California attorney general clears LAPD officer in shooting using controversial 'expert'

LOS ANGELES, CALIF. - JUNE 26, 2020. Matthew Hernandez, 8, holds a sign with a picture of his uncle, Daniel Hernandez, during a press conference at the L.A. County Hall of Justice on Friday, June 26, 2020. Daniel Hernandez was fatally shot by members of the LAPD in South Los Angeles. The Latino Coialition of Los Angeles is calling for complete and transparent investigations iof officers who have shot and killed Latinos and Blacks. (Luis Sinco/Los Angeles Times)
Matthew Hernandez, 8, holds a sign with a picture of his uncle, Daniel Hernandez, during a family news conference in 2020. Daniel Hernandez was fatally shot by LAPD Officer Toni McBride. The shooting was recently ruled justified by the California attorney general's office. (Luis Sinco)
  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.

California Atty. Gen. Rob Bonta's office recently cleared a well-connected Los Angeles police officer of wrongdoing in a deadly shooting from 2020 based in part on the "expert opinion" of a police use-of-force consultant whose work has been criticized as illegitimate for years.

Other experts and legal observers said this week they were surprised Bonta's office would use such a controversial figure to analyze such a high-profile case — calling it an easily avoidable blunder by a state office that has been entrusted with increased power in recent years to independently investigate police shootings.

"Once this goes public, they're going to walk into a buzz saw" of criticism, said Jonathan Smith, a former chief of special litigation in the U.S. Department of Justice's civil rights division who helped oversee federal investigations of police departments under the Obama administration.

Bonta's office took over the legal review of Officer Toni McBride's shooting of 38-year-old Daniel Hernandez to avoid claims of bias after then-L.A. County Dist. Atty. Jackie Lacey agreed to recuse her office from handling the case due to a conflict of interest.

McBride is the daughter of Jamie McBride, an influential leader at the Los Angeles Police Protective League, which was one of Lacey's largest campaign donors.

However, the state's reliance on psychologist William J. Lewinski is now raising its own concerns, given his track record. Lewinski has been accused of using "pseudoscience" to justify questionable police shootings across the country through his for-hire Force Science Institute.

"I was shocked that Bonta used Lewinski," said Arnoldo Casillas, an attorney for the Hernandez family, which is suing McBride and the city of L.A. in federal court.

Lewinski, who did not respond to a request for comment, has for years defended the decisions of police officers to shoot people, including by putting forward unproven and generalized theories about the threat suspects pose from a distance. He has also claimed officers are unable to process what is happening right in front of them — such as a threat diminishing based on a suspect's position — while also focusing on tasks like aiming their firearm and preparing to shoot.

McBride fired six shots in less than seven seconds in the middle of a chaotic crash scene involving several badly injured motorists whose vehicles had been struck by a truck driven by Hernandez. Hernandez had methamphetamine in his system at the time, according to a toxicology report, and witnesses at the scene said he had been threatening to kill himself with a box cutter before approaching McBride.

McBride, a trained sharpshooter, repeatedly commanded Hernandez to drop the weapon. She then shot him in three bursts of two shots each — the first as he advanced toward her, which made him fall to the ground; the second as he got back to his hands and knees as if to advance again; and the third while he was rolling on the ground.

The incident was captured by McBride's body-camera and by witnesses with smartphones.

Police officials including Chief Michel Moore defended McBride's actions as appropriate, but the Los Angeles Police Commission ruled that her last two shots — including one to Hernandez's head, which his family says killed him — violated department policy.

In its report issued last month, Bonta's office sided with Moore, ruling that McBride had "reasonably believed that she needed to use deadly force to protect herself and others" when she opened fire on Hernandez, and had "used only that force which was necessary to guard against that threat."

The report included an analysis of McBride's six shots by Lewinski, which leaned heavily on theories he has been criticized for using in the past. Among them were estimates of the threat Hernandez posed based on the distance he was from McBride and other bystanders and of assumed limits on McBride's capacity to evaluate the situation playing out in front of her while also reacting to it physically.

