SHOT, PARALYZED, CHARGED
What happens when accounts of shootings differ?
Edward Brown starts the day with stretches in bed, sitting upright to reach for his swollen feet. Then his fiancee helps lift his 6-foot-tall, 190-pound body out of bed and into his wheelchair. ❚ Brown wheels himself into the bathroom where his fiancee, Stephanie Little, undresses him and prepares a bath. ❚ Without her help, he wouldn’t be able to use the toilet or bathe himself. ❚ Without her help, he wouldn’t be able to tend to his bedsores. ❚ Brown’s new life — and the bullet that remains in his body — are a constant reminder of the Phoenix police officer who shot and nearly killed him a year ago. ❚ “I feel like I’m always carrying around this person that attempted to take my life,” Brown said.
Brown’s interaction with police left him paralyzed from the chest down.
It also left him facing two felony charges.
One charge is for possession of marijuana, which a nurse found on him in the hospital after police shot him. The other is for aggravated assault on an officer, a common charge against people who survive a police shooting.
His criminal case, along with the lawsuit his lawyers filed against the Police Department, is currently pending.
Individuals shot by police are immediately labeled the suspects in police reports, while the officer is labeled the victim.
Steve Serbalik, a Phoenix lawyer who represents police officers in misconduct cases, said that in police shootings the most common circumstance is that an officer acted after being threatened by either a weapon or a possible attack from the civilian.
Arizona law says a person who makes an attempt to hurt or injure an officer can automatically face an aggravated assault charge.
“The officer is reacting to whatever imminent threat they believe they faced,” Serbalik said.
To fight for their innocence, the individuals must challenge the word of a police officer — an uphill battle at all levels of the legal process.
The Arizona Republic analyzed 600 police shootings statewide from 2011 to 2018. In those, 327 people survived — some were injured, and some were not hit by the bullets fired.
Regardless of whether they were hit, nearly half of the survivors were charged with aggravated assault on a police officer, a crime that can carry a sentence of up to 12 years in prison.
According to the Republic’s database, many of the officers alleged individuals pointed a weapon at them or tried to reach for the officer’s weapon.
In contrast, of the nearly 900 police officers who shot at someone in Arizona during that same time frame, one was charged with a crime.
“The rule is that the person remains innocent until proven guilty and the state bears all the burden to prove, like in this case, that Mr. Brown committed aggravated assault,” said Jocquese Blackwell, a Phoenix criminal defense attorney who is not representing Brown but has defended others police shot.
“But in real life, what happens in court, most people in the jury believe the person sitting next to the defense attorney did something wrong to be there.”
Three minutes after arriving
Brown was shot about 4 p.m. on Aug. 5, 2018.
Someone had called 911 to report a “suspicious group” of at least five people in an alley behind an apartment complex near 21st Avenue and Indian School Road, according to the Phoenix police report. The caller suspected “drug activity.”
When Officer Kenneth Silvia and Officer Derrick Weight arrived, they found an unidentified person and Brown, who was sitting on a bicycle.
Brown ran when Weight approached him. The officers chased him, according to police and witness accounts detailed in the police report. Eventually, it was just Silvia on Brown’s tail.
Brown sprinted across an apartment complex, jumping over a wall into an alley. He then jumped over another wall, this time into someone’s backyard, and continued to run across the street until he came up to an iron fence at an apartment complex.
That is where the police’s version and Brown’s version of events diverge. Neither Silvia nor Weight was wearing a body camera.
Silvia said he pulled out his firearm, a .40-caliber Glock 22, and had it pointed toward the ground.
“I have you at gunpoint,” Silvia yelled. “Stop. Let me see your hands.”
As Silvia remembered it, according to the police report, Brown stopped, turned to face Silvia, and then hunched, reaching toward his feet.
Brown began to walk toward Silvia, charged him and that’s when the officer pointed the firearm toward him, the police report says.
