In absence of criminal charges, family seeks alternative forms of justice for Andrew Brown Jr. – WUNC

As the anniversary of Andrew Brown Jr.s death in Elizabeth City nears, many who called for justice say that until now, they have seen little in the way of transparency or reform. But two lawsuits moving through the courts and a federal investigation might yet offer them hope.

Pasquotank County sheriff's deputies killed the 42-year-old Black man while attempting to carry out drug-related search and arrest warrants against him on April 21, 2021. It quickly became one of the highest-profile police shootings in North Carolina, and received national attention.

Activists demanded justice. They wanted the deputies, who fired a collective 14 shots at Brown's vehicle, to be held accountable.

One month after the shooting, District Attorney Andrew Womble announced he would not press charges against any of the deputies involved in the shooting. He said the officers acted properly because they reasonably feared for their safety. He said Brown used his vehicle, "as a deadly weapon," and that therefore the shooting was "justified."

After that, news coverage from major national outlets largely faded. But the decision to not press charges against the deputies closed only one chapter, not the book.

Brown's family has filed a civil lawsuit against the sheriff and deputies seeking $30 million in compensation, and has kept mostly out of the press. A federal civil rights investigation is ongoing, and a media coalition is seeking the full release of body camera footage, which could shed more light on the events from that morning.

Lawsuits quietly move forward

Browns family lawsuit claims he died because of officers' "intentional, malicious and reckless disregard of his life. Defendants include Pasquotank County Sheriff Tommy Wooten II and several law enforcement officers. For nine months, that case filed by Brown's paternal aunt, Lillie Brown Clark, who is the administrator for his estate has been moving through the court with little public fanfare or attention.

In the fall, attorneys for the family were able to view the full State Bureau of Investigation report for the first time. These reports are not public records in North Carolina, but they contain some of the most exhaustive details in these kinds of investigations, including much sought after law enforcement body camera footage in this case.

In October, the Brown family amended the complaint, now alleging that one of the defendants, Investigator Daniel Meads, concealed to the SBI that he altered his weapon while inside of Browns house." Since then, there's been a clash over whether the full SBI report should be released to Brown's family and lawyers, and whether they should be able to speak with news media about the contents of the file especially parts of the file they allege are public record. Lawyers for the family claim that these restrictions amount to a "gag order."

But even as the parties in the lawsuit debate over issues of transparency, theres no clear indication that the public will ever see the footage. The involved parties are now scheduled for a court-hosted settlement conference in May. The case is set for mediation track, Brown family attorney Harry Daniels confirms, and lawyers on both sides have an obligation to come to the table, whether or not they intend to reach a court-mediated settlement.

Many federal civil rights lawsuits around high-profile police shootings of Black and Brown people in the country have indeed ended in settlements that often include money but specify there was no admission of guilt. Some end up in court where a jury can award massive settlements that are whittled down on appeal.

The family of George Floyd, who was killed in Minneapolis police custody on May 25, 2020, agreed to a $27 million settlement in March. In September 2020, the city of Louisville, Kentucky, agreed to pay Breonna Taylor's family $12 million and reform police practices.

There has already been some reform in Pasquotank County. A new Community Advisory Council will review citizen complaints and take part in hiring decisions, though it will not have disciplinary authority. County leaders say they hope to install more de-escalation training as well.

Media coalition fights for footage

Alongside the family lawsuit, another legal effort continues. A coalition of media outlets, including WUNC, is pushing for the full release of body camera footage captured the day Brown was killed.

The media coalitions lawyer Mike Tadych argued in an amended petition that because District Attorney Womble did not bring charges against the officers involved, all video should be released. There would be no trial, and therefore no jury to prejudice. Sheriff Wooten himself has also called for the release of his officers body camera footage to the general public. Under North Carolina law, only a court may order the release of video. Wooten did not respond to multiple interview requests made by WUNC.

Tadych says the media lawsuit process has come with unexpected turns.

It is drawn out, says Tadych. The delay in a written ruling was an outlier. And then the delay in the court revisiting the renewal of our petition after the district attorney announced that no charges would be filed in playing portions of the recordings we were after at his press conference, and all of that is unprecedented.

The case now heads to an appeals court, and Tadych says opening brief deadlines are expected to come up in early May.

Meanwhile, as these two court cases continue, a federal civil rights investigation into Browns death is still ongoing, FBI Public Affairs Specialist Shelley Lynch from the Charlotte Field Office confirms.

DA who determined killing was 'justified' runs for judgeship

With local municipal, sheriff, and judicial elections, residents in Elizabeth City and surrounding Pasquotank County will soon have their first say since the shooting on who should lead them. And Browns death hangs over elections at every level.

Womble, the district attorney who determined not to charge officers in Browns killing, is now running for a more powerful judicial role: superior court judge in the 1st Judicial District. As he carries out his campaign, experts and local activists have raised questions around his legal rationale for determining that Brown used his car as a deadly weapon, and his decision not to charge involved officers. Womble did not respond to multiple requests from WUNC for an interview.

