Report to the City of
Pasadena Concerning the

Officer-Involved Shooting of
Kendrec McDade

Michael Gennaeo
Robert Miller

August 2014

INTRODUCTION

here is probably no more potentially controversial police action than an

officer's use of deadly force, particularly a fatal shooting. Some members of

the community will remain loyal advocates for the police and will accept
and support virtually any use of deadly force by the police. Community members at
the opposite end of the spectrum may jump to conclude that the shooting was
malicious and will be skeptical of any voiced justi?cation for the officer?s conduct as
part of a conSpiratorial ?whitewash? to protect the police. As information from the
investigation is collected and becomes publicly available, residents with these
different world views will consider that data through those mind sets. Whether one
sits on the ends of that continuum of views or with the majority somewhere in the
middle, the event is one that will resonate with the public. Because, regardless of
how, in the end, one views the event, a life has been lost and the incident will have
impacted not only the decedent and his family, but also the officers involved, the

police agency and its city, and the larger community.

Police of?cers are given awesome authority in order to ful?ll their public safety
duties. This includes the ability and in some cases the obligation under the law to
use deadly force to protect themselves or the lives of others. However, along with
this authority comes the reSponsibility to use lethal force only when necessary. To
ensure adherence to this principle, police agencies have the weighty responsibility
to thoroughly and dispassionately investigate and perform a robust review of

incidents in which deadly force is deployed.

Twice in the past ?ve years, the City of Pasadena has experienced fatal shootings,

generating controversy each time. The 2009 shooting of Leroy Barnes generated

significant angst and concern, particularly when it was learned that initial reports
that Mr. Barnes had fired his gun at of?cers during the incident proved to be

inaccurate. As part ofthe review process, for the ?rst time in its history, the

Pasadena Police Department provided an independent review group with access to
the investigative files of the incident, its investigators, and its review process. As a
result ofthat independent review, the community of Pasadena was provided with a
public report along with recommendations designed to make of?cers better
equipped and trained to handle future similar events and improve the investigative
and review process. The transparency that the City authorized Group to
provide resulted in a public record of the shooting, the investigation, officer
decision-making, and recommendations that had no precedent in Pasadena. The
Pasadena Police Department, moreover, embraced 01R Group?s recommended
changes in policy, procedure and training that came out of the Barnes1 incident
analysis. The Department agreed to implement almost all ofthose

recommendations.

When on March 24, 2012, the preliminary facts ofanother officer-involved shooting
by Pasadena police officers indicated that Mr. Kendric McDade, the person fatally
shot, was unarmed, the City and Chiefof Police reached out to DIR Group and
committed to another independent review and public report of the incident. This
time, while 01R Group again received full access to investigative materials, attended
the criminal investigative debriefing, and was afforded an escorted field visit to the
location ofthe shooting incident, as we detail further below, we were not invited to
observe the Review Board session in which key tactical decision making was

discussed.

While 01R Group was provided after the fact with the power point presentation
used to frame the administrative review discussion, we did not observe the
discussion itselfor the development of any corrective action coming out of the
meeting. Moreover, as detailed below, the Department rejected 01R Group?s
recommendation to conduct an internal affairs investigation regarding the involved
of?cers? tactical decision?making, including our recommendation to re-interview the

involved officers about policy compliance and tactical issues. Despite these

 

1 Report to the City of Pasadena Concerning the Of?cer-Involved Shooting of Leroy Barnes, Jr. (October
2009 by OIR Group), Recommendations 1 through 14.

challenges, we were still able to independently review the investigation and the
review process, aided by a document the Department prepared intending to
encapsulate the Review Board discussion. We set out those observations and
conclusions here and make recommendations that we hope will provide a basis for a
more refined and robust investigative and review process so that the Pasadena
Police Department and its officers will be better prepared to deal with future

potential deadly threat situations.

With virtually every deadly force incident, there are aspects of the incident itselfand
the resulting investigation and review in which a Department performs well. There
are also learning experiences to be gained from of?cer decision-making that may
have been less than optimal and can be ?eshed out during the resulting
investigation and review. While the Review Board apparently engaged in some of
this introspection during the administrative review and ordered training in various
important areas, we are not persuaded that the Department did all that it could to
ensure that issues and concerns about the shooting were effectively communicated
back to the involved personnel and the Department as a whole. As explained in
much greater detail below, we are also concerned that the Department?s failure to
formally disapprove of the "box in? tactic deployed in this case may create future
situations where its officers? safety and the safety of the public may again be
compromised should the maneuver be repeated when pursuing a suspect believed

to be armed.

The Department concluded that the involved officers did the best they could under
?chaotic? circumstances. In our view, it is precisely the "chaotic" circumstances that
demand officer restraint and the development ofa thoughtful and safe tactical
apprehension plan. When police departments stress apprehending suspects
consistent with principles of officer safety, there is also generally a reduction in
deadly force incidents. In our report, we enumerate at least ten tactical decisions
made by the involved officers that were not congruent with principles of officer
safety that both may have contributed to a heightened level of fear and caused the

driver of?cer to place himself in an unsafe position so that when Mr. McDade

suddenly turned in his direction, Of?cer Griffin felt he had no choice but to use
deadly force. Consistent with recent California Supreme Court jurisprudence, it is
this careful and critical evaluation of officers? decision-making tactics and whether
those tactics contributed in any way to the need to use deadly force that the

Department must consider during the review process.

We are heartened about the Department?s new focus on creating training for its
of?cers regarding the risks of foot pursuits and important considerations designed
to keep officers safe. We hope this commitment to training its officers to perform
this tactic safely will also cause a revisit of the high risks of using the ?box in?
technique deployed here against a believed to be armed suspect. The observations
and recommendations we offer here are intended to provide ideas we have
exported from other law enforcement investigative and review mechanisms that the
Pasadena Police Department may wish to consider as it continues in its

responsibility to review, learn, and improve from critical incidents.
ASSIGNMENT AND METHODOLOGY

in April 2012, shortly after the March 24, 2012 officer-involved shooting of Mr.
McDade, 01R Group met with Pasadena City of?cials and Chief of Police Phillip
Sanchez and agreed to conduct an independent review of the incident. Over the next
several weeks, Pasadena Police detectives completed their criminal investigation
and submitted it to the District Attorney?s office for review. In July 2012, we
attended a brie?ng and review of the results of that investigation presented by the
Pasadena Police Department?s Criminal Investigations Division to the Department?s
command staff. OIR Group was also present to observe the subsequent discussion
regarding the incident by the Depa rtment?s senior command staff. Later, at our
request, the Department facilitated a night-time visit by OIR Group to the scene of
the incident, including where the initial crime occurred, the route traversed by Mr.
McDade and the officers, and the location where the shooting occurred. As a result
of that visit, we were able to assess lighting conditions similar to those at the time of

the shooting.

The Pasadena Police Department provided 01R Group with access to all
reports, tape-recorded interviews, videos, photographs, and other documentary
evidence in possession ofthe Department. Unfortunately, unlike the 2009 Leroy
Barnes shooting, we were not informed of, so did not attend the presentation of the
Department?s March 2013 administrative review of the McDade shooting to
Department executives, although we were later provided a copy of the Power Point
slides used during that presentation. We also received a two-page form

documenting the outcome ofthe Department?s Administrative review of each

involved of?cer. 

After we completed our initial draft ofour report in September
2013, PPD prepared a nineteen page document which was forwarded to us in
February 2014 which the Department indicated was intended to more completely
re?ect the discussion and conclusions of the Department's Administrative review
that had occurred months before. In April 2014, PPD forwarded another 
document in response to our draft report that it asked us to consider before we
finalized our report. In May 2014, we met with the Chief for further clari?cation of

issues discussed in the April 2014 document.

Meanwhile, in December 2012, the District Attorney?s Of?ce issued its conclusion
pursuant to the California Penal Code that the shooting was legally usti?able. Our
report leaves to the District Attorney the analysis and determination regarding the
reasonableness ofthe shooting pursuant to the Penal Code. Our objective is rather
to evaluate the quality and thoroughness of the Pasadena Police Department?s
investigation of the incident, the decisions and actions of PPD personnel leading up
to, during, and subsequent to the shooting, and the robustness ofthe post-shooting
review conducted by Department executives. We articulate a number of
recommendations for the Department's consideration designed to improve PPD's

internal investigative and review process so that more effective learning and

guidance can be communicated to its officers and so that the Department and its

of?cers can be better prepared to respond to similar challenges in the ?eld.
SUMMARY OF INCIDENT

On March 24, 2012, Pasadena Police Department Of?cer Matthew Griffin and Of?cer
Jeffrey Newlen were on patrol in uniform in a marked black and white patrol car.
Shortly after 11:00 pm, they received a radio communication about a robbery that
had just occurred with the suspects last seen near the corner of Orange Grove
Boulevard and Raymond Avenue. Police dispatch informed the of?cers that two
male suspects had pointed a gun at the victim, taken his backpack, and fled on foot.
Dispatch described the individuals as being African-American males, wearing black

clothing, and carrying guns.
The involved of?cers? account of the incident.

Of?cers Griffin and Newlen later told detectives that they observed one su5pect,
later identi?ed as Kendrec McDade, at Fair Oaks and Orange Boulevard who
matched the description provided by police communications. The man looked in the
direction of the police car and appeared to the of?cers to react immediately by
running toward the west side ofthe street. Of?cer Grif?n saw the man grab the
right area ofhis waistband with his hand as he disappeared behind a building into a

small parking lot.

Of?cers Griffin and Newlen pursued Mr. McDade in their police vehicle as McDade
ran through a commercial vehicle access way, coming out on to Sunset Avenue, just
north of Orange Grove Boulevard. Officers Grif?n and Newlen both later told
detectives that they observed Mr. McDade continually clutching his waistband area
with his right hand. Officer Grif?n told investigators that he Verbalized his
observations to Of?cer Newlen to alert him that Mr. McDade may be armed. Of?cer
Grif?n told investigators that he took his gun out ofhis holster and held it in his
right hand as he drove the patrol car with his left and proceeded through the

narrow access way. The patrol car struck and scraped its side along one of the walls

for a few feet, continuing to follow the path oer. McDade through the commercial

vehicle access way.

According to the involved of?cers, Mr. McDade initially ran on Sunset Avenue to
Orange Grove Boulevard. A few seconds later, the of?cers said that they observed
Mr. McDade stop, turn quickly, almost fall to the ground, crouch and touch the
ground with his left hand, then proceed back toward Sunset Avenue, passing the
of?cers? vehicle. According to the of?cers' statements to Pasadena detectives,

during this maneuver the man continued to hold his right hand to his waistband.

Of?cer Grif?n stopped the patrol car suddenly and put it into reverse. Just as the
patrol car stopped momentarily before reversing, Of?cer Newlen opened his door,
jumped out and ran up the sidewalk on the west side of Sunset after the suspect,
leaving the passenger door open. Of?cer Grif?n backed the patrol car up a few
yards which caused the passenger door to close, then turned north to continue to

pursue the suspect up Sunset.

Of?cer Newlen said that he attempted to close the distance on foot between himself
and the suspect but he remained ?fteen to twenty yards behind him, by his estimate.
Of?cer Newlen said that he yelled at McDade that it was the police and to stop.
Officer Newlen had his gun out of his holster as he ran. He broadcast to the radio

dispatcher his position and that he was in foot pursuit.

As the of?cers were pursuing, one on foot and the other in the car, a PPD helicopter
had arrived on scene and attempted to observe the suspect and the pursuit, but the
tree canopy over the street was so thick that the helicopter observer could not see
the of?cers or the suspect but only a bobbing, intermittent light moving along the
sidewalk. This was later determined to be Of?cer Newlen?s gun-mounted flashlight

as he ran after the suspect.

Of?cer Griffin told investigators that he passed Officer Newlen who was running on
the sidewalk. Of?cer Grif?n said that he got in front ofthe suspect, who was also

running on the sidewalk, and hit the brakes. Officer Grif?n said that he placed his

car at an angle in front of the suspect. The of?cer told Pasadena detectives that he

intended by this maneuver to position himselfwhere he could cut the suspect off.

According to Officer Grif?n, after he turned his vehicle toward where Mr.
McDade was running on the sidewalk and stopped the car, he observed McDade turn
clockwise, leave the sidewalk and suddenly run directly toward him while he was
seated in the police car. Of?cer Griffin told investigators that believing that Mr.
McDade was armed, fearing that McDade was advancing on him, feeling trapped and
vulnerable in the driver?s seat ofthe stationary patrol car, and feeling that he was
about to be shot, Of?cer Griffin fired his handgun out the open driver?s window four
times, striking McDade. Officer Grif?n estimated that when he fired, McDade had
advanced to within 18-24 inches of the driver?s window ofthe police car. After he
fired his ?rst round, Of?cer Grif?n said that he leaned to his right toward the
passenger seat in an attempt to seek cover while continuing to ?re the remaining

rounds.

