Friday, August 12, 2022

After audio of shooting circulates online, DA stands by 2013 exoneration of deputies who shot and killed Brandon Smith

District Attorney Ben David, pictured at an early June press conference, issued a statement saying he stood by his office’s original decision to not bring charges against officers involved in the fatal 2013 shooting of Brandon Smith. (Port City Daily photo/Mark Darrough)

WILMINGTON — In response to the recent circulation on social media of an audio clip that captured the shooting of Brandon Devone Smith in 2013, and what he called current efforts by the Smith family to “litigate this case in the press,” District Attorney Ben David said he stands by his original decision to not bring charges against officers involved in the shooting.

Smith, 30 at the time, was struck by nine bullets by two New Hanover Sheriff’s deputies and an ATF agent after a car chase led to Smith running into a wooded area of Castle Hayne, according to a review of the case released by the DA’s office.

Authorities later announced that Smith was unarmed at the time of the shooting, but said he shot a New Hanover deputy several days prior in the Creekwood community, according to a Wilmington police officer who was on patrol with the deputy. The deputy, Mike Spencer, was shot in the femur on October 10. When he was shot, he had been assigned to the FBI’s Safe Streets Task Force.

The shooting was highly controversial. Smith’s friends and family accused law enforcement of racial profiling and murder. David exonerated the officers and Sheriff Ed McMahon defended their actions, but a pall had been cast over the killing. A year later, Ralph Evangelous, at the time Wilmington’s Chief of Police, admitted he felt it was an ‘error’ to allow New Hanover County Sheriff’s Office (NHCSO) to investigate the shooting of its own deputy. Evangelous never elaborated, but acknowledged how divisive the shooting had been.

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In defending the shooting, authorities leaned on Smith’s criminal record, allegations of domestic violence, and charges that he had shot an officer of the law just days before he himself was shot. Smith was a validated member of the United Blood Nation gang, according to the Wilmington Police Department. Warrants had been issued for his arrest following the Creekwood shooting after the WPD officer was able to identify Smith as the shooter with “100%” certainty, accompanied by “community input,” according to a summary of the incident released on November 1, 2013.

At the time of the October 10 shooting, Smith faced pending charges of possession of a firearm by a felon and drug charges and had a history of violent crimes, David said in 2013.

David also noted that Smith’s estranged wife had a protective order against him for assault. However, she also spoke out against Smith’s killing, telling WECT Smith was murdered as the victim of racial profiling.

Nearly seven years later, Smith’s family has been a vocal presence among protestors who have consistently taken to the front steps of City Hall in recent months. After a crowd chanted “Brandon Smith” at City Hall in early June, Smith’s sister told them that she had dealt with the same sort of police brutality that resulted in the late-May killing of George Floyd, which sparked protests around the world.

“Things that Floyd went through is breaking my heart, because I was one of the people who dealt with police brutality,” Georgia Davis, Smith’s sister, yelled into a microphone. “They killed my brother.”

Georgia Davis, sister of Brandon Smith, who was shot and killed by law enforcement officers in 2013, at an early June protest. (Port City Daily photo/Mark Darrough)
Georgia Davis, sister of Brandon Smith, who was shot and killed by law enforcement officers in 2013, at an early June protest. (Port City Daily photo/Mark Darrough)

Audio of shooting released

The audio clip was posted to the Facebook page of the Wilmington Advocacy and Protest Organization on June 13 by Zachery Wickes, an independent journalist and photographer who has been covering the recent protests. After a 4-minute introduction by Wickes, the audio recording is then played on Wickes’ video. The DA’s office confirmed the authenticity of the recording.

Wickes, and others who have heard the audio, argue that it disputes David’s office’s official narrative, in which Smith was repeatedly told to show his hands prior to the shooting. In David’s account, Smith refused to show his hands, and then struggled to remove a dark object from his waistband and then, after pulling it free, was in the process of pointing it at deputies when they opened fire.

WARNING: This audio clip contains profanity as well as the sound of the gunfire that killed Brandon Smith. This audio may be upsetting to some listeners.

The audio clip captures this moment from the perspective of a WPD K-9 officer. The DA’s office noted the officer was not involved in the shooting and was not immediately on the scene of Smith’s killing while recording.

At one point in the clip, an officer says, “Bobby, he went in right there … He went up and over,” followed moments later by an eruption of gunfire. Although an officer can be heard yelling, “Hands!” after the gunfire, there is no discernible audio of Smith being told to show his hands before the shooting. However, among various loud noises recorded before the shooting, including sirens and barking dogs, there appears to be distant, muffled voices in the seconds before the shooting.

David said the audio did not capture the full dialogue between Smith and the officers pursuing him.

‘Repeated commands to show them his hands’

David said the evidence provided by the audio recording is nothing new, as it was reviewed five years ago by the State Bureau of Investigation (SBI), his own prosecutors, and Smith’s family and their attorney. The family’s attorney also met with members of his office and the SBI at least twice to allow them to review all evidence, according to David.

