New Videos Released By Justice For Desmond Phillips Group Show Early Police Interviews

Jul 27, 2020

We are in a moment where people all across the world are questioning and calling out systemic racism and police brutality. But for one particularly group in the North State, this conversation around police violence and demands for accountability have been taking place for years. It was March 17, 2017, when Desmond Phillips, a 25-year old black man who was suffering from a mental health episode was shot and killed by Chico Police. It was ruled by a federal judge that the officers’ actions in the shooting were justified, but new videos acquired through the discovery process in the Phillips family’s unsuccessful wrongful death case against the City of Chico raise questions about conflicting accounts of the shooting by the three officers who were involved. 

The videos, which have been edited, were recorded hours after the shooting happened and were posted to the Justice for Desmond Facebook page. In them officers give differing accounts to of what happened that night to police investigators from the accounts given two years later while under questioning by an attorney for the Phillips family in their civil case.

(See Facebook post of edited videos published by the Justice for Desmond Phillips page:)

To learn more about what exactly the videos show and what the Justice for Desmond Phillips team believes they mean, NSPR’s Andre Byik spoke with Rain Scher, a core member of the group. You can read a transcript of their conversation below, or listen at the top of the page. Find comments from Interim Chico Police Chief Matt Madden and Chico Mayor Ann Schwab at the bottom of this post. Emails sent to Chico police officers Jeremy Ganebin, Alex Fliehr and Jared Cumber were not returned.  

Interview Transcript

Thanks so much for speaking with me. I'd like to start with the videos released by Justice for Desmond Phillips earlier this week. There are clips showing the Chico police officers who shot Desmond Phillips being questioned by police investigators in the hours after Phillips was killed in 2017. Can you take me through the release of the videos? Where did they come from and why were they released?

Yes. So first off, I'd like to clarify that the video we released only includes three of the officers who were in the apartment during the incident that ended in Desmond's death. Those officers are Jared Cumber, Alex Fliehr and Jeremey Gagnebin. There were two other officers present as well. They're David Martin and Derek Ament.

And we have reason to believe that the other officers may have also been more actively involved in Desmond's death than the official police report claims. The videos that we shared were interviews that were done as a standard process soon after the incident happened, that very night.

You can see the timestamp on the video that it was the middle of the night. However, that was the normal shift for those officers. So they were used to being up and working at that time and should have had their normal, you know, ability to think things through and all of that as part of their job.

We acquired those videos through the discovery process in the civil case against the city of Chico by the Phillips family for wrongful death. We also made a public records request both from David as well as a couple other of us as private citizens made public records requests requesting information like that, which was never given to us. The only way that we were able to get it is when there was actually a court case happening and a lawyer requested those documents or files.

In the video, we specifically cut just a few pieces from those interviews, specifically to highlight that, even right after they had just gone through this situation, those three officers tell three very different stories about what happened particularly about the critical moment, which they claim as their excuse for shooting Desmond. And that is the most critical point of this case. And you can see in the video where they say that they feared for their lives, which is the classic line that police use as their way of protecting themselves from prosecution. Under the law, they get protected whenever they say that phrase: I feared for my life.

Each of the three officers in the video describes what supposedly happened in very different ways. And I think it's really important to start by clarifying that what they said was different from what the physical evidence shows. So the physical evidence shows what David Phillips himself witnessed, which was that shots were fired at Desmond as he was falling to the ground.

The door of the apartment was kicked open. Officer Cumber deployed a taser and tasered Desmond. Desmond, his body seized up from the taser shock and he fell to the ground, and in the process of that happening, officers opened fire on him. In the official record, the named shooters are Gagnebin and Fliehr.

Those officers that night and continuing into their depositions in interviews for the civil case in 2019, they all claim different versions of the story where they allege that Desmond got back up after being tased and that he presented a threat to them, supposedly, and that is their excuse for opening fire on him. In the 911 audio, anyone can hear that the sound of the taser goes off very clearly, and there's only a couple seconds before shots are fired.

It is not possible — it is not physically possible, for Desmond Philips, who is over six feet tall, who has been seizing up from a taser, falling to the ground, then getting completely back up. And according to Gagnebin, not only did he get completely back up, but supposedly then also reached back down and got back up a second time to supposedly charge with a knife.