Of?cer Newlen said that he was continuing to chase McDade and was approaching
the patrol car when he saw McDade run up to the driver's door ofthe patrol car, at
which point he heard a gunshot and thought his partner was being shot at. Newlen
said he then stopped approximately fifteen yards south and began to draw down on
McDade. Officer Newlen said he observed Mr. McDade start to walk toward the back
of the car and then turn towards him. Of?cer Newlen indicated that he believed Mr.
McDade was now taking a tactical position and preparing to shoot him. Of?cer
Newlen stated that he heard a second gunshot, saw a muzzle ?ash, and saw McDade.
looking at him. Of?cer Newlen said that in fear for his life, he fired his handgun four

times, at which time McDade fell to the ground on his side.2

After Of?cer Newlen fired the four rounds, Of?cer Grif?n Opened the driver?s door
and got out of the car. He kneeled next to Mr. McDade, pressed his knee against the

suspect?s body, pointed his gun at him with one hand and tried to pull the suspect?s

 

2 Neither of?cer reported saying anything to Mr. McDade or hearing anything from McDade prior to their
decision to use deadly force.

hands back with the other in order to handcuff them. As he did this, the patrol car

began to roll backwards slowly because Of?cer Griffin had neglected to place the

car's transmission in park. The open driver door made contact with Officer Grif?n?s

back and began to push him. Seeing this, Officer Newlen jumped into the driver?s

seat and put the car in park. As other of?cers arrived, Of?cer Grif?n bolstered his

gun and grasped both of the suspect?s hands. Officer Newlen placed handcuffs on

them.

Officer Newlen called in emergency medical assistance and the Pasadena Fire unit

arrived three minutes later. Mr. McDade was transported to a nearby hospital and

succumbed to his injuries during emergency surgery a short time later.

No gun was found at the scene or on Mr. McDade?s person.

10:53:30 pm
11:00:24 pm

11:04:10 pm

11:04:49 pm

11:05:24 pm
11:05:39 pm
11:06:12 pm
11:06:30 pm

11:07:17 pm

11:08:02 pm

11:09:23 pm

Time-Line of Events

Mr. McDade and another individual commit grand theft.

Mr. McDade and the other individual ?ee from the initial crime
location.

The victim of the initial crime calls 911 and reports an armed robbery
to police dispatch.

Dispatch broadcasts the call of an armed robber to Of?cers Grif?n and
Newlen.

PPD helicopter unit acknowledges receipt of the call.
DiSpatch assigns another PPD officer to assist on the cal].
PPD helicopter unit acknowledges that it has arrived in the area.

A fourth PPD officer acknowledges that call and indicates he is en
route.

Of?cer Newlen broadcasts he is in foot pursuit north on Sunset
Avenue.

Of?cer Newlen broadcasts that there were shots ?red, the suspect is
down, and requests a rescue ambulance to respond to the location.

Pasadena Fire Department dispatch enters a call for immediate
response for a gunshot wound victim.

10

11:] 2:47 pm Pasadena Fire Department indicates arrival at the location and
initiation of medical assistance.

1 1:22:44 pm Pasadena Fire Department begin transport oer. McDade to hospital
for further medical treatment.

Autopsy Results

Three days after the shooting, an autopsy was performed on Mr. McDade by a
medical examiner of the C0unty Coroner's Office. The medical examiner determined
that seven of the eight bullets fired by the two officers hit Mr. McDade. Five ofthe
entry wounds were in the chest, front of the abdomen and front surface of the arm
and two entry wounds were in the left side hip area. Of the two bullets that
remained lodged in the body, one was from Officer Grif?n's gun and the other was
from Of?cer Newlen?s gun. The medical examiner was able to determine this
because the of?cers used different caliber guns. The medical examiner concluded
that each of the wounds induced by these two bullets was potentially fatal. There
was no evidence to suggest that any of the bullets had been fired at Mr. McDade
from less than a foot or two away, that is, no gunpowder residue or stippling was

observed on the deceased?s skin or clothes.
THE CRIMINAL INVESTIGATION
PPD Criminal Investigation of Theft and False Statements

On the night of March 24, PPD detectives from the Criminal Investigations Division
arrived at the scene and began their investigation. At the outset, the CID
detectives were ful?lling a dual role investigating the criminal case ofthe alleged
robbery ofa laptop computer from a patron frequenting a taco truck and criminally
investigating whether the two officers who ?red their guns had a legal basis for
using deadly force on Kendrec McDade. As a result ofinformation learned during
the investigation, detectives ended up investigating a third matter involving
whether the theft victim made false statements to dispatch when he reported that

he had been robbed by men with guns.

11

The investigation by the detectives proceeded swiftly and extensively at the outset,
including interviews of witness police officers, collection of physical evidence at the
scene, canvassing for and interviews of civilian witnesses, collection and viewing of
surveillance video from the restaurant building and in?car MAV videos from some of
the patrol vehicles, and, a few days later, observation ofthe autopsy examination.
On the night of the incident, detectives located and viewed videotape from
surveillance cameras inside and outside the restaurant in front of which the taco
truck was parked. Detectives eventually learned that the victim who called 911 had
been at the taco truck getting food when he saw two suspects running away from his

parked car carrying his backpack.

Detectives also interviewed a juvenile suspect they believed had been involved with
Mr. McDade in the theft. Detectives eventually learned that Mr. McDade and the
juvenile had been together in the vicinity of the taco truck. The juvenile then walked
into the restaurant and opened a cash register but there was no money in the till.
During this activity, Mr. McDade acted as a lookout, first inside and then outside the
restaurant. Mr. McDade eventually re?joined the juvenile out in front of the

restaurant.

A few minutes later, Mr. McDade and the juvenile observed a man leave his parked
car behind the taco truck and walk a short distance to order food from the taco
truck. Mr. McDade and the juvenile then looked inside the car and observed a
backpack and a laptop computer in the back seat. Finding the car unlocked, Mr.
McDade and the juvenile opened a back door and picked up the backpack The
owner glanced back at his car, noticed the individuals come out ofhis car and yelled
at them to stop. Mr. McDade and the juvenile began to run with the backpack. After
a block, they split up, both of them passing in and then out of the ?eld ofone of the

restaurant?s surveillance video cameras.

The man called 911 and said that two individuals had just stolen his backpack and
when he yelled at them, one of them had put a gun in his face. When the 911
operator asked him further questions, he then stated that they both had guns and

12

one had run west down Orange Grove, the large street where the taco truck was
parked; the other had run away on Raymond, a nearby cross street. He described
the robbers as young African-American males, tall and thin, wearing black sweaters,

black hats, and black pants.

When responding officers questioned the man later that night about the particulars
of the crime, he described the two suspects in much greater detail. He said that after
he told one of the suspects to ?leave his stuffalone?, the suspect stopped and turned
at which point he observed the muzzle end ofa silver gun in the suspect?s right
hand. The suspect then grabbed the laptop and ran away on Orange Grove. The
man called 911 and followed the suspects in his vehicle. The man said he observed
and then lost the suspects various times as they ran through the neighborhood.
During that interview, the victim did not mention a second gun, nor did he say the

gun had ever been pointed at him.

In a follow up interview with detectives the next day, the theft victim stated that he
thought he had seen a gun but was not positive. The detectives re-interviewed the
theft victim the following day, sought more clarity about the gun, and he eventually
admitted that he had seen no gun at all but wanted the police to respond quickly and
thought that they would do so ifhe mentioned a gun. Four days after the shooting,
Pasadena Police detectives arrested the man for involuntary manslaughter for
giving false information to the emergency operator that contributed to the death of
Mr. McDade. The Police Department averred that when the man provided false
information that he had been the victim of an armed robbery, it caused officers to
feel a heightened sense of danger from the suspects which then contributed to the
decision to use deadly force, resulting in the death of Mr. McDade. The District
Attorney?s Of?ce evaluated the case and eventually announced in October of 2012

that they would not ?le a manslaughter charge against the theft victim.

The Pasadena Police Department then submitted the case against the theft victim to
the Pasadena City Prosecutor for consideration ofmisdemeanor charges. In March

2013, the City Prosecutor charged the theft victim with falsely reporting a criminal

13

offense, reporting an emergency knowing the report was false and delaying or
obstructing a peace officer. The theft victim pleaded guilty to the false reporting
charges and was sentenced in June 2013 to ninety days in County Jail, ninety days of
community service, payment of restitution to the Pasadena Police Department and

three years of probation.

The juvenile who participated in the crime with Mr. McDade was charged by the
district attorney with two felony counts of commercial burglary, a felony count of
grand theft and one misdemeanor count of failing to register as a gang member. He

was sentenced to six months ofjuvenile camp.
PPD Detective Criminal Investigation of Of?cer?Involved Shooting

Meanwhile, PPD detectives completed their investigation of the of?cer-involved
shooting and presented their file to the District Attorney?s Office for review. Except
as noted below, the investigation was generally thorough in most areas. Other than
a few exceptions detailed below, the physical evidence was well documented. There
was an extensive and well-documented neighborhood canvass for witnesses to the
incident. The interviews and incident reports by responding officers were
comprehensive.3 The interviews of the two of?cers who used deadly force were

also relatively and detailed.4

 

3 in our Barnes report, we recommended that the interviewers routinely use diagrams to obtain a
permanent account of the sequential positioning of involved personnel and civilians, (see Barnes
Report, Recommendation No. 4). PPD informed us that in the McDade investigation, GPS information was
pulled from portabie devices and downloaded immediately. That information was used during the
investigative process. The investigation also addressed our recommendation that there be a record
indicating sequential positioning of involved personnel and civilians. Moreover, in response to our
Barnes' Report, Recommendation No. 5, the Grossman/Lewinski force science construct was eliminated
as a resource by PPD and thus not used during the McDade investigation or review. In response to our
Barnes? Report, Recommendation No. 7 that PPD provide timely and accurate information about the
shooting to the public, PPD indicated that within three hours of the shooting, the media and community
stakeholders were provided preliminary information concerning the incident. In response to our Barnes?
Report, Recommendation No. 9, that officer-involved shooting investigations are preserved at least
throughout the career of the of?cer and that the administrative review shouid examine past of?cer-
involved shootings or other relevant history of invoived of?cers to identify any commonalities of decision
making, PPD indicated that the investigative ?le of the McDade shooting will be retained for the duration
of the of?cers? career barring any court rulings or procedures that hold contrary and?

14

OIR GROUP REVIEW OF CRIMINAL INVESTIGATION OF OFFICER-
INVOLVED SHOOTING

PPD's training and policy compliance experts provided no input at the
incident scene.

While the interviews of the involved officers explored many aSpects ofthe incident
that led up to the shooting, the detectives did not delve into areas of tactics and
training. This is customary for an officer-involved shooting criminal investigation
because it is focused on the legality of the use of deadly force, but it leaves the
Department without first-hand knowledge of the tactical decision-making and intent
of the of?cers and hampers its ability to derive useful lessons and appropriate
corrective actions or training from the incident. Early participation by Internal
Affairs or Training personnel in a parallel post-shooting investigation can address

this deficiency.

in this case however, the Pasadena Police Department did not call either type of
expert to the scene or involve them in the initial investigation. This approach denies
the Department experts on tactics and field operations policies the opportunity to
observe the scene and evaluate the evidence first hand and early on. In our
experience, every use oflethal force by a police agency provides a potentially
valuable window into how well officers are employing the Department?s training

and policies, whether they are well understood by field personnel, and whether the

 

With regard to our Barnes? Report Recommendation No. 14 that the Department
deveiOp protocols that provide a mechanism to carefully assess the status and assignment of of?cers
involved in officer-involved shootings, PPD reports that a deliberate process for doing so had been
devised. The Barnes' Report, Recommendation No.3 regarding promoting cooperation of witnesses did
not present itself in McDade. With regard to our remaining Barnes' Report recommendations, we will
address the degree to which PPD accepted or rejected our recommendations as the issues arise in this
report.

4 PPD informed us that in response to our concerns in the Barnes? report and recommendations regarding
the deleterious consequences of leading questions and the apparent failure to identify their existence by
report reviewing supervisors, (see OIR Barnes Report, Recommendation No. 2), PPD detectives were
provided interview skill training by the Los Angeles District Attorney?s Office. Further, the Department
informed us that during the McDade detective investigation, increased su pervisoriai oversight was
provided, supervisors routinely met, conferenced and were briefed regarding interviews of witnesses, and
one supervisor was tasked with the final review and approval of the investigative report. This attention to
our concerns articulated in our Barnes report had apparent beneficial resultsleading questions in the McDade investigation.

15

Department should change its approach regarding training and policies, based on
the analysis of the deadly force incident. It is a preferable practice to use the
training and/or policy-compliance experts of the Department to assist in developing

a factual record from which to make such assessments.

We appreciate that PPD has modified their protocols so that the Training Unit is
notified of officer-involved shootings and placed on standby. According to PPD, the
Training Unit is now considered "part and parcel? to the investigative team and the
review process. That being said in the Barnes review, we recommended that
training and policy experts be part of the rollout team that viewed the initial crime

scene5 and we renew that recommendation here.

Recommendation One: Because in McDade, the Department's training
personnel were not called to roll out to the crime scene, PPD should again
consider revising protocols to ensure that training personnel are part of the
rollout team for o?icer-involved shootings.

Of?cers Grif?n and Newlen were provided access to video and audio prior to
being interviewed denying PPD's ability to obtain a pure statement of the
of?cers? observations.

