Citizens Review Board votes ‘no’ to hearing evidence on shooting by undercover cop

The Citizens Review Board won’t move ahead to an evidentiary hearing on the January shooting of Josue Javier Diaz, 28, by an undercover Charlotte-Mecklenburg Police officer, the group decided Wednesday evening.

The board had to determine whether CMPD Chief Kerr Putney may have been wrong in ruling that the undercover officer – who has not been named – followed department policy and procedure during the shooting. In a 9-1 vote, the board ruled that there is not substantial evidence that Putney erred, so they don’t need further hearings, chairwoman Sandra Donaghy said.

Ten of the 11 members of the board met in closed session for nearly 3  1/2 hours Monday night. They spent most of that time hearing presentations – first from the Diaz family’s lawyer and then from a CMPD lawyer, the board’s attorney Cary Davis said after the meeting.

“After each side’s presentations, the board asked questions like it always does and then when the presentations were concluded, the board deliberated and made a decision,” Davis said.

When a police officer kills someone, two investigations begin – one, managed by the Mecklenburg County district attorney’s office, determines whether the officer should be criminally charged, and the other, managed within the police department, determines whether the officer followed the department’s policies and procedures. The unnamed officer who shot Diaz has been cleared through both these investigations.

“The evidence clearly supports the conclusion that Diaz was armed with a firearm and aggressively approaching (the officer) when the officer fired his weapon,” District Attorney Andrew Murray wrote in May. “Consequently, (the officer) was completely justified in using deadly force to stop the attack and prevent his own death.”

Murray also wrote that witness accounts conflicted, and physical evidence did not confirm who fired first.

The Citizens Review Board is tasked with reviewing appeals from citizens – including the family members of police-shooting victims – who file complaints about how the police chief has disciplined or not disciplined officers.

In its 20-year history, the board has only once voted in favor of a citizen’s appeal at the evidentiary hearing stage. That was in September, when members voted 7-1 that Putney erred in not disciplining a former officer, Jon Dunham, who held a gun to an unarmed man’s head and threatened to kill him in March 2016.

Dunham left CMPD shortly after the incident to work for another police force, so the vote didn’t result in direct disciplinary action. Even if he was still employed by CMPD, the board has only advisory powers.

Diaz family attorney Alex Heroy, who attended the first part of Wednesday’s hearing alongside Diaz’ wife, said board members seemed attentive and thoughtful during his presentation.

Speaking before the board voted not to pursue an evidentiary hearing, Heroy said the Diaz family disagrees with Murray’s determination that the officer was defending himself. They want the officer to be held accountable, he said, and they believe he broke state law and violated CMPD policy.

Davis and the board’s members refused to say more about what led the board to its decision Thursday.

An earlier version of this story misstated the history of the board’s votes in evidentiary hearings. The board voted against the Charlotte-Mecklenburg Police Department in a 7-1 vote in September, when members decided Chief Kerr Putney erred in not disciplining an officer who left shortly after a March 2016 incident to work for another police department.

This story was originally published November 8, 2017 at 10:04 PM with the headline "Citizens Review Board votes ‘no’ to hearing evidence on shooting by undercover cop."