Silvia told detectives Brown made a “swipe for his (Silvia’s) gun to grab it” and the officer felt the tip of his gun was “grazed.” Silvia stepped aside and fired one round as Brown “was passing him.”
“He charged at me,” Silvia said in the police report. “When he didn’t get a hold of my gun, he just kept going like he never stopped.”
The bullet hit Brown in the back. Brown was five feet away when Silvia shot, the report says.
From the time Weight approached Brown to when Silvia shot Brown, three minutes had passed. When a detective asked Silvia why he shot Brown, Silvia said he feared for his life.
Brown “had room to run in any direction once he couldn’t get over the gate and he chose to come towards me and make a reach for my gun,” Silvia said in the police report, “and I felt like if he reached and got a hold of my gun and a struggle ensued, I could have easily lost control of my gun and that he could have used it against me.”
Three days after the shooting, detectives interviewed Brown, who was still in the hospital recovering from surgery.
Initially, Brown said he had tried to jump a fence but it was too hot and the sun had tired him out.
He slid off the fence and had to reach down toward his feet to balance himself. That’s when Silvia shot him in the back, he said, according to the police report.
He later said he was actually shot when he “attempted to run again,” the report says.
Brown denied charging Silvia and going after his gun.
But the police didn’t buy Brown’s account.
“The evidence at the scene did not support Edward Brown’s version of events,” Phoenix police Detective Matthew Hamas wrote in his report.
Hamas later explained to a grand jury that the evidence he referenced was a lack of blood in the area where Brown said he got shot, according to the grand jury transcripts.
“There was no blood at the location where Edward Brown indicated that he was shot. There was blood just past or near the location where Officer Silvia indicated he fired his weapon,” Hamas told grand jurors.
To support Silvia’s account that Brown reached for his firearm, police documented a red scratch on the officer’s right ring finger. A picture shows the scratch is barely a centimeter long.
Later, test results showed that none of Brown’s DNA was found on Silvia’s handgun, the report says.
Suspect or victim?
Some lawyers have questioned why prosecutors rush to charge those who survive a police shooting in instances where those involved provide different versions of what may have happened and there is no video evidence.
“Til this day, I don’t understand why state prosecutors charge the individual with aggravated assault. It would be one thing if you actually see the guy holding the weapon and pointing it at the police officer, that’s a legitimate aggravated assault charge,” Blackwell said.
“But when there’s no evidence other than the police officer’s words that he either was afraid or the person reached for a weapon, I don’t believe the client should be charged with aggravated assault.”
Law enforcement officials say both the officer and the person shot are under the same scrutiny and that prosecutors don’t favor a police version of events just because they work in law enforcement.
Serbalik, the lawyer who represents officers, said that police shootings are held to a higher standard than civilianto-civilian shooting investigations.
For example, he said the county attorney’s office in Maricopa County will always send prosecutors to a police shooting scene. Unlike other criminal investigations, prosecutors aren’t always sent to review the scene.
Serbalik added that, in Maricopa County, each police shooting report gets reviewed by a committee of prosecutors who ultimately decide if the shooting was justified.
This is different than standard criminal investigations involving civilians, he said, because a police department may determine that no crime was committed and the case would then not be sent to prosecutors.
The Maricopa County Attorney’s Office has a panel of prosecutors who review police shootings to determine if the deadly force was justified. At the same time, a different prosecutor from the office will investigate the allegations against the civilian.
“In other words, my job is not to convict the citizen that was stopped by the police that got involved in a violent encounter,” said Keith Manning, a prosecutor on the police shooting review panel. “My job is to prosecute the police.”
But Bret Royle, a Phoenix criminal defense attorney, said prosecutors tend to believe the officer’s version of events. He said it’s common for a person to be charged even as police are still collecting evidence.
Sometimes the incident is clear-cut. In June 2011, Derek Eckles called Scottsdale police to report a bomb in his hotel. When officers Richard Burkmier, Jason Callies and Allison Urbatsch arrived, Eckles fired through his hotel room.
