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.”
New marshal installed at Alabama Supreme Court
In a packed Courtroom at the Supreme Court of Alabama on Wednesday, February 12, 2020, a historic “passing of the torch” ceremony was held to swear-in the Thirteenth Marshal of the Appellate Courts of Alabama, Earl Marsh, Jr., and to honor his beloved predecessor, Willie L. James, who retired January 1, 2020. James was appointed in 2001 as the first African-American Marshall of the appellate courts, and Marsh served as Chief Deputy Marshal since 2017.
Chief Justice Tom Parker welcomed Marsh’s recent promotion to Marshal: “Marshal Marsh has been a blessing to our whole building from when he first joined our Marshal’s Office in 2017. When our beloved Marshal Willie James retired at the first of this year, we turned to Marsh as the natural successor. Marsh brings the professionalism and dedication that we need for the essential duties of keeping the Heflin-Torbert Judicial Building safe and secure for our Courts, employees, and the public.”
Marshal Marsh was sworn in by Chief Justice Parker on January 27, but the Supreme Court of Alabama, members of the Court of Criminal Appeals and the Court of Civil Appeals, along with many friends and family of Marshal Marsh, and employees from throughout the Heflin-Torbert Judicial Building, gathered to witness the February 12 ceremony honoring both the new Marshal, Marsh, and the retired Marshal, James.
First, retired Marshal James was recognized by Senior Associate Justice Mike Bolin for his years of faithful and loyal service to the Courts and members of the judicial building, and for being “one of the best men I’ve ever known.” Marshal James, with many of his family members in attendance, was presented with two framed commendations — one from the Supreme Court Justices and one from Governor Kay Ivey — for his years of service in law enforcement, including his days with the Montgomery Police Department and his decades of service in the Marshal’s office.
Next, Marshal Marsh was sworn in with his wife Jennifer holding a Bible by his side. In brief remarks, Marsh thanked God, his family, and those in attendance for their support and for entrusting him to provide a “blanket of protection” around the Courts and personnel under his care.
Marshal Marsh, a native of Greenville, Alabama, served his country twice in the United States Army, and has served his state in various law enforcement roles. Marsh served in the Department of Corrections at Holman Prison, graduated from the Montgomery Police Academy, and served as a deputy in the Lowndes County Sheriff’s department.
Marshal Marsh and his wife, Jennifer, reside in Deatsville, Alabama. They are active members of their church, Big Union Christian Church in Lowndes County.
For more information about Marshal Marsh, see his bio on the Supreme Court’s website here.
Bills could improve access to diversion programs, report notes high fees and roadblocks
Bills recently introduced in the Alabama House and Senate aim to improve access to specialized courts and diversion programs, meant to get people the help they need and keep them from behind bars.
Even with more access to those programs and courts, however, many can’t afford the exorbitant fees to remain free, according to a report released this week by an Alabama nonprofit criminal justice reform advocacy group, which also found racial disparities and a lack of critical information on outcomes.
Sen Cam Ward, R-Alabaster, told APR on Wednesday that his bill would help provide access to those programs to people who live in smaller communities, which don’t have the money to afford them, by allowing judges to transfer municipal cases to circuit and district courts that do.
Each participant – the defendant, the municipal court and the county court – would have to agree to transfer a case, according to the legislation.
“You increase the opportunities for diversion, and smaller towns don’t have it,” Ward said. “It gives them a chance to avoid going to prison or going to jail.”
In order for a presiding circuit judge to transfer a case, all parties would have to agree to do so, and the defendant would have to qualify for the drug court, mental health court, veteran’s court or diversion program, according to the bills.
Rep. Jim Hill, R-Moody, introduced the House’s version of the bill. Attempts to reach Hill on Wednesday were unsuccessful.
The legislation promises a way out of serving time in county jails and prisons for low-level crimes, but even with more access, many of those programs are too costly for participants to afford, according to a report released Monday by Alabama Appleseed, which in 2018 and 2019 surveyed 1,011 people who had participated in those specialized courts and diversion programs.