Prior to being interviewed, the involved of?cers were allowed to view
dashboard video ofseveral patrol cars as they responded to the scene after the
shooting as well as radio transmissions made by Pasadena personnel the night of
the incident In the Barnes report, we recommended that the Department develop
protocols on whether, before being interviewed involved personnel would be shown
video materials relating to the incident. Our suggestion was that the Department
should first interview the involved officers, then provide the officers the
opportunity to view the video evidence, and conduct a follow-up interview asking
the of?cers ifthe video information refreshed their recollection ofthe incident.6 In
the McDade shooting, however, the Department provided both video and audio

evidence to the officers prior to obtaining any interview from them.

 

5 See Barnes Report, Recommendation Number 1.
6See Barnes Report, Recommendation No. 6.

16

Viewing audio tapes or video footage before being interviewed is likely to distort
pure recall either consciously or subconsciously. Studies by experts in witness
memory have repeatedly establish ed that subjecting witnesses to external evidence
can cause them to supplant or modify what they actually recall with what they see
from the video evidence. As a result, allowing personnel to view a video or listen to
audio prior to interviewing the involved officers eliminates the ability to obtain a
pure unvarnished account of the account from them. A view and listen first policy
also can create the impression that the Department is attempting to in?uence the
officers' accounts so that they can be tailored to the audio and video evidence that
has already been gathered. Such an impression will reduce confidence by some in
the Department?s ability to objectively investigate deadly force incidents. Finally, a
view and listen first policy is not consistent with current investigative practices PPD
employs on a daily basis. For example, bank employee victims are not shown

surveillance videos ofa robbery prior to being interviewed.

There was no police vehicle video of the shooting itselfin this incident, but the
activated cameras of other arriving patrol vehicles depict the scene immediately
after Mr. McDade collapsed on the ground and was handcuffed. Thus, in this case, to
the degree that the video and audio information provided the involved officers
information about the incident, their recollection had the potential of being
influenced by exposure to that information. Moreover, the information provided the
officer was not produced from their vantage point and thus impacts the of?cers?
with a rendition of the incident from a position that they would not have

been afforded at the time.

As we stated in our Barnes? report, the better approach would have been to obtain a
pure rendition of the incident from the involved officers. At that time, the video and
audio evidence could have been presented to them and if those recordings refreshed
the of?cers' recollection, they would have the opportunity to supplement their
reSponses with the additional recollection. This technique allows the collection of
an unvarnished recollection from the involved of?cers yet affords the opportunity
for that memory to be refreshed by external evidence.

17

However, PPD was precluded from obtaining a pure statement from the involved
of?cers in the McDade shooting investigation because since the issuance of our
Barnes' recommendation, the Department in 2010 entered into an agreement with
the Pasadena Police Of?cers? Association that requires the showing of any

recordings to an officer prior to that of?cer being interviewed.

The deal struck by the Department and the Police Officer?s Association has resulted
in a protocol that may impact the accuracy ofa police officer?s recollection and
events and has the potential to signi?cantly erode con?dence in the integrity of
critical incident investigations. In a public report announcing the implementation of
a Los Angeles Sheriffs Department policy that required the obtaining ofa pure
statement by a deputy prior to reviewing video evidence, we referenced the public
report written in the aftermath of the BART Police Department shooting of train
passenger Oscar Grant in the Fruitvale BART Station. The authors stated:
Officers should not view video of an incident prior to being interviewed. Allowing
officers to view video prior to an interview allows them to either subconsciously fill in
the blanks where there are no memories of the incident or preplan for alibis for
substandard conduct. Either way, allowing of?cers to view video of the event prior to

the interview erodes the public?s faith in the process and unnecessarily impacts the
investigation.7

Similar concerns were raised by the public in Fullerton following the in-custody

death of Kelly Thomas when it was learned that the involved officers had been
allowed to view a video of the incident prior to submitting their reports. At the time,
the Fullerton Police Department?s acting Chief acknowledged that the decision to
allow the involved officers to view the video first compromised, or at least damaged,
the public?s trust and confidence in the process.8 Moreover, our continuing review

of the available research indicates ample evidence that being exposed to additional

 

1 Public Report: Review of BART PD Policies, Practices and Procedures: New Year?s Day 2009, submitted to
BART by Meyers, Nave Professional Law Corporation, at p. S.
evers Nave Public 

8 Following the Kelly Thomas incident, Fullerton PD created a policy that requires that when an officer's

conduct is being reviewed, the officer is to submit to an interview or prepare a report prior to reviewing a
video or audio recording of the event.

18

information than what was actually experienced [such as seeing the action from a
different angle or being able to hear sounds that may have been out ofearshot from
the officer) can alter memory ofthe event. For these reasons, when the conduct of
of?cers is being reviewed, investigative protocols should strive to obtain pure
statements from involved officers rather than statements impacted by prior

exposure to video or audio tapes.9

Almost thirty years ago, the Pasadena Police Department wrestled with its Peace
Officers? Association regarding a similar issue. in that case, the Association
demanded that the Department provide an officer notes of an interview of a fellow
of?cer before interviewing that of?cer about his conduct. The Department refused
to do so and in a landmark California Supreme Court decision, the Court found that

the law did not require the Department to do so. 10 As aptly stated by the Court:

Disclosure before interrogation might color the recollection of the person to be
questioned or lead that person to conform his or her version of an event to that given
by witnesses already questioned.
The Court concluded that providing external evidence to a police officer prior to
questioning would be contrary to sound investigative practices. It would have been
preferable had the Pasadena Police Department considered the Court's wisdom
before committing to a similar investigative practice that requires that the

Department preview evidence with an officer before interviewing the officer.11

Recommendation Two: Pasadena PD and the City should revisit the current
Letter of Agreement with the Pasadena Peace Officers Association requiring the

 

9 The Department cites to a 2002 IACP report on video evidence and best practices, but we have reviewed
that report and there is no discussion about the potential erosion of public trust with protocols that allow
involved officers to preview videos of shootings before being interviewed nor about subconscious or
conscious contamination of the officers' memory as a result of pre-exposu re. To the degree that the IACP
report encourages officers to review recorded evidence when preparing reports, we concur so long as it
pertains to the conduct of another.

1? See Pasadena Police O?icers Assn. v. City of Pasadena, 51 Cal. 3d 564 (1990)

11 To be sure, and unfortunately, other agencies have also agreed to allow of?cers to preview video
evidence before being required to be interviewed. For example, in order to obtain agreement from its
union to install in-car videos in patrol vehicles, the Los Angeles Police Department entered into an MOU
with the union to allow the officers to preview the video before being interviewed.

19

Department to preview recorded evidence with o?icers prior to being
interviewed about o??icer-involved shootings (as they did in the McDade case)
and should strive to develop protocols that would prevent o?icers from
previewing recorded evidence prior to their interviews.

Investigators prudently obtained a search warrant for the contents of Mr.
McDade's cell phone.

Mr. McDade?s cell phone was retrieved at the crime scene. However, instead of
immediately viewing any data or photographs on the cell phone, Pasadena PD
sought and obtained a search warrant. Such use ofjudicial process is consistent
with best police practices and the law, particularly in light ofa recent Supreme
Court ruling indicating that peace of?cers need obtain a warrant prior to accessing

cell phone information.12
PPD conducted an extensive canvass for witnesses.

Pasadena PD extended numerous resources immediately after the shooting and
conducted an extensive canvass for scene witnesses. While the results of that
canvass produced no eyewitnesses to the shooting, the Department should be
credited with a thorough investigation designed to identify potential neighborhood

witnesses.

Instead of attempting to conduct in-person interviews of all civilian witnesses,
the PPD investigation relied on telephonic interviews of some witnesses.

A few weeks after the shooting, an individual called into the Pasadena Police
Department indicating that he had been a witness to part of the event involving Mr.
McDade and the involved police of?cers. in a recorded telephonic interview, the
witness indicated that he had seen a black person run fast followed by a responding
police car driving quickly with no emergency equipment or headlights. At some
point, the witness said the passenger door ofthe police car came open and he saw

the police car go brie?y in reverse.

Telephonic interviews are necessarily limited in that the interviewer cannot ask the

witness to sketch diagrams of movement or demonstrate body movements or

 

12 See Riley v. Cain'omio, No. 13?132Uune 25, 2014)

20

postures with his own body. Similarly, the interviewer cannot show diagrams or
photographs to a witness to explain questions or stimulate recall. This witness?
observations were particularly important in that he was perhaps one oftwo
witnesses besides the involved of?cers who were identi?ed as witnessing Mr.
McDade running. As discussed further below, during the telephonic interview, while
the witness was asked whether he saw the individual on foot look back, this witness
was not asked whether he observed Mr. McDade holding his waistband while

running as the officers described.

The use oftelephonic interviews should be discouraged. lf circumstances make an
in?person interview impracticable, the investigative ?le should articulate those
reasons. There were no such reasons articulated in the CID detectives' ?le for
interviewing the witness over the phone and valuable insight and evidence might
not have been retrieved as a result ofthe interview being conducted

telephonically.13

When we raised these issues, the Department said that the handling detective was
initially only provided the telephone number ofa potential witness. Because when
he talked to the witness he learned that he did not see the shooting and because the
witness chose to be interviewed telephonically, the detective said he interviewed
him over the phone. The Department said that it was their belief that had the
witness observed any activity beyond Mr. McDade running a short distance and the
of?cers pursuing him in their vehicle, it may have prompted a more detailed

interview.

The Department?s response misses our point. It is not only witnesses to the
shooting incident that are potentially important to the investigation. In this case,
according to the involved officers, the way in which Mr. McDade was running and
holding his waistband was important to their belief that he was armed. This

witness, if asked, could have potentially corroborated or refuted this observation

 

13 The civilian witness? spouse, who was present with the witness at the time was also interviewed over
the phone.

21

made by the of?cers. There was no evidence in the ?le or during the recorded
interview to indicate that the witness would have refused an in person interview

request.?

Recommendation Three: To avoid the use of telephonic interviews as occurred in
the McDade case, PPD should develop protocols discouraging the use of
telephonic interviews in officer-involved shooting investigations. When in-
person interviews prove to be impracticable, the in vestigative ?le should
explain why.

The PPD investigation failed to fully examine whether other witnesses
observations corroborated the involved of?cers' version of events.

According to the investigative report, when the involved of?cers first observed Mr.
McDade, they almost immediately believed he was armed. Part of this knowledge

stemmed from information from the 911 caller who reported that the two persons
who had robbed him possessed handguns. In addition, both of?cers indicated that
when they observed Mr. McDade, they saw him repeatedly reach for his waistband,

as ifhe was holding a firearm there.

However, besides obtaining statements from the two involved of?cers, PPD did not
pursue additional sources of evidence to determine whether this observation
reported by the two of?cers could be corroborated or might be contradicted. The
video that shows the two individuals running from the restaurant where the theft
occurred has insuf?cient clarity to discern whether Mr. McDade was clutching his
waistband at that point. While the victim of the theft was interviewed extensively,
and eventually admitted that he falsely reported that he saw the two suspects with
weapons, he was not asked whether during the time he followed and observed Mr.
McDade running he ever saw him reaching for his waistband or holding something

in his waistband area.

In addition, as noted above, despite the fact that another civilian witness told

detectives during a telephonic interview that he had observed Mr. McDade running

 

14 In fact, according to the witness, an attorney for the decedent?s family had requested him to participate
in an in?person interview at the location where he made his observations. The witness said rather than
participate in that interview, he thought it would be better to inform the police of his observations.

22

away, the witness was not asked what the suspect was doing with his hands or
whether he ever saw him reaching for his waistband as the of?cers had reported. As
a result, the only evidence that was collected during the criminal investigation that
during the chase Mr. McDade was reaching for his waistband as ifarmed comes

from the detective interview statements of the two involved officers.

Recommendation Four: Because in the McDade case, despite our suggestions,
witnesses were not asked questions that could have supported or contradicted
involved of?cers? version of events, Pasadena PD should design investigative
protocols that would ensure that witnesses were questioned about observations
that could do so.

DECISION NOT TO CONDUCT AN ADMINISTRATIVE
INVESTIGATION OF THE SHOOTING RESULTED IN AN INCOMPLETE
RECORD OF THE INCIDENT UPON WHICH TO BASE AN ADMINISTRATIVE
REVIEW.

Police of?cers are authorized to use deadly force and obligated to do so when
necessary to protect their lives or the lives of others. Wedded with this awesome
authority is the law enforcement agency's responsibility to ensure that any deadly
force incident is carefully examined through a number of perspectives. First, the
incident must be investigated and the final report forwarded to the District Attorney
in order for her to determine whether the shooting was in compliance with the

Penal Code. However, the factual inquiry should not end there.

An administrative investigation and review should also be conducted to go well
beyond the legality of the shooting to determine whether or not the shooting
complied with the policies and procedures'ofthe employing agency. In addition, the
administrative phase should examine tactical decision-making by involved of?cers
and assess whether those decisions comported with the expectations of the
Department. In cases where the performance of involved of?cers was signi?cantly
below those expectations, the agency should determine what type of Departmental
response is appropriate, whether to incorporate discipline, counseling, or
brie?ng tools. Finally, the review should consider whether the incident suggests a
need to change current policies and procedures, additional training at the involved-

of?cer level or the Department as a whole, and whether there were supervision or

23

equipment issues. The review process should also evaluate the fact gathering from
the time the incident occurred throughout the investigative process to assess the

quality ofthe investigations.

