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At This Hour

District Attorney Says, Andrew Brown's Death was Justified. Aired 11:30a-12p ET

Aired May 18, 2021 - 11:30   ET


ANDREW WOMBLE, PASQUOTANK COUNTY, NORTH CAROLINA DISTRICT ATTORNEY: Authorizes an officer to take preemptive action and use deadly force to prevent death or serious to himself or herself provided that the threat assessment is reasonably made.


Whenever officers use to defend themselves or to stop a dangerous fleeing felon, the determination of whether they properly used that force focuses on whether the totality of the circumstances as they appeared to the officers at the time of the killing were sufficient to create a belief in a reasonable person standing in their shoes that such force was necessary. In short, assessing the reasonableness of the shooting requires examining the perspective of a reasonable officer on the scene.

Consequently, my focus was on the relevant set of facts, a reasonable officer in the deputy's position would have experienced. When weighing the degree of force used, a prosecutor must pay careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Using these parameters, I find that the facts of this case clearly illustrate the officers who used deadly force on Andrew Brown Jr. did so reasonably and only when a violent felon used a deadly weapon to place their lives in danger.

First, on assessing the severity of the crime at issue, Andrew Brown Jr. was being served with two felony arrest warrants and a search warrant. The law enforcement officers were duty bound to stand their ground, carry through on the performance of their duties and take Andrew Brown into custody. They could not simply let him go, as has been suggested.

Additionally, Brown engaged in dangerous felony level misconduct as he attempted to flee from law enforcement officers. The decision to flee, which Brown made on his own, quickly escalated the situation from a show of force to an employment of force. Brown's precise speed and attempting to flee and striking Deputy Lunsford is uncertain, but that he drove recklessly and endangered the officers is not uncertain. Therefore, I find that Brown's actions and conduct were indeed dangerous by the time of the shooting. Second, Brown was actively resisting arrest and attempting to evade arrest by flight before, during and after the shooting. All officers had been briefed on Brown's previous interaction with law enforcement, including his propensity to resist and barricade himself. Briefings also informed these officers of Brown's prior criminal history and the fact he has attained the habitual felon status. Brown acted consistent with law enforcement intelligence and actively resisted arrest and attempted to flee.

Third, and most importantly, Brown posed an immediate threat to the safety of the officers and others. Mr. Brown's conduct did not merely risk injuring officers by the time of shooting, Brown had made two aggressing drive and moves, which caused his vehicle to contact Deputy Lunsford on both occasions. When the officers approached Brown with their guns drawn, his response was to maneuver his car and flee.

Brown was undeterred by the officers yelling for him to stop, show me your hands, or by Deputy Lunsford attempting to open the driver's door. Even after backing into a corner with no escape but to maneuver his vehicle directly at the officers, Brown continued the felonious assault by using his vehicle as a deadly weapon and made contact a second time with Deputy Lunsford.

Law enforcement officers, particularly Deputy Lunsford, were on foot and directly in the path of the vehicle being operated by Brown. Lieutenant Judd was located on the corner Roanoke Avenue and Perry in a white, unmarked Crown Victoria. And Dare County Officers Sergeant Ruth and Investigator Johnson were operating unmarked vehicles in the area to assist.

All of these officers were potentially at risk from Brown's operation of the vehicle. Brown threatened the life and safety of the officers on the scene and any possible civilian bystanders given a reasonable officer a compelling reason to end the encounter.

The law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.


The shooting of Brown was justified to prevent potential harm of those living near where the incident occurred as well as other pedestrians, support deputies and the deputies who were in front of Mr. Brown.

Law enforcement officers are required to instantaneously evaluate and employ force against possible criminal suspects to thwart apparent dangers to citizens and themselves. Officers must perceive, evaluate, decide and then act often in a matter of seconds. The deputies in this case perceived a threat and immediately fired their weapon to neutralize the threat.

The perceived danger to the officer must only be apparent, not actual, in order to justify the use of deadly force. Apparent danger is such that it would cause a reasonably person to believe that he or others were in it danger of death or great bodily harm. Although there is evidence of actual danger to the officers, under the law there was also apparent danger. From the evidence it reasonably appeared to the deputies, there was a sufficient basis for self- defense and defense of others. The facts in this case demonstrate the presence of apparent danger to the officers.

An officer may exercise such force if he believes it to be necessary and has reasonable grounds for such belief. And officer acting in self-defense is presumed to have acted in good faith. Federal courts have held that the Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm.

As the United States Supreme Court has observed, the calculus of reasonableness must allow for the fact that law enforcement officers are often forced to make split second judgments in circumstance that's are tense, uncertain and rapidly evolving.

