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The Berkeley police officer who shot her gun, striking a vehicle linked to a robbery call last summer, was found to have committed no crime, but violated the department’s deadly force rules and was fired, Berkeleyside has learned.

Officer Cheri Miller’s gunfire struck the getaway car but hit no one inside it, the police investigation found. One month after the shooting, Berkeley Police Chief Andrew Greenwood — who retired Friday — found that Miller had violated BPD’s use-of-force and vehicle pursuit policies when she fired her gun, according to records released by the department in response to a Public Records Act request from Berkeleyside.

According to those records, Miller insisted she had tried to shoot the driver, not his blue Ford Fusion, because she thought he might run her over. Her attorney said Miller lost her footing, which changed the trajectory of her aim. His office produced a frame-by-frame analysis backing up his claims. But police investigators who reviewed the evidence were not convinced.

The July 30, 2020, shooting in the parking lot of the North Berkeley CVS at 1451 Shattuck Ave., just south of Rose Street, was BPD’s first officer-involved shooting since 2012, and the first one the agency handled after SB 1421 went into effect in 2019. The law “dramatically altered the ability of the public (and the press) to obtain previously highly confidential police personnel records.” After those records were released for the CVS shooting, Berkeleyside reviewed approximately 65 police reports, transcripts, warrants and other investigative documents spanning more than 300 pages, as well as approximately 700 photographs and videos, to learn how the department investigated its first officer-involved shooting in nearly a decade.

On the night of the shooting, Cheri Miller was immediately placed on paid leave pending the outcome of two parallel investigations, by BPD’s homicide and internal affairs units. The Alameda County district attorney’s office was notified but did not conduct its own investigation because the shooting “was non-fatal,” the DA’s office said. The alleged driver from the getaway car has been charged with felony robbery; the outcome of that case is pending.

On Sept. 1, 2020, Greenwood informed Miller of his decision to let her go. Miller appealed that decision twice but was unsuccessful. Miller’s attorney, Harry Stern of San Francisco-based Rains Lucia Stern St. Phalle & Silver, told the city BPD investigators had drawn the wrong conclusions when they reviewed evidence from the shooting. And Stern insisted Miller, who had worked at BPD for about 22 months at the time of the shooting, could learn from her mistakes.

Cheri Miller herself said, during her appeal hearings, that there had been “no malice” behind the shooting, and that she had been “forced to make a decision whether it was my life or theirs.” She said she had watched video from that night repeatedly and wished she had made different choices.

“I know what I did wasn’t perfect,” Miller told the city. “Every time I watch this video it’s like, ugh, Jesus Christ! I could have done so many different things better. And that’s what I was doing after everything transpired. That’s what I’ve been doing every day since, you know, it happened.”

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Stern told Berkeleyside in March that Miller is still “considering her options” as far as her response to the city’s ruling and what she plans to do next. (Berkeleyside did not speak to Miller directly for this story.)

At the time of the shooting, Cheri Miller was still on probation as an at-will employee, meaning the city could “release her” at any time. In his letter, the chief described his decision to discharge her as a “no cause probationary release.” Because Miller was still on probation, which is considered an extension of the interview process, the city did not have to give a reason for the decision to “separate” Miller from her job. In Berkeley, the probationary period lasts two years.

On Dec. 4, 2020, after the completion of both appeal hearings and the chief’s finding that Miller had violated BPD’s use-of-force and vehicle pursuit policies, the city informed Miller that the decision to dismiss her was final, and was effective immediately.

Officer Cheri Miller’s dismissal letter. Image: City of Berkeley

The one-page letter said the city had granted Miller two name clearing hearings because of “the particular circumstances surrounding your release from probation.” Those hearings were not legally mandated because Miller was still on probation, staff said, but the city wanted Miller to have a chance to weigh in.

None of the decision letters — which are now part of Miller’s personnel file — detailed the events of July 30 or said she had fired her gun.

Suspect: “I just could not go to jail that day”

Cheri Miller graduated from the police academy in May 2018, then worked for the Hercules Police Department for three months. She was hired on at BPD in October of that year while still in training in Hercules. Berkeley, she said during her interviews with the city, “was always the place I wanted to be.”

Miller said she became a police officer to “make a difference” because she herself had experienced racial profiling and knew she could “look beyond color” when handling crimes. As a Black, gay woman, Miller said she had picked Berkeley PD because of its reputation as a progressive agency that is “culturally accepting of people regardless of their differences.”

“That’s why I got in this profession,” she said, “to be progressive and do things the right way.”

As part of its investigation, Officer Cheri Miller was photographed by BPD after the July 30, 2020, shooting. Photo: BPD

Miller’s attorney told officials, during her appeal hearings, that his client had no disciplinary issues before the July 30 shooting and that her supervisors had described her as a “very diligent, hardworking officer” who was proactive on her beat. On the day of the shooting, Cheri Miller had come in early, at 11 a.m., to work some extra hours before her regular patrol shift at 3:30 p.m.

