by Dave Waddell
Two young Chico police officers, on the night in 2017 they gunned Desmond Phillips down, told conflicting stories to investigators about what Phillips was doing in the seconds before he was slain.
Butte County District Attorney Mike Ramsey, apparently uncomfortable with those discrepancies, brought Desmond’s killers together nearly three weeks later for a group re-interview that “no competent investigator” would have conducted, says Seth Stoughton, a former detective and nationally recognized expert on police practices.
“Separating witnesses is such a basic component of an investigation that it has been referred to as ‘Investigations 101,’” said Stoughton, an associate professor of law at the University of South Carolina, in an email reply. “The only reason to interview witnesses together is to get one coherent, consistent story. But that’s not what an investigation is supposed to do.”
Stoughton, the lead author of the book “Evaluating Police Uses of Force,” was a witness for the prosecution at the trial of George Floyd’s murderer. He is a former Tallahassee police officer and state investigator in Florida.
Phillips, a 25-year-old Black man in mental crisis, was killed March 17, 2017, in his Fourth Avenue living room in a hail of police bullets from officers Alex Fliehr and Jeremy Gagnebin. Together, the two totaled 3½ years of experience as police officers. Fliehr fired nine times, Gagnebin seven. Eleven of those 16 rounds hit Phillips, with at least one stray bullet nearly striking other officers, and two bullets flying into and through an adjacent apartment that was unoccupied at the time.
Nineteen days later, on April 5, Ramsey met with officers Fliehr, Gagnebin and Jared Cumber, who Tased Phillips moments before the shooting. Also attending the videotaped group interview was the three officers’ attorney, Dan Thompson, as well as two of Ramsey’s investigators, Jason Barkley and Jeff Wiles.
Responding to a Public Records Act request for records related to the Phillips case, the Chico Police Department recently provided to this reporter a redacted video of Ramsey’s April 5 group interview. Also disclosed were videos of individual officer interviews conducted in the wake of the shooting in the early hours of March 18. Even though it released some records, Chico PD has continued to withhold numerous reports about the Phillips killing, as it has about its killings of Stephen Vest in 2020, Tyler Rushing in 2017, and Eddie Sanchez, who was killed in 2015.
At 7:13 p.m. on March 17, David Phillips, Desmond’s father, called 9-1-1 seeking help for his son. Chico police had been out to the residence on similar calls twice before -– the previous December and January -— and the father told the dispatcher he thought only medical aid would be needed.
According to Ramsey, when fire personnel arrived they found Desmond “non-responsive,” standing with his eyes closed, wearing sunglasses and earphones in front of a turned-off television. After firefighters removed Desmond’s earphones, he swept his arms, knocked over things and picked up a ceramic lamp, the DA said. Fire personnel left and called in police.
At 7:29, Phillips called 9-1-1 again, asking for police to “step it up” because “my son, he’s mental and he has a knife and he’s walking around.” David was locked in one bedroom and Desmond’s two nephews, ages 12 and 16, were locked in another. Officers looking through a screened security door saw Desmond pacing the living room and holding kitchen knives. After they spoke to him, Desmond shut and locked the front door.
David Phillips called back again at 7:31, becoming frantic when Desmond started kicking his locked bedroom door. “He’s trying to stab me now!” said David Phillips. Officers at the rear of the home reported the commotion inside.
By the time officer Fliehr kicked open the front door a minute or so later, the house had quieted and Desmond was standing expressionless, still holding the knives, just inside the home’s threshold. Cumber fired his Taser and Desmond “locked up” and went down. A mere seven seconds later, Fliehr and Gagnebin began firing their Glocks.
Cops’ stories conflict
Fliehr, in his initial interview, claimed that Phillips, after being felled by the stun gun, rose with two knives, one in each hand, blades up, and advanced on him and Gagnebin. Phillips, as Fliehr told it, slashed forward from chest high in “windmill” fashion. None of several other officers on the scene saw Phillips holding even one knife after the Tasing – let alone two. A former attorney for the Phillips family argued in court that the evidence was “indisputable” that Phillips was no longer holding knives when shot dead.
