Brad McBrayer has spent the last five years thinking about the moments before a police officer shot and killed his son.
Body camera footage, taken on Nov. 11, 2014, does not show all of those moments. The officers turned on their cameras only after things had escalated.
In the footage, 24-year-old David Daniel McBrayer seemed confused. Agitated. He stood outside of his Jacksonville apartment and wouldn’t drop a box cutter he held in one hand as the officers demanded him to, one officer standing between the man and his apartment.
McBrayer yelled “I feel threatened” and asked to be allowed to go to his room before continuing to walk toward his apartment, when one of the officers shot McBrayer five times in the chest.
Both McBrayer and police believe the 24-year-old was suffering from an undiagnosed mental illness, according to interviews and court records.
U.S. District Judge Annemarie Axon in April dismissed what was left of the McBrayer family’s civil suit, which alleged that the city of Jacksonville should have made certain that officers were trained to handle those with mental illness.
The suit also alleged that Jacksonville’s then-police chief should have known the training was needed and the Alabama Peace Officers Standards and Training Commission, which oversees law enforcement training curriculum in the state, should have mandated that training. McBrayer’s attorney also argued that his son wasn’t afforded protection under the Americans with Disabilities Act for his mental illness.
All three — the city, the former police chief and APOSTC — were named as defendants, as was the officer who shot McBrayer. A judge in April 2017 dismissed the former police chief and APOSTC from the lawsuit, agreeing with the training commission’s attorney’s argument that APOSTC doesn’t set the training policy for the Jacksonville Police Department.
McBrayer’s son was attending Gadsden State Community College and planned to transfer to Jacksonville State University in the fall of 2014 to study computer science. He was bright. Loved to read novels and history, his father said.
Other than attention deficit disorder, McBrayer said his son had no other mental health diagnosis and seemed fine on a visit to the family’s Georgia home three weeks before the shooting.
The first sign to police and family that something wasn’t right with the young man was his arrest by Jacksonville police early on the morning of Saturday, Nov. 8, three days before his death. Police were called to a Dollar General store near his apartment by an employee who said it appeared that McBrayer was about to break the store’s window with a hammer, according to a police report and court records.
Within hours of his arrest a jailer noticed that McBrayer was acting strange and might have “a mental illness,” according to court records. A call was made to the county mental health officer, who recommended that a call be made to the man’s family. On Monday a call was placed to McBrayer at his Atlanta home. He picked up his son from the jail that evening.
What happened next isn’t easy for McBrayer to discuss.
“My guilt I’ll have to bear with me for the rest of my life,” McBrayer said of those moments when he still had his son with him. “He wasn’t making sense. I was floored, but my natural instinct was to back away.”
McBrayer planned to get his son to Georgia, where state law would allow for him to be hospitalized more quickly. In Alabama, in order to be involuntarily committed for a 72-hour period for evaluation, a person must have committed an overt act, such as threatening their own life or the life of someone else, and be unable to make a rational decision about their own treatment before a judge would order that person admitted for care.
“He was saying, ‘I feel threatened by you,’ so my instinct was to back off,” McBrayer said. “It’s a natural de-escalation.”
McBrayer decided that instead of driving to Georgia that night, he and his son would stay in his Jacksonville apartment, but before he could enter, his son locked him out. McBrayer spent hours trying to get in, stayed at a nearby hotel that night and tried again Tuesday morning. McBrayer’s son told him through the locked door to “go away.”
That same night officers would be called to McBrayer’s apartment by a woman who told police the young man had shot someone’s car window with a BB gun. The responding officers knew that McBrayer was having some sort of mental health crisis, according to court records.
The three officers tried unsuccessfully to get McBrayer to open the door of his apartment, and just as they were preparing to leave McBrayer came outside and started rummaging through the trunk of his car, according to court records. The officers approached, and two turned on their body cameras.
After his son’s death, McBrayer starting looking closely at police interactions with the mentally ill. He found that Alabama lagged behind most other states in training officers to handle those suspected of having a mental illness.
McBrayer talked with mental health professionals and discovered Crisis Intervention Team training, a widely accepted, 40-hour training program for law enforcement that promotes keeping the mentally ill out of jails and teaches officers to detect when a person may be in a mental illness crisis, to de-escalate situations and keep themselves and the public safer.