What researchers at Alabama Appleseed found was that most people in those programs are poor, making less than $14,999 a year, and paid a median of $1,600 for those diversion programs, or more than 10 percent of their income.
“Close to half used high-cost payday or title loan,” according to the report. “More than eight in ten gave up a necessity like food, rent, or prescription medication.”
Carla Crowder, executive director of Alabama Appleseed, in a message to APR on Wednesday said that to the extent that the legislation expands access to diversion, it looks like a step in the right direction.
“But so much more is needed. Real reform of Alabama’s inconsistent patchwork of diversion programs means no one is excluded because they’re too poor to pay all the fees, or cannot take off work, or have small children to care for. And our research found all of these scenarios are far too common
Crowder said that there’s also concern that the change could create new revenue streams for the various entities involved, which could result in more hardships for vulnerable low-income people charged with crimes.
“Oftentimes new diversion programs spring up as a way to collect money from vulnerable people desperate to stay out of jail or prison. The last thing we need is more of that,” Crowder said.
Ward told APR that there are good points raised in the Appleseed report, and while he doesn’t agree with all of the report’s suggestions for fixes, he does believe there’s room for improvement.
Among the report’s recommendations for legislators is to “Establish and enforce uniform statewide standards for all diversion programs and alternatives to incarceration.”
Ward agrees, and said the state has “a sporadic nature of diversion programs. Some counties that work great, some not so much. Some, it’s a pay-to-play system.”
“I do think some of these are absorbing, so I think Appleseed was correct on that,” Ward said.
Ward also said there needs to be more uniformity among the many different specialized courts and referral programs, and he agrees with the report’s finding that there needs to be more transparency on the outcomes of such programs.
Read the full report here.
Among the the reports findings are:
Disturbing Racial Disparities
In 2018, the Alabama Department of Corrections had 20,585 inmates in its custody population. Of those, 43 percent were white, while 56 percent were black.
The same year the population of Community Corrections programs was nearly 60 percent white and 40 percent black.
“The disparity between the racial demographics of the population in custody, who must bear the violence, danger, and misery of Alabama’s prisons, and the racial demographics of those in Community Corrections, who enjoy a measure of liberty, is striking,” the report reads.
In Baldwin County, 18 months in a pretrial diversion program can cost a person $3,010.
The report notes that in Lee County, traffic cases can be disposed of through pretrial diversion for $673, DUIs are $1,183, while felony drug offenses cost $1,713.
“Participants deemed poor enough for an appointed attorney can be required to pay an additional $500 in appointed attorneys fees, pushing the total cost for a felony above $2,000,” the report reads.
Of those polled by researchers 57 percent said they’d gone without food to pay to remain in the programs, 30 percent said they’d forgone paying on medical bills or for medication to do so and 12 percent said they failed to pay child support due to the costly programs.
“42% admitted to committing a crime to pay diversion costs and fees; 29% sold drugs; 24% stole,” the report reads.
Lack of data, roadblocks to success
“Alabama does not maintain any data on drug courts. The state does not maintain information about demographics, cost to participants, criminal charges, recidivism rates, length of time in drug court before graduation or termination, or any other data that would permit researchers, legislators, judges or anyone else to assess the efficacy of its drug courts.”
Researchers noted in the report that there is an employee of the Administrative Office of Courts who is doing some of that research, but that it’s unclear if that data, if completed, will be made public.
The difficulty of getting to required drug court appearances is exacerbated because “people are required to plead in to and attend drug courts in the jurisdiction where they are charged, not the jurisdiction where they live.”
One man, whom researchers witnessed at a drug court in Marengo County, had to drive from his home in Etowah County to get to the court, a 364-mile round trip.
“For drug court participants who don’t have licenses or who lack access to a vehicle of their own, this is a terrible obstacle, even an impossible one,” the report reads.
