August 9, 2021

Community Police Review Commission Memo 2019-0998

On July 29, 2021 the Community Police Review Commission reviewed case number 2019-0998. This document provides their findings after reviewing the case and recommendations to Austin Police Department.

PDF Content

Disclaimer: The following text was extracted from the PDF file to make this document more accessible. This machine-generated content may contain styling errors due to redactions. In some instances, text may not load if the original file is a scanned image or has not been made searchable. For the full version of the document, please view the PDF.

Memo 2019-0998 To: Chief Joseph Chacon CC: Assistant Chief Troy Gay, Director of the Office of Police Oversight Farah Muscadin From: Community Police Review Commission Date: 08/09/2021 Re: IAD Case Number: 2019-0998 _____________________________________________________________________ The CPRC has no disciplinary recommendations regarding the actions taken by Officer A; however, the commission offers the following policy recommendations in this memo. Incident Overview and Background On July 29, 2021, the Community Policy Review Commission (CPRC) reviewed Internal Affairs Division case 2019-0998. The commissioners received a presentation from the Internal Affairs Division and reviewed the IAD case file regarding an internal complaint initiated by an Assistant Chief at APD to determine if any violation of departmental policy, civil service rules, or state law was violated. This case involved a domestic dispute during which a woman called 911 to report abuse from her husband and threats made to her life at gunpoint and resulted in the husband barricading himself in their apartment and eventually shot in the head by a SWAT team sniper (Officer A) after shooting at APD officers who were shielded by a BearCat armored vehicle. Officer A has served APD for 24 years with no sustained complaints to IA as of February 2021 and this is the only critical incident in his career. He responded to a SWAT callout that a man had barricaded himself in his apartment after assaulting his wife - who was safe outside of the apartment at that point - and there was a report the man was armed and there were multiple guns on the premises. The person involved was a 74-year-old man who was an armed security guard who had quit a week before the incident due to a dispute with a co-worker. In her witness interview, his wife said that he had been sober for 10 years but started drinking a year before the incident. This was around the time he began working as a security guard. She stated that he was on medication for A-fib, a heart condition, and high blood pressure, and had no history of mental health issues. This incident took place on September 22, 2019, at an apartment complex northwest of the 183/290 intersection. The following is a timeline of the incident: 19:16 - APD received an initial 911 call from a woman advising that her husband had physically assaulted her and was threatening to kill her. She said he had a gun. She stated that he had never hit her in their 40 years of marriage and there was no cause for his actions. 19:19 - APD arrived on scene 19:21 - APD officers prepared to force entry into the apartment just before she opened the door and left the apartment. In 911 audio, officers can be heard knocking and commanding the occupants to come out with their hands raised. She told officers that her husband was armed, owned three guns, and had been heavily drinking. Officers retreated from the front door. 19:31 - The officers began to demand he come out using raised voices and then with LRAD. Officer witness statements show that officers yelled at him over LRAD to come outside and surrender. He opened the door to yell back but officers could not understand him and told him to come outside to talk to them. 19:57 - SWAT callout initiated for the barricaded man 20:38 - Officer A arrived 20:49 - Officer A took position to the east with Officer B 20:51-21:07 - The man cracked the door open repeatedly in response to officers outside. They could not understand what he was attempting to communicate to them and told him to answer his phone. 21:14 - SWAT deploys four CS gas canisters with the officer shooting them stating that the final was his “money one.” 21:15 - The man opens the door, and fires multiple shots from a gun. Officer A fires one round in his head using his sniper rifle. Department evidence included 1100+ photos, 46 reports, 137 BWC videos and/or photos, 9 crime lab reports, 43 DMAV recordings, radio traffic and CAD sheet, and a victim services supplementary report. Drug screen of Officer A was negative for alcohol and illegal narcotics. Reports indicated that the front tires of the bearcat were deflated. Five spent casings from the husband’s gun were found in the apartment and two on the mat of the front door. The cause of death was a gunshot wound to the head with entry through the right orbital region and exit at the back of the