McBrayer said when determining whether an officer’s use of deadly force was justified, the Alabama Bureau of Investigations focuses on the moments just before the shooting. Doing so, McBrayer said, means ignoring all of those moments before an incident when an officer may have been able to de-escalate the situation, especially when dealing with someone who is sick and unable to think clearly. Someone like his son.
Rep. Mike Ball, R-Madison, said by phone Wednesday that it’s in those moments before an officer might decide to use force that can save the life of both the officer and the mentally ill.
A former state trooper, Ball was also an investigator and hostage negotiator with the Alabama Bureau of Investigations. He retired in 2003.
Ball often investigated the use of deadly force as an ABI investigator, and that work informed him as he drafted a resolution in 2017 that encouraged APOSTC to include CIT training in the curriculum.
“So many times that I investigated the use of force, and maybe the use of force was justified at the point that the force was used,” Ball said. “However, there were points ahead of time where it could have been de-escalated, and it never would have been necessary to get to that point.”
It’s not always easy to determine whether someone might be suffering from a mental illness, Ball said, and dealing with people who aren’t thinking clearly can be life threatening for the officers, but what “police have to be able to do is immediately access what situation they’re in and find the best way to de-escalate it.”
The use of force is an option for police, Ball said, “but it’s not always the best thing to do. It’s not even the safest thing to do, always.”
Sometimes all it takes is to pause and to make a connection, he said.
“Empathy is often something that can diffuse this,” Ball said. “A human connection. Most of us are hardwired to make those human connections.”
McBrayer believes that had Jacksonville officers been trained better to handle his son he might have lived, and he sees the same tragedy playing out year after year all over the country.
“It’s a common thing,” McBrayer said. “People who are sick get shot all the time.”
Since McBrayer’s death police in Alabama have killed 18 people who were either diagnosed with, or were thought to have had, a mental illness, according to a running database by The Washington Post, which gathers information from news accounts, law enforcement websites, social media and other independent databases.
In 2015, those with mental illnesses made up 47 percent of the people shot and killed by police in Alabama, according to The Washington Post. Nationally, those with mental illness made up 25 percent of those killed by police that year.
“That just really got to me,” McBrayer said of Alabama’s 2015 police-involved shooting statistics.
Ball’s 2017 resolution passed, and in November 2017 APOSTC announced that the commission had doubled the amount of training officers receive, from four hours to eight, but it’s only marginal victory, according to McBrayer, who would like to see the commission adopt the full 40-hour CIT training.
“They’re gradually incorporating it,” Ball said of the more rigorous mental health training.
Lawmakers could have demand APOSTC provide CIT training, Ball said, but explained that he thought it best to take a softer approach in hopes that the commission would agree on their own that it’s needed.
Attempts this week to reach APOSTC executive secretary Alan Benefield were unsuccessful.
According to the National Conference of State Legislators, a Washington D.C.-based bi-partisan organization supports policy innovation, at least 27 states and the District of Columbia passed laws that require officers be trained on how best to respond to situations involving the mentally ill.
There were at least 12 states in 2018 with legislative requirements and/or guidelines for establishing crisis intervention teams, according to the organization.
“I knew that the way law enforcement traditionally interacts with mentally ill people isn’t the best way. Isn’t the most effective way. Isn’t even the safest way, for everybody,” Ball said.
After learning that the CIT training was becoming more widely adopted across the country Ball said, “I grabbed it with both hands. I realized that this needs to be incorporated, not just for a few people. It needs to be incorporated for all law enforcement training.”
Ball said APOSTC training includes a week of first aid training, and while an officer might use that first aid training a handful of times over a career, that same officer will interact with those with mental illnesses almost daily.
Some larger Alabama departments aren’t waiting for APOSTC to mandate that training. Many officers from Birmingham, Huntsville, the Shelby County Sheriff’s Office, Madison, Morgan and Limestone counties have received CIT training in recent years.
But the training isn’t just needed in those larger departments, Ball said, which often have ample officers and resources to respond to those crisis moments. Ball worries more about the many smaller departments across the state.
“They’re probably the ones who need it the most because they don’t have backup easily available,” Ball said. “The training is a necessity, and it needs to be a part of the process.”
More than training
James Tucker, director of the Alabama Disability Advocacy Program, a federally-funded protection and advocacy agency for those with disabilities, said by phone Tuesday that he share’s McBrayer’s desire to expand training for Alabama officers.