Burkmier returned fire. Eckles survived. In 2017, Burkmier said in a podcast interview that Eckles later told the officer he heard a voice telling him to kill someone.
Prison and court records show Eckles pled guilty to three charges of aggravated assault and is serving a 20-year sentence.
Others appear murkier.
On Jan. 23, 2014, El Mirage police officers Andrew J. VanderWerf and Ricardo Chairez shot and injured 29-year-old Abel Aguirre outside his house.
His sister had reported that Aguirre was suicidal and had shot a round in the air from his sawed-off shotgun, according to the police report.
When police arrived, Aguirre walked out of the house into the front yard where the officers were standing. Chairez and VanderWerf said Aguirre pointed the firearm at VanderWerf, and the officers said they shot Aguirre because they feared for their lives, the report says.
But witnesses, including neighbors and a relative of Aguirre who saw the shooting, said either they never saw Aguirre holding a gun or that he never pointed the gun at the officers, the police report says.
Police did find the weapon in the front yard, according to the police report.
Aguirre pleaded no contest to two counts of aggravated assault on a police officer and a count of misconduct involving weapons, court records show. He is currently serving a nine-year prison sentence.
Royle said many cases in which there is no video or independent witnesses result in the person shot taking a plea deal. Based on The Republic’s analysis of its police shooting database, many cases do end in a plea deal.
“When you have problematic cases is when it’s a he-said-he-said situation,” Royle said. “Are prosecutors still going to use the charge to leverage a plea deal and brush this under the rug? That’s definitely been my experience in my practice.”
A lopsided case
Tamara F. Lawson, dean and professor at St. Thomas University School of Law in Miami, has studied cases of people charged with crimes after officers have used physical or deadly force on them.
She said prosecutors should investigate a police officer’s claims further before rushing to file charges on people, particularly if the evidence isn’t clear.
“Is it ethical for the prosecutor to charge a suspect when these facts are in dispute?” she asked.
Lawson wrote an article titled “Powerless against Police Brutality: A Felon’s Story.” In it, she documented the case of Theodore Dukes, who was pulled over for a traffic infraction in Miami. The traffic stop led to an officer shooting Dukes.
When Dukes awoke from a coma, he found out he had been charged with the attempted murder of an officer. Dukes had previously been convicted of murder in an unrelated case. At trial, prosecutors used his criminal past to discredit his side of the story, according to Lawson.
“Police officers know ex-felons cannot effectively complain about brutality, and correspondingly, ex-felons are rendered powerless and even more vulnerable to excessive force,” Lawson wrote in her 2013 article.
Lawson said that in many cases when the person police shot feels defenseless, he or she will accept a plea deal or simply plead guilty in order to move on.
“The substantive ability to address the charges is lopsided,” Lawson told The Republic. “It’s lopsided in every criminal case, but it’s uniquely lopsided when you feel that you are inappropriately injured at the hands of the police.”
‘Like I was a dog’
The shooting was dehumanizing for Brown.
“He shot me in the back like I was a dog,” Brown said.
It was about 110 degrees at the time of the shooting. Brown’s body fell on a concrete walkway, facedown, and it burned parts of his skin.
An officer’s body camera captured the moments after the shooting. The video shows about four officers surround Brown. One of them cuts Brown’s clothes looking for an exit wound.
As he struggled to breathe, Brown tells officers to pull him up so his body wouldn’t touch the hot concrete.
“Hey, shut up, man, I’m trying to save your life, dude,” the officer whose camera captured the scene says to Brown.
When the officers roll Brown on his back, he begins to gasp for air and chokes on his blood. He spits some blood out.
“Don’t f--king spit on me,” the officer says.
“I’m sorry, I couldn’t see you. I’m sorry,” Brown responds.
After being treated at the hospital, where he spent over a month, Brown then was booked directly into Maricopa County jail, where he spent nine days.