In addition to that, the angle of the shots fired into his body in the coroner's report show that that he was shot while he was falling, the angle of the bullets as they enter his body as well as the location of the shots, where they impacted his body, were all in his upper torso, and face and neck, and all of the bullet holes in the wall are below three feet high. So all of those shots were fired downwardly. And Desmond was taller than those officers. He had to have been below them when they fired. They claim that he was standing up when they fired. So we really wanted to show that contrast and show how differently their stories are from each other, which also shows that they're lying.

In addition to that, in the video, we included a clip of officer Gagnebin admitting that he did not attempt any other intervention to subdue Desmond before opening fire. And in addition to that, there is a clip of officer Cumber admitting that he did not have CIT training. That is critical incident training. And there is a state mandated minimum of eight hours for critical incident training that minimum existed when Desmond was killed. After he was killed, the Chico police Chief O'Brien claimed that all officers had that training. That was later exposed to be untrue as well. The police chief lied about his officers, the officers who killed Desmond having even state minimum critical incident training, which would have given them more resource to intervene in a situation where someone is in mental health crisis as Desmond was.

Going back a little bit, when I personally watch the videos, I noticed an answer that officer Jeremy Gagnebin told investigators. It was when he said he did not have a reason for why he and officer Fliehr did not immediately jump on Desmond after he was tased.

In a deposition that Gagnebin gave two years later, he told lawyers what appears to be a different story, that one of the reasons he didn't jump on Desmond or subdue Desmond was that Desmond could have had knives. That was one reason. What do you make of that discrepancy between what officer Gagnebin said the night of the shooting, and what he told lawyers two years later?

Well, first of all, it is one of many discrepancies — that each of the officers made statements that were very different the night of the shooting and in depositions two years later. Another fairly broad discrepancy that Gagnebin made was in describing the knives that he saw. In the video he describes knives as being 10 to 12 inches long. In the deposition, he describes knives as being five to eight inches long. The difference between those ranges is fairly big. And both Gagnebin and Fliehr say that they didn't have any specific reason not to subdue Desmond as soon as he went down from the taser, except that later, they do mention knives and it's always in this very vague way. And ultimately, the reality is that both Gagenbin and Fliehr had their firearms drawn, in hand, when that door was kicked in, when that taser was deployed, and when they entered the apartment, so the thing that they had on hand that they were ready to do was fire guns.

Before the door was kicked in, there was brief consideration of using a shield, using a beanbag shotgun, these are considered less than lethal means. But when they actually entered the apartment, they decided to take out their guns. And they had them ready in their hands. And that's how they responded, was with their guns. And I don't think that they were in a mindset to be doing something other than firing their guns. I think that they went in there with intention to use guns, at the very least as a threat, if not actively firing. And frankly speaking, their training as Chico PD officers, their training is very focused on the use of firearms and very little time teaching them or creating habits or practices other than firing guns.

And this is incredibly significant to the looking at policing and how it results in deaths like Desmond from start to finish, from the beginning of them deciding to become a police officer. Their focus is very much on guns and deadly force. And in interviews in the depositions, officer Fliehr is also extensively questioned about his training around use of force and his responses are fairly vague in that he can't really articulate why he would not use force. Right? And that's significant. And it's significant that is taken for granted that if they used force, it must have been necessary. It was not necessary in this situation.

And that's also — going back to the videos — something that I noticed — officer Fliehr, answering a question by saying he had no other options but to use his gun, what do you make of that? And then his answers in that deposition later regarding what you were just talking about.

I think that all of these officers in responding to questions, both the night of the murder as well as two years later in deposition, all of them are in a defensive place. Right? Their role in theory as police officers, in theory, they're employees of the public. In theory, their job is to protect and serve. However, they're individual human beings who are potentially facing consequences for some very serious actions that they committed against another human being. And so, their priority as an individual is going to be to say whatever they think is necessary to protect their own well-being in that moment, and that means, and the well being of their fellow officers, frankly. And so, that's why they know to say phrases like, I feared for my life. That's why they say things like, I had no other option.

But when later questioned more extensively about what what options their training might have taught them, they speak more obtusely and more avoidantly and more vaguely, and admit that there are things that they learned that were non-deadly force, but they're not willing to admit what may have been possible in that moment. The night that they were interviewed the night of the murder, they were interviewed by essentially fellow law enforcement. They were interviewed by people from the sheriff, from the DA. These are people who, it's their job in theory to do a thorough investigation. However, they're all in the same club together. It is in their interest to not ask the harder questions, to not push those harder questions.