In this case, after the District Attorney's Of?ce issued its letter of opinion that the
involved of?cers? use ofdeadly force had not violated the California Penal Code, PPD
turned to the administrative phase of the incident. However, rather than conduct
re-interviews of the involved of?cers to gain a fuller understanding of their tactics
and decision making as was undertaken in the Barnes shooting, PPD decided that
the facts already gathered during the criminal investigation would suf?ce for the
administrative review. In fact, PPD determined that no additional fact-finding

whatsoever was necessary during the administrative phase ofits review.

In order to conduct a robust administrative review ofa critical incident such as an
officer-involved shooting, it necessarily requires that the involved of?cers be
questioned about tactical decision making, an area of inquiry that is not usually
pursued in depth during the criminal investigation. Consistent with this experience,
our review of the CID interviews of the involved of?cers in this incident shows
incomplete questioning of the of?cers regarding their tactics and thus insuf?cient
fact ?nding from which to conduct an administrative assessment. As a result, after
we had reviewed the criminal investigation and presentation, and at request,
we submitted a written outline recommending additional areas of inquiry to the
Department for follow up during the administrative phase of the investigation.
Rather than pursue any of our lines of recommended inquiry, PPD chose instead to
simply repackage the information gained during the criminal investigation and to

rely entirely on that information for its administrative review.

Among the areas of inquiry recommended by 01R Group as topics for follow-up

interviews were the following:

- OIR Group suggested that the involved of?cers be asked whether
they intentionally responded to the radio call without lights and

siren. Ifthe of?cers had activated their emergency equipment, this

24

in turn would have automatically activated the patrol car?s video
equipment. At least part of the incident would have likely been
captured by the mobile activated video equipment. While PPD
policy allows officers to use considerable discretion in deciding
whether their lights and siren need to be activated, it was
nevertheless important for the Department to learn from the
officers whether they believed they had enough information from
dispatch, their own observations of Mr. McDade, their belief that
he was armed and surrounding conditions to determine that this
was a potentially life threatening situation either requiring or
suggesting activation of emergency equipment. Furthermore,
follow up questions could have determined whether the of?cers
considered manually activating the in-car video camera without
lights and siren.

01R Group suggested asking Officer Newlen whether he intended
to Split from his partner to go into foot pursuit or believed his
partner would follow on foot, whether he intended to close the
distance with the suspect he was chasing, and what his
understanding of optimal tactics were when in foot pursuit ofa
suspect be believed to be armed.

01R Group also suggested that Officer Grif?n be asked if, when he
drove past the suspect and cut him off, he considered the
vulnerable position he and his partner might be in ifthe suspect
did something other than stop or run westward. We also
suggested related questions concerning cross-fire and
background, that is, whether either officer anticipated the
problems of pursuing in such a way as to place the suspect
between them and then have to potentially point their weapons in

one another?s direction.

25

In our view, it is unfairto the of?cers to ?deduce? answers that the of?cers have not
clearly provided and citing to the policy does not provide the reviewer any
information about the of?cers? mind set about how tactical decisions within the
incident transpired. These areas ofinquiry would have helped the Department
evaluate those crucial tactical decisions leading up to the shooting and provide a
better basis to determine whether corrective action training, discipline or policy

changes was necessary. Indeed, the Department's Administrative Memorandum

there was administrative interview of the of?cers with which to do so.

Because as noted above, several crucial lines ofquestioning were not pursued of
two civilian witnesses during the detective investigation, 01R Group also suggested
that the additional questions be asked of those witnesses about their observations,
namely whether they had seen (as the involved of?cers reported) Mr. McDade reach
for his waistband while running away. The Department also declined to follow up
with the civilian witnesses. Potential sources of information were not pursued
because of the Department's decision not to supplement the criminal investigation

with additional inquiry.

in sum, in contrast to the Barnes shooting, in deciding in this case not to follow up
with the involved of?cers and civilian witnesses and pursue the additional

investigative topics, PPD relied solely on the information gathered during the

criminal investigation from which to assess administrative issues. For the reasons
set out above and more fully below, that decision prevented PPD from learning
additional information that was important in assessing the involved officers? skills,
perceptions and tactical decision making. The decision not to conduct additional
inquiry resulted in an administrative review not fully equipped with all available
facts and prevented a comprehensive and fact-based evaluation ofthe officers?

tactical decision-making.

When we presented these concerns to the Department about the failure to conduct
an administrative investigation, PPD disputed the assertion. According to the
Department, the administrative use of force review examined all facts known at the

time and afforded executive staffa complete and factual record of the events. -

15

The Department?s response misses our point that ifthere are gaps in the record with
regard to the involved officers? tactical decision-making, which there are, then the
factual record ofthe incident was not complete. ifthe
question is not posed directly to the officer about a decision he made, the review
entity must assume what the officer was thinking in order to consider the decision.
Robust reviews are not based on assumptions but on direct responses about mind
set from the participants involved. In this incident, the Department made a
conscious decision not to explore those mindsets further during the administrative
phase and to rely entirely on what had been collected during the criminal

investigation.

Recommendation Five: Because in the McDade case the Department failed to
conduct an administrative investigation, the Department should develop
protocols requiring that in every use of deadly force incident, Pasadena PD
should conduct an administrative investigation that, at a minimum, includes
follow-up interviews of the involved of?cers regarding tactical decision-making

15?
2

 

7

and collects suf?cient additional evidence so that the executive team may
identify and assess performance, supervision and equipment issues based on the
involved of?cers' articulated mindset.

ADMINISTRATIVE REVIEW OF THE SHOOTING

As noted above, 01R Group attended the detective?s post-briefing of the McDade
criminal shooting investigation presented to command staff. We found that the
Detective who conducted the post-brie?ng had a strong command of the facts ofthe
investigation and used exhibits, video evidence, and diagrams effectively to set out

the facts developed during the criminal investigation.

Following the detective?s investigation and post-briefing of an of?cer~involved
shooting, PPD conducts an administrative review focusing on the performance of
involved officers in relation to departmental policies, procedures and training.
According to documents recently prepared by PPD for 01R Group, the first time the
Department convened a Use of Force Review Board was in 1994. Group?s ?rst
experience with the Department?s administrative review process occurred during

its review of the February 2009 officer-involved shooting of Leroy Barnes.

Our presence during the administrative review and subsequent executive review of
that shooting was crucial to our ability to gauge the robustness with which
Department leaders tackled investigative, tactical, and collateral issues regarding
the incident and subsequent investigations. As a result of our attendance, we were
able to report to Pasadena?s public that the administrative presentation by the
Department?s Professional Standards unit was extensive and detailed and that the
subsequent executive review resulted in PPD command staff bringing additional
issues to the discussion resulting in a healthy and wide ranging exchange of
perspectives. While we had recommendations on how both the administrative
presentation and subsequent executive review could be improved, we were able to
commend the Department on a robust and healthy process intended to promote

issue identification and learning.

28

Because we were not informed about the administrative review for the Kendrec
McDade shooting until after it occurred, we have no ?rst-hand knowledge regarding
the breadth of the presentation or the robustness of the executive review. Based on
our past experience of being invited to the Barnes administrative review and our
contractual responsibility with the City to participate ?in any meetings by executives
of the Pasadena Police Department involving the formal administrative review of
the shooting?, we were expecting to be in attendance at such meetings. After we
learned that the review had occurred without our knowledge, we were informed by
PPD that a concern had been articulated that having us in attendance at the review
might have hampered a "candid discussion? from Department participants including
the training cadre and that our not being present allowed participants to ?feel free
to discuss issues in an open and honest manner to foster constructive dialogue and

readily identify lessons learned?.

While we certainly recognize how attendance by outside individuals has the
theoretical potential to impact the dynamic of any meeting where sensitive issues
are being discussed, it was not our experience that our presence at the Barnes
shooting review chilled the discussion among PPD personnel at that meeting nor did
we detect a lack of candor during the criminal investigation brie?ng and review in
this case. Moreover, we have participated in countless administrative reviews of
of?cer?involved shootings conducted by the Los Angeles County Sheriff's
Department and other law enforcement agencies and have never received feedback
that our presence at the meeting 'chilled the discussion or compromised police

executives? ability to lead a candid discussion of the incident.

While 01R was not invited to the McDade shooting administrative review, after the
review occurred PPD did forward a copy of the power point presentation that was

presented at the administrative review. The power point presentation-

29

After the administrative review had been concluded, we also received a copy of the

closing memoranda prepared after the session. While the brief memoranda

:subsequent correspondence to DIR Group, the Department indicated that the

review board ha

Finally, the Department
indicated that it would continue to examine driving protocols, mobile audio and
video recordings, vehicle and foot pursuit, and use of force policies and had

identi?ed a need for new mobile audio video technology.

Since we were not present at the administrative review and 

,we

informed PPD in our initial draft report that we could not assess the rigor of the
discussion at the administrative review or the degree to which the review addressed
tactical decision-making and other administrative issues identified by OIR Group.
We further wrote that, because of gaps in the fact gathering process, any
administrative review would have trouble addressing issues like the officers?

mindset during the critical incident.

We did note that, to the Department?s credit, even prior to the administrative
review, the Department had sent the involved officers for additional training. With
regard to the Department's representation that it would continue to systemically
examine issues presented as a result of the incident, without a more detailed
description ofthose issues and the development ofa more speci?c written action
plan, Group noted that it was unable to assess the likelihood oftargeted

systemic reform and learning coming out of the review of the incident.

After we forwarded our initial draft to PPD setting out these concerns, the
Department then prepared and sent to us a nineteen page document [hereinafter
referred to as the Administrative Memorandum] that was intended to capture the
discussion and results of the administrative review that had been held months
before. Because it was not contemporaneous with the presentation, the PPD writer
was forced to rely on notes and recollections of participants who attended the
meeting. And while the document cannot substitute for our actual presence at the
review and our observation of the interplay between the Review Board attendees, it
did provide significantly more information about the issues addressed by

Department leaders than had initially been provided.

More importantly, besides serving as a vehicle that helped us gain additional insight
into the breadth of PPD's review, the Department has informed us that they view the
Administrative Memorandum as a template and will henceforward produce a
similar document after the administrative review of each of?cer-involved shooting.
it is highly constructive for Department leaders to create a robust written product
that memorializes the discussion, determinations, and action plans of the Review
Board and we commend PPD for committing to this format. Such reports should be

timely completed after each administrative review.

As a result ofthe preparation of the Administrative Memorandum, we were also
able to more easily assess the degree to which our recommendations in the Barnes
report were considered and implemented. For example, in the Barnes report, 01R

Group recommended that the administrative presentation to command staff

31

"initiate" identi?cation of tactical issues.16 While the power point presentation that

weredewed_
weed regard do one Group's

recommendations in the Barnes report that training staff be involved in the

identi?cation of those tactical issues?, the Administrative Memorandum

documented 
in addition to designing and implementing post-

incident police officer training involving shooting from vehicles and tactical decision

making. Moreover, the Administrative Memorandum expressly noted -

Recommendation Six: Because the independent reviewers in the McDode
shooting were not invited to attend the Department?s administrative review,
should PPD engage in future independent reviews, it should reconsider inviting
such reviewers to attend those reviews.

A REVIEW OF ADMINISTRATIVE MEMORANDUM

The belief that Mr. McDade was armed and the decision to use deadly force.

Administrative Memorandum first concluded 

 

?5 Barnes Report (2009). Recommendation No. 8.
17Barnes Report (2009), Recommendation No. 10.

iaBarnes Report (2009), Recommendation No. 11.

32

The memorandum recounted



(f-V'

a.

LU

As re?ected in the Administrative MemorandumOf?cer Griffin?s driving while holding his ?rearm.

Of?cer Grif?n told investigators that because he had formed the opinion that the
subject they were following was, in fact, armed, he removed his firearm from its
holster while pursuing Mr. McDade, maneuvering his patrol car with his left hand

and holding his pistol in his right hand. According to the Administrative

Memorandum,

The decision by Of?cer Griffin to continue the pursuit of Mr. McDade following
a minor collision.

As the officers continued to follow Mr. McDade in their police car, they observed him
run though a parking lot and the vehicle access way between two structures. As
Officer Griffin drove through the access way, he scraped the front right fender ofthe

patrol vehicle along the wall of one building. The damage to the car was very minor.

According to the Administrative Memorandum, 

01R Group considered Of?cer Grif?n's two tactical decisions in tandem because they
ended up being potentially interrelated in this incident. During his interview,
Of?cer Grif?n repeatedly stated his concern about driving into the access way
between two buildings in pursuit of Mr. McDade. Because the passageway was so
narrow, Of?cer Grif?n said that he felt that he and his partner might be trapped and
unable to exit their vehicle should the suspect turn on them with a firearm. The
statements ofOfficer Griffin raise the question that ifthere was so much concern
about the vulnerable position the of?cers were placed in by traveling through the
alley way, then why did he decide to do so? Principles of of?cer safety instruct that
of?cers should not try to apprehend at all costs and should curtail any pursuit that

places them in undue danger. By his own statement, Of?cer Grif?n indicated that he

felt as much.??