From a review of the body camera video from the scene, there is evidence that multiple shots were fired in rapid succession by three deputies. There is no evidence that the number of shots fired by the deputies was excessive, but even if there are an excessive number of shots, the question is whether the perceived threat has been neutralized for the safety of law enforcement officers present. In this case, the deputies used the amount of force deemed reasonably appropriate by them to neutralize a perceived threat.

Based upon my review of the facts of this case, I have determined that the shooting of Andrew Brown on April 21st, 2021 was justified to protect the safety and lives of the deputies on the scene. The deputies that fired the fatal shots perceived an actual and apparent threat, evaluated the situation in seconds, decided and acted. The deputies' actions are reasonable under all the circumstances of the case. The deputies face actual danger and apparent danger as perceived by them on the scene. This apparent threat was reinforced by Brown's dangerous and felonious use of a deadly weapon.

As tragic as this incident is with the loss of life, the deputies on scene were nonetheless justified in defending themselves from death or great bodily injury.

There is insufficient evidence beyond a reasonable doubt to show that they any of the deputies acted in a manner that was inconsistent with their perception of an apparent threat. In fact, my review of the incident indicates there is no evidence that the deputies who fired the fatal shots acted in any manner that is inconsistent with the threat they perceived and certainly no evidence that the deputies acted in any way contrary to or in violation of North Carolina law.

I appreciate the investigation by the North Carolina State Bureau Investigation's district field office. I have shared this information with Sheriff Tommy Wooten and Special Agent in Charge Masha Rogers that no officer will be criminally charged. The officer's actions were consistent with their training and fully supported under the law in protecting their lives and this community.

Confrontations between police and citizens, in which deadly force is used, are among the most important cases the district attorney's office will ever handle. My prosecutors and I have a duty to objectively analyze the totality of the evidence and circumstances and that means we must face difficult issues which have been discussed at length in this report.

It is my sincere prayer that no one is ever killed by law enforcement but I also pray that law enforcement are never placed in the position of having to make the decision to use lethal force to protect themselves or innocent lives around them. I want our community to understand that this office put significant effort into ensuring this decision was based on the facts, the evidence and the law and not on public opinion.

In describing the legal analysis and the basis for the decision in this case, I find myself unfortunately in the position of correcting misinformation that has been shared both on social media and in the news media.


People made claims on camera that were known falsehoods and were directly refuted by the body camera video.

The public might then wonder why more information was not released to refute these untrue statements. I have always asserted that my office would strive towards transparency, but I need everyone to understand that among my highest priorities is also protecting the integrity of every investigation.

Releasing information before any investigation is complete can taint the case, preventing an objectively verifiable investigation and perhaps even the possibility of prosecution. In an ongoing investigation, details are closely guarded to help measure the truthfulness of witnesses and should someone be charged, preserve the defendant's right to a fair trial.

I know that a lack of accurate information is frustrating to the public and the media that operate on a 24-hour news cycle, but in this age of instant media and the impulse to immediately form an opinion, I'm asking that as we move forward, we remind ourselves that in these cases, we should not jump to conclusions until all the facts are out.

I will always be guided by my oath of office, by the United States and the North Carolina Constitution and the North Carolina general statutes. Justice demands nothing less. Thank you.

Yes, sir?

REPORTER: Do you think all of the facts (INAUDIBLE)? You told us that you don't know how fast the car was going, the car was decelerating or accelerating and that the still images you showed us told a different story before the first shot was fired. Once you put the video in motion, it looked like Brown was turning away from the officer.

WOMBLE: I'm sorry. Your question is?

REPORTER: How do you respond to that?

WOMBLE: What was the question?

REPORTER: Are you sure all the facts are in? You said you don't know if the car was decelerating or accelerating.

WOMBLE: I know that all of the facts that I needed to make this decision are in.

REPORTER: Isn't that important?

WOMBLE: Yes. The facts --

REPORTER: If you look at the video, if you look at the video in motion, it looks like he is turning away before the first shot is fired. That's important.

WOMBLE: Sir, there are several cases. There is a litany of cases in our American jurisprudence where shots are fired into still cars, cars that aren't moving. So the speed at which Mr. Brown is moving at the officers, there is one particular case. It is Robinson versus Aragetta (ph). In that case, they found that the car is moving one to two miles an hour at the officers. So the speed at which the car was moving, not relevant in my determination.

REPORTER: But if he was --

WOMBLE: I'm going to move along. Thank you. Yes, sir?

