April 28, 2021

Community Police Review Commission 2019-0294

On April 22, 2021 the Community Police Review Commission reviewed case number 2019-0294. This document provides their findings after reviewing the case and recommendations to Austin Police Department.

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Memo 2019-0294 To: Chief Joseph Chacon CC: Assistant Chief Troy Gay, Director of the Office of Police Oversight Farah Muscadin From: Community Police Review Commission Date: 04/28/2021 Re: IAD Case Number: 2019-0294 Death in Custody _____________________________________________________________________ On April 22, 2021, the Community Police Review Commission (CPRC) reviewed case no. 2019- 0294 Death in Custody and received a briefing from the Internal Affairs Division (IAD). The CPRC holds that Officer [A] in case 2019-0294 violated Austin Police Department GO 200.3.2 After reviewing body-worn camera (BWC) footage, IA interviews, and other documents pertaining to the incident, the CPRC determined that Officer [A] was an objectively unreasonable to believe the use of such force was immediately necessary. Therefore, Officer [A]’s use of force in the attempt to detain the subject was not reasonable. Incident Overview and Background On March 28th, 2019, A Death in Custody occurred on East side of street on 2700 Bethune Ave just north of St. Johns Avenue involving Officer [A] who was responding to a felony car stop to assist Williamson County Officers in apprehending the occupant of a white 2012 Honda Pilot. At approximately 1:23am Williamson County Officers (WSCO) initiate a traffic stop. The driver of a white 2012 Honda Pilot fled the scene and WSCO pursued. The driver crashed 3 times in the duration of the pursuit at Merrilltown Drive, Northbound IH35 Service road/St Johns Ave and at Bethune Ave/E St. Johns Ave. Officer [A] attempted the deployment of tire deflation devices at Northbound IH35 Service road /St Johns Ave but was unsuccessful. The pursuit by WSCO lasted approximately 22 minutes and was terminated when the driver crashed at East side of street on 2700 Bethune Avenue just north of St. Johns Avenue. Officer [A] arrived at East side of street on 2700 Bethune Avenue just north of St. Johns Avenue to assist Williamson County Officers in the detention and arrest of the driver. Burger King surveillance video shows at approximately 1:45am a white 2012 Honda Pilot speed past Officer [A], crash into a stationary object on Northbound IH35 Service Rd and St. Johns Ave. It then turns East on St Johns Avenue. Moments later officer [A] pursues the driver but slows. Digital Mobile Audio Video (DMAV) footage, depicts Officer [A] stating, “I’m not going to pursue, I thought I could catch up because the car was banged up, but he's [driver] gone." A few seconds later Officer [A] states, “He’s [driver] stopped I’m going to assist with a felony car stop.” At approximately 1:46am Officer [A] arrives on scene at East side of street on 2700 Bethune Avenue just north of St. Johns Avenue. Body worn camera (BWC) video depicts the following details with approx. times: 1:46am Officer [A] arrives on scene, approaches, and clears the white 2012 Honda Pilot The driver is outside the vehicle with the Honda to the driver’s back. Two Williamson County Officers are giving multiple commands to the driver who is pinned on the ground between 2 Williamson County Officers and the Honda. 1:46:30am Officer [A] begins assisting with detaining the driver, giving commands for driver’s hands and transitions to the other side of the Williamson County Officers. “I can’t breathe” is heard three times from the driver. Multiple officers issue the commands, "Stop resisting," and “Put your hands behind your back.” "Sir I am not resisting" heard from the driver. 1:47:30am The driver is tased by WSCO "Roll over" commands from multiple officers. 1:48:02am The driver’s arm placed is behind his back by Officer [A] Officer [A] places knee in drivers back, places driver’s left hand behind his back, pushes driver’s head into pavement. Driver’s body appears limp. Officer [A] removes his knee from the driver’s back 1:48:08am Driver in handcuffs 1:48:35am Williamson County Officers states driver is unresponsive. Officer [A] calls dispatch for EMS Code-3. Officer [A] sat up the driver and leaned the driver against his knee. 1:51:13am Driver moved away from vehicle for chest compressions The standard of review utilized by CPRC was the “objective reasonableness” of the officer’s actions, as Fourth Amendment jurisprudence in addition to community expectations: • Community expectations are defined as what the average Austin community member would expect themselves to do in a similar situation. • Graham v. Connor (SCOTUS, 1989) is the seminal case for determining the “reasonableness” of a use of force . • The test used to determine whether a use of force was reasonable under the Fourth Amendment “is not capable of precise definition or mechanical application.” • Rather, “its proper application requires careful attention to the facts and circumstances of each particular case, including (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” • The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” • “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” • Thus, the overarching question is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” The CPRC makes the following recommendations: Recommendation 1: Officer [A] discipline: Written Reprimand 1. Based on following policy violations and facts: 200.3.2 (A-B) a. An officer is justified in using reasonable force when the officer reasonably believes the use of such force is immediately necessary (Tex. Penal Code § 9.51(a)): To make or assist in a detention or an arrest, or to conduct a search that the officer reasonably believes is lawful; b. To prevent or assist in preventing escape after an arrest, provided the officer reasonably believes the arrest or search is lawful; or 2. The CPRC holds that the use of such force in the incident was NOT immediately necessary given that: a. The officer's actions are not objectively reasonable in light of the facts and circumstances. b. Officer [A] had completed a scene assessment. c. Officer [A] deferred jurisdiction to Williamson County and was not responsible for the detention and arrest. d. The conduct of the individual being confronted as reasonably perceived by the officer at the time. i. Officer [A] believed Mr. Ambler was non-compliant with WCSO deputies' orders. ii. The driver was verbally responding and stating attempts