And the interview in the deposition, although it was two years later, is being done by an attorney representing the Phillips family, and that attorney's best interest is to get the most thorough answers possible out of these officers. And it's why in the deposition, a lot of the questions they're asked, they're asked repeatedly and they're asked to clarify repeatedly, and they continue to be avoidant, and/or, you know, hide in vagueness.

There's another striking image from the videos released by Justice for Desmond, Officer Jeremy Gagnebin, while answering questions about killing Desmond Phillips, a black and native man, the officer is in street clothes, wearing a T-shirt with the design of what appears to be a modified confederate flag. It's a T-shirt for a country artist, Brantley Gilbert. I'm honestly curious about your thoughts watching that scene play out, answering questions while wearing that shirt.

Yes. So we also put out a post on Facebook a few months ago that showed a couple images from that night. The first image is the photograph they took of Officer Gagnebin right after the murder in which he's still in his uniform, but he has a big smile on his face, right after he killed Desmond. As you stated Desmond was California native Miwok, as well as being Black African American. He certainly looked like a large black man.

Gagnebin then in the interview, that's a little while later, has changed into street clothes and that shirt is, in parts of the video, it's harder to see, but there are points where he stands up and it's very clear, and you can look up the shirt. It's a very popular shirt that is a stylized confederate flag. And, you know, that's something that's really, thankfully being talked about a lot more in this in this moment in time in culture and media, that a lot of people try to minimize the implication of a confederate flag, or in the case of issur, a stylized confederate flag. And the reality is, is that that flag represents racism. To black people, that flag represents danger, that flag represents violence to black bodies.

That flag has been, thankfully being started to be taken down in various places all over the country, Mississippi is finally taking it off of their state flag, right? Because everybody is finally admitting what that flag really means. For many years, people have tried to argue that the flag doesn't really represent racism directly. It represents, you know, people from the south and their heritage. Well, it represents white people from the south. And it represents a particular heritage. That was people who were willing to go to war in order to defend their right to own black human beings and do violence to their bodies. And it is incredibly significant that that was the street clothes that Gagnebin was wearing that day in his life. It is incredibly significant that he would own a shirt like that in the first place. And that he's the kind of person who can sit there wearing that shirt and calmly and simply talk about the fact that he just killed a black man.

You mentioned the moment of time we're in. The release of the videos come as there's ongoing protests against police violence and racism in the wake of the killings of George Floyd and Breonna Taylor. Chico City Council is making moves to review the city Police Department and its use of force policies and also perhaps to look at ways to institute more training for officers and crisis intervention. Can you walk me through the moment we're in and maybe how the videos that Justice for Desmond released recently play together or work together — that's probably a better way to say that.

We are really sad in this moment. It is a sad moment in time that it takes the violent deaths of people for things to change. That is incredibly tragic. And it is also very real that there is a lot of movement and motion happening right now, because of those steps.

We have been fighting and shouting for over three years about what happened to Desmond Phillips in Chico, and have received very little support, particularly from those in positions of power like the City Council. In general, the City Council of Chico has taken a stance of basically ignoring us and actively supporting the police department and Chief O'Brien, who just recently retired.

The reality that the City Council is now saying that it's going to do certain things related to the police department, frankly, is rather empty for a couple of reasons. One is the Justice for Desmond Phillips team, the Phillips family for three years, has been making specific demands and recommendations for ways to improve policy and accountability and all those things related to the police department. The Chico City Council is not interested and has shown no interest in actively working with us on those actual requests, those demands that we have made.

The current mayor Ann Schwab has created a committee that includes law enforcement, that does not include anyone from the Phillips family, from any other family who has lost somebody to the violence of Chico PD or Butte County law enforcement. The most impacted people, the most in danger people, are not included in the conversation about what is needed for the public to actually be safe when it comes to police. The committee is frankly an insult to everything that we have been working for over three years. This is the mayor's attempt to get the public to stop putting pressure on the city. This is how she is saying, in a very performative way, I'm going to do something without actually doing anything.

