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The Mansfield News Journal
Kaitlin Durbin , Reporter
Dec 27, 2014
Sources indicate sheriff’s deputies’ actions may have escalated incident
MANSFIELD – The grand jury’s review of the shooting death of Brian Garber had one purpose: to determine if Richland County Sheriff deputies were criminally culpable for his death.
Garber, 28, was shot and killed by deputies March 16, following a domestic violence incident at his home.
A grand jury cleared Sgt. James Nicholson and Deputies Jeff Frazier and Andrew Knee of criminal wrongdoing, but should that absolve them of all disciplinary action?
(Photo: Lisa Bernheim/News Journal)
Not according to Tim Dimoff, a former Akron police officer with 20 years of experience, including SWAT, a federal task force and undercover work. Dimoff is the founder of SACS Consulting Inc., specializing in law enforcement procedures and crime.
He has analyzed situations across the world and been quoted by The Chicago Tribune, The New York Times, The Washington Post, The Wall Street Journal,MSNBC, CNN, “60 Minutes Australia” and BBC World News London.
Dimoff was not familiar with the shooting before the News Journal contacted him for analysis. From the material presented, Dimoff said it’s clear that all sheriff’s deputies should receive more training in up-close encounters. He also said Frazier’s actions merit internal discipline.
His assessment also is supported by the sheriff office’s General Order Standard Operating Procedure manual, which guides deputies’ actions before and after an incident, and the prosecutor offices’ summary, which said Frazier acted “unwisely.”
Among Dimoff’s chief concerns is how sheriff’s officers handled a non-hostage situation, why deputies placed themselves at more risk than necessary and why deputies weren’t required to give a statement until eight months after the shooting.
When officers confronted Brian Garber in his parents’ home on Mill Run Road, they knew several facts: Brian was believed to be armed, he had physically assaulted his wife and mother an hour before, he was believed to be on a medication family said made him mean, he was threatening through text messages to kill his wife, and his father was the only other person in the home, downstairs in the kitchen.
With those factors in mind, there was no reason for deputies to rush up the stairs to confront Brian in his room, Dimoff said.
“In that situation, when you approach somebody and there’s no hostages and you think he might have a gun, basic protocol is you don’t go and get near that individual,” Dimoff said. “You don’t decrease your distance, and in that situation you should not be in the room and/or near or approaching the subject until you have full view of his hands, you start to get cooperation and you see that the individual is starting to do things that you’re asking.”
“As the finding of the grand jury has shown, our deputies relied on their training and acted appropriately.”
Sheriff Steve Sheldon
The Richland County Sheriff’s Office has been mum on the subject, and deputies did not explain their procedure in their written statements.
At a news conference following the announcement the grand jury would not indict the deputies, Sheriff Steve Sheldon said, “As the finding of the grand jury has shown, our deputies relied on their training and acted appropriately.”
Requests for follow-up interviews were denied. Attorney Dan Downey, representing the sheriff’s office, said in an email the office would not comment further.
Three deputies involved in the shooting death of Brian Garber gave conflicting statements about what happened in the room that led them to fire. This video walks readers through their 95-second encounter. By Kaitlin Durbin and Lisa Bernheim/News Journal
Rushing the room
Deputies did not follow training protocol, according to their policy manual and Dimoff.
All three officers involved in the shooting were aware of Brian’s strained mental state. Knee and Lt. Donald Zehner had talked to Garber’s wife, Sara Knowlton, and mother, Connie Garber, following the domestic violence call an hour earlier.
Frazier and Nicholson had searched for Brian around the home when he fled.
At the time, Sara and Connie repeatedly told deputies they believed Brian was using Klonopin, a drug they said altered his behavior, and they needed help getting him off the medication. Connie said deputies told them the only way they would help Brian is if she and Sara signed domestic violence charges against him.
The two disputed filing charges for several minutes, but eventually conceded. None of the officers noted in their statements Sara and Connie were reluctant to sign the packet.
(Photo: Lisa Bernheim/News Journal)
Yet, when deputies returned to the area a second time after a report that Brian was armed, the dispatch timeline shows they immediately rushed upstairs and confronted Brian, who was sitting on his old bed, alone.
“In this case they had knowledge that the subject was on some kind of drugs, medication,” Dimoff said. “Well, with that information plus no hostage, you should be incorporating an at-a-distance type of negotiation and you should not be doing anything that could escalate the fears, pressure or confusion of the individual.”
In situations involving drugs, alcohol or mental illness, Dimoff said, getting closer to the subject can exacerbate their emotions, adrenaline and fears. It can escalate the situation and prompt more violent behavior.
Police are trained to limit their movements so as not to spook subjects, Dimoff said.
“When you don’t have hostages, the one thing you have is time, and you can utilize a lot more tools, such as family members, keeping your distance, protection, cover,” Dimoff said. “There’s no rush.”
Because Sara and Connie had signed domestic violence packets against Brian, deputies were required to remove him from the home, their policy on domestic violence mandates. But other factors stipulate how that action should be carried out.
