Community Police Review Commission Memo 2019-0267

Memo 2019-0267 To: Chief Brian Manley cc: Assistant Chief Troy Gay, Director of the Office of Police Oversight Farah Muscadin, CPRC Chair Amani Seay, CPRC Co-Chair Sukyi McMahon From: Community Police Review Commission Date: 09/02/2021 Re: IAD Case Number: 2019-0267 Officer Involved Shooting ___________________________________________________________________________________ On August 26, 2021, the Community Police Review Commission (CPRC) reviewed case no. 2019-0267 and received a briefing from the Internal Affairs Division (IAD). The incident under review occurred at the intersection of East 7th Street, Austin Tex. and Neches Street. On March 17, 2019 at approximately 2:50 am, Austin Police Department (APD) officers responded to the sound of gunfire in the 700 block of East 7th Street, Austin Texas. The officers involved were on foot patrol, assigned to APD’s Special Response Team (SRT). Due to their assignment, the officers were stationed at the Gulf Gas Station, on the southwest corner of the intersection of East 7th Street and the southbound service road of Interstate Highway (IH) 35. As officers ran towards the sound of gunfire, they were fired upon by a black male, wearing a white hooded sweatshirt. The CPRC holds that Officer A violated Austin Police Department GO 200.3 RESPONSE TO RESISTANCE and 200.3.3 NOTICE OF AUTHORITY AND IDENTITY. Officer A’s use of deadly force was not objectively reasonable or immediately necessary to make or assist in a detention or an arrest, or to conduct a search in this incident. After review Halo footage the CPRC identified neglect of duty when at least three uniformed APD officers were seen in the immediate vicinity of the initial vehicle collision, and none of them intervened. The CPRC believes that had any of those officers responded to the initial vehicle collision between the Maserati and the Monte Carlo, the likelihood of a violent incident occurring between the two parties two blocks later would have significantly decreased. Facts of the Case The following is a timeline of the events captured by HALO cameras: • 2:49:51, three males began to exit the Maserati. The driver, Mr. Davis, an unidentified front seat passenger and the rear right passenger, later identified as Isaiah Hutchinson (Deceased). A fourth male, Lajuan Jordon was in the Maserati but did not exit the vehicle during the altercation. • 2:50:06, Mr. Davis and Mr. Hutchinson walked towards the Monte Carlo and are at the driver’s side window. • 2:50:07, Mr. Davis appears to punch at Mr. Vasquez twice through the open car window. • 2:50:10, Mr. Vasquez responded by discharging a firearm at Mr. Davis and Mr. Hutchinson. • APD officers working on foot nearby responded to the sound of gunshots. • 2:50:12, Mr. Davis ran back towards the open driver’s side door of the Maserati. • 2:50:13, Mr. Hutchinson ran alongside the driver’s side of the Maserati and around the frontend of the vehicle toward the passenger side, then entered the rear passenger door. • 2:50:15, prior to entering the vehicle, Mr. Hutchinson is seen discharging a firearm toward in the direction of bystanders and five men, who were then running toward the Maserati (later identified as APD officers). • 2:50:15, prior to entering the vehicle, Mr. Hutchinson is seen discharging a firearm toward in the direction of bystanders and five men, who were then running toward the Maserati (later identified as APD officers). The Travis County special grand jury decided not to return an indictment on any of the officers involved this incident. At the time the summary for this inquiry was completed, an official ballistic report by the APD Firearm and Tool Mark Unit was not available. The information that follows is a description of the evidence documented from the scene by APD Crime Scene Unit (CSU). On March 17, 2019 at approximately 5:00 am, CSU employee Steven Aston #6215 arrived on scene and met with SIU Detective Elijah Myrick #6472, who requested Mr. Aston collect the firearms used during the incident. Mr. Aston deduced the following information based on the live cartridges the officers still possessed in their magazines and pistols’ chambers. The involved subject officers discharged the following weapons during the incident: • Officer A’s secondary magazines (one in pistol, one on belt) each contained seventeen live cartridges. The primary magazine (moved from pistol to belt after incident) contained thirteen live cartridges. An additional live cartridge was located in the pistol’s chamber. This is consistent with four shots having been discharged during the incident. • Officer B’s secondary magazines each contained seventeen live cartridges, Officer B’s primary magazine contained twelve live cartridges, and Officer B’s pistol chamber contained one live cartridge. This is consistent with five shots having been discharged during the incident. • Officer C’s: APD issued Smith & Wesson M&P 9mm semiautomatic pistol, serial number: HDA3981 Officer C’s secondary magazines contained seventeen live cartridges, the primary magazine contained sixteen live cartridges, and Officer C’s pistol chamber contained one live cartridge. This is consistent with one shot having been discharged during the incident. • Officer D’s secondary magazines each contained seventeen live cartridges, the primary magazine contained fifteen live cartridges, and the pistol chamber contained one live cartridge. This is consistent with two shots having been discharged during the incident. BWC does not provide audio due to the short nature of the video therefore officer statements are the primary source of information of on identification. The CPRC makes the following recommendations: Recommendation 1: The CPRC finds that Officer [A] (O’Neill), Officer (Nelson), Officer (Wright), Officer (Woods) in violation of 303.3 DEPARTMENT ISSUED BODY WORN CAMERA and recommends discipline in accordance with the Discipline Matrix of an Oral Counseling documented in field notes 1. In accordance with the Discipline Matrix the CPRC recommends the officers in violation of policy 303.3(d) or 303.3.1(a) receive