Tucker worries, however, that even with that additional training the state isn’t providing enough access to mental health care, and decades of budget cuts to the state Mental Health Department make providing that care more difficult.
In 2008, the state Mental Health Department had a budget of around $140 million. The department’s 2020 budget is around $120 million.
“We’re providing community mental health services on the cheap, and it’s having an impact,” Tucker said.
In the absence of lawmakers spending money on community mental health resources, Tucker said the burden unfairly defaults to law enforcement.
“That’s a fundamentally important choice for our state to make,” Tucker said. “Do we went to provide mental healthcare, or do we went persons with serious mental illness to end up with these negative interactions with law enforcement?”
McBrayer said the responsibility of caring for those with mental illnesses shouldn’t be put onto law enforcement officers.
“They don’t want to kill people. They just want to go home to their families,” McBrayer said.
And while the small increase in mental health training for Alabama officers is “a small battle that we won,” his son’s death leaves a hole in their lives.
“All of us all of us are grieving in our own way,” McBrayer said of his family, his wife, Marcia, and sons, Stephen, 27, and Jonathan, 25.
“If he’d have been a criminal and he got shot,” McBrayer said before a long pause. “It didn’t have to happen this way. It’s something you don’t get over.”
DOJ makes $14 million available to public safety agencies to respond to COVID-19
Thursday, U.S. Attorney Jay E. Town announced that the Department of Justice is making $850 million available to help public safety agencies respond to the challenges posed by the outbreak of COVID-19, which has already killed over 6,000 Americans, including 32 Alabamians.
The Coronavirus Emergency Supplemental Funding program was authorized in the recent stimulus legislation signed by President Donald J. Trump (R). The program will allow eligible state, local and tribal governments to apply immediately for these critical funds. The department is moving quickly to make awards, with the goal of having funds available for drawdown within days of the award.
“Law enforcement are – and always have been very best among us. They continue to solidify that fact during this pandemic,” Town said. “It is important that our state and local partners have the resources they need to ensure public safety during this time. These additional resources will allow that to continue.”
Katherine T. Sullivan is the Office of Justice Programs Principal Deputy Assistant Attorney General.
“This is an unprecedented moment in our nation’s history and an especially dangerous one for our front-line law enforcement officers, corrections officials, and public safety professionals,” said Sullivan. “We are grateful to the Congress for making these resources available and for the show of support this program represents.”
The solicitation was posted by the Bureau of Justice Assistance in the Justice Department’s Office of Justice Programs (OJP) and will remain open for at least 60 days. The program can be extended as necessary. OJP will fund successful applicants as a top priority on a rolling basis as applications are received. The funds may be used to hire personnel, pay overtime costs, cover protective equipment and supplies, address correctional inmates’ medical needs and defray expenses related to the distribution of resources to hard-hit areas, among other activities.
The grant funds may be applied retroactively to January 20, 2020, subject to federal supplanting rules.
Agencies that were eligible for the fiscal year 2019 State and Local Edward Byrne Memorial Justice Assistance Grant Program are candidates for this emergency funding. A complete list of eligible jurisdictions and their allocations can be found here.
For more information about the Coronavirus Emergency Supplemental Funding program click here.
As of press time, there were 1,270 confirmed cases of COVID-19 in Alabama. 32 Alabamians have already died. There have been deaths in Jefferson, Shelby, Mobile, Lee, Madison, Chambers, Washington, Baldwin, Jackson, Tallapoosa, Lauderdale, Marion, Etowah, and Baldwin Counties.
House committee passes bill cutting out appeals court in death penalty cases
Wednesday, the House Judiciary Committee advanced a bill preventing prisoners convicted to death from appealing their case to the Alabama Court of Criminal Appeals.
House Bill 275 was sponsored by State Representative Connie Rowe, R-Jasper.
“This bill was brought to me by the Lt Governor,” Will Ainsworth (R).
Rep. Jim Hill, R-Odenville, chairs the House Judiciary Committee.
The bill, as amended “Removes the Court of Criminal Appeals from the process of appealing a death penalty case,” Chairman Hill said.
State Senator Cam Ward, R-Alabaster, is the Chairman of the Senate Judiciary Committee and the sponsor of the Senate version of this bill/
“You also have your federal appeals. You still have your rule 32 appeals,” Ward said.
