Why a North Carolina district attorney is not prosecuting the Andrew Brown Jr. killing

On Tuesday morning, District Attorney Andrew Womble said the fatal shooting of Andrew Brown Jr. by Pasquotank County sheriff’s deputies was justified. He held a press conference explaining his decision, outlining his understanding of the law, and he played four video clips from the body-worn cameras of officers at the scene.

How did he come to his conclusion?

Womble came to his conclusion after reviewing evidence and considering the standard for judging the uses of force by police officers. Womble said that courts have held that officers can use deadly force to protect against deadly force from someone they’re trying to arrest, or to take custody of someone who presents “an imminent threat of death or serious injury to others unless apprehended immediately.”

Womble said his review of the evidence, based on state law and Supreme Court rulings, didn’t allow him to use “2020 vision of hindsight.” The review “must make allowance for the fact that police officers are often forced to make split-second judgment in circumstances that are tense, uncertain and rapidly evolving.”

“When weighing the degree of force used, a prosecutor must pay careful attention to the facts and circumstances of each particular case including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,” Womble said. “I find 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.”

Family attorneys Ben Crump, Bakari Sellers, Harry Daniels and Chantel Cherry-Lassiter issued a statement Tuesday saying the DA tried to “whitewash” the April 21 killing in Elizabeth City, North Carolina.

“To say this shooting was justified, despite the known facts, is both an insult and a slap in the face to Andrew’s family, the Elizabeth City community, and to rational people everywhere,” they said.

The FBI has separately announced a federal civil rights investigation.

What does the video show?

The video shows officers approaching a car while they’re in the back of a pickup truck. The officers approach the car on foot. After the vehicle reverses, officers who are still on foot surround the car, and at least one moves from the path of the car as it starts moving toward the officer. The first person to fire on the car, according to Womble, was a sergeant who fired one round through the front windshield. Others fire shots as the vehicle is traveling away from the officers on foot, across a yard, toward two police vehicles, according to Womble.

The sheriff’s office has at least six videos that media organizations have petitioned a court in North Carolina to release. It’s possible there are others, but the entire contents of the investigative file aren’t public. The state’s investigating agency said they wouldn’t release the records, though media, attorneys or others have asked the court to order their release.

A judge on Monday ruled that they wouldn’t be released, according to a court filing obtained by CNN. But the sheriff’s office is petitioning for their release, and the North Carolina governor called for passing specific laws “to increase transparency and accountability in the justice system.” As of now, the video evidence was only played at the press conference and has not been turned over to media outlets.

Are they supposed to shoot if he is fleeing?

Womble said he thought Brown was fleeing because he didn’t want to get caught with drugs that were later found in his car and his mouth. Brown was shot twice, including once in the back of his head, while he was attempting to flee officers, Womble said.

There’s not a law preventing police from using force to arrest a person, or using force to prevent that person from harming others, just because that person is fleeing the police. Police officers are permitted to use force in order to detain fleeing suspects, however, legal doctrine and department policies indicate officers can only use deadly force if a suspect poses an imminent threat of injury or death to the officers or others. Womble said that courts have held that officers can use deadly force in two situations: to protect against deadly force from someone they’re trying to arrest, or to take custody of someone who presents “an imminent threat of death or serious injury to others unless apprehended immediately.”

Womble’s determination was that Brown’s flight posed a threat.

“All of these officers were potentially at risk from Brown’s operation of the vehicle,” Womble said. “Brown threatened the life and safety of the officers on the scene and any possible civilian bystanders, giving a reasonable officer a compelling reason to end the encounter.”

Later in Tuesday’s press conference, Womble clarified his stance for a reporter.

“I think Mr. Brown’s intention was to get away. I think Mr. Brown was fleeing an arrest because Mr. Brown had drugs on his person and in his car and I think he did not want to get caught with those, so that’s why I think Mr. Brown was fleeing,” Womble said. “The officers’ position around the car is why he drove at them. He had no choice, if he was going to attempt to flee, he had no choice but to drive directly at the officers. When he did that, and he made that decision on his own, he placed their lives in danger.”

Departments may have policies that set greater limits on police conduct than the law, but those are set by individual departments and enforced as matters of employment and not criminal law. Departments across the country handle these investigations, and how they mete out discipline, differently.

Some departments, like the Pasquotank County Sheriff’s Office, discourage shooting at fleeing cars, for example. But it’s not a strict prohibition.

Could the deputies have let him go?

Womble said officers serving an arrest warrant were obligated to take custody of Brown, whose arrest had been ordered by a judge. Officers were serving two felony arrest warrants and a search warrant and were “duty bound to stand their ground,” he said. “They could not simply let him go as has been suggested.”

“Why couldn’t they have let him go in that moment and followed up later?” a reporter asked.

“They had a judicial warrant … what you’re asking is that law enforcement not act upon the judicial directions of a search warrant and give way to citizens when they decide they don’t want to be taken into custody.”

He also said the speed that Brown was driving wasn’t relevant. Video shows the vehicle in reverse, and then traveling toward officers who had surrounded the car with their guns drawn.

“The decision to flee, which Brown made on his own, quickly escalated the situation from a show of force to an employment of force,” he said. “Brown’s precise speed in attempting to flee and striking (a deputy) is uncertain. But that he drove recklessly and endangered the officers is not uncertain.”

“Courts have held that the constitution simply does not require police to gamble with their lives in the face of a serious threat of harm,” he said.

What are officers supposed to do in this situation?

Womble said officers wanted to arrest Brown the night before but he was not home, and he was spotted that morning. When Brown arrived home that morning, officers thought he would go inside but he remained his car. That’s when officers approached him.

There’s no single set of standards governing what officers are “supposed” to do in this situation, because most use of force situations unfold fast and are unique to the circumstances of that moment.

Each department has its own set of rules and officers are also governed by laws and court decisions. Those present a framework for officer conduct during all aspects of their work — not just serving warrants.

As to warrants specifically, departments make calculations about the degree of risk they’re willing to take on when serving warrants and make tactical decisions in deciding how and when to serve them. Some use heavy vehicles and stage ambulances nearby. In this case, the deputies were riding in the back of a pickup truck.

The sheriff’s office could have assigned more or fewer deputies to serve the warrant, or could have used different vehicles, or adjusted the time of day it served the warrant, or adjusted their approach any other way that they believe would have achieved the goal of taking custody of Brown.

But Womble said the deputies had an obligation to take Brown into custody. And when they approached him, Womble said, he attempted to flee in a way that put them and others at risk for harm.

A review of the incident, conducted by an outside expert, agreed that the shooting was lawful but also noted that the sheriff’s office should evaluate how it serves warrants.

“I also see the need for an evaluation of tactics used to serve search warrants, arrest warrants, and perform vehicle take-downs and vehicle assaults,” the expert, Paul Ohl, wrote. Ohl wrote that his review was completed before opinions or rulings by the district attorney.

“I also recommend an increase in the documentation of pre-mission threat assessments and briefings. The tactical arena of law enforcement is ever changing, and a constant assessment of an agency’s policies, procedures, resources and training is a necessity in order to maximize safety for citizens, law enforcement personnel and enhance organizational professionalism.”

The three deputies who fired shots at Brown will be reinstated, Pasquotank Sheriff Tommy Wooten said in a video statement after the District Attorney announced the shooting was justified and no charges would be filed.

Wooten called Brown’s death “a terrible and tragic outcome” and said the entire team will be reconfigured and retrained.