REPORTER: Are you so sure that he is using the car as a weapon in one of the videos, as the gentlemen points out, it doesn't seem that clear that he's not trying to get away, that he's not turning away from the Officers? How can you be so certain that he's using that car as a

vehicle --

WOMBLE: As a weapon?

REPORTER: I mean, excuse me, he's using the car as a weapon? Sorry.

WOMBLE: Did you see --


WOMBLE: -- the officers surrounded the vehicle?


WOMBLE: Yes. There was no escape but at the officers. You're not allowed to drive over police officers.

REPORTER: But he turned away. If you show the video --

WOMBLE: Yes, sir?

REPORTER: Sir, I presume that the deputies were interviewed as part of this investigation. WOMBLE: Yes, they were.

REPORTER: Can you speak to what they told investigators?

WOMBLE: About what they perceived?

REPORTER: Correct.

WOMBLE: I will tell you this. I will tell you that each one of the deputies that fired their weapons stated that they fired because they perceived a threat to Deputy Lunsford and Deputy Swindell, who was on the other side of the vehicle.

REPORTER: And if I may, it's going to be technical question, but there will be questions about the video and you releasing it in this format. And your decision to release it now, did the judge approve this or, technically, how were you able to present this to the public now?

WOMBLE: All right. So this is actually a display. I'm not releasing the video. This is done. I know that you have it at this point. But, yes, I did speak with the judge.


We talked about that. I am not, once again, a custodian of the record. Anything in my office is not public record by statute. So at this point, because I have made the charging decision that I made, I can display the information. If I had decided to charge, I would have then had to release this to other people that being the attorneys for the defendants in the case.

REPORTER: Can we get this clean? Can the media get the video you have in the presentation?

WOMBLE: Any other release of this will be done through the courts, okay?

REPORTER: have you set a date, a hearing date? Have you spoke to the judge about a hearing date for when there might be a release for the (INAUDIBLE)?


REPORTER: Did you ask for that?

WOMBLE: I have not. No, sir.

REPORTER: Can you tell us, are all the seven deputies back on the job?

WOMBLE: I cannot answer that. I do not believe that all seven deputies are back on the job. But I cannot tell you that for sure.

REPORTER: any internal reprimands for them? WOMBLE: So, you're asking me this question and I'm sure -- for the benefit of everyone else, I don't have anything to do with the sheriff's office internal investigation. I am not responsible for whatever administrative and/or civil actions come after this. I'm only responsible for the criminal side. So I can't speak intelligently to the question that you're asking whether there will be any further administrative proceedings after this.

REPORTER: You talked about falsehoods and the way the video was portrayed. Why do you think that is? I mean, it is hard to look at these videos and see exactly what you're explaining unless you watch it multiple times and maybe somebody's actually explaining to you where everybody is located.


REPORTER: I mean, do you think it's perception? Obviously, that is something you're very concerned about.

WOMBLE: Do I think that people can see what they want to see? Absolutely. I would hope that attorneys, licensed attorneys who are bound by the same oaths and the same rules of professional conduct that I am would conduct themselves a little differently, family members who are grieving, who deserve our sympathies, sure. Everyone can perceive something differently. And until you break it down frame by frame, some of the actions are pretty hard to see.

REPORTER: Is your opinion that the Brown family attorneys deliberately or intentionally --

WOMBLE: I'm not saying that. I'm saying that there were falsehoods made. You can draw whatever inference you want.

Hang on one second.

REPORTER: Just to kind of put a button on this. We saw the video and it definitely appeared that Mr. Brown was trying to get away and not going directly at any officer that we -- that we just saw. Is there something else that maybe you have seen to help you come to that conclusion other than what you showed us today?

WOMBLE: Okay. Let me ask you this. Did --

REPORTER: The wheel did turn away from the officers.

WOMBLE: Did you see the officer put his hand, his left hand on the hood of that vehicle?

REPORTER: Yes, as the car was turning away.

WOMBLE: Yes. Did you see the tracks in the dirt?

REPORTER: Yes, sir.

WOMBLE: Okay. If that car is on the pavement, that officer is run over. REPORTER: Can you replay the video?

WOMBLE: I'm not going to replay it.

REPORTER: What do you say to those (INAUDIBLE) these officers could have moved out of the way in this scenario? I know (INAUDIBLE). What do you say to them in this situation?

WOMBLE: That's not officer's duty. The officer's duties was to take Mr. Brown into custody. They simply couldn't let him go.