State Representative Tim Wadsworth, R-Arley, said, “I look at it in the point of getting it right. If they are in jail you can always get them out of jail if a mistake is made. You always want to be right with death. If you remove the court of criminal appeals you increase the likelihood of not getting it right. I am not for skipping this stage in matters where a life is at stake.”
“Looking at the records this one step appears to be redundant,” Ward said.
State Representative Alan Farley, R-McCalla, said, “We have people on death row for twenty, twenty five years. We are talking about removing one step in the criminal appeals. How many appeals are we talking about?”
Ward answered, “I can make that same trek multiple times on different procedural issues. There are several fail safes in there. There even was a stay of execution issued in the last execution.”
Farley sai, “we are not talking about one or two times. It is more like 18 times.”
State Representative Mike Ball, R-Madison, said, “There is a redundancy in the system. This cuts out a step in the procedure. The original bill, cutting out the Supreme Court, did not make any sense. All this does is remove a step from the process that does not add anything to the process.”
Rowe said that this would take two years out of the process. In 1988 a Walker country woman killed in her house. He father and mother died waiting on justice. Now her sister has passed. She has some nieces and nephews left. How long do we go without justice?
“Historically when someone is exonerated in this state it is at the federal court system,” Rowe said. “Lets get them there faster.”
Rep. David Faulker, R-Mountain Brook, said, “This eliminates the delay.”
The amended bill was given a favorable report and now can advance for consideration by the full Alabama House of Representatives.
Nathanial Woods executed as accomplice in 2004 murders of three police officers
A Birmingham man convicted of being an accomplice in the murders of three Birmingham police officers was executed Thursday evening.
Nathaniel Woods, 43, was executed after appeals and national media attention failed to deter Alabama Gov. Kay Ivey to intervene. Woods was convicted of being an accomplice in the murders, despite the shooter’s statements that Woods was not responsible for the deaths and that there was no plan to kill them.
The U.S. Supreme Court issued a temporary stay in the hours before Woods was set to be executed at 6 p.m. Thursday, but Supreme Court Justice Clarence Thomas just before 8 p.m. lifted the stay. Woods was pronounced dead at 9:01 p.m.
“After thorough and careful consideration of the facts surrounding the case, the initial jury’s decision, the many legal challenges and reviews, I concluded that the state of Alabama should carry out Mr. Woods’ lawfully imposed sentence this evening,” Alabama Gov. Kay Ivey said in a statement after the execution.
A jury in 2005 convicted Woods of being an accomplice to the deaths of the three Birmingham police officers – Charles Bennett, Carlos Owen and Harley Chisholm III – but the man who shot them and wounded another, Kerry Spencer, admitted to the crimes and is also serving on Holman’s death row.
On the day the officers entered the Ensley apartment shared by Woods and Spencer, Woods surrendered and had no weapon, but the commotion startled Spencer awake in another room, and he came out firing his semi-automatic rifle, according to court records.
During Spencer’s trial, he testified that those officers had harassed them over two visits earlier that day and that when they arrived for the third time he was asleep in a bedroom. Spencer testified that he shot the officers as a “knee-jerk reaction” when he saw one officer with his gun unholstered inside the apartment and that Woods was innocent in the deaths.
In the days before his execution, prominent people began urging Gov. Ivey to intervene, and national media outlets covered the case.
Martin Luther King III, the son of the civil rights leader, wrote to Ivey asking her to stop Woods’s execution. Kim Karshadian West and O.J. Simpson both tweeted support for Woods and asked for intervention in his execution.
U.S. Senator Doug Jones on Thursday also expressed concern over the pending execution.
“Given the questions and mitigating issues involved in this case — and the finality of a death sentence — a delay is warranted to provide time for a thorough review of all the facts and circumstances to truly ensure that justice is done,” Jones said in a statement.
Kimberly Chisholm Simmons, the sister of officer Harley Chisholm, killed by Spencer, in a statement before Woods’s death, asked Ivey to reconsider her decision not to intervene.
“I do not think that Nathaniel is guilty of murder. I urge Governor Ivey to reconsider her decision not to intervene. There is no harm in allowing more time for the courts to investigate. I want the new evidence to be brought forward and evaluated by new attorneys,” Simmons wrote.
