In what was for those on both sides of San Bernardino’s thin blue line cultural divide a shocking development, the city council on May 7 voted to settle the federal wrongful death lawsuit brought against it by the family of Robert Brown for $4,875,000.
In doing so, the city acknowledged that Brown’s death on December 27, 2023 typified a pattern of deliberate, pervasive and widespread violations of the constitutional rights of citizens in encounters with the police department, extending to the use of excessive force including the unjustifiable application of lethal force that has resulted in what city officials have privately characterized as “unnecessary” killings.
The council’s unanimous vote to settle with the family of Robert Brown was made for multiple reasons, the Sentinel was informed, including that Brown’s shooting by Police Officer Jackson Tubb’s lacked justification and that several of his department colleagues, up to and including the police chief, had knowingly engaged in a “cover-up” of what had occurred, including falsifying evidence that was intended to serve as a justification of Brown’s shooting but which, ultimately, damaged the credibility of the department with the city council when its members learned the true facts after having been taken in by false representations made by the department in its public statements.
The events at the root of the matter began when Tubbs, a motorcycle officer, took sight of Brown’s SUV at 6:56 a.m. on December 27, 2023. Tubbs moved up behind the SUV, driven by Brown, 27 of Rialto, and attempted to pull it over near 7th Street and Sierra Way. Brown continued west on 7th Street and turned left, i.e., north onto the grounds of Pioneer Memorial Cemetery. Brown, continued driving through the lanes of the cemetery, with the Tubbs, who had who had engaged his motorcycle’s flashing blue and red lights, following him, then flashing his lights.
Brown then exited the cemetery, continuing east, then north, then east out Baseline Avenue to the area of the 1200 block of Pepper Tree Lane, which is less than 1,500 feet from the intersection of Baseline and Waterman Avenue, behind the Stater Brothers market.
There, Brown ditched his vehicle, and ran onto the driveway of a home, as Tubbs parked his motorcycle and gave chase on foot, vaulting over a low iron wrought iron fence that enclosed the home’s grass-filled front yard in an effort to try to catch up with Brown.
In May, after the lawyers representing the Brown Family – Bradley gage and Milad Sadr – obtained the unexpurgated video from Tubbs’ bodyworn camera, an accurate picture of how Brown ended up dead began to emerge. With the officer fifty to sixty feet behind him, Brown headed around to the side of the house, temporarily disappearing from view, that video showed. When Tubbs and the accompanying video get to the side yard, bringing Brown back into the video’s field of perspective, it can be seen that Brown encountered an apparently unlocked gate to a chainlink fence which surrounded the backyard of the home and that he had just made his way through it.
As the video shows Tubbs making his way into the backyard, Brown is seen running away from him, and a dark object that has the rough shape of a handgun in his right hand which he holds to his side as he is moving rapidly across the backyard can be discerned when the video is slowed down to half speed. At that point in the video, Brown’s back is turned to Tubbs. Tubbs attempted to close the distance between him but Brown, upon reaching the roughly five-and-one-half-to-six-foot-high chain link fence, which is backed by a dilapidated five-foot-to-five-and-a-half-foot wood picket fence, does not hesitate in jumping it, his jacket temporarily becoming snagged on one of the chain peaks as he clears the obstacle. Tubbs bodyworn video shows him approaching very close to the fence as Brown comes down on the opposite side into the backyard of another residence, located at 1232 Crestview Avenue.
The department maintains that Brown threw the gun he was carrying over the fence before he surmounted it himself. At both full- and half-speed, however, it is difficult to discern a weapon being thrown on the video captured by Tubbs’ bodyworn camera.
Tubb’s bodyworn device, which on December 27, 2023 was mounted somewhere on Tubb’s uniform in the chest area, provides a perspective roughly 12 inches below the officer’s actual line of sight. Nevertheless, based on the video, it appears that Tubbs’ eye-level perspective of what lay before him was obscured by the wood fence. Roughly four seconds after Brown’s feet were planted on the ground on the other side of the fence, Tubbs can be heard on the video’s audio opening fire through a gap in the fence’s wood panels, taking what sounds like five shots within the span of roughly a second-and-a-quarter.