to comply with Officer’s commands. iii. The driver stated he had a medical condition. e. Officer and subject factors. i. Two Williamson County Officers were active in detaining the driver. ii. Four other witness officers observed Officer [A] and Williamson County Officers detaining the driver. iii. The driver stated he had a medical condition. iv. A Williamson County Officer believed he had broken the driver’s finger. v. The driver was tased twice by Williamson County Officers prior to Officer [A] assisting in detention and arrest. vi. It is reasonable to assume the driver sustained injuries after crashing at 3 locations. f. Time and circumstances permitting, the reasonable availability of other resources to the officer. i. The driver was positioned on the ground with two Williamson County Officers standing over the driver. g. Potential for injury to citizens, officers, and subjects. i. The Honda in this incident was rendered immobile when it collided with the tree on the East side of street on 2700 Bethune Avenue just north of St. Johns Avenue. h. Seriousness of the suspected offense or reason for contact with the individual. i. The driver was initially pulled over by Williamson County Officers for a minor traffic violation. ii. Officer [A] initially responded to assist with a felony traffic stop. i. Potential for injury to citizens, officers and subjects. i. The driver stated multiple times he could not breathe. ii. The driver expressed his attempts to comply with commands. iii. The driver stated he had a medical condition. j. Risk of escape. i. The Honda in this incident was rendered immobile when it collided with the tree on the East side of street on 2700 Bethune Avenue just north of St. Johns Avenue. ii. The driver stated multiple times he could not breathe. iii. The driver expressed his attempts to comply with commands. iv. The driver stated he had a medical condition. k. The degree to which the subject has been effectively restrained and the ability to resist despite being restrained. i. The driver was pinned on the ground between the two Williamson County Officers. Recommendation 2: Officer [A] training: Receive Bias Training 1. The CPRC holds that compounding unconscious bias as it relates to medical condition, physical characteristics and race may have been influencing factors in this incident: a. In the Subject Officer Interview, Officer [A] described the driver to be “larger”, implying the driver’s size was a physical threat and potentially dangerous factor that required use of force. b. Officer [A] failed to act on the medical pleas from the driver and in the subject officer interview described himself as “not paying attention” to the subject’s statements. c. These implicit attitudes can then subtly direct officers’ perceptions, attention, feelings of threat, which ultimately lead to disparate outcomes. Recommendation 3: Review and Revise 200.5.2 DUTY TO GIVE AID AND MEDICAL CARE Recommendation 4: Review and Revise 328 RACIAL OR BIAS-BASED PROFILING 1. GO 328.1.1 DEFINITIONS: Acts Constituting Racial or Bias-Based Profiling a. Provide a more expansive definition of profiling to include unconscious bias with disparate impact. 2. GO 328.3.1 REASON FOR DETENTION • CPRC will provide specific recommendations in the coming weeks. Recommendation 6: Create new SPECIAL USE OF FORCE CONSIDERATIONS policy 1. When determining whether to apply any level of force and evaluating whether an officer has used objectively reasonable force, a number of factors should be taken into consideration. These factors include, but are not limited to: a. Obviously, pregnant individuals. b. Elderly individuals or juveniles. c. Individuals who are on the ground or otherwise at a disadvantage d. Individuals considered to be obese or severely obese. e. Individuals whose position or activity may result in collateral injury (e.g., falls from height, operating vehicles). f. Individuals (or caregivers) who have expressed disability status, mental health conditions, physical conditions, impairments, and/or need for assistance. g. Individuals with visible disabilities, physical conditions, impairments, and/or need for assistance. 2. Individuals suspected of being under the influence of drugs/alcohol or exhibiting extreme agitation, violent irrational behavior accompanied by profuse sweating, extraordinary strength beyond their physical characteristics and impervious to pain, or requires a protracted physical encounter with multiple officers to be brought under control may be more susceptible to serious medical problems and shall be closely monitored following the application of the any use of force until they can be examined by paramedics or other medical personnel. Recommendation 7: Create a USE OF FORCE DETENTION TECHNIQUE MATRIX and policy. • CPRC will provide specific recommendations in the coming weeks. Recommendation 8: Training for new and existing officers to recognize physical duress. • CPRC will provide specific recommendations in the coming weeks. Recommendation 9: Training for new and existing officers to recognize mental duress. • CPRC will provide specific recommendations in the coming weeks. Recommendation 10: Require annual physical and mental fitness evaluation for officers. • CPRC will provide specific recommendations in the coming weeks. Recommendation 11: Require officers to carry Automated external defibrillators (AEDs) in their vehicles. Recommendation 11: Require officers to carry a tourniquet in their vehicles. Summary As a commission we believe that the duty to preserve life supersedes the duty to detain or arrest individuals. We believe the officer in the incident was unreasonable in the use of force. In our research and duty to the community we believe APD general orders do not go far enough in detailing the priority of life and duty to provide medical care. We believe the officer was negligent in providing medical care to the civilian and this dehumanization may have been impacted by unconscious implicit bias. Existing bias is not always accurately identified nor perceived during an investigation, which makes it harder to enact change. Discrimination though elusive to discern can occur without explicit prejudice. It can also occur with outwardly egalitarian attitudes. The challenge of identifying unconscious bias and its influence can contribute to disparate outcomes. It is in the best interest of the city, community, and Austin Police Department to uncover and eliminate bias thereby securing trust in public safety.
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