We have pointed out very clearly and explicitly why the Chico PD use of force policy is non compliant with state law. And this is under the guidance of the American Civil Liberties Union. The ACLU is working with people all across the state of California in order to get police departments to comply with the state law that was created as of January 1 by AB392. That is supposed to augment the use of deadly force policy.

The city of Chico pays a private corporation to help them create that policy for police. That company is called Lexipol. Lexipol's version of the policy is non compliant with state law. And instead of seeing, listening, actually reading what we have been saying publicly, and asked other people to email the city about, instead of actually listening or reading that for themselves, all of the city council members have said, we pay somebody else to figure that out. Therefore, we must be compliant. They are not taking actual responsibility for the fact that the city is currently non compliant with state law. Even on just this one point, how can we trust them to take real and meaningful action on all the other points that are so necessary and needed on all the parts that relate to public safety and accountability with police, especially when it comes to use of force.

You raised an interesting point regarding AB 392. Because it does seem throughout my own reporting there are two very different stances — one where the city and even the mayor has said that the city is in compliance with state law. And then the dispute being that no, the city is not. I believe it has to do with the reasonability of the use of deadly force. And egarding a reasonable officer standard. Maybe can you walk me through why the city is not in compliance with that law?

Yeah, so all that information is also on the Justice for Desmond page. This is something that we have been asking people to contact the city about and many people have in sharing the information that we have shared. And it is, it might not seem like that big of a difference to someone, the average person who, you know, isn't a lawyer or doesn't understand how the legal system works. But wording is very important in law and policy. The specific wording is very important. And this is part of what is so necessary about the city actually listening to us and working directly with us on the specifics, not just making broad statements about it.

So, the current Chico PD use of deadly force policy uses the language quote unquote "may use reasonable force." This language is not compliant with AB 392, which states directly and specifically, quote, "police officers use deadly force only when necessary in defense of human life." The key word here is "necessary" versus "reasonable."

"Reasonable" is a much softer, broader word that can and has been interpreted by courts to mean a lot of things. "Necessary" is a much more specific, narrow word. And it's really critical when we're talking about life and death situations.

You mentioned institutions such as the city and the City Council. I also believe the press plays a role in matters of police violence, shootings specifically. Going through your videos, if the press ignore the videos you've released, perhaps for reasons such as, look, it was edited in a way to make a point. It's not the whole video. I'm wondering if you think activists and victims of police violence are treated with a double standard by the press, where the press, myself included, will report what police say regardless if it's the entire story or not, and maybe not be as trustworthy of what people not in a position of power have to say about the same incident? I'm wondering about your thoughts there.

Yes, I think that is absolutely true. And there are countless examples, where reporting sometimes only includes the voices and perspectives of the people who are in positions and institutions of power including the police and city government. And often are disregarding of voices of victims, of regular everyday civilians, of witnesses. And that has certainly been true in Desmond's case. The majority of the reporting that happens on Desmond's case, starting from the night that he was killed, the majority of that reporting focused on what the police had to say, what the district attorney had to say, what the city did or did not say. And there has been a lot of inherent bias in how, when, why they have been willing to talk to David, or other members of his family or those of us who've been working with them since the beginning.

As far as releasing the video goes, the local media for the most part, has decided that they are generally not going to report on Desmond's case in general, after the ruling of the civil case, and before that, after the unfortunate response we got from the state attorney general.

There has been multiple times when we have attempted to share information with local media, and they simply have not published it or have chosen to minimize it. And we have a lot of evidence that came to us through the discovery process from the civil case, and it has taken us some time to get through it all. And what we have learned is that, generally speaking, the local media doesn't do a very good job of sharing this information. And so as much as possible, we try to put the narrative out through our social media platform on the Justice for Desmond Phillips Facebook page, so that people can see for themselves, the kind of information that we're trying to share, whether the local media picks it up or not.

We do have a lot of other evidence and we will be sharing more of that publicly as well. We hope that the local media will also want to amplify and share that information that we share but generally speaking, we have learned to not have very much trust in how we are generally covered in the local media.

Speaking about the recent videos that Justice for Desmond has released, I'm wondering if you envision releasing those videos in their entirety somewhere, so people can view those tapes to get that fuller picture of what was said the night that he was shot and killed.

