DA: DCSO deputy justified in shooting fleeing suspect

(Update: Adding video, comments from Berrett’s family)

A Deschutes County sheriff’s deputy was legally justified in twice shooting a fleeing suspect Oct. 12 at the Funny Farm north of Bend as the man’s car sped toward him and a fellow deputy, missing him by “mere inches,” District Attorney John Hummel said Friday.

At an afternoon news conference livestreamed on KTVZ.COM, the district attorney said Deputy Chris Jones was justified in firing at Brandon Berrett twice as he sped toward and then past him, with corrections Deputy Darryl Lewis also in Berrett’s path.

“What happened was the car was right at (Deputy Jones), he has (his gun) pointed, and he comes off to the side, got out of the way at the last second and put off two shots,” Hummel said, shifting his body to indicate what the deputy did at the time.

But Hummel also criticized the deputies involved on two aspects, one for apparently not having a tactical plan for what each deputy would do on the property (also known as the Fun Farm) near Deschutes Junction as they went there looking for Brandon Berrett, who was known to have fled law enforcement in the past.

He also said having a corrections deputy ride-along — who got out of the patrol car and ended up being in danger — shouldn’t have happened.

Sheriff Shane Nelson told reporters the internal investigation of the incident was not finished, but that any aspects that need changes will be addressed.

Hummel ruled the shooting was authorized by state law, so he did not initiate criminal charges against Jones.

A grand jury on Friday returned an indictment charging Berrett with first-degree escape, reckless driving, recklessly endangering another person, driving with a suspended license, fleeing or attempting to elude a police officer, DUII-drugs (methamphetamine) and interfering with a peace officer.

Berrett recovered from two gunshot wounds and was taken to jail five days after the shooting. He’s been held on a parole violation charge and will make his first court appearance Monday on the new charges.

NewsChannel 21 spoke Friday with Berrett’s parents, who said they wish their son would not have tried to flee the scene. They also said their son would never intentionally try to hurt anyone, and they were surprised at Hummel’s decision.

Full details are in Hummel’s written decision, available here and below.

Hummel highlighted this statement in announcing his decision:

“Brandon Berrett’s decision to attempt to escape from sheriff’s deputies who were attempting to arrest him constituted a crime. However, the mere fact of committing a crime should never, standing alone, result in a person being shot by law enforcement. Mr. Berrett’s decision to drive a car in a dangerous manner toward Deputy Jones and his ride along, Corrections Deputy Lewis, is what resulted in shots being fired. Fortunately for all involved, Deputy Jones and Corrections Deputy Lewis were unharmed, and Brandon Berrett, while shot, survived and is recovering.”

In answering questions from reporters, Hummel said there was no dashcam or other video recording of the incident and that he could not determine the top speed of the car as Berrett drove toward the deputies, as it slid a few times in the dirt.

“I don’t know if (Berrett) was trying to hit him (Jones), but at a minimum, he was extremely reckless. He put Jones at risk. If Berrett wasn’t trying to hit him, he came within an inch or two,” and Berrett shifted his body at the last second, firing as he went by.

“I’d have charged him with attempted murder, if I thought we could prove beyond a reasonable doubt he was trying to hit him,” Hummel added.

Sheriff Shane Nelson told reporters that while the internal review is not over, he’s “disappointed” it appears law enforcement principles weren’t either communicated, discussed or followed. While other deputies involved have returned to work, Jones is still on administrative leave.

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Here’s the full decision:

TO: Residents of Deschutes County

FROM: John Hummel, Deschutes County District Attorney

DATE: December 7, 2018

RE: Law Enforcement Use of Force Incident on October 12, 2018

INTRODUCTION

On October 12, 2018, at approximately 10:42 AM, Deschutes County Sheriff’s Office Deputy Christopher Jones intentionally shot Brandon Berrett. Deputy Jones’ decision to shoot Mr. Berrett was legally justified; thus I will not initiate criminal charges against him.

FACTS

On the morning of the incident Deschutes County Sheriff’s Office Deputies Christopher Jones and Jeff Pope attended the daily morning briefing at the Sheriff’s Office. At the briefing both Jones and Pope were directed to show two new corrections deputies the day-to-day operations of patrol deputies. Jones was assigned Correction Deputy Darryl Lewis. Pope was assigned Corrections Deputy Shaun Murphy. Murphy had started work 11 days prior. Lewis started work two days prior.

The plan was for the two new hires to ride along with their assigned patrol deputies so they could gain an understanding of the day-to-day duties of patrol deputies. Both new hires were wearing plain clothes and were unarmed.