Gagnebin, meanwhile, initially said Phillips stood up after being Tased and then immediately reached down and picked up an object he described as a sharp stick with a shiny metal point. Gagnebin said Phillips raised the object above his head and began slashing at the officers. No one else reported seeing Phillips raise his arm in that manner.
“Immediately after standing up,” Gagnebin told investigators on March 18, “he immediately went to the ground to pick up the object. Immediately. Instantaneously …”
Cumber reported that he could not see Phillips’ hands after he got up but that he was moving his right arm horizontally from side to side.
Ramsey opened the April 5 interview by expressing concern about the officers’ well-being and then detailed the meeting’s purpose.
“I wanted to just check back with you guys. First off, how is everything? You guys OK? …
“It’s been a couple of weeks now, and so you’ve had time to kind of process what went on. … Your statements that night were fairly complete but there’s just some things, as obviously we listen to statements, we go out and we see the scene, and then says, ‘Oh, we should have asked that question and get a little clarity on that question.’
“And I’m having you all three together today to see also if anything that one says sparks a memory. Now, it’s real important to understand that you don’t substitute one person’s memory for the others’. Only if it sparks something. I expect that your memories of this event – and that’s just basic psychology and basic physiology of the brain — are going to be slightly different. So again, don’t substitute someone else’s but if it sparks something: ‘Oh yeah, now, you’re right, I do remember it was that way.’ And that is fine and that is what our purpose here today is. …
“So … is there anything about that night … in your memory as you process it, something that has come up that you want to say, ‘You know, I said this but I’m thinking maybe that wasn’t correct.’ Or some additional fact that didn’t come out that night?”
Gagnebin’s memory ‘sparked’
The officer whose memory seemed to do the most “sparking” on April 5 was Gagnebin. He both added new details and contradicted his own account from three weeks earlier about how quickly Phillips reached down for the object. At the joint interview, Gagnebin claimed for the first time that Phillips was moving his arms even before standing up – something no other officer reported. Gagnebin also said that after Phillips “shoots up” following the Tasing, “I see him trying to fight through or break one of the probes. … I can’t tell if there’s anything in his hands.”
Ramsey, in a quiet voice, reminded Gagnebin of his previous statement: “I recall you saying he went back down” immediately. Gagnebin replied that he was about to get to that part.
Stoughton, the police practices expert and former detective, said “allowing witnesses to play off of each other … introduces the possibility of good faith contamination, as when a witness provides what they think is accurate information because of what someone else is saying rather than because it is an authentic memory. Neuroscience research shows us that memories can be overwritten and adopted when we are exposed to new information, so a witness who has a memory ‘sparked’ by someone else’s statement may not actually be remembering at all.”
When asked via email for a response to Stoughton’s criticisms, Ramsey wrote, “You evidently did not tell Mr. Stoughton that the officers had all been individually interviewed well before the April 5 interview.”
When told of Ramsey’s reply, Stoughton, in a follow-up email, wrote: “Yes, I was aware that they had already been interviewed. Or, at least, I assumed they had. I don’t see how that is relevant. Just because you collected different pieces of evidence separately at the scene does not mean you mix it all up in a single bag later. Testimonial evidence is just another form of evidence; it is susceptible to contamination. It’s pretty common for investigators to re-interview (potentially multiple times) someone whom they’ve initially interviewed; it will often be necessary to clarify particular points of information developed over the course of the investigation. But a competent investigator will not risk contaminating that evidence by interviewing witnesses in a group setting. Doing so undermines the basic integrity of the fact-finding process.”
Roger A. Clark, a police expert hired by a former lawyer for the Phillips family, criticized the officers for squandering the opportunity to capture and handcuff Phillips when he was briefly felled by the Taser. When an investigator asked on March 18 whether “there was a reason you didn’t jump directly on the decedent,” Gagnebin could not think of one.
“In my experience,” wrote Clark, “this level of excessive shooting is indicative of a panic shooting [by Fliehr], and consistent with sympathetic and contagious gunfire [by Gagnebin].”
