was doing and where he was, as Ellefson apparently was that Stucker was striking Brown with his baton.

After reading the summaries of the interviews of the officers, it was quite a jolt to actually listen to the audio recording of the incident that was depicted by Stucker's department-issued audio recorder. Although the department's current policy didn't require it, both officers had deployed their recorders before engaging with Brown.

What was surprising about listening to Stucker give oral commands to a man who not only wasn't obeying them but probably didn't understand them, was how Stucker's voice began to change after he had issued the second or third command. The pitch is higher, his words come faster and the volume is louder. At the point when he had deployed his taser, Stucker is clearly no longer in control of the situation and doesn't sound as authoritative as he did when he first encountered Brown. Perhaps it was when he realized that his taser deployments were having no effect on Brown. Perhaps he realized that one of the taser probes had fallen onto the ground, rendering the device useless at a distance.

But then as it turns out Stucker had never actually deployed a taser before that day, apparently not even in training.

The recording depicts a situation that is deteriorating to the point where you are waiting for the shots to be fired. A lot of that is hindsight, but part of it is that there's a realization that the situation is going to end badly. And a lot of the reason why that is, lies with the department's management and the city's in terms of the tools and training it provides for its officers to deal with incidents involving the mentally ill and incapacitated, which on April 3, 2006 wasn't nearly enough. It lies on the public especially its leaders for not strongly advocating that these tools and training be available for police officers.

Several weeks ago, there was a mentally ill man at a city council meeting who for some reason was behaving in a way that was more agitated than he usually did. Someone asked the police officer assigned at the meeting to check on him which he did. Another reason to provide the tools and the training if you assign the officers the task to address the situation.

The audio recording contrasts with the officers’ statements where they talked about the actions they had taken as if reciting them off of a list. Mostly in terms of stating that they tried this, it didn't work and that, it didn't work without the urgency that played a large part of what was heard in the audio recording beginning some time before the shooting.



The transcript taken from Ellefson's belt recording captured statements that he made after the shooting about events that had occurred before it.


(excerpt, Ellefson's belt recording transcript)


"He was at several different locations and uh, (Inaudible). And Stucker was dispatched to the call. When I came up he was in the process of being tased. (Inaudible). Back up and I came into help him. I'm (inaudible)."


Ellefson had shown up in response to an 11-11 issued by Stucker and the timer on his recorder shows that he had activated it about 90 seconds after Stucker had turned on his own device. Before Ellefson's arrival, Stucker had followed Brown into an alcove and then deployed his taser at him after his verbal commands were not obeyed by Brown who at that point was calling for God, his daughter, Mariah and the Aztec warriors. Brown was lying on the ground when Ellefson arrived but after Ellefson had handcuffed one of his wrists, Brown got up.


(excerpt, Stucker's belt recording transcript )


Stucker: Get on the ground. Get on the ground. Get on the ground. (sounds of a taser) Put your hands behind your back. Do it now. Watch that cuff. He's swinging that cuff like a weapon.

Ellefson: I got it.


What wasn't clear by the transcript is at what point Ellefson lost his taser. There's no mention of the taser until after the shooting took place. On Ellefson's recording it came at this point.


(excerpt)


Stucker: Where's your taser?

Ellefson: Over there.




DNA anaylsis revisited


The DNA analysis done on Ellefson's taser yielded at least two donors in what is called a low-level mixture. The two officers who provided DNA samples were excluded from the possible donor pool but Brown was included. In Warnberg's report, he had stated that he didn't know where the DNA samples had come from on the taser.

Evidence technician, Tim Ellis wrote in a supplemental report dated April 7, 2006 that he had swabbed the handle and the frame of Ellefson's taser. However, that report didn't indicate whether the trigger and probes were also swabbed, something that was stated in the new draft of the CPRC's report. Senior Criminalist David D. Wu from the Department of Justice said he would generally see swabs taken from those areas in addition to the ones included in the department's supplemental report.



"Drop the gun."


This alleged statement was apparently not noticed until the use of equipment to enhance the quality of the recording which produced it. Before the briefing that Warnberg gave to the CPRC in November 2006, he had been told by the FBI agent in Los Angeles who had been assigned to investigate the Brown shooting that the statement had been heard on the recording provided by Ellefson's recorder. When he asked the FBI agent where he had received that information, the agent had allegedly told him it was from the police department.

At first, the statement was attributed to Ellefson as proof that he had issued an oral command about the taser and that it had been in Brown's hands before he was shot.

Indeed, in a CPRC report dated Feb, 28, 2007, that statement was attributed to Ellefson in a summary of the belt recording statements but in the official transcript taken from his belt recording that was reviewed and signed by Ellefson on Feb. 27, that statement is attributed to an unknown speaker. It is no longer believed that Ellefson issued that command and there was no mention of it by him or Stucker in their interviews with investigators.

One possible explanation is that it could have been made by a bystander in response to the actions of either Ellefson or Brown.

Trajectory analysis

Warnberg's report included a trajectory analysis conducted by Applied Graphic Sciences in San Diego. Doreen DeAvery performed it using a compilation of measurements from different sources that were used to produce computerized illustrations of three basic scenarios of the possible positions of Brown when he was shot according to witness accounts and the autopsy report conducted by the Riverside County Sheriff-Coroner's office.

Brown was standing, then kneeling: This version was provided by the account of the incident contributed by Ellefson and witness Kenneth Williams.

