The civilian-run agency that oversees the Metro Nashville Police Department has completed its first investigation into a police shooting and believes the officer who fired should be punished.
The Community Oversight Board voted at its monthly board meeting Wednesday to recommend a 20-day suspension for an officer who shot a man in the leg during a domestic violence call nearly two years ago. The man survived, but the agency says there were policy violations.
The report is the only outside probe of the case. Unlike most shootings by Nashville police, it was never reviewed by the Tennessee Bureau of Investigation. The district attorney’s office established a policy in 2017 that calls in the TBI for all fatal shootings by MNPD officers, and prosecutors have requested the TBI for other nonfatal shootings, as well. This was the only shooting since 2017 not to undergo a TBI investigation.
The oversight agency’s review provides a rare glimpse into the inner workings of an investigation into police use of deadly force. The city voted to establish the civilian department to look into allegations of officer misconduct in 2018, after two high-profile shootings by police. But once the agency got up and running, they spent months sparring with police over access to crime scenes and records.
MNPD has since signed an agreement with the oversight group that grants its employees more power to investigate shootings and civilian complaints. More than a year later, they have completed their first independent review of a shooting.
And the report could reopen a case that was deemed justified. A police spokesperson confirmed to WPLN News that an internal review of the case found that the officers were in compliance with department policy on the night of the shooting.
But oversight investigators disagreed in their report, which details what happened the night of the shooting.
Miscommunication, failed Tasers and a non-lethal shot
In May 2020, police responded to a call from a boy who said his parents were fighting and thought his dad had pushed his mom. The report says they approached the man on the street with guns drawn.
The man said he told the officers, “Why don’t you put the guns away so we can talk?” But the officers said they couldn’t make out his words. They just saw him “yelling, gesticulating wildly with his hands” and walking quickly toward them while they commanded him to stop, according to the oversight agency’s report.
The officers told investigators the man did not listen to their commands. So, Officer-2, as she’s identified in the report, tried to stop him with her Taser. But at first, the probes would not release. When they did, the probes didn’t immobilize him.
That’s when Officer-2’s partner, identified as Officer-1, tripped on loose gravel and fell on his back. Officer-2 was looking away at the time and thought the man had pushed her colleague. She shot the man in the leg just as Officer-1 was deploying his own Taser.
All this happened within moments.
Metro Nashville Community Oversight Director Jill Fitcheard wrote in her report that the shooting was not justified, because Officer-2 did not have a “reasonable belief” that it was necessary to save herself or her partner. She noted that the man was not armed and that the officer could have used other less-deadly tactics before using her pistol.
“Officer-2 did not have a reasonable belief that her use of deadly force was immediately necessary to prevent either imminent death nor serious bodily injury of herself, Officer-1 or anyone else,” the director wrote. “While she may have sincerely and subjectively believed that shooting the Complainant was justified, it simply wasn’t reasonable under the circumstances and based on the evidence reviewed.”
Police are legally allowed to use deadly force if they believe their life or someone else’s is in danger. Department policy says the same. For this reason, it is incredibly rare for officers to face criminal charges or internal punishment when they shoot or kill someone.
Just one Nashville police officer has been charged with murder for shooting someone, and he pleaded guilty to a lesser charge before he was scheduled to stand trial last summer.
More: Read about the 10 shootings by Nashville police in 2021.
The TBI typically reviews shootings by Nashville police, to see if officers’ actions followed the law. Under the agencies’ agreement, that investigation happens automatically whenever officers kill someone. But it’s up to prosecutors to decide if they want an independent review in nonfatal cases.
And even though the DA’s office has requested investigations for recent nonfatal shootings by police, they didn’t in this case. A spokesperson for the district attorney could not immediately explain why prosecutors did not, nor did he answer whether they would revisit the case given the oversight agency’s findings.
Director recommends discipline
Officer-2 told investigators she pulled the trigger because the man had been acting “aggressively” and “erratically,” and she was worried he would hurt her partner. She also said the man’s kids and wife were watching, and she didn’t want him to harm them, either.
But Fitcheard wrote that was just a “speculative belief,” which did not meet the requirements of the police department’s deadly force policy. Beyond that, investigators found that Officer-2’s Taser might have worked better if she had tested it before reporting to duty that night.
MNPD policy requires officers to check that their Tasers are working correctly before each shift. Officer-2 had not done so since February 19, 2020. The cartridge had expired more than a year before that, in January 2019.
The civilian director of police oversight is recommending a 20-day suspension for Officer-2, along with more training. Fitcheard also thinks Officer-1 should receive additional de-escalation training, as well as a one-day suspension.
“I can’t determine whether or not this officer feared for her life or not. But what I can say is that policy was violated,” Fitcheard said at Wednesday’s meeting. “Was this use of force necessary and reasonable in regards to the policy? And what I find is that it was not.”
Two board members disagreed with her recommendations, because they believed the officer reasonably was afraid for her safety when she pulled the trigger.
“I’m ready to judge these officers when they make mistakes,” said member Mark Wynn, who worked at MNPD for more than two decades before retiring in 2001. “But in this kind of circumstance, this was a dynamic situation that had gone out of control, it sounded like to me. And in those seconds, she had to make a decision, which are not easy to make.”
Board members ultimately voted to approve the director’s recommendations. Next, the police chief will decide if he plans to accept the suggested punishments. A spokesperson for Metro Nashville Police says the department does not receive reports until they are approved by the board and did not want to comment on a draft.
No violations found in second case
The board also considered investigators’ findings in two other cases, including another shooting later in 2020. In that case, investigators determined that the officers who fired their weapons had not violated policy.
Fitcheard said the agency’s role in that case was not to serve as “judge and jury” or to “find someone to blame.” She said its task is solely to review the actions of the officers and to determine if there were any policy violations or flaws in the criminal investigation.
After reviewing the evidence, Fitcheard felt that the officers’ use of force was justified and that the TBI’s investigation had no deficiencies.
But Fitcheard said her assessment should not be misinterpreted as a finding against William Johnson Jr., a military veteran with post-traumatic stress disorder, who was killed in a shootout with officers.
“It is too often the case that a person’s criminal history and their mental health are brought into question rather than the individual circumstances that led to the death,” she said.
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