Oral Counseling documented in field notes or the corresponding discipline depending on the occurrence of body worn camera recording violations. Recommendation 2: The CPRC finds Officer O’Neill [A]’s actions to be objectively unreasonable use of deadly force in violation of Response to Resistance policy and recommends discipline in accordance with the Discipline Matrix of an Indefinite Suspension. The standard of review utilized by the CPRC was the “objective reasonableness” of the officer’s actions, as dictated by Fourth Amendment jurisprudence: • 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: o (1) the severity of the crime at issue, o (2) whether the suspect poses an immediate threat to the safety of the officers. The two prosecutors that signed off on the case were retained by the new District Attorney and oversaw the investigation that resulted in the January 2021 indictment of two APD officers for allegations of excessive force in an unrelated case. or others, and o (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 rapid nature of this incident as well as the location and context of this incident occurring during SXSW, an event that draws large crowds to the downtown Austin area, are compelling considerations the CPRC factored determining the appropriateness of Officer A, B, C’s use of deadly force, such as: • Special Response Team (SRT) officers who are specifically trained to handle large groups of people. • Officer A did state in the subject officer interview conducted by IA “I believe that was the only option being that this event unfolded as it did - as rapidly, and chaotic as it occurred. At that time.” • Officer [B] stated in the subject officer interview conducted by IA, “Officer B perceived that, when Officer C had fallen to the ground, that Officer C had been shot.” • Civilian Witness stated, they believed the officer (later identified as Officer C) who had fallen had been shot. • Officers stated they feared for the safety of fellow officers and the safety of civilians during the incident. • Officers [A] stated in the subject officer interview conducted by IA, they were at the “pretty high” threat level awareness before responding to the incident on 7th Street. • According to statements and evidence collected from the driver of the Monte Carlo involved in the altercation, The driver of the Monte Carlo fired 4-5 times. 200.3.1 DETERMINING THE OBJECTIVE REASONABLENESS OF FORCE Any interpretation of objective reasonableness about the amount of force that reasonably appears to be necessary in a particular situation must allow for the fact that police officers are often forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving, and the amount of time available to evaluate and respond to changing circumstances may influence their decisions. The question is whether the officer's actions are "objectively reasonable" in light of the facts and circumstances confronting him. (a) 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: 1. Reasonable opportunity for the officer to engage in de-escalation; 2. The conduct of the individual being confronted as reasonably perceived by the officer at the time; 3. Officer and subject factors such as age, size, relative strength, skill level, injury/level of exhaustion and number of officers versus subjects; 4. Influence of drugs and alcohol or mental capacity; 5. Proximity of weapons; 6. The degree to which the subject has been effectively restrained and his ability to resist despite being restrained; 7. Time and circumstances permitting, the reasonable availability of other resources to the officer; 8. Seriousness of the suspected offense or reason for contact with the individual; 9. Training and experience of the officer; 10. Potential for injury to citizens, officers and subjects; 11. Risk of escape; 12. Whether the conduct of the individual being confronted no longer reasonably appears to pose an imminent threat to the officer or others; 13. Other exigent circumstances. The below information provides additional information used by the CPRC to show that this incident objective reasonableness pertaining to the amount of force that is necessary in a particular situation. • Officer A was NOT FORCED to make split-second decisions in this incident. • According to statement from Officer [A], Officer A did NOT see Mr. Hutchison fire a weapon or point a weapon at anyone. • Officer A stated, “So as I heard those gunshots, I thought they were coming from the other side of the Maserati, and I couldn’t see.” • Officer A responded, “No” when asked did you observe him [Mr. Hutchison] fire a shot or point the gun at anyone by IA investigators. • Officer A was NOT alone or the only responding officer to the incident. According to statement by Officer [A], Officer A was stationed with a squad of 5 other SRT officers at the Gulf gas station. • According to officer provided diagrams and photos of the scene, Officer A had time to run approx. 20 yards across the gas station lot crossing the right lane to come within 10 feet of Mr. Hutchison before drawing his weapon. • It is objectively reasonable to assume the actions and behavior of Mr. Hutchison witness described by Officer A during the response to the incident are to be in violation of Texas Penal Code Sec. 46.02, potentially unlawful carrying of a firearm and reckless use of a firearm. • According to the Texas Constitution, “Section 23, Article I, of the Texas Constitution secures for Texas citizens the right to keep and bear arms;” According to statements from Officer [A], Officer A did NOT see muzzle flash or shots being fired an objectively reasonable officer would have understood that using force on an armed civilian in this case Mr. Hutchison, without witnessing that Mr. Hutchison fire or point the weapon at any person violates Mr. Hutchison’s rights. • Officer A had time available to evaluate and respond to changing circumstances may influence their decisions. o According to statements from Officer [A], Officer A had enough time to focus their evaluation on “continued to close the distance…to be accurate with my shots.” • The conduct of the