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How Does The SBI Investigate Police Shootings In North Carolina?

Sarah McCammon
Attorney Wayne Kendall says an independent autopsy report commissioned by lawyers for the family showed Andrew Brown Jr. had four bullet wounds to his right arm, and a fatal shot to the back of the head.

The N.C. State Bureau of Investigation is looking into why Pasquotank County sheriff’s deputies fatally shot Andrew Brown Jr. on April 21. Sheriff Tommy Wooten II asked the SBI to investigate.

“It is customary that the State Bureau of Investigation investigate incidents of officer-involved shootings in North Carolina at the request of local law enforcement agencies and prosecutors,” SBI Director Robert L. Schurmeier wrote in a public statement.

Two other agencies will also investigate aspects of the shooting. Wooten also asked the N.C. Sheriffs’ Association to arrange for officers from outside agencies to conduct an independent internal review of Wooten’s office. The FBI opened its own investigation to see if federal civil rights laws were violated in the shooting of Brown.

But only the results of the SBI investigation will go to the local district attorney, Andrew Womble, who has the power to press state criminal charges against the officers at the scene of Brown’s shooting.

Lawyers for Brown’s family support the SBI investigation and say that they immediately contact the agency anytime they receive information.

“We are working closely with the SBI, with anything we come up with to get them because they’re the only unbiased, impartial investigative body we have,” said Bakari Sellers, one of the Brown family attorneys.

Brown had video cameras on his house that have been missing for a couple of weeks. The family attorneys found a family member who had the cameras and are turning the devices over to the SBI immediately, Sellers said. The cameras are from the Ring company and do not record any video unless the owner has a subscription, which it does not seem Brown had, according to Sellers.

In its investigation, the SBI will use evidence that agents receive from the family attorneys, from public tips and from reviewing body camera and dashboard camera footage from the Sheriff’s Office. The SBI does not make legal determinations about what it finds. Only Womble can do that unless he takes the state Department of Justice up on its offer to appoint a special prosecutor.

How The SBI Got Involved

When the Pasquotank sheriff’s version of a SWAT team showed up at Brown’s residence about 8:30 a.m. to serve arrest and search warrants, three of the seven deputies present discharged their firearms, killing Brown, according to warrant records and statements from Wooten.

The same day, Wooten requested that the SBI investigate the shooting, and he put all seven officers on leave. Under state law, the SBI may investigate at the request of an agency head, such as Wooten.

Had he not requested it, Brown’s next of kin — spouse, child, parent or sibling — could have asked the district attorney to request an SBI investigation within 180 days of his death. Upon receiving such a request, the law requires a district attorney to request an SBI investigation.

“Normally, an officer-involved shooting investigation will have a crime-scene agent, a case agent and a varying number of agents to conduct interviews” who report to an SBI supervisor, according to a guide by the Sheriffs’ Association called The Officer’s Use of Force: The Investigative Process.

Typically, the SBI case agent will ask for a copy of the law enforcement agency’s use-of-force document. The Pasquotank County Sheriff’s Office released its use-of-force document on its website following the shooting.

“The case agent will set up a time to brief the local district attorney on the investigation and determine if there are any particular needs or questions that the district attorney wants pursued,” according to the Sheriffs’ Association guide.

Pasquotank County District Attorney Womble has not responded to questions from Carolina Public Press.

During a hearing about the release of body camera footage, Womble told Superior Court Judge Jeffrey Foster that he anticipated the SBI would conclude its investigation in 30 days.

The SBI did not confirm Womble’s timetable.

“I have been meeting every day, constantly with the SBI,” Womble told the judge. “I am putting them under an incredible time crunch by asking this request for them to be finished in 30 days. I feel very comfortable that they can do that.”

From The SBI To The Prosecutor

The SBI already completed a preliminary investigation, according to Wooten, who used those findings to keep the three officers who fired their weapons on administrative leave and to reinstate the other officers who did not shoot to active duty.

At the conclusion of an SBI investigation, the findings are released to the district attorney.

“The requesting law enforcement agency head cannot by law receive a copy of the SBI investigation,” according to the Sheriffs’ Association guide. “However, the case agent may make the file available for review by the agency head once it has been delivered to the district attorney.”

Even if a case agent has completed the investigation, the final results may not be available until autopsy or toxicology reports are returned, the guide states.

Once the district attorney has received the results of the report, he has several options, according to a different 2016 guide from the N.C. Conference of District Attorneys.

“A DA may choose to solely make the charging decision,” the DA Conference guide says. “Others may utilize a team approach. Another option is to implement a blind review, in which the DA and experienced prosecutors conduct independent reviews of the file. Then, they come together, discuss their findings and legal conclusions, and the DA makes a final decision. The DA may also consider presenting the case to the grand jury.”

If the district attorney does not file charges against the officer, the SBI case agent will notify the head of the law enforcement agency and the involved officers, according to the Sheriffs’ Association guide.

“If there are no criminal charges, the case agent will seek all appropriate court orders to return any seized evidence,” the guide said.

Womble can also decide to share the SBI’s findings with Wooten.

Wooten has not replied to questions about whether he has requested Womble to provide the findings or if he will make the findings public.

Body Camera Footage, SBI Probe And A Trial

During the court hearing on the release of the body camera footage, Womble said he supported the release of possibly redacted footage to Brown’s son at the completion of the SBI investigation, unless he brings criminal charges against any of the officers.

If that happens, he planned to return to court to ask for an additional delay of the release of the body camera footage, Womble said. In that instance, the footage should be released in the course of a trial, he said.

Despite expressing concerns that release of the content of the footage would potentially bias future jurors and hinder the administration of justice, Womble shared details of the footage in court, disputing family attorney Chantel Cherry-Lassiter’s account of the 20 seconds of footage she viewed.

“The body cam video clearly shows Mr. Brown’s car in a stationary position when approached by law enforcement, and they begin to shout commands,” Womble said. “The car is still stationary when law enforcement officers grab the door handle, still shouting commands.

“The car goes in a reverse position. The law enforcement officer is forced to release the door handle and the car is backing up. Those were the comments made by Ms. Cherry-Lassiter. The car backing up, those moments.

“The car then stops. It is stationary once again. As it backs up, it does make contact with law enforcement officers. At this point the car is stationary. There is no movement, and officers are positioned around the car. The next movement of the car is forward. It is in the direction of law enforcement and makes contact. It is then and only then that you hear shots,” Womble said.

The section of the video Womble described was not made available to Brown’s son or to Cherry-Lassiter, who said the video they saw began after shots had already been fired.

Carolina Public Press is an independent, in-depth and investigative nonprofit news service for North Carolina.

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Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.