At about 9:15 p.m., according to a transcript of Miller’s Aug. 2, 2020, interview with BPD homicide investigators, Miller was parked by the North Shattuck Safeway when she heard “a commotion” and saw people running outside the CVS across the street. She had parked on the block to be “a deterrent,” she said, because of the high number of thefts and robberies in the area.

Miller said she could see a struggle in the CVS parking lot and assumed a robbery was underway. She put on her emergency lights and drove straight over the median on Shattuck to get into the parking lot. Miller said she first tried to talk to the driver to find out what was going on. She initially told investigators she only drew her weapon when the driver failed to follow her orders.

According to footage from the scene, however, Miller got out of her vehicle with her gun drawn. She tried to control the situation by issuing a flurry of commands. Within less than a minute of her arrival, she had ordered the driver — later identified by BPD as Brandon Owens of Concord — to get into his car and put his keys on the roof. It was one of several decisions she would come to regret.

Miller told investigators she ordered the driver to get into the car because she was treating the incident like a felony stop where the goal is to contain the situation until backup arrives. She didn’t see a weapon but was concerned the driver or one of the people with him might have a gun, she told investigators. That night, she said, two fears ran through her mind: “They’re gonna run me over or they’re gonna shoot me.”

Owens — who was then 19 — told investigators during an Aug. 6, 2020, interview that he was surprised when the officer told him to get into his car. He was so taken aback, he had asked Miller if she was sure he should do that. Investigators asked him why he questioned the order.

“‘Cause I knew exactly what I was about to do,” said Owens, according to the BPD transcript.

“What were you gonna do?” one of the investigators asked.

“Leave,” Owens replied, according to the transcript. “I just could not go to jail that day.”

Police ID’d getaway driver from prior Berkeley theft

Officer Miller’s car and evidence markers outside the North Berkeley CVS after the shooting July 30, 2020. Photo: BPD

Although he escaped that night, BPD identified Owens the very next day, according to investigative reports, when a Berkeley officer recognized him from a suspected theft in February 2020 at the downtown Berkeley CVS. The officer said he recognized Owens because of his “distinctive widows peak haircut” and because Owens used the same “distinctive” Nike backpack in February and July, according to the report.

Police said they also linked Owens and his car to several shoplifting cases in the Bay Area just before the July 30 robbery in Berkeley, including a nearly $500 theft from a CVS in Vallejo that same morning. In the weeks after the Berkeley shooting, Oakland police issued a warrant for Owens’ arrest in connection with a robbery in that city, according to police records.

Owens told police, according to the BPD transcript, that he and two friends had gone to CVS on July 30 to steal coffee and Dove soap because they were broke and “just needed some money,” which they knew they could get from selling the items in San Francisco.

According to BPD transcripts, Owens said he and his friends only planned to steal items, not fight with anyone, that night. But they got into a tug-of-war with store staff over a shopping cart full of stolen goods, according to police. The struggle turned the shoplifting into a robbery.

Once Owens was in his car, according to video from the scene, he turned it on and reversed to get out of the disabled spot near the front door where he had parked. Owens said he was “star-struck and flabbergasted,” and that “everybody in the car was scared” because Miller was just inches from his window with her gun in his face, according to the transcript. But he said he also “had a feelin’ in my gut” she wouldn’t shoot him.

As part of its investigation, Officer Cheri Miller’s gun was photographed by BPD after the July 30, 2020, shooting. Photo: BPD

As he angled to get out of his parking spot, Owens told investigators Miller “aimed her gun down” and “popped the tire.” Owens told police she was always to his side and that he did not try to hit her with his car.

Less than two minutes passed between Miller’s initial broadcast about the CVS theft and the time she fired her gun, according to police records.

Owens told detectives he had looked at Miller in his rearview mirror right after the shooting. He was surprised she wasn’t moving.

“I’m, like, you know… I just fled from the police,” he said, according to the transcript. “Ain’t nobody about to chase me? So she just standin’ there, so I leave.”

Miller said she did not pursue Owens because she thought she had shot him or his car and believed he would stop. She said she thought arriving officers would pick up the chase. And she was in shock, she said, because she had just fired her gun and was almost run over.

“I didn’t go anywhere,” she told a supervisor on the night of the shooting. “I was literally here the whole time as they drove off, I just stayed right here.”

Owens said he was able to leave the parking lot but couldn’t get far because his tire was flat, according to the BPD transcript. So he parked at the 99 Cent Store at University and San Pablo avenues, he said. He had to wait two hours for a tow truck to arrive.

What exactly was Officer Cheri Miller shooting at?

According to the available records, the city appears to have let Miller go, at least in large part, because it found no justification for her to have fired her weapon at all.