After Tubbs went over the fence and came up on Brown, Tubbs’ bodyworn video shows Brown bleeding profusely from his mouth. Brown, his footing unsteady, stumbled into the front of a shed. Tubbs aimed his gun at Brown as he falters, his back against the shed.
“You need to get on the ground right now, boss,” Tubbs told Brown, who at that point was on his knees, attempting to hold his hands up, blood dripping down the front of his body. Brown, his head shaking, seemed to be trying to speak, but is unable to form any words.
“I’m serious, bro,” Tubbs said. “I can help you.”
Shortly thereafter three other officers arrived on the scene, having themselves climbed over the fence, at which point they piled onto Brown, handcuffing him.
Brown was transported to a hospital, but died later that day.
The full video of what occurred, which went public some five months after the event as a consequence of Gage’s and Sadr’s efforts, provided a significantly different version of events than that which had been had propounded.
In February, the department sought to put its best foot forward, having released an edited version of the crucial portion of the final less-than-a-minute of the chase and shooting, which featured both video and stills from the video as well as a narrative put together by the department’s spokeswoman, Lieutenant Jennifer Kohler. According to Kohler’s narrative, after Brown led Tubbs to the 1200 block of Pepper Tree Lane and fled on foot onto a residential property, “He continued to run through a side fence, however, lost his footing and a handgun he was carrying fell to the ground. Instead of just fleeing, the suspect scrambled to arm himself again.”
The edited video contains a still shot, taken from Tubbs’ bodyworn video as he is running though the side yard of the house, of Brown, at that point in the backyard on the other side of the gate, bending down, perhaps to pick up something on the other side of the gate. Given the manner in which the video is edited, however, it is difficult to determine whether Brown was actually retrieving something and, if he was, what it was.
The edited video thereafter picks up at the point where Tubbs had made his way into the backyard and Brown is running away from him.
The department maintains that Brown threw the gun he was carrying over the fence before he surmounted it himself. Kohler’s video narrative states, “Through the slats of the fence, the officer saw the suspect kneel down to the ground, next to the firearm. He stood back up and turned towards him. The officer believed the suspect had rearmed himself and the officer-involved shooting occurred.”
The department’s effort to demonize Brown went beyond the video. The department released a photo of a gun it said officers found at the scene of the officer-involved shooting near Pepper Tree Lane, identifying it as a 9-millimeter handgun stolen in Las Vegas.
The department also, without specifying specifics, said Brown had a no-bail warrant for his arrest, implying but not stating that Tubbs knew as much when he was seeking to effectuate Brown’s arrest. A no-bail warrant indicates Brown was wanted on a felony.
In common law, the use of force, including deadly force, against an individual who is suspected of a felony and is in clear flight is permissible, although a ruling by the U.S. Supreme Court in the case of Tennessee vs. Garner requires that the suspect against whom such force is used be armed and dangerous.
An autopsy concluded that Brown had been shot in the back.
In their lawsuit brought in federal court on behalf of Brown’s family, Gage and Sadr maintained that Brown “used both hands to hop a fence. At no time, did the decedent show or point a weapon towards Tubbs or anyone else. Nevertheless, Tubbs shot the decedent multiple times through a fence,”
Thereafter, according to the lawsuit, three other officers “arrived and engaged in excessive force by tackling the decedent to the ground when he posed no threat to the officers, raised both hands in surrender, could not walk, could barely talk, and [was] bleeding out.” Gage and Sadr contend that Brown “was forced to lay face down on the ground, which further encumbered his breathing. Tubbs shot and killed Robert Brown without provocation, good cause, or any legal justification. Tubbs was attempting to arrest the decedent for an infraction. The decedent was unarmed. The decedent did not pose a danger to Tubbs or anyone else. Deadly force was completely unnecessary. But police officers failed to utilize alternative measures readily available to them. There was no probable cause for a reasonable officer to believe that the decedent had committed a crime involving the infliction or threatened infliction of serious physical harm or any crime. It was more than practical for the officers to give warning of the imminent use of force, but no such warnings were given. Instead, the officers decided to ‘shoot first and ask questions later.’ As such, they acted as the ‘judge, jury and executioner.’”