When police activity results in damage to a patrol vehicle, there should be a
reassessment by the involved of?cers whether to curtail any ongoing action. In
addition, such events should be communicated so supervisors can determine
whether conditions have arisen indicating the engagement is too dangerous to
continue. in this case, there was no radio transmission from the involved officers

indicating that their radio car had collided with a wall.20 The involved of?cers were

not asked about their failure to broadcast the collision. 

Officer Griffin?s decision to unholster his weapon and steer with one hand as they
proceeded through the narrow passage may have contributed to the cause of the

collision. Officer Grif?n admitted that following the suspect became challenging due

 

19 Officer Griffin described the of?cers as being ?trapped in an alley".

20 It was also observed at the terminus at the event that one of the police car's tires was ?attened. As
part of the scene investigation, the tire was examined for impact damage from a projectile with negative
results. The investigator surmised that the tire might have been driven off the curb at a high point as the
of?cers? left the alley and drove on to Sunset Avenue although there was no obvious damage to the
cement. In short, the exact cause of the flattened tire remained undetermined.

36

to numerous turning maneuvers. Because there was no follow up administrative

interview, the Department did not question Of?cer Grif?n further about these

tactical decisions. The Administrative Memorandum 

the Department did not attempt to export this

'31
:3
E.


potential learning to its remaining officers through a roll call brie?ng and/or a

training bulletin, foregoing a teaching moment for its of?cers.

Recommendation Seven: The Department should brief the involved of?cers and
issue a training bulletin on the tactical considerations and potential
disadvantages in Operating a patrol car while holding a ?rearm in one hand.

Recommendation Eight: Considering what occurred in the McDade incident, the
Department should devise protocols and provide training on those protocols
that would require immediate radio noti?cation ifof?cers who are following a
suspect collide with a structure, however minor.

 


.4

While Officer Newlen said he was carrying his ?rearm during the subsequent foot pursuit, he was not
asked whether he had his gun out at this juncture of the event.

The decision of Of?cer Newlen to exit the police car, leave his partner, and
pursue Mr. McDade on foot.

Of?cer Griffin and Newlen ?rst observed Mr. McDade while they were in their patrol
car. As he ran from them, the of?cers initially followed in their car. As noted above,
at some point, Mr. McDade reversed his direction of travel and Officer Grif?n
stopped the patrol car in an effort to reposition the police car to continue to pursue
McDade. As the car came to a stop, Of?cer Newlen exited the car and began to chase
McDade on foot. Of?cer Newlen did not take the time to explain his intentions to his

partner at the time he exited the police car. According to the Administrative

Memorandum.?

The Administrative Memorandum indicated 

According to the Administrative MemorandumThe Administrative Memorandum noted 

The Administrative Memorandum indicated

38

PPD policy expresses a preference that officers stay together during foot pursuits of

suspects- 

in this case, Officer Newlen took affirmative steps to separate himselffrom his
partner and go into foot pursuit. Officer Newlen compounded this decision by not
communicating his intent to his partner. In addition, Of?cer Newlen left in such a
hurry that the passenger door of the police vehicle remained open, requiring Of?cer
Grif?n to back up the police vehicle then stop abruptly so that the door would close
itself. Since Officer Newlen was no longer in the car, Officer Griffin could not tell his
partner that his own plan was to drive the patrol car to cut off the suspect?s escape.
This communication failure resulted in an improvised apprehension rather than a

more choreographed response to the situation.

When we presented these concerns to PPD, it indicated that despite the references

to its Administrative Memorandum cited above, the Review Board concluded -

when Of?cer Newlen left the patrol car

9


1
?51

and focused on Mr. McDade running down the sidewalk, he no longer had a visual of

his partner who was behind him. Moreover, when Officer Griffin drove past his

partner and Mr. McDade, he no longer had the ability to see either McDade or Officer

Newlen. This is buttressed by the Department?s own Administrative Memorandum

where it was nottit??0'?

With regard to whether the of?cers had a "tire-developed plan", when initially
questioned about their understanding of each other?s intentions, Of?cer Griffin said
referring to his partner: "He?s gone in a ?ash. We don?t talk about it. He?s gone,?
while Officer Newlen said that when he exited from the car, he "didn't know if [his
partner] got out and ran or not" and that he "didn?t know exactly what [his partner]
was going to do," statements that do not support a carefully orchestrated non-

verbalized plan.

foot pursuit policy further indicates that when a foot pursuit is initiated,
officers should broadcast whether they believe the suspect to be armed. When
Of?cer Newlen radioed that he was in foot pursuit, he did not communicate his
belief that the suspect was armed. PPD indicated that because information had
already been broadcast that the suspects were armed, it was not as important for
Officer Newlen to do so. However, the Department?s foot pursuit policy does not
indicate that the need for officers to satisfy this requirement is obviated when that
information has been previously broadcast. Moreover, in this case, the information
communicated about Mr. McDade being armed came from what later proved to be
an unreliable informant. Neither Officer Griffin nor Newlen had broadcast that they
were following a person they believed to be one of the robbery suspects nor their
beliefthat the person was armed. Per the Department?s foot pursuit policy, it would
have been preferable for Of?cer Newlen to con?rm in a broadcast to fellow of?cers

that he was in pursuit ofa suspect he believed to be armed.

PPD's foot pursuit policy instructs that foot pursuits potentially place police officers
and the public at significant risk. The policy states that if circumstances reasonably
permit, surveillance and containment are generally the safest tactics for

apprehending ?eeing persons. in this case, the involved of?cer was not asked

40

whether he considered attempting to contain the suspect rather than apprehend
him, particularly since the of?cers had aerial support and they believed that the
suspect was armed. The foot pursuit policy indicates that the initiating officer
should not attempt to overtake and confront the suspect but should attempt to keep
the suspect in sight until sufficient of?cers are on scene to safely apprehend the
suspect. This is especially true when the suspect who is being pursued is believed to
be armed. As noted above, the pursuing officer was not directly asked about this
provision of the policy, but the Department "deduced" from his statements during
his criminal interview that it was his intent to overtake and apprehend Mr. McDade,

seemingly contrary to the expectations of Pasadena foot pursuit policy.22

We had speci?cally recommended that PPD re-interview

Of?cer Newlen to ask him whether his intent was to apprehend him. 

23

Recommendation Nine: The Department should brief the involved officers in the
McDade shooting and devise a training bulletin for all PPD of?cers advising
them of the Department?sfoot pursuit policy, the tactical disadvantages of
splitting from a partner, the policy?s requirement that of?cers broadcast
whether they believe the suspect is armed, and the tactical concerns in closing
distance on a believed to be armed suspect.

 

22 Another factor to be considered under PPD's foot pursuit policy is whether the suspect being pursued is
known so that he can be more likely apprehended later. in his initial call to dispatch, the victim of the
theft said that he ?knew? the suspects. It is unclear from the investigation, however, whether that
information was made known to responding of?cers. This is yet another issue that should have been
explored by the administrative investigation and review to provide further insight and perhaps training to
police dispatchers about the impartance of communicating such information to responding of?cers.

23 Officer Newlen also reported that he had his gun out of his holster when he was in foot pursuit of Mr.
McDade, a tactic that has potential of?cer safety rami?cations. He was not asked about his decision to do
so, whether he considered the potential safety issues of running and pursuing while carrying a firearm,

41

Of?cer Grif?n?s decision to drive past Mr. McDade in an attempt to ?cut him

off" and ?has him in.?

Of?cer Grif?n told investigators that after Of?cer Newlen ?hailed? from the
patrol car, he heard his partner broadcast over his radio that he was in foot pursuit
of the suspect. Officer Grif?n said that he hit the accelerator of the patrol car and
saw the suspect running along the sidewalk with his partner a sizeable distance
behind him. Of?cer Griffin said that he passed the su5pect, angled his car in front of
the suspect and then hit the brakes of the patrol car in an attempt to cut the suspect

off and box him in.

Of?cer Grif?n told investigators that he had been trained in this technique whereby
the passenger of?cer would go into foot pursuit and the driver would "cut off? the
suspect with the car. According to Of?cer Grif?n, Mr. McDade continued a short
time further and then abruptly turned into the street where the patrol car had
stOpped, running directly toward the of?cer, and began sliding laterally as if he was
getting ready to shoot the of?cer. Of?cer Grif?n said that Mr. McDade?s movements
?scared? him because he had nowhere to go in response to what the of?cer
perceived as an aggressive move of an armed suspect towards him. According to
Officer Griffin, when McDade got within a few feet of him. he believed he needed to

use deadly force in order to stop the suspect from ?ring at him.

It will never be known whether Mr. McDade intended to confront Officer Grif?n
directly on the driver?s side of the patrol car, as the of?cer perceived, or to run past
the rear of the patrol vehicle to the other side of the street and continue his ?ight.
With the advantage ofhindsight however, a few factors point toward the latter

intention.

First, we now know that Mr. McDade did not possess a ?rearm or any other weapon
so any aggressive options against an armed officer in a vehicle would have been
limited. In addition, Mr. McDade?s previous evasive move seconds before had been
to stop ahead of the of?cers' vehicle and make an abrupt U-turn running past the

patrol car. It is possible that Mr. McDade was employing the same tactic when he

42

suddenly veered away from the sidewalk on Sunset with the ultimate objective of
again running past the rear of the stopped patrol car and continuing his ?ight in a
different direction. Finally, according to an emergency worker at the scene, after
being fatally wounded and while being treated for his injuries, Mr. McDade
repeatedly asked why officers had shot him, indicating surprise that his actions had
caused officers to use deadly force. That being said, the weight of the evidence
collected indicates that Officer Grif?n believed that Mr. McDade possessed a ?rearm

and had fear for his safety when he decided to use deadly force.

According to the Administrative Memorandum,?

Officer Griffin's attempt to ?cutoff? Mr. McDade and ?boxing him in? by
driving past him and then angling towards him compromised the safety of the
of?cer, increased his vulnerability, and raised the level of threat to him. In order to
successfully complete this tactic, Officer Griffin would have been required to lose

visual ofand drive past a suspect he believed to be armed who would then have

 

2" The training referred to in the Administrative Memorandum is the use of "boxing in" following a PIT
maneuver. A PIT maneuver is a controversial law enforcement technique deployed by some police
agencies to tap a moving car with a patrol car in order to have the suspect vehicle spin out of control and
generally requires supervisory approval before it can be deployed. Here, Officer Grif?n was not
attempting to deploy a PIT maneuver since Mr. McDade was on foot so any tactics deployed in PIT
training are inapplicable to the situation confronted by Of?cer Griffin in this incident.

found himself in a tactically superior position to the of?cer. Once Of?cer Griffin
stopped his vehicle close to the suspect, he admittedly found himselfin a tactically
inferior position, and as he described it, stuck in his patrol car with nowhere to go,
with few options once McDade suddenly turned on him and advanced in his
direction. The attempt to execute the maneuver caused Of?cer Grif?n to place
himself in a stopped car positioned too close to a suspect he thought had a gun. As a
result, when McDade turned and shortened the distance between the two ofthem,

Officer Grif?n felt he had to use deadly force on Mr. McDade.

In reviewing numerous deadly force scenarios, 01R Group has been taught by use of
force experts that it is critical to maintain distance and cover25 when dealing with
suspects believed to be armed and we have reviewed scores of shootings where
of?cers? decisions to close distance, not seek cover, and advance on suspects
believed to be armed have led to those of?cers placing themselves in compromised
positions where they felt constrained to use deadly force. in this case, both Of?cer
Grif?n and Of?cer Newlen attempted in different ways to close distance on a suspect
they perceived as armed without being in a position ofcover, increasing the threat

they believed McDade posed to them.

it is concerning that PPD executives so willingly accepted a tactic that was not
taught by their training cadre but one that had been apparently adapted by two line
of?cers as a result of training provided by an outside agency to deal with an
inapplicable situation, a ?eeing vehicle. The potential peril to of?cers in dealing
with armed suspects demands that they are provided with thoughtful guidance on
how best to deal safely with such individuals. To allow officers to improvise and
develop maneuvers that are not taught by their agency and run against principles of

of?cer safety incurs too great a risk to the safety and well-being of those of?cers and

 

25 Cover is a tactical concept whereby an officer places himself behind objects that will stop any bullets
from striking him and prevents suspects from acquiring a target to shoot at. Officer Grif?n said he was
not in a position of cover when he was seated in the driver?s seat of his police car when Mr. McDade
abruptly turned in his direction and Of?cer Newlen said that he had started to move off of the sidewalk
and towards the street and was not taking cover when he thought McDade was firing at him and he ?red
his weapon.

44

the public. For that reason, we implore PPD to revisit whether it should instruct its
of?cers that, officer safety reasons dictate that they not use the "cutoff" and "box in?

tactic deployed by Of?cer Grif?n in this shooting.

Recommendation Ten: To avoid the o??icer and public safety issues that arose in
this case as a result of the decision to attempt to cut off Mr. McDade and box him
in, PPD should circumscribe its tactical policies and create training that would
prohibit a ?cut off? and ?box in "maneuver when pursuing suspects believed to
be armed.