The two deputies hit the road with their ride alongs. Deputy Jones drove all around Deschutes County showing his ride-along a wide range of the daily life of a patrol deputy. For example, they went to the mechanic shop, to search and rescue, and to the horse rescue ranch operated by the Sheriff’s Office, among other places. Deputy Pope similarly was showing his ride-along various aspects of Sheriff’s Office operations throughout the county.

At approximately 10:00 AM, Deputy Jones was about to stop at the Sheriff’s Posse building for a bathroom break when he saw Deputy Pope’s patrol car. They pulled up alongside one another, window to window. Deputy Pope invited Deputy Jones and his ride-along to join Pope and his ride-along at the Funny Farm where Pope said he was going to serve a warrant. Jones said he would join them after his bathroom break.

The Funny Farm is a large rural parcel of land located at 64975 Pleasant Ridge Road that contains a costume and Wizard of Oz museum. The owner also rents spaces to people who live in travel trailers or in their cars. The Funny Farm is located less than half a mile from the Sheriff’s Posse building where Deputies Pope and Jones ran into each other.

The warrant was for the arrest of Brandon Berrett. Berrett had been released from jail on October 5, 2018 and ordered to report to his parole officer that same day, but he failed to report. Berrett’s parole officer spoke with Berrett by phone on October 9 th and told him to report that day or a warrant would issue for his arrest. Berrett did not report and a warrant issued. Deputy Jones did not know who the warrant was for or any details of the allegations against the suspect.

When Deputy Pope arrived at the Funny Farm he radioed that he was out on a warrant service at the Funny Farm. Deschutes County Sheriff’s Deputy Kyle Joye was nearby on Highway 97 conducting speed enforcement and he decided to respond to the Funny Farm to assist Deputy Pope.

Deputy Jones completed his bathroom break and drove with his ride along, Corrections Deputy Lewis, to meet Deputy Pope and his ride-along at the Funny Farm.

When Jones arrived he saw in the distance Deputy Pope on foot with his ride along and Deputy Joye. Deputy Jones said he assumed Joye and Pope had developed a tactical plan to execute the warrant, but the details of this were not shared with Jones. In fact, Deputies Joye and Pope had not developed such a plan.

Jones parked his patrol car at the entrance to the Funny Farm and he and his ride-along walked in. Deputy Joye, Deputy Pope and ride-along Corrections Deputy Murphy were ahead of them and walking toward the back of the property where the trailers are located. Based on his prior visits to the Funny Farm, Jones knew the property as a “tactical nightmare.” Jones said this is because of the debris, car parts, and abandoned cars strew throughout. This is in addition to what Jones describes as uneven terrain and tall grass that obscures obstacles.

Shortly after entering the Funny Farm property, Jones and his ride along encountered a man fixing a motorcycle. They stopped to exchange pleasantries with him. As a result, they lost sight of Deputy Pope, Deputy Joye and the ride along, all who had continued walking toward the back of the property.

Pope, Joye, and the ride along were walking to the back of the property because the same motorcycle mechanic that Deputy Jones and his ride along ended up speaking to had told them that Brendon Berrett was in a Volkswagen bug car parked in that area.

Pope, Joye, and their ride along saw the Volkswagen parked next to a trailer on the backside of the property. The Volkswagen’s engine was running but Berrett was not inside. Deputy Pope then knocked on the back door of the trailer the Volkswagen was parked next to. While knocking he announced: “Sheriff’s Office!” Deputy Jones heard this but did not see it, again, because he was with his ride along near the entrance to the property talking to the motorcycle mechanic.

When Deputy Jones heard Deputy Pope knock and announce “Sheriff’s Office,” he ended his conversation with the motorcycle mechanic and walked with his ride along toward the trailer that Deputy Pope knocked on. Deputy Jones then saw Deputy Pope, Deputy Joye, and the ride along walk around the trailer to the other side (they were going to the other side to knock on the front door of the trailer).

Deputy Pope then knocked on the front door of the relatively small trailer (approximately 400 square feet), and the door was opened by Brandon Berrett’s father, Brent Barrett. Deputy Pope asked if Brandon was there and his father said he was not and he did not know where he was.

After Pope, Joye, and the ride along went around the corner of the trailer and were out of sight, and after Deputy Pope knocked on the front door and spoke to Brandon Berrett’s father, Deputy Jones saw a man leave the trailer out of the door Pope had first knocked on.

This man was Brandon Berrett. Berrett quickly walked in the same direction as Pope, Joye, and their ride along had walked to go to the other side of the trailer. Deputy Jones immediately radioed Pope that someone was coming behind him.

But instead of going around to the other side of the trailer, Berrett ran to his car and began to drive off. Deputy Pope and Deputy Joye ran back around the trailer and yelled at Berrett to stop. Berrett did not stop, even though it appeared to the deputies that he heard them.