Deputies believed Brian was on medication, he had displayed violence his family called out of character and was thought to be armed, all indicators he may not be acting in his right mental state. Based on sheriff’s policy, Brian could have been considered mentally ill, defined as a person “whose mental capacity is obviously impaired, whom it is probable represents an immediate or substantial risk of causing physical harm to themselves of others.”
(Photo: Lisa Bernheim/News Journal)
In recent years, law enforcement’s definition of mental illness has grown to include the spectrum of mental health disorders, based on National Alliance on Mental Illness training officers receive on how to handle subjects going through a crisis.
When dealing with a mentally unstable subject, deputy behavior typically changes.
All remedies listed in the sheriff’s policy recommend involving the family, physician or OhioHealth MedCentral Mansfield Hospital experts, none of whom were consulted during the incident. The policy does not address a mentally ill subject believed to be armed.
Frazier and Nicholson had completed the Crisis Intervention Team training in recent years. Knee, who had been a deputy one month at the time, had not completed the training, and was not included in the 2014 class in November, NAMI records show.
Sheriff’s Maj. Joe Masi said previously the policy manual is a guideline for behavior, but ultimately it’s up to the shift supervisor to determine the proper course of action.
“We make the determination based on the facts given to us,” Masi previously said. “Every situation is different.”
“Generalized anxiety disorder, major depressive disorder, recurrent mild without psychotic features, history of chronic disorder, history of oppositional defiant disorder (ODD), history of alcohol abuse, history of nicotine dependence in full remission.”
Dr. Michael Saribalas
In subsequent investigations, it was discovered Brian likely was suffering from a mental illness, depression.
Brian had been seeing a Columbus doctor since 2011 and had been prescribed Klonopin, Lamictal and Zoloft at different times throughout his care. His last appointment was three days before the shooting.
In a report detailing Dr. Michael Saribalas’ impressions of Brian, Saribalas wrote: “Generalized anxiety disorder, major depressive disorder, recurrent mild without psychotic features, history of chronic disorder, history of oppositional defiant disorder (ODD), history of alcohol abuse, history of nicotine dependence in full remission.”
None of that information would have been available to officers at the time of the shooting, but there was enough evidence of a mental health concern they should have treated Brian more cautiously, like a known mentally ill subject, Dimoff said.
The officers going up to Brian’s room and Frazier stepping inside, directly in front of Brian, could have escalated the problem, Dimoff said. In Frazier’s written statement, he said after he stepped inside the room Brian immediately said he had a gun. Brian also reportedly told deputies to “shoot him” and “kill him.”
“You had an officer going into a room that didn’t need to, and it’s like a domino effect, it caused more problems,” Dimoff said.
Not only could deputies have aggravated the situation with their quick response, it also put them at more risk than necessary.
When dealing with a subject who may be armed, officers are trained to take cover and protect themselves, not confront the subject in the open, Dimoff said.
When deputies accosted Brian in his room, they were “completely exposed” to the threat, as Frazier described it in his statement.
(Photo: Lisa Bernheim/News Journal)
Specifically, Cuyahoga County prosecutors disagreed with Frazier’s actions, writing in their report he “unwisely put himself directly in the line of fire with no tactical cover.”
Before deputies entered the room, Brian was a threat only to himself. His mother, wife and two children were across the street and his father was in the kitchen in police care. Why did deputies needlessly put themselves in harm’s way?
“The decision to go and see what’s going on or where (a subject is) at, that is not a bad decision, it’s actually an action that the police are paid and supposed to do — locate the subject, assess the situation,” Dimoff said. “But you can locate the subject and you can assess the situation from a distance.
“What’s the function of going in the bedroom and putting yourself in harm’s way and increasing the stress level? Why not back down, protect yourself, talk to him from down the hall … ?
“The bottom line is, you don’t go into a room just because you’re a police officer and you have a badge,” Dimoff said.
Another deviation from policy that Dimoff said shocked him was the lapse in time between the shooting and when officers described the events.
According to prosecutor records, the first and only formal descriptions deputies gave about the shooting were written statements submitted Nov. 4, 5 and 6, the week before the grand jury and eight months after the shooting.
All other witnesses in the March 16 incident on Mill Run Road provided statements within days after. Many of them were interviewed repeatedly over the course of the investigation.
“The officers should have been assisted, guided, commanded to write a report within 24 hours,” Dimoff said. “You have a death. Relaxing a little bit and not (writing a report) immediately is good because it gives your brain time to settle down …, but if you ask me what color tie I had on a week ago I’d have a hard time telling you. If you asked me what color tie I had on eight months ago, I wouldn’t even know how to begin.”
(Photo: Lisa Bernheim/News Journal)
The first time the state Bureau of Criminal Investigation approached the deputies for a statement was March 21, their records show. All three declined.