Lewinski determined McBride had to initially shoot Hernandez when he was nearly 40 feet away from her because an "average person" can close that distance "in under 3 seconds," so she "had only seconds to protect herself and even less time to protect others who were closer."

Lewinski also concluded that McBride "could not have detected" the fact that Hernandez no longer represented a threat when she shot him the last two times while he was on the ground because she would have been "attentionally focused" instead on "shooting accurately."

Such analyses have been questioned in the past by other academics in the field of psychology who have studied people's ability to process multiple pieces of information at once. They've also been criticized by experts in the field of policing who have studied using time and space to de-escalate tense situations, and by civil rights attorneys who have studied the law around police use of force.

"It's junk science," said Smith, who is now executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. "Throughout the law enforcement community and [among] other people who are paying attention to what's going on with regard to policing, Lewinski is not only very controversial, but increasingly discredited."

Multiple police agencies, including the LAPD, have pulled back from working with Lewinski and his group or relying on their theories in officer training precisely because of the criticisms of his work from others in the field.

Lewinski has defended his work in the past, including to The Times, saying his institute "trains investigators, attorneys, and police trainers to recognize and consider the impact that human performance has on policing" and hopes that its research "will be able to help the agency, the courts, and the community to fairly assess the judgment and conduct of those involved."

Capt. Kelly Muniz, an LAPD spokeswoman, said the department was aware of Bonta's report but declined to comment on it. She said McBride is currently assigned to patrol in the department's Northeast Division.

The office of current L.A. County Dist. Atty. George Gascón also declined to comment on the report. Gascón had called on Bonta's office to take over the case when he was running against Lacey.

McBride's father, Jamie McBride, the police union director, said his daughter was "relieved" by Bonta's decision but did not want to comment on the report. Her father said she did everything right under the circumstances and received no special treatment because of his union connections.

Jamie McBride blasted the Police Commission, which had faulted his daughter's last two shots, as having "absolutely zero law enforcement experience." And he noted that Bonta's conclusion with Lewinski — that all of her shots were justified — mirrored the findings of LAPD's own use-of-force experts, Chief Moore, other outside experts such as Ed Obayashi, a use-of-force advisor to a statewide association of police training officers, and most recently a federal district court judge.

The federal judge tossed the Hernandez family's civil lawsuit after finding McBride's actions were reasonable and that she was protected from such litigation by the legal doctrine of qualified immunity, which shields police officers from legal claims based on their actions taken at work. The family has appealed the judge's decision to the 9th Circuit Court of Appeals.

Jamie McBride said his daughter has been put through hell — and suffered stress-induced medical issues — because of harassment from activists who call her a murderer and accuse her of glorifying gun violence and showing no remorse for having killed Hernandez, in part because of her online persona as a dolled-up sharpshooter.

He said the focus should not be on his daughter's actions, her online persona or Lewinski's credentials, but on the actions of Hernandez himself.

"Everything that happened was a direct result of his actions, bottom line," he said. "Everything else was a reaction."

Bonta's office has stood by the findings clearing McBride in the shooting. But in response to questions from The Times about Lewinski's role, it said it is "assessing whether such analysis from the Force Science Institute is appropriate or necessary for any such future reviews by our office."

That assessment began after "concerns were raised" about Lewinski during an "internal review" of the office's work on the case, it said.

"However, given the totality of the circumstances in the matter, our office ultimately determined that his analysis was sufficiently reliable for the purposes of this review," Bonta's office said.

Casillas, the Hernandez family's attorney, questioned that decision and the legitimacy of the report given Lewinski's involvement.

"He has a cottage industry based on his studies of police officer reaction, perception, and responses, and you'll find now across the country police officers talking about their perceptions instead of what they actually saw and did," Casillas said. "But any sort of twisted perception-reaction analysis can't justify shooting a man when he's on the ground nearly prone."

This story originally appeared in Los Angeles Times.