Round-the-clock care was not available. Jail guards put Brown, who was in a wheelchair, in his cell.
“His catheterization equipment was taken from him, so he was soaked in his own urine, and defecated himself,” Brown’s lawyer and former Arizona Attorney General Tom Horne wrote in court documents. “He could not move from the wheelchair to the bed without help. He did not receive that help.”
Life before being shot
Before he was shot, Brown lived an easier life, he said. He wasn’t working but he would stay home and take care of nieces and nephews when he wasn’t running errands.
Brown said he struggles with not being able to help with the kids as much now.
On a recent morning, after getting ready for the day and wheeling to the table to eat a bowl of Cheerios that his fiancee prepared him, one of Brown’s nieces reaches up to hug him and then climbs into his lap.
“This officer changed my family’s life, too, not just only mine. I have to worry about my nieces and nephews asking me questions on, ‘What happened? Why did the officer do that?’ “Brown said.
“I have to go through stories with my nieces and nephews telling me how I used to pick them up. I used to jump in a pool. Just happy times we used to have that I can’t do no more.”
He can’t do anything on his own, he said. He depends on people to drive him anywhere he needs to go. When he can get a ride, he goes to the gym to use the cycling machine.
But it’s not enough to combat the depression, he said.
“It’s hard to explain other than it’s just trying to deal with something in your life that you never even imagined having to deal with,” he said. “This is almost like someone throwing you in a pool and you’ve never attempted to swim.”
Others shot, charged in Arizona
Cases like Brown’s, of people being shot and then charged with a crime, are not isolated.
Mesa Officer Theodore Brennan was on patrol near Main Street and Alma School Road at about 3 a.m. on April 22, 2018, when Akbar Aziz, 41, called 911 to report that armed people were chasing him.
Aziz had a schizophrenia diagnosis and had not been taking his medication, according to the Mesa police report.
When Brennan arrived, Aziz jumped in front of Brennan’s patrol car.
Brennan got out of his car and told Aziz to get back on the sidewalk. Aziz began to walk toward the officer.
“Where’s your gun, motherf--ker?” Aziz asked the officer, according to the police report, before charging Brennan. He wasn’t armed.
Nine seconds after Brennan arrived, he shot Aziz, once in the stomach and once in each arm. Aziz survived. He was charged with aggravated assault on a police officer and obstructing a highway.
In December, Aziz pleaded no contest to attempted aggravated assault. A judge sentenced him a year and a half probation.
Aziz had a 2012 conviction for aggravated assault on a police officer, which also stemmed from his mental illness, according to court documents. Prosecutors used it to leverage a plea deal, according to his lawyer.
‘It felt like I lived to be tortured’
Horne, Brown’s lawyers, filed a lawsuit against Silvia and the Police Department, claiming the officer violated Brown’s civil rights and used excessive force.
Brown may have not died, but the injuries are so great the shooting has tragically impacted his life forever, the lawsuit says. The case is pending in federal court.
“Defendant Silvia did not need to shoot Mr. Brown,” Horne argued in the lawsuit. “Defendant Silvia had a taser, but did not temper or limit the amount (of) force used against Mr. Brown.”
Brown’s fiancee quit her job to take care of him. Brown is unemployed. He doesn’t have control of his bowel movements, so he must use the restroom at scheduled times. He spends his days in pain.
“It felt like I died and it felt like I lived to be tortured,” he said.
Brown’s trial was scheduled for this month, but it has been delayed while his attorneys continue to collect evidence. No new trial date has yet been set.
The Phoenix Police Department declined to comment on Brown’s case. The department does not comment on pending lawsuits, a spokesman said.
Brown said a doctor told him the hollow-tip bullet would stay inside him because it had shattered into tiny pieces. It would require too many surgeries to remove the pieces.
“You don’t deserve to be shot in the back. Tell me how defenseless you are. We’re not animals,” Brown said. “Answer that question: How do I get charged? For being scared and running?”