Andrew Brasher confirmed to 11th Circuit Court of Appeals
Tuesday, the U.S. Senate voted to confirm former Alabama Solicitor General Andrew Brasher to the United States Court of Appeals for the 11th Circuit Court. U.S. Senator Richard Shelby, R-Alabama, voted for Brasher’s confirmation; but Sen. Doug Jones, D-Alabama, voted against.
“Andrew Brasher’s confirmation to sit on the U.S. Court of Appeals for the Eleventh Circuit is a testament to his vast legal ability and commitment to upholding the rule of law as it is written,” said Senator Shelby. “I believe Judge Brasher has served with impartiality, integrity, and purpose as a district judge, and I am confident he will continue to do so in this new capacity. I commend President Trump on his decision to nominate Judge Brasher to the Eleventh Circuit and know that his dedication to justice will contribute to the respected standards of our nation’s judicial system.”
Brasher was nominated by President Donald J. Trump (R) in November 2019.
Alabama Attorney General Steve Marshall (R) praised the U. S. Senate for its confirmation of Judge Brasher.
“The Senate’s confirmation of Judge Andrew Brasher to the U.S. Court of Appeals is a victory for the rule of law,” said AG Marshall. “Judge Brasher’s deep record of public service, combined with his impeccable legal credentials, more than qualify him for a seat on the 11th Circuit Court of Appeals. I am especially proud of his contributions as Solicitor General for the State of Alabama, where he successfully argued cases before the Alabama Supreme Court, the 11th Circuit Court of Appeals and the U.S. Supreme Court. Without a doubt, Judge Brasher will bring a renewed focus to upholding the law as he assumes his new position on the federal appeals court.”
U.S. Senator and former Texas Solicitor General Ted Cruz, R-Texas, said, “One of the most important legal developments of the last quarter-century is the rise of state solicitors general. State attorneys general are recruiting top-tier legal talents and empowering them to have a significant impact on major constitutional issues being litigated across the country. Unsurprisingly, that top-tier legal talent is more and more being looked to for judicial nominations.”
Brasher’s confirmation raises the number of former state attorney generals appointed to the federal bench by Pres. Trump to 26.
“They’re all outstanding lawyers with remarkable academic records and were distinguished practitioners long before they came to the attorney general’s office,” Marshall said. “But beyond that, solicitor generals were involved in the most significant constitutional cases around the country, which is, I think, a perfect training ground for individuals who ultimately make those decisions.”
Republican Attorney General Association (RAGA) Chairman and Louisiana Attorney General Jeff Landry saod, “If you really want to impact policy—which is kind of sad when you think about it—really, AGs have been able to impact policy greater than anybody of the legislature right now, because of the litigious nature of our [political] environment. So it’s been a great way to actually get some things done.”
RAGA Executive Director Adam Piper added, “When you have folks who for eight years were the last line of defense for our nation and the rule of law, it’s a pretty good predictor [that] these folks are rock solid, making them one heck of a farm team and a pretty easy call-up. It’s not a risky move as we saw with frankly a lot of the Bush judges. You were taking folks up and kind of like shaking a Magic 8 Ball hoping they’re gonna be conservative judges.”
Brasher has served as a district judge for the Middle District of Alabama since May 2019, having been first nominated by President Trump in April 2018. Prior to his time as a district judge, he served as the solicitor general of the state of Alabama. In this capacity, he argued cases in front of the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit, and the Alabama Supreme Court. Brasher tried cases in Federal and State courts, during which he won two “Best Brief Award” honors from the National Association of Attorneys General. Before his appointment as Solicitor General in 2014, he served for several years as Deputy Solicitor General.
Prior to joining the Alabama Attorney General’s office, Brasher practiced in the litigation and white collar criminal defense practice groups in the Birmingham office of Bradley Arant Boult Cummings LLP. Brasher also served as a law clerk to Judge William H. Pryor, Jr., of the U.S. Court of Appeals for the Eleventh Circuit after earning his Jaw degree from Harvard Law School, where he graduated cum laude. During his time at Harvard, he was a member of the Harvard Law Review and winner of the Victor Brudney Prize. He was also the first of his family to graduate from law school. Judge Brasher received his Bachelor of Arts with honors from Samford University in Birmingham, where he graduated summa cum laude and currently serves on the Board of Overseers.