The documents released by the city do not explicitly state what aspects of the Berkeley Police Department rules Miller was found to have violated. In addition to the employment-ending decision letters, which include no details about the shooting, there is only a one-page “disposition sheet,” dated Nov. 27, 2020, in which the police chief sustained violations of two BPD general orders: the ones related to its use-of-force rules and vehicle pursuits.

“Miller discharged her service firearm three times in the direction of the left front area of the moving vehicle as it drove past her,” a brief narrative on the disposition sheet reads. Other than the word “sustained,” there is no explanation of the violations.

But the investigations leading up to Miller’s firing focused on several key issues, including what she was aiming at when she pulled the trigger. The intended target was a critical issue for investigators to sort out: Shooting at a vehicle would not have been consistent with departmental policy. Shooting at the driver, depending on the circumstances, may have been.

But even that may well have been a stretch in this case. The BPD rules in place at the time of the shooting allowed officers to shoot at drivers fleeing from felony crimes, but only to protect against a significant threat of death or serious bodily injury. The policy — which has since become even more restrictive — was very specific: Officers were not allowed to fire at inanimate objects or to fire warning shots into the air.

As part of its investigation, Officer Cheri Miller was photographed by BPD after the July 30, 2020, shooting. Photo: BPD

In early August 2020, during the course of two lengthy interviews with investigators, Miller repeatedly said she was “definitely trying to shoot” the driver, primarily to stop him from running her over, according to records reviewed by Berkeleyside. She said she thought she was at serious risk even though she was never in front of the car. She also said she had been stressed out since the shooting and hadn’t been eating much as a result.

“I shot two rounds directed at the driver,” she told homicide investigators, according to a 108-page transcript from Aug. 2, 2020. “I just know that I was very close and I didn’t feel like I could get out of the way at the time.”

I believe he was trying to hit me,” she told internal affairs sergeants, according to a 43-page transcript dated Aug. 19, 2020. “I fired at the driver to prevent [him] from running me over.”

Miller’s assertions ran counter to the conclusions drawn by witnesses at the scene and many of the people who watched video of the shooting when Berkeleyside published the footage last year.

The Internal Affairs Bureau investigator, who produced a 21-page report dated Aug. 27, 2020, reviewed the video and wrote that: “Miller appears to point the muzzle of her firearm in the direction of the front left tire area before she apparently discharges three rounds.”

“The officer shot but wasn’t aiming to kill or anything,” one witness told police.

Evidence recovered at the shooting scene. Photo: BPD

Investigators also noted that Miller had said she probably hit “the front driver’s side tire area” during her initial statement on the night of the shooting. She said nothing at all about trying to shoot the driver. In her next interview, with homicide investigators in early August, she said she thought she had hit the driver or his door.

When internal affairs investigators pressed Miller about the “discrepancy,” she said she didn’t see a big difference between the statements and felt she had been truthful in each of them.

Miller said she fired her gun, at least in part, because the driver was coming “straight toward” her at 10-15 mph. She said the driver was “angling” toward her and that she was trying to protect herself.

The driver told police he never intended to hit Miller. But one witness said the driver had “swerved like he was going to run her over” and another said, “it looked like the sedan came very close to the officer as it was turning.”

Miller said she was always on the side of the car and was never directly in its path, according to the interview transcripts. But she told investigators she was concerned about a phenomenon called “rear wheel cheat,” in which the back tire could have struck her even though the front tire had passed.

Investigators looked at Miller’s boots and feet and said they could find no physical evidence to confirm she had been run over. Photo: BPD

Detectives also pushed Miller for details about injuries to her foot she said had been caused by the fleeing driver. In her initial statement at the scene, Miller said she thought the driver may have run over her foot. After the shooting, Miller went to the hospital for treatment for bruising and contusions, according to interview transcripts.

But investigators said they could find no physical evidence to confirm an injury. One investigator who reviewed crime scene photographs of Miller’s foot said she could see “no visible injury” to it. Another wrote, more decisively: “The video showed that the vehicle did not run over Ofc. Miller’s foot.”

The inconsistencies may have raised questions for investigators about Miller’s credibility.

Miller’s attorney asserted, during both of her appeal hearings last fall, that Miller’s foot had become wedged under the fleeing driver’s vehicle, causing her to lose her balance, fall off of a raised curb and fire toward the vehicle’s left front tire instead of her original target, which she said had been the driver. Stern, the attorney, said the frame-by-frame analysis created by his office showed powerful evidence investigators missed when they watched the video in real-time.

The city did not change its position after reviewing Stern’s frame-by-frame analysis, so it does not appear to have been determined to have been sufficiently exculpatory.

“Some of the most important factors in the investigation were completely overlooked,” Stern said during Miller’s appeal hearings. “If she’s shooting at the driver to prevent from getting hit as close as she is, that’s a lawful within policy shooting. For whatever reason, they decided not to focus on that.”