Potential Cross?re Considerations

As Of?cer Newlen chased Mr. McDade, he told investigators he saw him abruptly
turn toward Of?cer Grif?n who was seated in their patrol car. Of?cer Newlen said
he then heard the sound ofone gunshot. Of?cers Newlen reported that he was
uncertain who fired the weapon but he believed Mr. McDade was shooting at his
partner. Officer Newlen stated that he then observed Mr. McDade pivot, look
directly at him and begin to crouch. Officer Newlen said that he then heard a second
gunshot and observed a muzzle ?ash. According to Officer Newlen, he believed that

Mr. McDade was shooting at him and fired four rounds at McDade.

Cross?re situations occur when of?cers are positioned in such a way that their use

of deadly force presents a threat to fellow of?cers or other innocent parties.
According to the Administrative Memorandum,?
The-AdministrativeMemorandum

noted?
TheMemorandumnoted?

Despite these conclusions, the Review Board noted 

45

While the Administrative Memorandum captures the Review Board discussion

When Of?cer Grif?n was interviewed by detectives, he told

them that he was not sure where his partner?s position was exactly when he decided
to ?re his weapon. Officer Griffin later in the interview told detectives that he was
not going to start shooting back "like crazy? because he knew his partner was "back
there somewhere.? Of?cer Grif?n also stated that after he got out of the police car,
he was concerned that he had shot his partner because he did not know exactly
where he had been at the time he used deadly force. When interviewed by
detectives, Of?cer Newlen stated that he could not see what his partner was doing

when he heard the ?rst shot.

Regardless of whether the situation created an actual crossfire, the officers? own
statements indicated uncertainty regarding each other?s position and actions at
crucial times during the incident and an articulated concern by Officer Griffin that he
might have accidentally shot his partner. The inability to know where each other
was and what actions each other was taking occurred in signi?cant part as a result
of Officer Newlen?s decision to split from his partner and pursue Mr. McDade and
Of?cer Grif?n?s decision to attempt to drive past Mr. McDade and cut him off. The
potential for crossfire that occurred here and the resulting concern and uncertainty
expressed by Of?cer Grif?n is another consequence of the prior tactical decisions

made by the involved officers??

 

 

While our experience has found that of?cers involved in

To its credit, even though it concluded that there were no actual crossfire issues
regarding this incident, PPD used the review to reinforce cross?re concerns as a
training priority. During an onsite visit to the Department's range, 01R Group was
able to experience some of training scenarios first hand and found that
concerns about crossfire were articulated and discussed during the role playing

sessions developed for attendees.

Of?cer Grif?n?s failure to place his vehicle in park before exiting his vehicle
after the shooting.

The Administrative Memorandum noted?

The Administrative Memorandum
surmised?

- As related by Officer Griffin in his interview with PPD detectives, as he

alights from his car and begins to deal with the downed suspect:

[l]ts my car. it?s rolling backwards. I get hit by the door because I had kicked
the door open. ldidn't close the door behind me. The door hits me in the

 

deadly force incidents frequently mistake shots ?red by fellow police officers as emanating from suspects,

It is unclear from the materials provided to DIR whether the particular issue of the need to ensure that
the patrol car is in gear before alighting from the car was taught as part of the driving school curriculum.

4?

back and it?s starting to drag me but I?m on top of the suspect and i
thought this door is going to hit this guy and it?s going to drag this guy. [can't
let that happen. So like, I kind of started protecting him. i was trying to kind
of push him down.

However, while the potentially disastrous mistake by Of?cer Grif?n and the quick
thinking maneuver by Officer ewlen to stop the car from rolling back were

discussed during the review process, the Administrative Memorandum-

.N


While the Administrative Memorandum spoke to the benefit of providing additional
training to its officers with regard to this issue, in correspondence later received
from PPD, we were informed that the Department did not believe a briefing or
training bulletin was warranted on this point because police of?cers know full well

that vehicles must be placed in park when they come to a stop and exit the vehicle.

While it is, of course, obvious that police officers know that vehicles should be
placed in park, it is always helpful to remind officers of how high stress situations
might deleteriously impact performance ofrelatively routine actions. While the
Department indicated that it has seen no pattern ofsimilar events by PPD
employees, we have seen other occasions where a rapid exit of patrol vehicles by
peace officers has caused their cars to remain in gear and move forward with the
operator outside of the car. Considering the potential for calamitous consequences
that could ensue ifa police vehicle is inadvertently left in gear without an operator,

a briefing on this subject could be a helpful reminder to members of PPD.

Recommendation Eleven: PPD should brief the involved officer and issue a roll
call brie?ng and/or training bulletin regarding the need under stressful

 

2" An inspection of the patrol car after the incident reveaied that the driver?s door would not open; the
Department concluded that the damage to the door was a result of the door hitting Of?cer Griffin.

48

circumstances to remember to place your car in park before exiting the patrol
car and the potential calamitous consequences if one forgets to do so.

Review of Issues Surrounding PPD's Mobile Audio Video System.

PPD patrol cars are equipped with a mobile audio video system that
provides an ability to capture an audio/video record ofevents occurring in front of
the vehicle. When an officer initiates "Code 3 equipment? [red lights and sirens], the
system begins to automatically record events. The system also has a feature
whereby officers can turn on the system manually. In the McDade incident, because
the of?cers did not initiate Code 3 equipment and did not activate the system
manually, there was no audio or video record ofthe shooting or any of the events

preceding the shooting.
Analysis of State of MAV Equipment.

According to Administrative Memorandum the Review Board considered
MAV issues and concluded that the McDade incident underscored the value ofa
robust MAV system. However, according to the Administrative Memorandum the
Review Board found that the current system was outdated. According to the
Memorandum, the current MAV system is failing and the vendor is no longer in
business, requiring technical personnel to repair the storage, camera, and
audio systems as best they can. The Administrative Memorandum noted that the
Review Board supported a replacement MAV system and has requested future

funding allocations from the City.

Group concurs with the Review Board?s assessment that the value ofa
contemporary audio video recording system in its patrol cars cannot be
understated. Group recommends that the City consider the Department?s
assessment that a new system is needed in order to en5ure increased functionality
and the ability to capture additional events.

Recommendation Twelve: The City should consider whether it should allocate
funding for a new mobile audio video system to be installed in PPD patrol cars.

49

Involved officers' decision not to respond Code 3 [lights and siren).

Of?cers Griffin and Newlen did not activate the emergency equipment on their
police vehicle as they approached the area where the suspects were last seen.

According to the Administrative Memorandum, the Review Board -

The Review
Boarddidmdicate_

01R Group also reviewed Of?cer Griffin and Newlens? decision not to respond Code
3 to the felony call. As detailed above, this decision had signi?cant implications
because, in Pasadena Police vehicles, activating lights and siren automatically
activates the in-car video camera. While PPD policy provides signi?cant discretion
to its officers regarding use of lights and siren, it would have been helpful to learn
why the involved of?cers chose not to do so. For that reason, as noted above, we

recommended during the administrative phase of the investigation that the Of?cers

Grif?n and Newlen be asked about this decision?

Assessment of involved of?cers? decision not to manually activate the in-car
audio video system.

Whatever limitations exist on the current MAV system, as noted above, of?cers may
activate the system manually. In order to do so, the of?cer must reach overhead and

push the activation button. According to the Administrative Memorandum,-

The Review Board noted if the?

50

The fact that the video camera in the patrol car ofthe two pursuing officers was not
activated in this case was also an area of our attention. The cameras, which usually
show the view out the front of the patrol vehicle, are designed to automatically
activate when officers respond with lights and siren, but because the pursuing
of?cers did not turn on their emergency equipment, the camera was not activated.
While the system allows for manual activation of the camera alone by ?ipping a

toggle switch, the pursuing officers did not do so.

it would have been extremely useful to have

captured some ofthe events leading up to this incident with the camera. -
the of?cers should have been asked
during the administrative interview whether they considered manually activating
the camera. Current Departmental policy does not require officers to manually

activate cameras, leaving that decision to their discretion.

The rationale for activating cameras when rolling with emergency equipment also
exists when a patrol car is traveling on a ?hot? call, even ifthe emergency equipment
is not activated. For that reason, the Department should consider requiring their
officers to activate the in car camera whenever of?cers are responding to felony

calls or pursuing a person believed to be armed.
Recommendation Thirteen: Because in McDade the involved o?icers chose not
to respond with lights and siren and therefore their in?car audio video system

was not automatically activated and because they did not manually activate the
system, the Department should devise policy requiring manual activation of the

51

in car audio video system when an officer is responding to felony calls or
pursuing a person believed to be armed.

Personal Recording Devices

The Administrative Memorandum indicated 
The Memorandum noted
The Administrative Memorandum noted

Irmeyhad

activated personal recorders, the audio record created may have proven extremely

helpful to the investigation and analysis of the event.

We have repeatedly seen where mobile audio devices easily activated by an of?cer
can be extremely helpful to sort out events, perceptions and reactions during and
after the fact of a critical incident. We urge that PPD do what a number of police
agencies have already done and equip its officers with Department owned mobile
audio devices. At the same time, we recommend that the Department also devise
policy mandating that its officers activate such recorders for certain public contacts

and police activities.

Recommendation Fourteen: PPD should equip its of?cers with mobile audio
devices.
Recommendation Fifteen: Because in the McDade shooting, no involved of?cers

activated their mobile audio devices, PPD should devise policy spec?fving when
of?cers are required to activate mobile audio devices.

Police Radios

According to the Administrative Memorandum,?

?According to the


We also reviewed the involved officers? interactions with their radio in this case.
Best police practices teach the importance of effective communication among
of?cers. Important observations during the following ofa suspect should be radioed
to other of?cers so that they have a better understanding of the situation, including
the threat level presented by the individual should the other units be required to

deal with him.

in this case, the two involved officers stated that they repeatedly observed Mr.
McDade holding the right side of his waistband with his right hand, as ifhe were
holding a concealed firearm. However, at no time during their pursuit of Mr.
McDade did they successfully radio these observations to other responding units.
During their initial interviews, the of?cers said that Officer Newlen was attempting
to broadcast updated information, but was not able to because he was crowded out
by other radio traffic. However, there was little follow up questioning as to whether
there was a lack of?air time" during the whole portion of the vehicle pursuit when
Officer Newlen was in the vehicle. According to information received from the
Department, the radio recordings validated that during some of the time that the
officers were following McDade an uninvolved officer broadcast unrelated

information on the radio.

Some police agencies teach that if pursuing of?cers do not have the ability to
communicate over the radio, principles of officer safety demand curtailing the
pursuit until a broadcast becomes possible. With regard to this case, considering

the officers? observations oer. McDade appearing to conceal a weapon, ifa radio

53

broadcast was not possible, it may have been advisable to back off their tracking of

Mr. McDade until they could do so. When we presented this concern, the

Departmemesponded_
The Department rurther
rtamed?

- Regardless ofwhether the inability of the officers to communicate valuable
observations about the suspect to fellow responding officers was a result of the
failure to try hard enough to broadcast the information, the failure of the other
officer to practice radio discipline or a combination of the two, the information was
not effectively communicated. While generalized ongoing training concerning
police radio discipline may be a partial solution to this problem, 01R would have
preferred to see the Review Board mandate the development ofan action plan to
produce training geared to the communication failure in this incident so that the
importance of radio discipline and the possible consequences that could ensue were

emphasized to its members.

Other equipment issues.

According to the Administrative Memorandum, 

54

Post-incident reSponse/management.

TheAdministratweMemorandum?
?TheBoardobse-rved?
?29 The Review Board?

The Administrative Memorandum indicated 
The Review Board found 

Our review also found the immediate post-incident response at the scene
commendable and consistent with best practices. When backup officers arrived at
the shooting scene, an officer uninvolved in the shooting took over the handling of
Mr. McDade while another walked the involved officers away from the immediate
scene. Officer Newlen had called for emergency medical assistance six seconds after
broadcasting that shots had been fired. The paramedics entered the scene less than
three minutes later. While waiting for paramedics to arrive, one uninvolved officer
shined a light into Mr. McDade?s eyes, urged him to "stay with us?, "hang in there"
and informed him that help was on the way. Consistent with general police safety
procedures, Mr. McDade was initially handcuffed, however, once it was determined
that he was not armed and was not a threat to responding officers, the handcuffs
were removed. The decision for uninvolved officers to take over post-incident
responsibilities, including any interactions with Mr. McDade and to remove the
handcuffs so that emergency medical personnel could better attend to him

demonstrated professional and effective post-scene handling by PPD personnel.

 

29 Public safety questions are questions intended to assist responding supervisors to address potential
issues at the crime scene and include number and direction of rounds ?red and whether there are any
outstanding suspects. This information is important to know so that investigators can locate any rounds
that may have entered residences and apprehend any outstanding suspects.