The deputies then ran alongside the car and continued to yell at Berrett to stop. While running alongside the car, Deputy Joye grabbed his baton off of his belt, extended it, and struck the driver’s side of the car. Berrett did not stop.

Deputy Jones was standing with his ride along on a dirt driveway area of the property between where the Volkswagen was initially parked and the entrance to the property. With Berrett driving in the direction of he and his ride along, Deputy Jones drew his department issued Glock 17 9mm handgun, pointed it at Berrett, and yelled “Stop Sheriff!” Jones yelled “stop” numerous times. Simultaneously, Deputy Pope and Officer Joye were alongside the car yelling stop, and Deputy Joye was striking the driver’s side of the car with his baton.

Deputy Jones said that as Berrett’s car got close to him, Berrett would stop and start the car in a jerking motion. Berrett then seemingly tried to drive around Deputy Jones but was impeded by an obstacle. All witnesses then say he turned the car toward Deputy Jones, and rapidly accelerated. Ride along Corrections Deputy Lewis was behind and to the side of Deputy Jones.

When Berrett’s car came within mere inches of him at an accelerating rate of speed, Deputy Jones fired twice while falling off to the driver’s side of the car. Deputy Jones believed that he shot through the front windshield. However, as the car was moving at a rapid pace, the two shots went through the driver’s side windows.

Berrett was struck twice: once in the upper right side of his back and once in his right humerus (the long bone in the upper arm, located between the elbow joint and the shoulder). Deputy Jones says that at the time he shot, he feared for his safety and the safety of his ride along, Corrections Deputy Lewis.

After Berrett was shot, his car struck large rocks and a broken satellite dish that was on the ground and came to a stop. Deputy Pope and Deputy Joye quickly ran to Berrett, removed him from the car, and handcuffed him to search for weapons. Finding none, they removed the handcuffs and rendered medical aid. The shots were fired at 10:42 AM, medics entered the property at 10:53 AM, and Berrett was loaded in the ambulance at 11:01 AM.

Berrett was monitored at the hospital by law enforcement officers. Immediately after his arrival at the hospital Berrett was overheard saying he was “only trying to get away,” and, “I do a lot of meth.” Law enforcement formed the opinion he was under the influence of a central nervous system stimulant. This opinion was based on, among other things, observations of bruxism; body tremors; twitching of the hands, feet, and face; and rapid speech. Toxicology results revealed the presence of methamphetamine in his urine.

Berrett was discharged from the hospital on October 17 th and lodged in the Deschutes County Jail on the warrant.

LEGAL ANALYSIS

There is no question that Deputy Jones shot Brandon Berrett. The only question is whether he was justified in doing so. In other words, to prove Deputy Jones guilty of assaulting Berrett, the state would have to prove beyond a reasonable doubt that he was not justified in his use of deadly physical force. ORS 161.055; State v. Waller, 22 Or App 299 (1975).

Oregon’s Self-Defense Law Oregon Revised Statutes 161.209 and 161.219 constitute Oregon’s law regarding the use of deadly physical force against another person. This law applies equally to law enforcement and the general public. These statutes authorize a person to use physical force against a person: “[F]or self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.”

And these statutes restrict the use of deadly physical force against another person to situations where the person is: “committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or * * * using or about to use unlawful deadly physical force against a person.”

Deputy Jones says that when Mr. Berrett drove his car toward him he feared for his own safety and for the safety of ride along Corrections Deputy Lewis who was standing near him. Specifically, Deputy Jones feared that he or Lewis would be struck by Berrett’s car. Deputy Jones’ fear was informed by the fact Berrett had been repeatedly ordered to stop by law enforcement yet failed to do so, Berrett’s car had been struck by a police baton and he failed to stop, and Berrett appeared to drive, at an accelerating speed, at Deputy Jones.

Based on all the available evidence, Deputy Jones’ belief that Berrett was about to use deadly physical force against him and/or Corrections Deputy Lewis is objectively reasonable. Because of this, Jones’ decision to use deadly physical force against Berrett was authorized by Oregon’s self-defense law.

Oregon’s Use of Force to Effectuate an Arrest Law Because the use of deadly physical force in this case occurred during an attempted arrest, in addition to Oregon’s self-defense law, Oregon’s law regarding the use of force during arrests must be considered in this analysis. ORS 161.239 provides in pertinent part that a peace officer may use deadly physical force when a person attempts to commit escape in the first degree, or when “the officer’s life or personal safety is endangered.” Both circumstances existed when Deputy Jones used deadly physical force against Mr. Berrett.

