DPS report clears 2nd in command in fatal pursuit

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The basic findings clear the department's second in command, Lt. Col. Heston Silbert, who was off duty and gave chase in his personal vehicle with no lights, no sirens, running red lights and speeding, a violation of state law. (Source: 3TV/CBS 5) The basic findings clear the department's second in command, Lt. Col. Heston Silbert, who was off duty and gave chase in his personal vehicle with no lights, no sirens, running red lights and speeding, a violation of state law. (Source: 3TV/CBS 5)
The report backs up Silbert, saying he wasn’t out of policy because he was never in pursuit and that he only followed the stolen truck because Gilbert police asked him to. (Source: 3TV/CBS 5) The report backs up Silbert, saying he wasn’t out of policy because he was never in pursuit and that he only followed the stolen truck because Gilbert police asked him to. (Source: 3TV/CBS 5)
The sole occupant of the stolen truck, 29-year-old Bradley Moore, a suicidal army veteran with PTSD, died, and while no one else got hurt, it could have ended very differently. (Source: 3TV/CBS 5) The sole occupant of the stolen truck, 29-year-old Bradley Moore, a suicidal army veteran with PTSD, died, and while no one else got hurt, it could have ended very differently. (Source: 3TV/CBS 5)
We pulled the Gilbert police report, which says nothing about asking Silbert to pursue. (Source: 3TV/CBS 5) We pulled the Gilbert police report, which says nothing about asking Silbert to pursue. (Source: 3TV/CBS 5)
Troopers want to know how an internal review can possibly be fair when the command staff declared an outcome well before the investigation was complete. (Source: 3TV/CBS 5) Troopers want to know how an internal review can possibly be fair when the command staff declared an outcome well before the investigation was complete. (Source: 3TV/CBS 5)
PHOENIX (3TV/CBS 5) -

It's easy to pick apart deadly police pursuits after the fact.

But in the moment, whose call is it to shut things down and weigh the risk to the public against the severity of the crime?

The Arizona Department of Public Safety just finished reviewing the actions of their second in command who sparked an off-duty fatal pursuit in his personal truck.

Fellow troopers say if it had been anyone of a lower rank, they'd have been fired. 

3TV/CBS 5 spoke with several current and former law enforcement officers, prosecutors, expert witnesses for pursuits and police instructors who say the opinion in the local law enforcement community is unanimous; this deadly pursuit not only went against policy, it broke state law.

And what's perhaps more concerning is while they'd go on record, many wouldn't go on camera, saying the higher-ups in DPS have been known to retaliate against people even beyond their ranks

The critical incident report on the DPS pursuit of a work truck stolen from a Gilbert construction site January 24 that ended with the suspect dead, crashing off Interstate 17 near Camp Verde is in.

The basic findings clear the department's second in command, Lt. Col. Heston Silbert, who was off duty and gave chase in his personal vehicle with no lights, no sirens, running red lights and speeding, a violation of state law.

His actions were deemed reasonable by the critical incident review chair and department given the nature of the "fluid and dynamic situation."

In an interview the week after the fatal crash, Silbert told us, “I don't think I could live with myself if I didn't, on or off duty, try to protect our community because it's what I've sworn to do.”

[READ MORE: EXCLUSIVE: DPS dep. director talks to us about deadly pursuit]

University of South Carolina criminal justice professor Geoffrey Alpert is considered a pursuit policy expert by the Justice Department.

We asked his opinion after local experts suggested we get an independent outsider to review the deadly pursuit.

"There's no excuse for it. It has to be dealt with and I’m sure the department’s going to try to wiggle their way out of it, but there's no way out. This was something that shouldn't have happened," Alpert told us.

He says fatal pursuits should be reviewed with the same scrutiny as officer-involved shootings. 

“And because this was a high-ranking officer, it may be that a different department should look into it,” Alpert said.

We've confirmed through several sources a DPS major who suggested an outside agency handle this pursuit review for transparency got transferred shortly thereafter.

And another DPS captain who pulled his men off the pursuit was transferred within a week.

The department denies those transfers were punitive in nature.

Critics say Silbert should have backed off as soon as marked units showed up and never should have followed this for nearly 100 miles from Gilbert way up north near Camp Verde.