“Please do not move forward with the hasty decision to execute Nathaniel. My conscience will not let me live with this if he dies. I beg you to have mercy on him,” Simmons wrote.
Opinion | The “rule of law” has some exceptions
The State of Alabama murdered a man on Thursday night.
Murder is what you call it when someone intentionally causes the death of another human for an unjustifiable reason.
That fits with what Alabama did to Nathaniel Woods.
Woods didn’t kill anyone. Everyone associated with the case agreed on that. And the amount of mental gymnastics you have to perform in order to apply Alabama’s “accomplice law” to Woods’ involvement in the shooting deaths of three police officers is Cirque du Soleil worthy.
But it didn’t matter to the State of Alabama. Or Attorney General Steve Marshall. Or Gov. Kay Ivey. Or to the U.S Supreme Court.
Everyone was cool with sticking the needle in Woods’ arm because “the rule of law” must be followed.
It’s weird how the importance of the “rule of law” never comes into play when discussing ineffective counsel or improper jury instructions or a judge who improperly allows the victims’ widows to recommend sentences to the jury — all of which, and more, happened in Woods’ case — but “rule of law” becomes the absolute most important thing when it’s time to carry out the execution in a flawed case.
I mean, if the rule of law is actually that important to you, maybe start tidying up the processes that have repeatedly led to innocent men landing on Alabama’s death row, and some of them winding up dead.
If you need examples of this happening, let me point you to the movies made about those cases. All of them.
If the rule of law matters to anyone, here’s what it did to Nathaniel Woods: it failed him in the biggest way.
To understand how, you have to know the story of Woods’ arrest, so here’s the quick version. He was at a home allegedly known as a crack house, and Birmingham police were at the door to serve a warrant. These cops apparently knew Woods, and he apparently knew them. They argued, and Woods said he didn’t believe he had a warrant and refused to come out.
So, the cops went in. According to court records from the prosecutors, Woods almost immediately surrendered and asked not to be maced.
Not understanding what was happening, Woods’ alleged accomplice, Kerry Spencer, who was asleep in a back room when cops broke through the door to arrest Woods, picked up an assault rifle and came out firing. He killed three of the cops and injured a fourth.
This is why Nathaniel Woods was murdered by Alabama on Thursday.
For another man’s crimes.
Oh, there was another explanation — one pushed by the prosecutors and by Marshall and Ivey the last two days — that makes so little sense it’s hard to believe grownups are repeating it.
In order to charge Woods under Alabama’s accomplice law, which allows the state to hold people responsible for crimes they cause even if they’re not the person who commits the act, the state had to show that Woods intentionally lured the officers into the home knowing they would be shot.
To prove this, the state presented evidence that Woods and Spencer had argued with two of the officers earlier in the day, and that Woods had allegedly told one officer that if he would “take off that badge,” Woods would “(mess) him up.” There were allegedly other threats made back and forth. And then everyone went on their way.
But according to the prosecutors — and wrap your head around this — Woods knew they would be back with a warrant later and set up a trap to murder them.
That’s the only way the accomplice statute can be applied here. Woods had to know the shooting was going to occur and he had to cause it to happen, which means he had to anticipate the police would come back looking for him and he had to arrange for Spencer to shoot them (or at least know that Spencer would shoot them).
For the record, Spencer finds that just as silly as you. He has been consistent in his testimony that Woods had no idea that he was going to shoot the officers and that Woods played no role in the shooting.
Didn’t matter. Woods was still arrested and charged, and that was the first failure.
He received a lawyer who had no experience with capital murder cases and advised his client that a plea deal offered by the state for 20-25 years — Marshall inexplicably denied in a letter on Wednesday that a deal was offered, despite this plea deal being mentioned numerous times in court filings — shouldn’t be taken because the state had to prove that he participated in the crime. This was bad advice.
So, Woods was failed again.
A number of appeals deadlines were missed — failed again — and Woods’ ever-changing attorneys — failed again — attempted to file late appeals for rehearings. The criminal appeals court and Alabama Supreme Court refused to hear those late appeals, which argued ineffective counsel, among other things — and he was failed again.
And, of course, you know the failures that happened on Thursday night, when all of the people who could have stopped this travesty instead hid behind a “rule of law” excuse to do nothing. To keep up the appearances of tough-on-crime politicians. To tout their “law and order” record.
Which is odd, because you’d think stopping improper executions would be part of law and order.
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