REPORTER: And just in other scenario, people have seen people being let go. And in this situation, are you saying , could have been let go -- couldn't have been let go, you got him another time in a less dangerous way, by chance, do you believe?

WOMBLE: Is that -- are we dealing in the theoretical at this point?

REPORTER: No. We're just trying to make sure that -- I know you are trying to say what the officers did, they had to come at this exact time and moment. But could they have moved out of the way instead of getting hit by the vehicle (ph)?

WOMBLE: I think they did move out of the way. At least Deputy Lunsford moved out of the way but he had to take evasive action to do so.

REPORTER: I have a follow-up to that. You said earlier that they had to carry out the warrant and they had to take them in. Can you elaborate on that? Why couldn't they have let him go in that moment and followed up later?

WOMBLE: Law enforcement officers are duty bound the same way -- well, not exactly the same way, but in the sort of same fashion that I'm duty bound by oath.


That was their job on that particular day. They had a judicial warrant. They had an officer telling them to take Mr. Brown into custody. So, Mr. Brown's response to that was to flee.

So what you're asking -- what you're asking is that law enforcement not act upon the judicial directions of a search warrant and give way to citizens when they decide they don't want to be taken into custody.

REPORTER: Why not catch up to him later?

WOMBLE: Why not take him in right then?

REPORTER: Because it was clearly a volatile situation. Why not catch up to him later?

WOMBLE: And it would not have been volatile later?

REPORTER: Also that he was escaping. Have officers take into consideration that people were around this situation, or houses, because everything (INAUDIBLE) the bullets going into the houses as well.

WOMBLE: Yes. That's why they attempted to do this the night before, and they wanted to do the night before and take him into custody when he was in the house. They anticipated when they left that Mr. Brown, when he pulled up beside the car, would actually go inside, but he never did. He stayed in the car.

REPORTER: When he was fleeing away, the officers still shot as he -- how do you justify that as he's fleeing away from the officers? And they put -- the officers were trying to put everybody else in (INAUDIBLE) while shooting towards the other houses.

WOMBLE: And I would say that Mr. Brown was putting everybody else in danger as well.

REPORTER: You said there were 14 spent shell casings.

WOMBLE: Correct.

REPORTER: Did all of them hit the car, or Mr. Brown, or were there some scattered throughout the neighborhood?

WOMBLE: There were 14 -- there were a total of 14 on the vehicle. There was one shot that we believe ricocheted and was found in a house.

REPORTER: In a house?

WOMBLE: Yes, correct.

REPORTER: Did you ever consider -- I know there were calls from the attorneys for the family of appointing a special prosecutor. Did you ever -- were you concerned that you might be too close to these deputies, that you work with them on a regular basis? I mean, did you feel confident that you could handle this investigation and not be biased?

WOMBLE: Absolutely, absolutely. I'm elected by the people of the first judicial district to do exactly this job. A special prosecutor, or outside counsel, is not accountable to the people of this judicial district. I am.

REPORTER: But that is an independent viewer --

WOMBLE: Sir, sir.

REPORTER: You made a point of saying that you're not taking the public opinion into account here, that you're just simply weighing things on the fact. Why bring that up? Do you feel like public opinion turned against you here?

WOMBLE: No. I want to make sure -- I want the community to completely understand that the right to protest is certainly important. The need for information is important, the transparency aspect, accountability of my office. But in these particular cases, I am basing the decision on the facts, the evidence and the law, and nothing else.

REPORTER: Have you spoken to Andrew Brown's family about your decision today?

WOMBLE: I am not, and that is unfortunate. It's not the way that I would normally want to do this.


WOMBLE: Our original discussions immediately after this occurred with Mr. Brown's attorneys did not go well. We tried -- or there was a second meeting with the family in which the attorneys were not present. Obviously, any party that is represented by counsel, I have to be very careful in dealing with attorneys before I deal with parties. I was unable to do so. And at this point the relationship is just constrained to the point that I did not speak with them.

I would be happy to talk with them at length after this is over.

Yes, sir, this man has been very patient.

REPORTER: Specifically, (INAUDIBLE) he's driving across the field towards the Roanoke County --

WOMBLE: Yes, sir.

REPORTER: -- where the officers then continued shooting at that point. In your mind, why is that justified? Is it because the unmarked vehicle was across the street on Roanoke Avenue or was it because they could keep shooting because of the additional incident in the driveway?

WOMBLE: It is both. So once a threat is perceived -- and our case law is very clear on this, once a threat is perceived, and the officers fire the first shot, if the first shot is justified, the last shot is justified, until the threat is extinguished. That is Plumhoff versus Rickard case, it's a United States Supreme Court case, and it is clear.

