Las Vegas Sun

October 25, 2014

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Lawyer wants feds to probe BLM shooting of pedestrian near Red Rock

D’Andre Berghardt Jr.

D’Andre Berghardt Jr.

A Las Vegas attorney invoked events in Ferguson, Mo., in a call Tuesday for federal prosecutors in Nevada to take over the investigation of the February slaying of a 20-year-old man by Bureau of Land Management rangers in a chaotic scene on a state highway.

Jacob Hafter, representing the family of D'Andre Berghardt Jr., said Clark County District Attorney Steve Wolfson has the results of a Las Vegas police investigation but doesn't have jurisdiction to prosecute because federal agents were the ones who fired the fatal shots.

"The U.S. attorney should be handling this," Hafter said in an interview after sending a letter to Wolfson. "In Ferguson, you hear that the prosecutor is taking the case to a grand jury. Here, it's been more than six months, and we don't have anything."

Hafter referred to a prosecutor in Missouri and a panel of civilian fact-finders conducting a closed-door review of the Aug. 9 shooting of an unarmed black teenager by a Ferguson police officer.

Berghardt, who lived in Los Angeles, died during a Feb. 14 encounter with two BLM rangers and a Nevada state trooper on busy State Route 159 near the Red Rock Canyon Visitors Center.

Wolfson said Hafter was wrong, and that the district attorney has jurisdiction over any crime committed in Clark County, "regardless of whether the person involved is a federal officer, a state officer or a private citizen."

Wolfson said he expects to complete his review of the Berghardt slaying by the end of September, and said he might still seek a public airing of evidence in a police fatality review.

As the district attorney in Las Vegas, he declined to talk about the case in Missouri.

"My focus is on whether crimes were committed here," Wolfson said.

U.S. Attorney Daniel Bogden in Las Vegas said he hadn't seen Hafter's request, and noted that Justice Department policy wouldn't allow him to comment about an investigation.

Authorities said Berghardt was toting a suitcase, backpack and bedroll and walking in and out of traffic, and that passing bicyclists expressed what the Bureau of Land Management characterized as "fear for themselves and the safety of others" before police were called.

Hafter said Berghardt had taken a bus to Las Vegas to live with his brother and begin a new job as a clerk at an outlet mall, but never arrived at his brother's house.

Berghardt wasn't a suspect in a crime and had had no history of mental health issues, the family attorney said. Hafter said a toxicology report found residual amounts of marijuana in Berghardt's system.

The BLM rangers used pepper spray, Tasers and a baton, and physically prevented Berghardt from trying to enter two witnesses' vehicles before shooting him when he climbed into an idling highway patrol SUV containing a rifle in a firearms safety rack.

Hafter, who said he plans to file a federal wrongful death lawsuit, said the fact that the trooper didn't shoot "strongly suggests the position that deadly force was unnecessary in this case."

In Las Vegas, the district attorney is empowered to conduct fact-finding reviews of shootings involving local and state police officers.

Wolfson has also conducted use of force reviews and cleared FBI agents in two shootings while they were members of a multijurisdiction criminal apprehension team in 2012 and 2013.

The BLM rangers involved in the Berghardt shooting haven't been identified, but the bureau said one had 17 years of law enforcement experience and the other had almost 10. Bureau officials wouldn't say Tuesday if the rangers had returned to work.

The state trooper, Lucas Schwarzrock, a five-year department veteran, was put on paid following the shooting. He has since returned to patrol duty, said Trooper Loy Hixson, a department spokesman.

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