We have not specifically discussed releasing the entire videos at this point. The videos are very long. There is hours and hours of video interviews. We are, however, working on creating a much longer total narrative, which will be a much longer video, showing various parts of the evidence, not just clips from the interviews the night of the murder, but including evidence from the deposition and the coroner's reports, you know things about the physical evidence. We will be in the near future putting out a much longer compilation of many pieces of evidence. But at this time, we don't have a specific intention for every single piece of evidence to be shared publicly. There is a lot of it and there's definitely a lot to consider about thinking about doing something like that.

I believe you and the Phillips family were at the state Capitol in Sacramento this week. Can you take me through that trip and its purpose?

Yes. There was a rally at the state Capitol yesterday, Wednesday, July 1. That rally was centered on families who have been affected by, who have lost a loved one to police violence in California.

The organizers at the beginning of the program stated that they had put together the event in a relatively short amount of time. And they were aware and apologetic that they had not been able to gather every single name that they would want to share of all the folks who've been killed since 2015, in California by law enforcement. However, not having all of the names they still had 600 photos and names of people who've been killed just in the last five years in California. And that included Desmond Phillips. And so David, Desmond's father, as well as his siblings, and other family members were there in order to represent for Desmond and what happened to him to tell his story and to commiserate with and have community with other families who've been affected in this way. And it was an incredibly heart wrenching event to see all those faces, all the pictures, to hear the stories. You know, some names being shared from years ago. Some names of people who were just killed recently by law enforcement in California. It is an ongoing issue. It is not something that used to happen and is happening less. It is happening more.

And it's really important that there be connection and support for all those families, and that those voices of those families are centered in the discussion of what needs to happen in response, and to ensure that this doesn't happen as much in the future. Included in the program were a couple state legislators from the Legislative Black Caucus, who also spoke up about new laws being introduced, new Assembly bills being introduced to try and create laws, in order to create more accountability and to help ensure that there'll be less incidences like this. And that is really critical. It's critical that we have everything from top to bottom. We need to have community response at the grassroots, where we support these families. And we need to have policy change coming from everywhere, from the city from the state, from the federal government. This needs to change at every level because the current system in place creates this situation, enables the situation and protects officers when they do kill people.

Points well taken. Is there anything I didn't ask you that you think I missed or that you'd like to clarify?

I guess it would be good to just add that if people do want to work with us directly, to talk with us directly, to hear from us directly, the Justice for Desmond Phillips Facebook page is the most direct way to get information from us.

In addition to that, there are people who have reached out to us to talk about their own experiences with Chico PD and Butte County law enforcement specifically, and we definitely want to keep hearing from people, especially people who may be willing to speak up publicly about their own experiences of racial bias, excessive force and other things that our local law enforcement has done that are inappropriate and harmful and need to be addressed. So we definitely encourage people to reach out to us even just to, to build community support for each other and in order to build our strength in unity as a community to be able to hold all of these officers accountable for their actions.

Other Comments:

Because there were many people mentioned in this interview, we reached out to all of them for comment on the subject matter raised. Emails sent to Chico police officers Jeremy Ganebin, Alex Fliehr and Jared Cumber, were not returned.

Interim Chico Police Chief Matt Madden told NSPR that we should talk to the Chico City Attorney. He further said that it would be inappropriate for the Chico police officers involved in this story to talk to the media.

In an email reply regarding the accusations of the Chico City Council’s Police Review Ad Hoc Committee not having any representation from community members who have had loved ones killed by Chico Police and questions about why law enforcement is on the committee, Chico Mayor Ann Schwab wrote:

"We must resist the temptation to say we are divided or our action will fail at the beginning of a process. Establishing trust between police department and the community is crucial. Lasting change won’t happen unless the police and the community work together and shine light on policies and practices, and gain common understanding and agreement. How do we know what needs to be changed without understanding? How can we actually listen and understand if we’re yelling at each other? How can we make change if we lead with “us vs them,” and winners and losers? Such an approach will only provide short term answers. Having the police at the table demonstrates they are invested in exploring these issues and committed to being part of the process. This community is looking for long term solutions such collaboration will bring.

The Policing Review Ad Hoc Committee is tasked to review policing, not individual officers. This is a small committee. The Committee welcomes input from the whole community. Public comment will be taken throughout our process.The Committee will not review any specific cases."