“The Smith family chose not to file a civil case within the five-year statute of limitations,” David said. “They, and others on their behalf, now seek to litigate this case in the press. That is not the proper venue to arrive at the truth.”

David reiterated the initial response to the audio from his office, noting that the audio was, in his opinion, only one part of the evidence in the shooting.

“In making the decision not to file charges, our office relied upon not only this audio, but also the statements of witnesses to the incident before, during, and after the shooting, to include instructions that were directed at Mr. Smith and his accomplice in the moments before his flight. Given the position of the microphone in relation to the final encounter with Mr. Smith, the audio does not capture all of the dialogue between the law enforcement officials and Mr. Smith, nor does the audio alone capture the totality of the circumstances surrounding this investigation and its conclusion,” the statement read.

Because a federal agent with Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was involved in the incident, the case had been reviewed by federal authorities who concluded that no law enforcement personnel committed a criminal offense.

David said officers pursuing Smith knew that he shot a deputy three days prior and had a propensity for violence.

“They also knew that the suspect they were encountering was in disguise, actively fleeing from law enforcement, and failing to follow commands. Finally, they knew from discussions with Mr. Smith’s family and associates in an effort to get him to peacefully surrender, that he was going to refuse to cooperate with law enforcement and would continue to evade capture,” according to the statement.

David said his office “stands by the legal conclusion and all of the facts that have previously been released.”

The district attorney’s office also released a press statement issued on November 1, 2013 (which can be read in full below). At the time, David said the “many officers who simultaneously fired upon Mr. Smith on October 13 all knew that the person they were attempting to arrest had demonstrated a willingness to shoot law enforcement officers and had done so in an unprovoked and spontaneous manner on October 10.”

He said all responding officers had been briefed that Smith was a suspect in multiple home invasions, one of which included Smith allegedly pointing a gun at a victim’s face and pulling the trigger, but the gun failed to fire due to a malfunction. Attempts to contact Smith through his known associates to negotiate a peaceful surrender had been ineffective, according to David.

“Various sources relayed that Mr. Smith did not plan on turning himself in or going back to prison,” according to the 2013 statement. “Finally all the officers saw Mr. Smith, when confronted, struggling to pull something from under his waistband despite the officers’ repeated commands to show them his hands, then saw Mr. Smith in fact pull something out that was dark in color before beginning to extend it toward the officers. The officers were all fully justified at that point in using deadly force, which is what they then did.”

David did not identify the object Smith had pointed at officers before the shooting.

Summary of the shooting

According to the summary of the incident, law enforcement officers searching for Smith located him in the passenger seat of a Chevrolet Impala leaving a residence on Princess Place Drive, where he was known to have connections.

In response, a large number of officers — in both marked and unmarked vehicles and including members of the NHCSO, WPD, and special agents with the ATF and FBI — immediately joined a sergeant in following the Impala, according to the summary.

They approached the Impala with emergency lights on Carl Seitter Drive off Castle Hayne Road, but the vehicle sped up and made its first right onto Fulbright Street. When the Impala came to a stop, officers saw the front passenger make a run towards a wooded area at the end of Fulbright, pursued by officers.

“Multiple officers were repeatedly shouting, ‘Sheriff’s Office! Stop!” according to the summary.

The suspect continued running, leaping over a creek in the woods before turning left. One of the deputies had chased a different suspect into the same wooded area sometime before and knew of a shortcut into the tree line, according to the summary, and conveyed this information to an ATF agent.

Two detectives and the ATF agent turned left into a residence’s yard “that provided no cover but that was bordered by woods,” according to the summary. The three officers then stopped in the middle of the yard to look for a trail.

“The officers looked around briefly before seeing the suspect — who they each recognized as matching the description of Mr. Smith — apparently trying to conceal himself while lying on his side on the ground in the woods and facing the officers. The officers then withdrew their guns and began repeatedly giving the suspect the verbal command, ‘Show me your hands,'” according to the summary.

Smith sat up but did not show his hands, prompting the officers to point their guns at Smith and repeating the same command. Smith then appeared to begin pulling an object from his waistband while not responding to the officers, but it seemed to be snagged on his pants, according to David.

When he was able to free the object, he pointed it at the officers.

“Everything that the officers could see was consistent with the object being a gun; there was nothing about the situation that might have suggested it was anything else. In fact, no gun was subsequently found on the suspect or at the scene.”

At this point, “the officers all three simultaneously began shooting the suspect” before Smith’s arm was fully extended from his body. Smith was still moving after the shooting and was handcuffed, according to the summary.

Within minutes, a first responder pronounced Smith dead. A dreadlock wig that Smith had been wearing when he first ran into the woods was also found along with $330 in cash.

View the full November 1, 2013 press release, including the incident summary, below:

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