55

During our review of the exhibits in the investigative ?le, we noted that the crime
scene photos taken ofevidence at the scene show items in different positions. For
example, one photo shows one of Mr. McDade?s shoes in a different position than
another photo. In addition, there are photographs of Mr. McDade?s boxer shorts that
are in different positions. Some crime scene photographs depict a cell phone while
other photos of the same area do not. While there may be explanations for why the
items are moved from one photograph to the next, the scene being
inadvertently disturbed by rescue personnel treating Mr. McDade or evidentiary
items being collected while the photographs are being taken, the investigative ?le
contains no references or explanations for the differently configu red items. It is
helpful to any eventual reviewer of the investigative ?le when such explanations are

included as detective?s notes to the file.30

Recommendation Sixteen: Crime scene photographs should be carefully
reviewed by the investigators. If there is evidence of items having been moved,
inquiry should be undertaken into that movement and case notes should explain
the circumstances behind the movement.

The Administrative Memorandum notes 
_The Review Board noted -
should be commended for

identifying this issue early on in their review process and readily addressing it.

 

3? To the Depa rtment?s credit, a shell casing from the shooting apparently became lodged in the shoe of a
responding of?cer who rode with rescue personnel to the hospital and the Department 
investigated and documented that occurrence in the file. This is the type of documentation through case
notes or supplemental memoranda that we would have liked to have seen in the investigative file
documenting the other items that were moved either during rescue attempts or processing the scene.
Moreover, in response to DIR Group's Recommendation No. 2 in the Barnes report, and to its credit, PPD
created a Crime Scene Response and Management Course curriculum, incorporating issues identi?ed by
us in that report and mandated attendance to all supervisors. Finaily, while inapplicable to this case, PPD
addressed our concern in Barnes about the lack of body screens by purchasing two additional body
screens and placing them in supervisors? patrol cars.

56

Internal review of the criminal investigation

The Administrative Memorandum documented?
TheAdmimstrative Memorandum notedAdministrative MemorandumThe Administrative Memorandum 

I

3>



"1

:3
m:
f'police department to not learn what its personnel have to say about an officer-
involved shooting until thirty-six hours after the event is to wait too long to acquire

such information.31 As with any investigation, during the window of time

 

U)
L.

In this case, the only information PPD had from the involved of?cers directly until their delayed
interviews was the brief on-scene Public Safety statement discussed above.

57

immediately after a critical incident it is crucial to collect evidence from other
witnesses and develop additional leads. While ideally some preliminary
information and evidence should be gathered before formally interviewing the
officers, it does a disservice to both the involved of?cers and the investigation to
spend so much time prioritizing, collecting and digesting that information so that
the of?cers end up waiting for hours to provide their narrative. Moreover, because
the most important witnesses to of?cer-involved shootings are inevitably those who
are involved in them, any delay in receiving an account from them limits and delays

any follow up leads that could occur from receiving that information.

To their credit, once investigators determined that they did not intend to begin their
interview of the of?cers for several more hours and they were informed of the
fatigue factor setting in, PPD did reduce potential c0ntamination by outside sources
of the involved officers by continuing to monitor the involved officers while they
were escorted to a nearby hotel. However, momentum of the investigation may
have been lost as a result of the length of time it took to obtain the involved-officers
statements. In this case, the balance between the desire to obtain sufficient
information about the incident from other sources before interviewing the involved
of?cers and the interest in obtaining timely ?rst-hand accounts from those of?cers

should have been differently struck.

For the benefit of the investigation and the of?cers, after at most a few hours into
the incident, the officers should be interviewed, regardless of the state of the other
evidence. lfadditional questions arise about the officers? actions after they are
interviewed as a result ofadditional evidence being received, they can always be re-

interviewed .32

 

32 To the degree that the IACP guidelines opine otherwise, the concern about of?cer fatigue would be
mitigated were protocols developed that would require detectives to obtain statements from involved
of?cers within a few hours of the incident. Moreover, as part of a pattern and practice investigation, the
United States Department of Justice has indicated that of?cer-specific delays in obtaining information
from of?cers involved in shootings has the potential to hinder those investigations and that a waiting
period for officers? statements concerning uses of force defeats the purposes of contemporary, accurate
data. [See September 12, 2012 letter from Department of Justice to City of Portland Oregon regarding its
pattern and practice investigation of the Portland Police Department]

58

Recommendation Seventeen: Because in the McDade shooting, the involved
of?cers were not interviewed until thirty-six hours after the incident, Pasadena
PD should devise protocols so that interviews of involved o??icers are conducted
no more than a few hours after the incident.

Review of training records.

The Administrative Memorandum indicated that a review of the involved officers

training records?

33

training regimen in response to the McDade incident.

The Administrative Memorandum indicated that even prior to the administrative
review, PPD Command Staff implemented department-wide training for its
personnel. Command Staff felt there was a need to proactively review field tactics,
?rearm discipline, back-drop awareness, scenario based decision-making and other
tactics at the police range, including training on the Force Simulator in response to
circumstances presented in the McDade shooting. The Administrative
Memorandum reported that during 2013, the Department's Firearms Training Team
instituted ?rearms training that focused on "shoot/don't shoot? scenarios from a
police vehicle. According to the Memorandum, all sworn of?cers, including
Command Staff, were required to participate and pass the course. PPD officers,
communication operators, and others who use the police radio were to receive

ongoing training with regard to emergency communications.

We were able to experience some of the training referred to by PPD when we were

afforded the opportunity to visit the Department?s range. We engaged in some of

 

33 This finding is consistent with DIR Group's general observation that PPD provides substantive quality
training to its personnel.

the role playing that PPD officers experienced intended to improve their skills in
dealing with potential deadly threat situations and decision-making regarding
?shoot/don't shoot? scenarios. We were impressed with the training and insight

provided.

01R Group was also presented with the shoot-from-the-car scenario that was
devised in particular response to the McDade shooting. This scenario presented
important experience to officers regarding tactical options available when found in a
patrol car and faced with a potentially deadly threat scenario. In our view, however,
a scenario more ?nely attuned to the important issues presented in the McDade
shooting would have focused on the lead up decisions that resulted in the of?cer
placing his patrol car in a perilous situation so close to a suspect he believed to be

armed.

More recently, as a result of not only the McDade shooting but other subsequent
incidents involving foot pursuits in the apprehension of suspects, the Department
informed us that it has decided it needed to expand its foot pursuit instruction as a
current core curriculum. PPD has informed us that an expanded course in foot
pursuits and containment tactics is being instituted to ensure that its officers
receive instruction based on best practices. We were recently provided with a
syllabus of the "Foot Pursuit/Containment Training? and found it to be
comprehensive and responsive to the foot pursuit issues presented in the McDade
incident. For example, some of the subtopics in the syllabus are entitled,
?Communication is the key to success?, "Officer safety first Potential consequences
of partners splitting up?, and "Decision to pursue/capture versus risk to public and
law enforcement?. While the development of the class was not in immediate and
direct response to the McDade shooting, the potential corrective action that this
instruction could provide addresses one of the key tactical decision-making

concerns present in the McDade incident.

60

The Administrative Memorandum does not set out a suf?ciently tailored
action plan or include a feedback loop to ensure that initiatives are carried
out and evaluated.

To the Department?s credit, the Administrative Memorandum eventually prepared
by PPD documents a robust consideration by the Review Board of the officers?
decision to use deadly force, tactical decisions, post~incident response, the quality of
the investigation, policy, equipment, and training. While as we have indicated in this
report, we disagree with some of the Review Board?s eventual conclusions and there
are additional matters that could have been the subject of discussion, there is

inherent value in a review process that includes discussion ofa multitude of issues.

Moreover, even ifit was largely created to relay to us the breadth of the discussion,
the dOCumentation of the Review Board proceedings through the creation of the
Administrative Memorandum memorializes the issues covered and provides an
historical document of the Review Board?s deliberative process. However, two
additional necessary aspects of a robust review process are not Clea rly set out; the
development ofa carefully prepared action plan tailored to the issues identified by
the Review Board and the devising ofa feedback loop to ensure that the initiatives

ordered by the Review Board are implemented and evaluated.

As we have indicated above, while the Administrative Memorandum documents the

Review BBaird?s?

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ordered Department?wide appears to be reSponsive to particular issues identified in
the McDade review, much of it appears to be more generalized. For any lessons
learned to be directly responsive to issues identified in the shooting review, a

tailored action plan should be devised at the micro and macro level.

61

At the micro level, involved-of?cers and supervisors should receive direct and
targeted feedback through training and brie?ng with regard to their decision?
making and performance. When of?cers use deadly force resulting in a fatality, they
recognize that an investigation is initiated and that their decisions are assessed by
the Of?ce of the District Attorney and the Department with which they are
employed. When the District Attorney determines that the shooting was within the
law, a letter ofopinion is prepared and forwarded to the involved officers. At the
conclusion of the administrative review process there should also be feedback to the
involved of?cers to provide them insight regarding how the Department?s leaders
considered and assessed their conduct. However, there is no indication that in this
incident, that type of detailed feedback was ever provided to the involved officers?4
It is important both to provide this feed back to involved of?cers and to document
that fact so that, when future incidents or issues arise involving the same of?cers,
the Department can be sure that it fulfilled its duty to them and to the community to

use each critical incident as a learning opportunity.

In response to our concerns, the Department indicated that an Administrative
Review Memorandum is routed to the involved officers advising them ofthe

findings ofthe Department. The memorandum outlines whether the of?cer?s

actions were in or out of policy and if training was required. 
?The feedback we  is a

brie?ng with each involved of?cer where a Review Board participant
conveys the specific issues and discussion points regarding the of?cer?s
performance, decision?making as well as the operation overall. This brie?ng should
encompass aspects ofthe of?cer?s tactical decision-making and performance that
went well, those that could be improved, and, most importantly, provide additional

insight to the of?cer so that he is better equipped and prepared to address and

 



handle future potential critical incidents. For the Department to engage in an

extensive review of the ineide?t?

In fact, the Department recently informed us that they did not provide speci?c
feedback to the two involved officers because they did not want to single these
of?cers out or cause them to perceive executive staff was overly critical of their
performance. This is misguided reticence. Police of?cers should be entitled to this
level of feedback of their performance so that they can process, respond to, and

incorporate the information into their skill set and orientation.

At the macro level, Department-wide training and insight for all patrol officers and
supervisors should ensure that the speci?c issues faced by involved personnel are
addressed and discussed in the training so that Department members can benefit
from the experiences of those involved. One mechanism for the macro feedback that
we recommended in our Barnes? report and that we renew here is that the
Department prepare a training bulletin that sets out the salient issues identified

during the administrative review process.36

In communications received from the Police Department, we were informed that
instead ofdrafting a Training Bulletin relating to the McDade shooting, the Chief of
Police chose to personally visit each patrol briefing and discussed this incident with
all Department members. The communique indicated that all members of the

Department could ask questions concerning the incident and hear directly from the

 

35 The development of a timely and robust action plan was featured as a recommendation in our Barnes?
report. See Barnes? report, Recommendation No. 12. 

3'E?Barnes Report (2009), Recommendation No. 13.

Chief his perspective on community challenges, the of?cer-involved shooting and

lessons to be learned.

While 01R appreciates the Chiefs interest in dialoguing with his Department
members about this event, the Visits and briefings described do not ful?ll all ofthe
goals that a training bulletin can do. First, because a training bulletin is a written
document, it can set out the Department?s learning objectives clearly, and
thoroughly. More importantly, in contrast to an ephemeral in person visit that is not
documented, a bulletin memorializes lessons and serves as a future reference to the
Department?s teaching. The existence of a training bulletin also assists with future
liability and accountability issues in that it demonstrates through the existence of a
document that the Department is in intent on improving the skill set of its members
while also informing its officers about what the Department?s expectations are.
Finally, a training bulletin provides valuable information for future members who
would not have been employees at the time of the Chiefmeetings. While the Chief?
visits could serve as an important complement to the rollout ofa training bulletin,
for the reasons articulated here they cannot completely suf?ce as a replacement for

the creation and dissemination of such a document.

In addition to the creation ofa tailored action plan, a comprehensive review process
should include a feedback loop to the Review Board. In our investigation into
review processes of other agencies, we have seen review entities order initiatives
that never end up being carried out. To avoid this phenomenon, personnel should
be tasked with ensuring that any training, policy development, brie?ngs, or other
action items are timely implemented and the assignments should be documented in
the Administrative Memorandum. The feedback loop should include a date for the
Review Board to reconvene so that those assigned projects can report back to the

Board what actions were taken and provide feedback on the effectiveness of the

64

initiative. We recommended precisely this in our 2009 Barnes report and we repeat

the recommendation here.37

in response to our renewing this recommendation with the Department, it indicated
that after training was identi?ed by Executive Staff prior to the Administrative
Review, a training curriculum was prepared, all members of the Department
completed the training, and evidence ofthat training was placed in Department
training ?les. While these events are commendable and notable, encompassed in
our recommendation, is an evaluative component where those responsible for the
training report back to the Review Board on a date certain regarding its
effectiveness and ways in which it could be improved. We also would expect in this
feedback loop for those reSponsible for debrie?ng the involved officers and other
involved personnel regarding the deliberations ofthe Review Board how the
debriefings were received and whether any additional insights about the incident

were obtained as a result of them.

Recommendation Eighteen: As was eventually done in the McDade review, a
robust and detained administrative memorandum should be timely prepared
that documents the discussion, issues identi?ed, and determinations by the
Review Board with regard to tactical decision-making, policy concerns,
supervision, equipment, post incident response and assessment of the internal
investigations.