Escape in the First Degree First, Mr. Berrett was committing the crime of escape in the first degree at the time Deputy Jones deployed deadly physical force against him. Escape in the first degree is committed when a “person uses or threatens to use a dangerous or deadly weapon escaping from custody[.]” ORS 162.165(1)(b).

When Deputy Pope and Deputy Joye were running next to Mr. Berrett’s car, yelling stop, and striking the window with a baton, they were trying to take him into custody. In addition, when Deputy Jones stood in front of Mr. Berrett’s car, pointed his gun at him, and repeatedly yelled “stop”, he was trying to take Berrett into custody. See State v. Davis, 360 Or 201,207 (2016) (explaining that custody for purposes of escape occurs when a police officer “has lawfully asserted authority to control a person’s freedom in the course of carrying out an arrest, that is, in the course of taking a person into custody to answer for a crime”).

Deputy Jones’ belief that Mr. Berrett was attempting to drive away despite the deputies’ efforts to take him into custody was a reasonable belief. See ORS 161.245 (defining “reasonable belief’ to mean an officer’s “reasonable belief in facts or circumstances which if true would in law constitute an offense”).

And, based on the manner Mr. Berrett was driving the car and the proximity of Deputy Jones and his ride along to the car, the car was a dangerous weapon within the meaning of the statute. State v. Hill, 298 Or 270 (1984).

For these reasons, it’s clear that Mr. Berrett was committing the crime of escape in the first degree at the time Deputy Jones used deadly physical force against him. As a result, the state could not disprove this justification for the shooting beyond a reasonable doubt.

Deputy Jones’ Life or Personal Safety Was Endangered For the reasons discussed above in the analysis of Oregon’s self-defense law, Deputy Jones’ personal safety was at risk at the time he shot Mr. Berrett. Thus, the state could not carry our burden to prove that Deputy Jones acted unreasonably in believing that deadly force was necessary to defend himself.

Legal Analysis Conclusion Because Deputy Jones’s decision to shoot Mr. Berrett was authorized by Oregon’s self-defense law, and Oregon’s use of deadly physical force in making an arrest law, I will not initiate criminal charges against him.

TACTICAL CONCERNS

Deputy Jones was legally justified in shooting Brandon Berrett, but the decisions that led up to the shooting are concerning. Specifically, the deputies’ entry onto the Funny Farm property, a property with significant environmental and manmade obstacles as described earlier in this document, to execute a warrant, without first developing a tactical plan, introduced an unnecessary degree of danger into this warrant arrest and put these three deputies, and the public, at risk.

A tactical plan should have been created that, at a minimum, contained details about the suspect they were seeking to arrest (his photo, his criminal history, whether they believed him to be armed, etc.), which deputy would lead the operation, which deputy would knock on the door of the trailer, and where the other deputies would be positioned during the operation.

Additionally, allowing unarmed ride alongs in civilian clothing to be on the scene of a warrant arrest put these ride alongs at risk of being killed. And having these ride alongs on the scene contributed to Deputy Jones decision to shoot Brandon Berrett, in part, to protect the life of his ride along.

If the three involved deputies were previously trained on the importance of developing tactical plans to ensure officer and public safety during the execution of warrant arrests, they need to undergo refresher training on this topic. If the three involved deputies were previously trained on safety planning for ride alongs they need to undergo refresher training on this topic.

If these deputies, and all deputies, have not been trained on these topics this should happen as soon as possible.

LEGAL CHARGES

On December 7, 2018, A Deschutes County Grand Jury returned an Indictment charging Brandon Berrett with the following crimes: Escape in the First Degree, Reckless Driving, Recklessly Endangering Another Person, Driving While Suspended, Fleeing or Attempting to Elude a Police Officer, Driving under the Influence of Intoxicants, and Interfering with a Peace Officer.

Brandon Berrett is presumed innocent of these charges and has the right to contest the allegations against him starting at his first court hearing on December 10, 2018.

CONCLUSION

Brandon Berrett’s decision to attempt to escape from sheriff’s deputies who were attempting to arrest him constituted a crime. However, the mere fact of committing a crime should never, standing alone, result in a person being shot by law enforcement. Mr. Berrett’s decision to drive a car in a dangerous manner toward Deputy Jones and his ride along is what resulted in shots being fired.

Fortunately for all involved, Deputy Jones and ride along Corrections Deputy Lewis were unharmed, and Brandon Berrett, while shot, survived and is recovering.

The Tri-County Major Incident Team, led in this case by the Oregon State Police and Detective Sergeant Robles, conducted a thorough and professional investigation and provided me all the evidence I required to conduct my legal review.

Deputy District Attorney Matt Nelson assisted me in my review and his experience and insight were invaluable.

Please contact me if you have questions about my decision.