According to Gage and Sadr, the police officers on the scene, including Tubbs, engaged in “the use of force upon [the] decedent after he was shot” were guilty of a “failure to provide prompt medical care to Decedent” and thus acted in a way to “delay medical treatment so that the decedent would die.”
The suit further alleges that public officials in crime-ridden San Bernardino have given the police department and Police Chief Darren Goodman license to act aggressively in an effort to reinstituted law and order in the city, which resulted in noncriminals being subjected to arrest, beatings and in some cases death.
As police chief, Goodman promulgated policies wherein police officers were ordered and encouraged to stop, detain, arrest, forcefully seize, and/or prosecute members of our community. Defendants implemented policies, procedures and practices that deprived the decedent of his rights under the laws of the United States and the United States Constitution.
Together with Goodman, according to Gage and Sadr, city officials “implemented an express policy, custom, or widespread practice of targeting people for excessive force, rather than engaging in constitutional policing. The defendants had deliberate indifference to the violations of constitutional rights for people. Defendants had a policy to violate federal law and the US Constitution by deprivation of equal protection, substantive and procedural due process rights and illegal searches and seizures.”
According to the suit, “Chief Goodman ratified the unconstitutional actions of subordinates by continually rewarding officers for unconstitutional conduct through awards, positive evaluations, better assignments, promotions, and increased income/overtime.”
In pursuing the case, Gage and Sadr alleged, the police department has established a policy of “coverup” and “falsification of evidence and police reports.” According to the suit, this served to “to encourage an atmosphere of lawlessness within the police department and to encourage their police officers to believe that engaging in illegal searches, seizures, due process violations and violations of equal protection was permissible, and that such conduct would be overlooked or would not result in any discipline for defendants.”
Police supporters’ vitriol toward the San Bernardino mayor and city council for folding in the face of wrongful death and excessive force allegations involving what some said was a “wholly defensible” shooting of a criminal and the conferring of a massive settlement on his family without taking the matter to trial in short order gave way to reality.
It was the course toward wider exposition of the alluded to “falsification of evidence and police reports,” the Sentinel learned, that has unnerved the city.
There is evidence, including the several-hour gap between the time when the shooting took place and the department producing the 9-millimeter handgun it formerly claimed was in Brown’s possession, which lends credibility to Gage’s accusation that the department “planted” the gun. Equally suspicious is that the department has removed from its website the statement it initially posted with regard to the incident that asserted Brown “jumped over a fence into a residential yard with a firearm in his hand,” which the footage from Tubbs’ bodyworn video camera clearly demonstrates is not the case and which is contradicted in the department’s later version of events maintaining Brown threw the gun over the fence.
Based on evidence Gage and Sadr already possessed, taken together with information they were in the course of receiving as the consequence of further discovery efforts, the city, the city council, Goodman and the police department could not risk the case going to trail. City officials at multiple levels, as well as virtually every member of the department’s command echelon from Goodman to the assistant chief, all captains and virtually every lieutenant in the department has knowledge, one city official told the Sentinel, about specific falsifications in multiple police reports, extending to the fabrication of evidence and forgery. The case involving Brown is merely one of dozens of such cases, the official said. Documenting one specific instance of evidence planting in the forum of a federal court would potentially open the floodgates with regard to revelations of such abuses of the department’s authority, according to the official.
An indication of how bad the situation is, the Sentinel was told, was that during the closed session in which the decision to provide the Brown Family with $4.875 million was arrived at, the motion to make the payout was made by City Councilman Ted Sanchez, the most passionate defender of the San Bernardino Police Department among elected San Bernardino city officials over the last 40 years.