Recommendation Nineteen: Pasadena PD ?3 critical incident administrative
review process should include a documented, tailored and detailed action plan
designed to target and address any issues involving tactics, supervision,
training, equipment, or post-incident response or investigative issues.

Recommendation Twenty: The critical incident review action plan should
include as a necessary component that individual feedback is provided its
involved of?cers and any other actions of PPD personnel regarding decision-
making and issues identified during the internal review.

Recommendation Twenty-One: The critical incident review action plan should
include as a necessary component the creation of a training bulletin that
provides insight to all PPD personnel issues and challenges identi?ed during the
internal review.

 

3?7 See Barnes Report, Recommendation Number 12.

65

Recommendation Twenty-Two: The critical incident review action plan should
include the assignment of tasks to PPD and include a report back date when the
Review Board should reconvene and receive feedback about the efficacy of the
actions ordered.

PPD did not sufficiently consider the potential relationship between risky
tactical decision-making and the eventual decision to use deadly force.

While the Administrative Memorandum indicates?

_-38 The

of?cers both recount how, based on the dispatch transmissions and their
observations ofthe ?eeing suspect, they believed that they were pursuing an armed
suspect, yet they repeatedly made tactical decisions that were not congruent with
principles of of?cer safety. As noted above, those include: not successfully
broadcasting their observations of McDade being armed when they were following
him in the police vehicle, not communicating with each other regarding their
apprehension plan, continuing to pursue the suspect aggressively, including
traversing an admittedly unsafe narrow throughway, Of?cer Griffin deciding to
take his gun out thus making dif?cult driving maneuvers with one hand, failing
to reevaluate the safeness oftheir actions after colliding the patrol car with a
building wall, (6) failing to broadcast the traffic collision, splitting partners
without effective communication resulting in unclear understandings about their
next moves, (8) Of?cer Newlen deciding to chase an armed suspect on foot with the
intent to apprehend rather than the preferred and safer goal ofcontainment, 
Officer Griffin deciding to engage in a "cut off" and ?box in? maneuver which
required driving past an armed su5pect, and (10) Of?cer Grif?n positioning and

stopping the patrol car too close to a running su5pect he believed was armed. -

 

 

66

When officers make tactical decisions that place themselves in unsafe positions by
closing distance, losing visual ofa suspect, failing to communicate, not seeking
cover, or not getting help, it increases the likelihood that those officers will end up
having to shoot their way out ofdangerous situations to which they have, in part,
contributed. For that reason, police agencies must consider the possibility that
there is a connection between unsafe tactics and a resulting use of deadly force and
critically analyze each officer-involved shooting to determine to what extent such

of?cer decision?making may have played a role in the eventual outcome. In this

case, the Review Board should have been asking;?

With regard to issues ofthe reasonableness of of?cers? actions from a civil liability
standpoint, last year in the case ofHayes v. County ofSan Diego, 57 622
(2013] the California Supreme Court held that liability for negligence may arise
from tactical conduct and decisions employed bylaw enforcement officers
preceding the use of deadly force, when viewed as part of the totality of the

circumstances. This most recent pronouncement has caused the two largest law

 

I

enforcement agencies in California (LAPD and LASD) to revamp their use of force
policies to require Department leaders, when determining whether a deadly force
incident is within policy, to consider tactical decision-making preceding the trigger
pull. PPD should follow the lead of these two agencies and similarly consider lead
up tactical decision making in determining whether a deadly force incident is
consistent with Departmental expectations and principles of reasonable conduct set
out by California jurisprudence.40

Recommendation Twenty? Three: Once concerning of?cer tactical decision
making is identi?ed such as the involved officers:

(1) not successfully broadcasting their observations of McDade being armed
when they were following him in the police vehicle,

(2) not communicating with each other regarding their apprehension plan,

(3) continuing to pursue the suspect aggressively, including traversing an
admittedly unsafe narrow throughway,

(4) the driving o?icer deciding to take his gun out thus making dif?cult driving
maneuvers with one hand,

(5) failing to reevaluate the safeness of their actions after colliding the patrol
car with a building wall,

6 failing to broadcast the traf?c collision,

7) splitting partners without effective communication resulting in unclear
understandings about their next moves,

the passenger of?cer deciding to chose an armed suspect on foot with the
intent to apprehend rather than the preferred and safer goal of containment,

(9) the driving of?cer deciding to engage in a "cut off? and "box in maneuver
which required driving past an armed suspect, and

(10) the driving of?cer positioning and stopping the patrol car too close to a
running suspect he believed was armed,

PPD should consider whether such decisions may have combined to instill in the
of?cers an extraordinary level of fear so that once the driving officer placed

 

4? While we did not review the subsequent civil proceedings arising out of the McDade shooting, it should
be noted that the federal court found that there were sufficient triable issues of fact about the
reasonableness of the involved o?icers? conduct and declined to grant the City?s request for summary
judgment. After that ruling and on the eve of trial, the City decided to settle the lawsuits.

68

himself in a precarious position so that once Ml?. McDade made an unanticipated
move, the officer believed deadly force was his only option.

Recommendation Twenty-Four: In reviewing officer-involved shootings, PPD
should recognize the strong correlation between o?icer tactical decision-
making that is inconsistent with principles of o?icer and public safety and the
eventual perceived need to use deadly force and use that principle, consistent
with recent California Supreme Court jurisprudence, to assess and evaluate
of?cer decision-making.

PPD should strive to continue to infuse its officers with smart and safe tactics
and mindsets so that they can dictate a safe and sound response to ?chaotic?
and ?uid situations.

We have heard similar comments by other

Departments about how a suspect "dictated the outcome?. in our view, it is the
chaotic and ?uid situations that particularly demand that officers perform at the top
of their form, summon their training to retain control of the environment and

reduce the opportunity for chaos, and direct an outcome that the of?cers dictate, not
the suspect. However, in order to reinforce this ideal vision ofan of?cer safely

ta king 3 person into custody, any tactical decisions that undermine this goal and

place officers at risk must be revealed and addressed.

Recommendation Twenty-Five: The Department should continue to work to
create a culture where of?cers are encouraged to use tactical proficiencies and
decision?making consistent with principles of of?cer safety to dictate desired
outcomes.

CONCLUSION

Throughout this report we have emphasized issues surrounding of?cer decision?

making in the field. The daunting complexities of modern police work and a natural
reluctance to second guess the decisions of of?cers in circumstances of great stress
and time pressure make some police departments reluctant to delve deeply into the

thought processes that underlie field performance during critical incidents,

69

especially when they result in fatalities. We learned late in our review ofthis
incident that the Pasadena Police Department spent considerable time and effort
identifying issues during the review process and devising training that began to
address some of the issues presented. More promising is the Department?s recent
attention to providing more exacting training and guidance to its members
regarding one of the most dangerous aspects of police work there is; going into foot

pursuit of a suspect believed to be armed.

To their credit, after the McDade shooting, the Department and the City once again
agreed to open its files to independent outside observers. As we have indicated in
our report, there is much to praise the Department for, the quality of the
Detective investigation and the wide ranging issues considered by the Review
Board. However, we have set out signi?cant concerns and made recommendations
regarding the investigative and review processes, as well as current policies and
protocols that we hope the Department carefully considers as bases for needed
reform and improvement. Most importantly, by authorizing us to write this public
report, the City advances fundamental principles of tranSparency by providing its
citizens, police department members, and other interested stakeholders a vehicle
with which to present and consider these issues and join in the discussion about

them.

Recommendation Twenty-Six: The Department and the City should cement its
commitment to transparency by authorizing release of a factual, analytical,
public, and independent report that permits its public and stakeholders the
ability to determine for themselves how the incident unfolded, how well the
Department investigates and reviews officer-involved shootings, how well the
Department holds involved personnel accountable, and how well the
Department develops learning for itself and its officers in response to them.

70

EXHIBIT 

Post-incident response/management.

The Administrative Memorandum noted that the Review Board examined and
assessed the supervision at the crime scene. The Board observed that Of?cers
Griffin and Newlen were appropriately separated and asked public safety questions
at the scene.29 The Review Board further noted that officers were assigned to
remain with the involved officers who, consistent with best police practices, were

transported in separate patrol cars to the police station.

The Administrative Memorandum indicated that immediately after Mr. McDade was
secured, officers called for paramedics to provide emergency medical assistance.
The Review Board found that the on-scene supervisors performed well in

preserving the shooting scene and facilitating medical assistance for the suspect.

Our review also found the immediate post?incident response at the scene
commendable and consistent with best practices. When backup of?cers arrived at
the shooting scene, an officer uninvolved in the shooting took over the handling of
Mr. McDade while another walked the involved officers away from the immediate
scene. Of?cer Newlen had called for emergency medical assistance six seconds after
broadcasting that shots had been fired. The paramedics entered the scene less than
three minutes later. While waiting for paramedics to arrive, one uninvolved officer
shined a light into Mr. McDade?s eyes, urged him to "stay with us", ?hang in there?
and informed him that help was on the way. Consistent with general police safety
procedures, Mr. McDade was initially handcuffed, however, once it was determined
that he was not armed and was not a threat to responding officers, the handcuffs
were removed. The decision for uninvolved officers to take over post-incident
responsibilities, including any interactions with Mr. McDade and to remove the
handcuffs so that emergency medical personnel could better attend to him

demonstrated professional and effective post-scene handling by PPD personnel.

 

29 Public safety questions are questions intended to assist responding supervisors to address potential
issues at the crime scene and include number and direction of rounds ?red and whether there are any
outstanding suspects. This information is important to know so that investigators can locate any rounds
that may have entered residences and apprehend any outstanding suspects.

55

Internal review of the criminal investigation

The Administrative Memorandum documented that the Review Board found that
the criminal investigation was comprehensive and robust. The Board commented
positively on the canvass of the area for witnesses and the work by detectives that
eventually proved that the victim had falsely reported that the two suspects had
used ?rearms during the initial crime. The Administrative Memorandum noted that
as a result of the extensive work being done by detectives, the involved of?cers had
been awake for almost one and a half days and their legal counsel advised detectives
that they were exhausted and in poor condition to provide coherent statements. As
a result, the officers were sequestered at a local hotel by the supervising Lieutenant,
assigned a monitor, and allowed to obtain a few hours ofsleep. According to the
Administrative Memorandum, while sequestered, the officers did not have access to
reports, other department personnel, or media. The Memorandum reported that
the officers were transported back to the police department and interviewed

approximately thirty-six hours after the shooting.

The Administrative Memorandum documented the Review Board?s recognition that
the delay in interviewing involved officers that occurred here can cause public
doubt regarding the accuracy of their statement. According to the Memorandum,
the Review Board however, recognized that professional groups, such as the
International Association of Chiefs of Police and some federal law enforcement
agencies recommend at least one sleep period prior to being interviewed by
investigators. The Memorandum indicated that although the 
recommendation is not currently PPD protocol, in the future the decision about

when to interview involved of?cers will be utilized on a case by case basis.

For a police department to not learn what its personnel have to say about an officer-
involved shooting until thirty?six hours after the event is to wait too long to acquire

such information.31 As with any investigation, during the window oftime

 

31 In this case, the only informatiori PPD had from the involved of?cers directly until their delayed
interviews was the brief on-scene Public Safety statement discussed above.

57

immediately after a critical incident it is crucial to collect evidence from other
witnesses and develop additional leads. While ideally some preliminary
information and evidence should be gathered before formally interviewing the
of?cers, it does a disservice to both the involved of?cers and the investigation to
Spend so much time prioritizing, collecting and digesting that information so that
the officers end up waiting for hours to provide their narrative. Moreover, because
the most important witnesses to officer-involved shootings are inevitably those who
are involved in them, any delay in receiving an account from them limits and delays

any follow up leads that could occur from receiving that information.

To their credit, once investigators determined that they did not intend to begin their
interview of the of?cers for several more hours and they were informed ofthe
fatigue factor setting in, PPD did reduce potential contamination by outside sources
of the involved officers by continuing to monitor the involved of?cers while they
were escorted to a nearby hotel. However, momentum of the investigation may
have been lost as a result of the length oftime it took to obtain the involved-of?cers
statements. In this case, the balance between the desire to obtain sufficient
information about the incident from other sources before interviewing the involved
of?cers and the interest in obtaining timely ?rst-hand accounts from those of?cers

should have been differently struck.

For the benefit of the investigation and the officers, after at most a few hours into
the incident, the of?cers should be interviewed, regardless of the state of the other
evidence. If additional questions arise about the officers? actions after they are
interviewed as a result ofadditional evidence being received, they can always be re-

interviewed .32

 

3?2 To the degree that the guidelines opine otherwise, the concern about of?cer fatigue would be
mitigated were protocols developed that would require detectives to obtain statements from involved
of?cers within a few hours of the incident. Moreover, as part of a pattern and practice investigation, the
United States Department of Justice has indicated that of?cer-specific delays in obtaining information
from of?cers involved in shootings has the potential to hinder those investigations and that a waiting
period for officers? statements concerning uses of force defeats the purposes of contemporary, accurate
data. [See September 12, 2012 letter from Department of Justice to City of Portland Oregon regarding its
pattern and practice investigation of the Portland Police Department]

58