Brown was squatting: This version was provided by the account of the incident contributed by Stucker

Brown was sitting: This version was provided by five out of six of the witnesses. It was also a possible scenario contributed by Stucker.

At the end of her analysis, DeAvery stated that she believed that based on what was provided, that it was most likely that Brown had been sitting or squatting when he was shot by Ellefson. However, it appeared that the city wasn't very happy with that conclusion so CPRC Manager Mario Lara got on the phone with Warnberg and obtained more information of the analysis results. That he did this was never stated in the revised report, but was revealed after Lara and his boss, Asst. City Manager Tom DeSantis were questioned about the source of the new statements added to the revised report.

The new version of the report contained the statement that due to the variety of arm movements it was very possible that Brown could have been standing when he was shot the first time, in the left arm, but not standing when he was shot the second time, which was in the right side of his chest. That's assuming that a firm conclusion could be reached on exactly which bullet hit Brown first, the fatal one which ultimately lodged in the right ventricle of his heart or the shot that hit his right side. That was not a conclusion the medical examiner was willing to make.

Interestingly enough, it's the picture that has Brown on his feet that has attracted the most attention from the city manager's office and its analyst turned interim manager Lara. It also shows how much things have changed in terms of the relationship between the city manaer's office and the police department in the past year. It's hard to know what to think of Lara because anytime you see him, DeSantis is in close proximity and most of the meeting, DeSantis is either up at the podium "clarifying" what Lara is saying or calling him down for an impromptu conference. But it's becoming more clear that DeSantis and his boss, Brad Hudson are involving themselves in the processes of both the CPRC and the police department when it comes to the issues involved with officer-involved deaths.

A curious development considering how uninvolved Hudson had been in the first major decision concerning an incustody death that occurred on his watch, that being the Summer Lane shooting which came to his office in 2005.

It's interesting that in the illustrations where Brown is standing, Ellefson is standing a short distance away shooting from the hip, in a straight line with no upward or downward motion. Why this is interesting can be determined if you read the transcript from Ellefson's belt recording of the incident.

(excerpt, transcript of Ellefson's belt recording where he and Stucker are talking with an unknown male, possibly a sergeant)

Unidentified Male: Okay. How many rounds?

Stucker: Two down.

Unidentified Male: Two down.

Stucker: Yeah, he (inaudible)

Stucker said in his own statement that he had never seen Ellefson fired his gun but had only heard the shots coming from beside him. In fact, neither Ellefson nor Stucker knew what the other one was doing in the seconds leading up to the shooting. Ellefson did not know that Stucker had his baton out and was hitting Brown with it and Stucker apparently didn't know that Ellefson was about to resort to lethal force. Yet Stucker knew the shots had been fired, two down.

Later in the recording, the issue comes up again between Ellefson, Stucker and an unidentified male voice.

(excerpt)

Unidentified Male: ...And I just want to know how many rounds...

Ellefson: Two.

Unidentified Male: How many rounds did you fire?

Stucker: No rounds.

Ellefson: My trajectory was down.

Given that both officers made statements about the trajectory of the bullets as being down, it would be helpful if the illustration of Brown standing when he had struck by the first bullet reflected that information. Hopefully, the city manager's office can facilitate in that process since it appears that not only has it taken over the CPRC's investigation but the police department's as well. The difference is that those who are on the CPRC are aware that this has happened.



Not much more information was provided by the Press Enterprise about the man who died in the custody of the California Highway Patrol, but he does have a name. He was Mario Alberto Garay, 26. The incident is being investigated by the Riverside County Sheriff's Department and an autopsy has already been conducted.

There was also an article about whether or not Riverside County should create sheriff deputy positions to work traffic control in unincorporated areas of the county, a service that is currently provided by the CHP. But Riverside County's population currently falls short of the 3 million required by the state before county sheriff deputies can be used for traffic control of areas where that jurisdiction falls to the CHP.


(excerpt)


Deputies will cite drivers for flagrant traffic violations such as speeding, red-light running and driving under the influence, but traffic enforcement is not a day-to-day priority, Riverside County Sheriff Bob Doyle said.

"Our issue has everything to do with going from a rural to an urbanized county," Doyle said. "We are not looking to take over the CHP's mission, but we want to assist our citizens. We have schools popping up everywhere and traffic problems popping up everywhere."

State law allows counties with populations of more than 3 million to authorize and use money from their general funds to reimburse their sheriffs' departments for enforcing traffic laws on county roads.

But Riverside County falls short of that mark, with 2 million residents, more than a quarter of whom live in unincorporated communities. Some, such as Jurupa Valley, Eastvale, Menifee and Thousand Palms, are densely packed with people and cars.

Eugene, Oregon will have its civilian review board according to an article published in the Eugene Register-Guard. Five members have just been appointed to serve on it.

Two of its members were approved without controversy. That wasn't the case for the remaining three and questions were raised about the screening process.


(excerpt)


"The screening committee created a lack of transparency," Councilor Jennifer Solomon said, adding that she would have preferred that the council review all 39 applications.

The review committee "got too political," north Eugene Councilor Mike Clark said.

But Councilor Betty Taylor heralded the screening committee as unbiased.

"I trust the committee," she said, "because I know they spent many hours to go over each of those applicants, more time than we would have been able to."


The commission arose from a community outcry after the arrests of several Eugene Police Department officers and other serious problems in the department.