head. The case was no billed by the grand jury. The CPRC has no disciplinary recommendations regarding the actions taken by Officer A; however, the commission offers the following policy recommendations: 1) Ban the use of CS gas according to Resolution 95 for the following reasons pertaining to this case. a) Officer A explained what was expected to happen when the CS gas was deployed: this would “disrupt their environment” and the person would lay down his gun and surrender. Officer A stated that in his experience this “historically” was the result. However, that gamble resulted in aggravating this person and in his death. b) Use of tear gas in warfare, as with all other chemical weapons, was prohibited by the Geneva Protocol of 1925: it prohibited the use of "asphyxiating gas, or any other kind of gas, liquids, substances or similar materials", a treaty that most states have signed. c) CS gas can cause permanent damage to personal items if not treated properly, and the residue can become a serious health hazard to this man’s widow and potentially to neighbors. 2) Enact OPO’s entire de-escalation policy which has significant implications for this case, including but not limited to the following sections: a) 200.2 (a) Officers shall not engage in unnecessary conduct that could be expected to escalate a situation. Examples include, but are not limited to, the following: 1. Becoming unnecessarily combative or aggressive; 2. Using insults, slurs, or rude gestures; 3. Unduly compromising one’s own safety or the safety of others by making inappropriate or misguided tactical decisions; and 4. Unnecessarily rushing the pace of an encounter. b) Use of CS gas escalated the situation when time could have been used as a tool. At the time of its use, the individual inside the apartment was seen at times sitting in a chair and looking out the window. While his gun was visible on the window sill, it was a known fact that he was armed. However, he did not shoot until he was shot upon. c) 200.2.1 ASSESSMENT (a) Gathering Information – As officers arrive on the scene, observe conditions, and interact with the persons there, they should continue to gather additional information and facts to develop an understanding of the totality of the circumstances relevant to the incident. Pertinent information may include, but is not limited to, the following: i) Factors that may impact an individual’s ability to interact with officers, understand the nature of the situation, and/or voluntarily comply with instructions. Examples of such factors include, but are not limited to, the following: (1) Medical conditions; (2) Mental health diagnoses, Intellectual or Developmental Disabilities (IDD), or cognitive disorders; (3) Mental health crises; (4) Physical capabilities (taking into account factors like age, injury, or size); (5) Hearing or vision capabilities; (6) Language barriers; (7) Effects of drugs (street or prescribed) or alcohol; and h. Conflicting noise or other distractions in the vicinity (e.g. multiple officers giving commands at the same time, traffic noise, lights and sirens, etc.) d) Make it a policy to ask key witness(es) (in this case the man’s wife) about the mental state of the individual in question to ascertain the need for a mental health specialist to support SWAT negotiators. i) In their planning to use CS gas, the officers state that the man had only briefly opened the door to attempt to communicate. Officers viewed this as an opportunity to shoot a canister into an open window. Plans to use CS gas move swiftly from there. There was no consideration for his age and health with regard to using CS gas, namely his medical condition (heart condition, age, COVID-19 infection both past and present). e) 200.2.2 USE OF DE-ESCALATION TECHNIQUES i) (A) Acknowledging that communication is crucial to de-escalation, officers shall at all times treat individuals they encounter with dignity and respect, and in the way the officer would wish to be treated if they stood in the individual’s shoes. Officers shall pay particular attention to the manner in which they communicate (verbally and non- verbally) with individuals and shall consider how the tone, volume, cadence, and gestures with which they are communicating may be impacting an encounter. ii) (B) De-escalation also may involve actions such as securing additional resources, tactical repositioning, and employing verbal persuasion. (1) 1. Securing Additional Resources – When the circumstances of an incident make doing so feasible and appropriate, officers should request and utilize additional resources. Officers should request resources that they, through relevant training and experience, believe would aid in resolving the situation without the use of force, or would help to minimize the use of force. Absent an immediate need to do so, officers shall avoid physically confronting an individual until such time as additional resources have arrived to assist. Additional resources may include, but are not