Brasher’s confirmation was opposed by many in the Senate.
U.S. Senator Chris Coons, D-Deleware, said in opposition to Brasher’s confirmation, “Voting rights are at the very foundation of civil liberties and civil rights in our society, and we should be doing everything possible to protect and defend them. I’m gravely concerned that Judge Andrew Brasher, if confirmed to the Eleventh Circuit, would only continue the efforts to roll them back. Judge Brasher’s record and lack of candor during his confirmation hearing show that he is unfit for this appellate judgeship in the Eleventh Circuit, and I will be voting no.”
Andrew Gillum is a former Mayor of Tallahassee and was the 2018 Democratic nominee for governor of Florida and is a fellow at People For the American Way.
“I am deeply, deeply disturbed about the nomination of Andrew Brasher to the Eleventh Circuit Court of Appeals,” Gillum wrote in opposition. “This nomination is being engineered by the Trump White House and Senate Republicans with a very specific agenda in mind. This nomination is a very deliberate nail in the coffin of voting rights in the Eleventh Circuit, at a very deliberately chosen time in our history.”
Benard Simelton is the President of the Alabama State Conference of the NAACP.
“From Selma to Shelby County, Alabama is ground zero for voting rights,” Simelton said. “Andrew Brasher has been on the wrong side of every voting rights case he has touched. His nomination is a slap in the face to African Americans, and in particular to our heroes like John Lewis and Dr. Martin Luther King, who risked their lives to get us the vote. As we celebrate the 55th anniversary of Selma, we call upon every senator to honor those who marched by voting against Brasher’s confirmation.”
U.S. Senator Doug Jones, D-Alabama, was a “No” vote on Brasher’s confirmation.
Sen. Jones said recently, “In To Kill a Mockingbird, Atticus Finch said, “The one thing that doesn’t abide by majority rule is a person’s conscience.” All along, my conscience has been my guide. But voting my conscience does not require courage — it simply requires doing what I know is right.”
“Another good, solid conservative judge has been confirmed, yet Doug Jones voted no. Just the latest reminder that we MUST #DumpDoug!” Senate candidate Congressman Bradley Byrne, R-Montrose, said on social media. “In the Senate, I’ll vote to confirm President Trump’s judges and work to make sure our Constitution is protected against activist judges.”
Report: Cost to operate county jails, sheriff’s departments increased by $93 million since 2014
The Association of County Commissions of Alabama (ACCA) released an updated research publication yesterday showing that the cost to operate county jails and sheriff’s departments statewide increased by $93 million from 2014 to 2019.
The research publication, named “Alabama’s Unresolved Inmate Crisis,” was updated from its initial release back in December to include data from the 2019 fiscal year from Alabama county governments. ACCA’s research highlights the growth of state inmates in county jails over the past five years.
“Funding the growing needs of county jails and sheriff’s departments since 2015 has been done by reducing other services at the local level, ” ACCA Executive Director Sonny Brasfield said in the report. “For counties, that’s really the only option available.
“At this point, we’re very concerned that counties will soon have to look at reducing law enforcement costs to pay for the parole and probation violators and Class D felons who — since 2015 — now have to sit in the county jail, where taxpayers pay for their medical care, lawsuits and housing.”
Based on the recent data collected from a January 2020 survey of all 67 counties, the publication’s most significant findings show:
- County jail operation costs increased by $43 million from 2014 to 2019, which is nearly three times the rate of inflation during that time period.
- County sheriff’s department operation costs increased by $50 million from 2014 to 2019, more than two and half times the rate of inflation.
- Combined county jail and sheriff’s department operation costs increased by $93 million from 2014 to 2019, nearly three times the rate of inflation.
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