That’s not unusual, if deputies sought legal counsel, Dimoff said. Their lawyers may have instructed them to wait until they could review the statement.
Sheriff’s attorney Dan Downey would not comment on whether that instruction was given.
By September, officers still had not provided a statement, according to BCI’s report.
“In this case, the investigators did not have the benefit of statements made by the deputies who discharged their weapons; therefore, without knowing exactly what transpired during the encounter, it becomes difficult to provide facts to support what another ‘reasonable’ officer would do in the same circumstance — since we don’t know the totality of the facts and circumstances,” BCI concluded in its report.
BCI spokeswoman Jill Del Greco said the agency cannot force witnesses to give a statement. But in the majority of cases, officers do comply, she said.
As a comparison, the two Mansfield police officers who shot and killed wanted Norwalk man Shane Lambert in late September have given statements to BCI, Mansfield police Chief Ken Coontz confirmed.
Eventually, all three sheriff’s deputies did provide written statements. The week before grand jury, two of them also agreed to be interviewed by BCI, Del Greco confirmed. Privacy laws restrict her from identifying which two officers were interviewed, she said.
But Dimoff maintains those shouldn’t have been officers’ only statements, per standard law enforcement policy. That notion also is supported by the sheriff’s standard operating procedures.
“Any use of force employed by a employee, whether injuries are evident or alleged, shall be documented in a written ‘Use of Force’ report … prior to the employee going off duty.”
General Order Standard Operating Procedure manual Section 11.5: Use of Force Reports
Section 11.5: Use of Force Reports states, “Any use of force employed by a employee, whether injuries are evident or alleged, shall be documented in a written ‘Use of Force’ report.” And those reports should be submitted to the employee’s supervisor “prior to the employee going off duty.”
The reports are then used for an internal review.
The News Journal’s April request for those reports was denied. They didn’t exist, according to Masi. If any such reports were submitted later, they were not included in the records turned over by prosecutors.
“This case did not follow all the normal protocol,” Dimoff said. “I’m not saying someone’s wrong because they didn’t (follow protocol), but holding back reports … the department has a right to a report from its employee on what happened.
“There were definitely protocols that could have been followed, should have been.”
Based on the facts of the shooting — Brian said he had a gun and reportedly held an object resembling the shape of a Glock under his shirt — Dimoff agreed with the grand jury the shooting did not warrant criminal charges.
But he said deputies’ disregard for policy and quick action in a situation that didn’t call for it should be grounds for disciplinary action. Frazier’s actions merit the most scrutiny, Dimoff said.
All three deputies had reason to believe Brian had a gun, so when Frazier fired his weapon, Nicholson and Knee likely concluded either Brian was shooting at their partner or their partner saw a perceived threat and was shooting at Brian. Either scenario is grounds for them to fire their own weapons, Dimoff said.
“Those two guys clearly acted on very acceptable protocol,” Dimoff said.
What prompted Frazier’s fire is unclear.
Frazier said Brian pulled the object from under his shirt and extended it toward him. Neither Nicholson or Knee saw those movements, according to their statements.
“… under the stress of being too damn close to the subject, which he shouldn’t have been that close, he shouldn’t have been in the room, panicked, knee-jerk reaction, accidentally discharged his firearm, he thought he’d been shot at, the other two thought he’d been shot at, all three returned fire and unfortunately this guy is dead.”
“(Frazier), under the stress of being too damn close to the subject, which he shouldn’t have been that close, he shouldn’t have been in the room, panicked, knee-jerk reaction, accidentally discharged his firearm, he thought he’d been shot at, the other two thought he’d been shot at, all three returned fire and unfortunately this guy is dead,” Dimoff said.
“So did the police intentionally shoot (Brian)? No, this is basically a negligent type of shooting where an accidental discharge caused a rash of additional reactions,” Dimoff said.
During the criminal investigation, Cuyahoga County prosecutors said it wasn’t their place to question the split-second decisions deputies made in a tense situation. Their only aim was to review the case for criminal charges.
“With the benefit of hindsight, it is possible that this incident could have been handled differently,” the prosecutors’ report said. “Evidence firmly demonstrates that these deputies had an objectively reasonable belief … that Brian Garber had a gun and was an imminent threat to the lives of each deputy.”
Dimoff believes similar problems with lack of training are the root of police-involved shootings in Ferguson, Missouri, and in Cleveland.
Dimoff expects the combined police-involved shootings to prompt a “greater need, demand and probably mandate for police officers to have some kind of close-encounter, aggressive situation training.”
Sheldon has not indicated whether the office plans to provide additional training, but if an officer is found guilty of negligence, the manual dictates training be provided.
“If an investigation concludes that a discharge of a firearm was the result of negligence, the employee may be required to undergo re-qualifications, familiarization, certification retraining, and may be subject to disciplinary action,” according to the sheriff’s policy manual.
Disciplinary action is largely contingent on the results of a wrongful death lawsuit Knowlton said she will launch against deputies. As of this publication, no complaint has been filed.
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