The DPS report acknowledges the problems with communications we heard when listening to the radio commands from the Phoenix Police helicopter and DPS dispatch, and Silbert’s cell phone call with Gilbert Police.

The crew in the Phoenix Firebird chopper is heard repeatedly asking the pursuit units to stand down and back off and that they have the suspect in their line of sight.

“He can’t see me at all so if he can’t see you, he’s going to slow down and pull over,” the Firebird chopper is heard relaying to dispatch.

They refer specifically to Silbert in his unmarked personal truck, saying, “If anyone’s supervisor, anyone can get a hold of this guy and please have him give him (the suspect) some room, let them back off!”

Because Silbert was talking on his personal cellphone instead of a police radio, there were a lot of mixed messages from dispatch, at times, to drop back and slow down, then at other times, to keep on it.

"You can give me updates," the dispatcher is heard saying to Silbert.

“I just didn't want you to lose sight of him. I'm cool with backing off,” Silbert responds.

Troopers we talked with say their supervisors told them they would have been fired if they'd done the same thing.

“Anytime you have a high-ranking officer, or even a low-ranking officer, if you wink at an infraction, it just encourages it,” Alpert said.

The report backs up Silbert, saying he wasn’t out of policy because he was never in pursuit and that he only followed the stolen truck because Gilbert police asked him to.

The report also states:

“It is evident Lt. Col. Silbert desired not to be involved any more than necessary.”

That does not account for the fact that after the spike strips took out the tires on his personal truck by the time the pursuit had hit north on I-17, he jumped into another DPS unit that continued on with the pursuit then green-lighted the request for a PIT maneuver as the suspect was averaging 85 mph in snow/sleet weather.

Alpert and other pursuit experts said PIT maneuvers above 35 mph should be considered fatal force.

There are a lot of discrepancies.

Silbert told us in January, “What I thought I saw, no matter what, was a strong-armed robbery.”

He said he saw a man get into the passenger side of the work truck as a construction worker and officers were banging on the doors to stop him.

Yet very early on into the recorded 911 call, he asked the dispatcher, “What do we have this reported as? Can u tell me? A stolen vehicle?”

Then later, he asks again, “Just trying to determine what kind of crime we've got.”

We pulled the Gilbert police report, which says nothing about asking Silbert to pursue. The officer on the scene saying only that, "A black SUV pulled up, the driver shouted 'I'm with DPS' then accelerated after the truck."

We asked if that Gilbert officer was interviewed for the critical incident report.

DPS did not respond.

Silbert's subordinates say in addition to him personally saying he'd done nothing wrong, a Lt. Colonel announced the very same thing at a district meeting.

Alpert says that’s a problem.

“Any kind of comment prior to an investigation being completed is premature,” Alpert said.

And that's why we wanted to follow up.

Troopers want to know how an internal review can possibly be fair when the command staff declared an outcome well before the investigation was complete.

The sole occupant of the stolen truck, 29-year-old Bradley Moore, a suicidal army veteran with PTSD, died, and while no one else got hurt, it could have ended very differently.

[READ MORE: Girlfriend: I-17 chase suspect was Army veteran battling PTSD]

The department says it will work on some pursuit policy retraining so no one assumes who's in command as the report found here, even as other high-ranking on-duty DPS command staff assumed Silbert was in command and no one wanted to step in and take over the lead.

One DPS detective got reprimanded for sharing his personal reactions to the pursuit on Facebook.

He posted:

“He died a felon, but still feel bad for his family.  He made it to around 285ish. He lost control there and went over a guardrail and rolled down the hill. He was ejected in the process.”

[READ MORE: DPS IDs suspect who died after stolen truck chase ended in crash on I-17]

His actions were deemed inconsistent with the Department’s Code of Ethics and he was ordered to avoid any future social media posts with sensitive and/or confidential information.

Another big takeaway was making sure every patrol car in a pursuit uses full lights and sirens per policy.

We found footage on YouTube of the pursuit right before the crash.

The stolen work truck speeds past the driver’s dash cam followed by two unmarked SUVs with no lights and no sirens.

The next three SUVs speed past the foggy freeway with lights only but no sirens.

Only the sixth marked DPS patrol car back had on both full pursuit lights and sirens as per policy. 

Click here for the full DPS critical incident report.

Click here for the initial Gilbert Police report.

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