At the May 18 press conference in which he announced he would not bring charges, Womble said the deputies needed to carry out their orders.

The law enforcement officers were duty bound to stand their ground, carry through on the performance of their duties and take Andrew Brown into custody, he said. They could not simply let him go, as has been suggested.

However thats exactly what the United States Supreme Court ruled in the landmark Tennessee vs. Garner decision in 1985. In that ruling, the court determined that it violates the Fourth Amendment if police kill a fleeing suspect while trying to make an arrest. Some legal experts say this standard should have applied in the Brown case.

"I don't think District Attorney Womble got it right," said Shawn Fields, who teaches criminal law at the Campbell University School of Law. "The Fourth Amendment protects us from unreasonable seizures including excessive force from police officers.

Importantly, that protection has limits, notably that if the arresting officers believe the fleeing suspect poses a safety threat to them or others, that Fourth Amendment protection no longer applies. Its on this point where opinions about the events of that morning diverge widely. Womble asserts that Brown did, in fact, pose a threat to officers, while activists say he was trying only to flee.

I find that the facts of this case clearly illustrate the officers who used deadly force on Andrew Brown Jr. did so reasonably and only when a violent felon used a deadly weapon to place their lives in danger, Womble said at the press conference.

At other times in his press conference, Womble emphasized that Brown was attempting to flee.

When the officers approached Brown with their guns drawn, his response was to maneuver his car and flee, Womble said. Brown was undeterred by the officers yelling for him to, Stop! Show me your hands! Or by deputy (Joel) Lunsford attempting to open the driver's door.

Activists say Brown was indeed fleeing the scene and did not pose a danger to officers. Some legal experts, like Fields, agree.

Based on the facts that I saw, Mr. Brown was not using his car as a deadly weapon," said Fields.

Officers firing at moving vehicles

Pasquotank DA Andrew Womble

Wombles decision not to charge officers has raised questions from activists and legal experts.

"I don't care what direction you're going: forward, backward, sideways. I don't care if you're stationary, and neither do our courts and our case law," said Womble in that same May press conference.

One of the primary cases that involves officers shooting into vehicles is Plumhoff v. Rickard, which Womble cited in that press conference. The U.S. Supreme Court in 2014 held that use of deadly force by police officers in that case was not unreasonable given the threat to public safety.

However, the fact-pattern in that case is significantly different from what took place in Elizabeth City on April 21. In the Supreme Court case, Donald Rickard led police on a chase with speeds that exceeded 100 mph. After the chase, Rickard at one point came to a stop with police thinking they had barricaded his car. He escaped and attempted to speed away, and it was only then that police fired at his vehicle. The Supreme Court justices go to great length to emphasize the high-speed nature of that case.

"Rickards outrageously reckless drivingwhich lasted more than five minutes, exceeded 100 miles per hour, and included the passing of more than two dozen other motoristsposed a grave public safety risk, and the record conclusively disproves that the chase was over when Rickards car came to a temporary standstill and officers began shooting," according to the Supreme Court opinion. "Under the circumstances when the shots were fired, all that a reasonable officer could have concluded from Rickards conduct was that he was intent on resuming his flight, which would again pose a threat to others on the road."

In Elizabeth City, Brown's vehicle never traveled faster than even a few miles per hour, let alone speeds exceeding 100 mph, and the entire scene was over in a matter of seconds, not several minutes.

During his press conference, Womble argued that speed did not play a role in his decision, arguing that Brown could have sped up, and therefore the car could potentially become a dangerous weapon.

"The speed at which the car was moving? Not relevant in my determination," Womble said.

But Fields, the Campbell Law professor, argued that line of thinking could be true about nearly anything, including a gun, baseball bat, or even a person's fists. By that logic, argued Fields, the mere presence of a bat, or even the fact that a person has hands, could put that person potentially in possession of a dangerous weapon.

This point is exacerbated by the officers knowledge that Brown was not known to carry a gun. The sheriff's own documentation for the arrest said that Brown likely was not carrying a gun, and no firearm was found in his vehicle.

Researchers like John Gross, who wrote in the University of Pennsylvania Law Review, have called on law enforcement to stop the practice of shooting at cars completely. He argued that by firing into vehicles, it can turn a manned vehicle into an "unguided missile" if the driver is struck by a bullet and incapacitated.

The Pasquotank Sheriff's policy manual explicitly addresses moving vehicles in its policy manual:

"Shots fired at or from a moving vehicle involve additional considerations and risks, and are rarely effective. When feasible, deputies should take reasonable steps to move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants."

In the days following Browns death, Pasquotank County Sheriff Tommy Wooten said that SWAT team officers with his office would receive further training.

The Associated Press contributed to this report.

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In absence of criminal charges, family seeks alternative forms of justice for Andrew Brown Jr. - WUNC