limited to, the following: (a) Officers with special training, such as the Crisis Intervention Team or Critical Incident Negotiation Team; (b) Emergency medical professionals; (c) Mental health care providers; (d) Interpreters; (e) Supportive family members related to individuals involved; (f) Less-lethal weaponry; and (g) Additional officers. f) The wife’s interview indicates that her husband was in crisis for unknown reasons, and the details she provides regarding his mental state could have instigated the use of mental health care providers. g) Video shows that the wife was at the scene and desired to return to the apartment. As a resource, she offered information to officers that could have been relayed to the negotiator to deescalate the situation. 3) CPRC proposed amendment to 200.2.2 USE OF DE-ESCALATION TECHNIQUES policy from OPO to (e) Supportive allies of the individuals involved. a) 200.2.2 USE OF DE-ESCALATION TECHNIQUES (3). Verbal Persuasion – When the circumstances of an incident make doing so feasible and appropriate, officers should use one or more of the following verbal techniques to try to defuse tension and build rapport with individuals they encounter: (a) Listen to the individual’s side of the story and permit them to express frustration; (b) Explain what the officer is doing, what other individuals can do, and what needs to happen; (c) Explain why the officer is taking a specific action, again permitting the individual to respond and acknowledging their perspective; (d) Provide the individual with alternatives, even if those alternatives may be limited; (e) Advise the individual of the consequences for noncompliance; (f) Offer reasonable, professional advice if it is expected to help; or (g) Provide the individual with adequate time within which to respond to directives. In determining how much time is adequate, officers should consider factors such as those listed in General Order 200.2.1. b) Practice procedural justice when negotiating. Officer witness statements detail the “yelling” and “shouting” APD did to have this person comply with their “verbal commands.” In BWC footage, officers can be heard yelling at the man to come out and surrender and repeating over the LRAD that they cannot and will not leave, that he is considered armed and dangerous, for him to follow instructions and to come out with his hands up as this is the only way to ensure his safety, and to come to a peaceful resolution. The officer never let him know that they will be using CS gas, why, what that will do to his body, what their expectations for him are when they shoot it into his home, or especially that he had a choice to act before this occurred. This coincides with our recommendation to warn before shooting, although again we stress that CS gas should be banned but this should happen with the use of other munitions. 4) Enact OPO’s warn before shooting policy a) There were no warnings issued before shooting CS gas. Although this commission recommends the banning of CS gas, we agree with the OPO that it should be a practice to warn before shooting when it is absolutely necessary to use other munitions. This includes when using less lethal munitions to strike lights as in this incident. An officer emptied a clip of less lethal munitions at lights near the occupant’s door, and each loudly impacted the facade of the structure, likely leading to stress and safety concerns for the individual in his home. 5) Supply the CPRC with the following information to aid in continued research and community feedback on policy 803 THE USE OF PERSONALLY OWNED FIREARMS. a) It is documented throughout this case that the subject officer used a personally owned rifle the commission requests the following information to assess community impact: b) The current 2020-2021 list of Approved Weapons and Ammunition. c) Current data regarding personally owned firearms from 2018-Present including: i) A complete list of officers with personally registered firearms including (1) Tenure, (2) Length of personal firearms registration with the Austin Police Department (3) Unit assignment, (4) Specialized weapons training ii) Type and caliber of personally owned firearms including but not limited to (1) Handgun (2) Shotgun (3) Rifle iii) Funding structure for personally owned firearms (APD budget? Personal funds? Reimbursement?) iv) List of officers who have had the personal registration of firearms rescinded from 2018-Present. Summary The CPRC believes that Officer A completed his job with no violation of policy but that overall, the Austin Police Department’s response to a barricaded individual could be improved by using all the tools of de-escalation and persuasive communication to ensure a person has every opportunity to comply and respond. The CPRC also recognizes the exemplary actions and communication of the officer assigned to the wife in this case and commends the professionalism and empathy demonstrated.

Did you find what you were looking for on this page?