Many questions raised about police tactics

Police at the scene of the North Berkeley CVS after the July 30, 2020, shooting. Miller’s patrol vehicle is parked in front of the store. Photo: BPD

When Miller spoke with investigators in August, they asked numerous questions about decisions she had made on the night of the shooting. Miller told them she would have done “the majority of things” differently “from the moment it transpired.”

The most significant issues, she told investigators, were that she would have had the driver lay down on the ground rather than get into his car, and that she would have been sure to turn on her body camera immediately. Miller said she thought she had turned on the camera when she got out of her car but that, apparently, it had not worked. When she realized the problem, she said, she immediately activated it. Fortuitously, witness footage captured the entire exchange.

Miller made a number of other choices that have also been questioned, according to police records, from pulling out her gun immediately, to approaching the driver’s side window alone during an incident she was treating as a felony car stop, to staying near the car when she thought the driver might have a weapon himself, to not pursuing the driver when he fled.

Investigators also asked Miller why she didn’t back up, to create more space between her body and the vehicle, give a warning before she fired her gun, or simply let the driver flee.

“We take an oath not to retreat,” Miller said, according to BPD transcripts. “I thought cover was coming and things were happening so quickly, like, I just maintained my position.”

When asked what might have happened had she not fired her gun, Miller said the driver “would have just fled,” adding: “I don’t think anything else would have happened.”

An officer looks for evidence after the July 30, 2020, shooting outside the North Berkeley CVS. Photo: BPD

Miller’s own radio traffic appears to have added to the confusion of the night. In her initial broadcast, she said she was responding to a theft in progress rather than a robbery, which is a more serious crime and may have drawn a swifter response from other officers. She also asked for backup using the police code for “at your convenience” rather than the code for when immediate help, or “cover,” is needed.

And, as the getaway car fled, Miller repeatedly broadcast over the radio that the driver was headed west on Rose Street when he had actually gone east.

“I always get the directions messed up,” Miller said, during one of her interviews.

Miller also initially said she only fired her gun twice, although it turned out to have been three times. And a detective who inspected Miller’s gun after the shooting found that Miller had somehow managed to load 19 rounds into the 18-round weapon.

In Miller’s defense, her attorney, Stern, told the city his client likely had not had enough practice on the street responding to in-progress calls, adding: “There’s a difference between making a different choice and being wrong.”

He also said Miller had been the victim of a common problem: Monday-morning quarterbacking.

“Everyone can say I would have done this differently or this is the wrong way to handle it,” Stern told the city. “But that’s mostly based on the ultimate outcome and you can kind of see that theme going through the course of the investigative report.”

Officer Miller: “I was being honest”

In the end, it was up to Greenwood to assess the facts and decide whether the circumstances of the shooting represented a “training issue,” such that Cheri Miller should be given another chance, or whether more serious consequences were warranted. Ultimately, the city settled on the latter.

During her appeal hearings, Miller said she knew immediately that the shooting could cost her her job.

“I know as soon as those shots came out of my gun that this is a possibility that I’ll be in this situation,” she told the chief in early October.

During her appeal hearings, Miller told the city she had been “devastated” when she learned she would lose her job, especially when she realized her honesty had been questioned.

“It was a little disheartening to learn that it’s probably because, you know, maybe you did lie about getting injured,” she said. “I know how my body felt. I know how I felt in that situation and I wasn’t lying. I was being honest. My foot wasn’t hurting for no reason.”

In addition to the homicide and internal affairs investigations into the circumstances around Miller’s shooting, the department’s general orders specify that BPD should have convened what’s called a Use of Force Training Review Board (TRB) to evaluate the incident in its aftermath.

“A TRB will be established to review all use of force reports,” according to the policy, which states that the board should, in fact, meet monthly. “The TRB’s review will be independent and not related to any internal or external administrative investigation. The board shall consider use of force trends, as well as individual employee and departmental training needs.”

That review did not happen. Interim Berkeley Police Chief Jen Louis told Berkeleyside there had been no review board “based on the outcome of the Personnel Complaint and Officer Miller’s release from probationary employment.” But Louis said last week that she was not opposed to convening a review board in the future, depending on staffing availability and the views of department experts.

Louis said she could not comment on the details of the Miller investigation, because she was not the chief when it happened and had therefore not been charged with reviewing the relevant materials. But she said she was certain that review had been robust.

“We take all of these incidents with the utmost seriousness and desire to ensure that we are providing the best quality service we can,” she said. “Where things can be done differently or better, we’re always open to considering those options in the future.”

Emilie Raguso (former senior editor, news) joined Berkeleyside in 2012 and covered politics, public safety and development until her departure in 2022. In 2017, Emilie was named Journalist of the Year...