In the Plumoff case, the officers fired three shots into a stationary vehicle. The vehicle then backed away from officers and sped down the street, at which time they fired 12 additional shots at the vehicle as it sped away, and there were no police officers anywhere in the direct path of that vehicle.


Supreme Court found the officers' actions in that case were reasonable, they said they weren't even close to being unreasonable, and they did not find even a Fourth Amendment violation. There has never, ever, in our American jurisprudence, the Supreme Court has never found a Fourth Amendment violation when a suspect uses a car as a deadly weapon, never, not one.

Hold on, wait a minute, one more time in the back, yes. REPORTER: Is the car being used as a deadly weapon no matter how fast it was going, just because it was moving in the direction of the officers at some point? It doesn't matter whether it was accelerating, just foot off the gas?

WOMBLE: Yes, in my opinion, at this point, it was employed as a deadly weapon. Now, are you asking, theoretically, what in other cases can we possibly --

REPORTER: Just in general, it doesn't matter what speed it was going, if it was at all in the direction of --

WOMBLE: Yes. There are several cases where officers have instructed drivers to shut the car off, the car is stationary. And the simple act of starting the car in violation of an officer's command, puts the -- makes the car a dangerous deadly weapon that can be used at that point and officers can shoot.

Yes, ma'am, in the back.

REPORTER: As far as exiting the neighborhood, as you say it was driving towards some unmarked sheriff's vehicles, several of the protesters, and you've heard comments, that the area that you were in, or excuse me, that they were in, was a school zone, and it's 8:00 in the morning, or was it after 8:00. Was there any consideration into that of the extended neighborhood being in a school zone?

WOMBLE: So, the officers in their comments did not talk about the extended school zone. Certainly, when I get the leisure, they're acting in the heat of the moment and I'm looking at it in the cool of the night, so to speak. Certainly, I would think that Mr. Brown driving this vehicle, operating it in this manner, in this particular instance, could put the lives of school children in danger, absolutely. That was not listed in the officers' notes.

REPORTER: To clarify, did you get a court order to release this body camera video today?


REPORTER: Isn't that in violation of the statute that requires a petition (INAUDIBLE)?

WOMBLE: Statute applies to the custodian of the records. I am not a custodian of the records.

REPORTER: So, can you clarify that the use of --

WOMBLE: Hang on one second, yes, ma'am.

REPORTER: Was it your perception that many Brown intended to threaten the officers with the car, or does that have any bearing on your decision?

WOMBLE: Was his intention to threaten the officers with the car? That requires me to speculate as to Mr. Brown's -- I think Mr. Brown's intention was to get away. I think Mr. Brown was fleeing an arrest because Mr. Brown had drugs on his person and in his car. And I think he did not want to get caught with those. So that's why I think Mr. Brown was fleeing.

The officers' position around the car is why he drove at them. He had no choice. If he was going to attempt to flee, he had no choice but to drive directly at the officers. When he did that, and he made that decision on his own, he placed their lives in danger.

REPORTER: So having fled and not having deputies in the path, would that have been relevant to your determination in this investigation?

WOMBLE: I can't -- once again, we're moving into a theoretical discussion. Yes, if there were no deputies in the path, I think I could have looked at this differently. If you will see, when the car backs up, and Deputy Lunsford is pulled off of his feet and onto the hood of the car, that aggressive driving moment right there, in my opinion, is a threat to the officers. I believe that they would have been well within their rights to shoot at that moment.

REPORTER: At that point, Brown has used the car as a --

WOMBLE: As a deadly weapon, absolutely.

REPORTER: To clarify again, when he backs up, you said Officer Lunsford's body was pulled to the hood of the car. Were there any deputy officers behind the car in the direct path of the car as it backs up?

WOMBLE: No, no.

REPORTER: It's not clear. He doesn't. Lunsford is the only deputy that he makes contact with when he backs up?

WOMBLE: Yes, that is correct. Deputy Swindell was to his right.

REPORTER: Can I ask follow-up to that question, because that's important. You just said he threatened the officer but he's backing away from the officer and the officer is going toward him. So he's trying to avoid the officer.

WOMBLE: You do understand that he was going to be arrested and taken into custody that day?

REPORTER: Yes, I get that, but he was backing away. You're -- I'm just going off of what you're telling us here and you're sending mixed messages. You're saying he was threatening them, but then he's backing away and it's the officer going for the car.

WOMBLE: Okay. When you employ a car in a manner that puts officers' lives in danger, that is a threat.


And I don't care what direction you're going.