Desmond’s ‘wild chicken dance’
Not part of the April 5 group interview were two sergeants, Todd Lefkowitz and Mike Williams. Both witnessed the shooting from just outside the open front door of the apartment and both were later interviewed by investigators. Lefkowitz was the sergeant in charge, but he did not arrive until just after Fliehr and Gagnebin had entered the apartment. Williams, who had been a sergeant for only two months at the time, was not consulted by the other officers about their plan to kick open the door and stun Phillips with a Taser, but at one point told them to “go, go.” Williams shouldered a less-lethal bean bag shotgun at the door’s threshold, but said he couldn’t get a clear shot at Phillips. Ramsey later described Williams’ role that night as “kind of an equipment manager.”
Lefkowitz, a Taser instructor for Chico PD, repeatedly told investigators that Phillips’ movements after standing up looked like someone who was receiving partial jolts from a stun gun. Cumber said he repeatedly pulled and released his Taser’s trigger after Phillips suddenly rose.
When asked by a detective to demonstrate how Phillips moved, Lefkowitz stared at the investigator for a moment and then set aside his night stick.
“I’m not going to do it any justice, but I’ll show you what I saw,” the sergeant said.
Lefkowitz then ran in place for a couple of seconds while sliding slightly to his right. The investigator described Lefkowitz as jogging, while an attorney for the Phillips family later called his moves a “wild chicken dance.”
“I can’t say for sure what he was doing with those motions other than it was done in an excited manner,” Lefkowitz said. “Whether it was the effects of the Taser or whether he was in an aggressive mode, I don’t know.”
Lefkowitz reported that Phillips had a broken piece of the front door jamb in his hand after being shot. “It wasn’t very big,” he said.
Erica Traverso of Portland, Ore., a former Butte College English instructor active in the Justice for Desmond Phillips group, has viewed the video interviews multiple times. She was asked which officers’ statements she found most credible.
“Personally, the only one I even half believed was Lefkowitz,” Traverso said. “Throughout the entire process (through the depositions, too) he was unshakable in his discussion of seeing Desmond ‘chicken dance’ after he got up. This went against the others, so it spoke to me that he never wavered. He was outside, behind Cumber in the doorway, so he had a clear view and he wasn’t in a place where his fear/bias would affect his perceptions.”
“In my imagination … “
At their April 5 meeting, Ramsey and his aides were cordial and at times seemingly deferential to the officers they were investigating in a homicide. Thompson, the officers’ attorney, was comfortable enough with the unusual proceeding that he never uttered a word beyond identifying himself at the start. At one point, Cumber misspoke as he started to answer a question from Ramsey: “In my imagination – not my imagination – my recollection …”
At another point Ramsey asked who fired his Glock first. Fliehr said he didn’t know. Gagnebin paused for a couple of beats and then said he also didn’t know.
“Nor would I expect you to,” Ramsey said. “Just on the off chance …”
Two years later, at a deposition while under oath, Gagnebin testified that Fliehr was the first to shoot.
Ramsey also tiptoed verbally into who was responsible for the bullet holes in the apartment’s west and south sides, assuring the officers “we’re never going to know forensically because Glock … slugs can’t be readily distinguished from each other.”
When asked about Ramsey’s claim, Stoughton, the police practices expert, while noting his own lack of forensic expertise, pointed to a National Institute of Justice study released in 2013 that found ballistics analysis could identify Glock firearms with an error rate of just 1.2 percent.
A medical examiner reported that one of the 11 bullets that hit Phillips traveled in a downward direction at a “sharp angle,” tearing through Phillips’ heart and causing his most grievous wound.
Traverso, the Justice for Desmond activist, has characterized Phillips’ position as akin to kneeling when that deadly shot penetrated his heart.
Eight days after the group interview, Ramsey, whose office motto is “To do Justice, as no one is above the Law, nor beneath its protections,” issued a report exonerating Fliehr and Gagnebin without addressing their conflicting stories.