Mr. Hutchison as witness by Officer A no longer reasonably appears to pose an imminent threat to the officer or others; o According to statement from Officer [A], Officer A did NOT see Mr. Hutchison fire a weapon or point a weapon at anyone. • Officer A stated, “So as I heard those gunshots, I thought they were coming from the other side of the Maserati, and I couldn’t see.” • Officer A responded, “No” when asked did you observe him [Mr. Hutchison] fire a shot or point the gun at anyone by IA investigators. o The actions and behavior of Mr. Hutchison witness described by Officer A “As I was closing the distance I could see a black male in a white hoodie come from…around the front of the Maserati and as he came towards the passenger’s headlight on the front of the Maserati I could see he had a gun in his hand…” during the response to the incident are objectively reasonably assumed to be in violation of Texas Penal Code Sec. 46.02, potentially unlawful carrying of a firearm and reckless use of a firearm. • Officer A performed objectively unreasonable evaluate the situation. o Officer A did NOT recognize or identify the involvement of the Monte Carlo in the altercation. o The CPRC finds Officer A’s assumption that “Because someone started shooting, they had blatant disregard for thousands of people who were downtown.” objectively unreasonable. • Based on the Officer A’s training and experience working downtown at this location it is objectively reasonable to assume any shots fired during this even involve an altercation between two or more parties not directed at “thousands of people”. • According to statement from Officer [A], Officer A said he believed “Because someone started shooting, they had blatant disregard for thousands of people who were downtown.” • It is unreasonable that the actions of Mr. Hutchison as witnessed by Officer A be recognized as threatening behavior not reckless endangerment even in the fast-paced environment. Because according to Officer A also stated that before responding the incident, “…having worked out there [at the Gulf gas station] I would say that that’s the most common place that people get shot downtown – where shootings happen…” The CPRC holds that the use of such force in the incident was NOT immediately necessary given that Officers had opportunity, time and duty according to Response to Resistance policy provide an objectively reasonable level of force. The CPRC finds Officer [A] in violation of Response to Resistance policy and actions to be Objectively unreasonable use of deadly force and recommends discipline in accordance with the Discipline Matrix of an Indefinite Suspension. Recommendation 2: The CPRC finds Officer [A] in violation of Duty To Identify 900.4.4, 200.3.3 NOTICE OF AUTHORITY AND IDENTITY and recommends discipline in accordance with the Discipline Matrix of an Oral Reprimand. 200.3.3 NOTICE OF AUTHORITY AND IDENTITY If it is not already reasonably known by the subject to be searched or arrested, or it is not reasonably impracticable to do so, officers should make clear their intent to arrest or search and identify themselves as a peace officer before using force (Tex. Penal Code § 9.51(a)(2)). The CPRC applied the definition of “Reasonable belief” (Penal Code 1.07(a)(42)) to determine is whether it is reasonably impracticable to identify themselves as a peace officer before using force: • “Reasonable belief” means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. Reasonably practicable means practicable having regard to: (a) the severity and scope of the hazard or risk concerned; (b) the state of knowledge reasonably available concerning that hazard or risk and of any means Of removing or mitigating that hazard or risk; (c) the availability and suitability of means to remove or mitigate that hazard or risk; and (d) the costs and the benefits of removing or mitigating that hazard or risk. The following information was used to determine it was reasonably practical for Officer A to verbally identify themselves before using force: • According to statement from Officer [A], Officer A was positioned in front of other responding officers [B]. • The fast nature of this incident does NOT justify Officer A’s use of force given without verbally identifying themselves because officer [B] had time to issue repeated verbal information to fellow officers stating “Black car. Black car…” • According to officer provided diagrams and photos of the scene, Officer A had time to run approx. 20 yards across the gas station lot crossing the right lane to come within 10 feet of Mr. Hutchison before drawing his weapon. • According to officer statements from it was crowded. Officer [A] stated “there were thousands of people around us.” • According to officer statements from it was hard to see and understand what was happening from a distance. Officer [A] stated, “So as I heard those gunshots, I thought they were coming from the other side of the Maserati and I couldn’t see.” • According to officer provided diagrams and photos of the scene, Officer A ran approx. 20 yards to close the distance to Mr. Hutchison and “So as he [Mr. Hutchison] came around the front and I could see the gun, that’s when I decided to engage.” • Officer A had the mental focus and capacity to “continued to close the distance…to be accurate with my shots.” • According to statements by Officer A, they had “No” emotions. That could have potentially clouded or impaired communication. The CPRC finds: • No severity and scope of the hazard or risk concerned for Officer A to verbally identify themselves as they approached the incident because Officer A was assigned the location based on the need for “high visibility presence” • The state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk; • Officer A stated, “I feel like the number of civilians out there decreases our options and I felt like the only thing I could do was close with him and get as close as I could, um to make sure that my rounds went where they needed to g- and we didn’t put anybody else at risk.” • The CPRC finds Officer A, objectively reasonable to assume “the number of civilians out there decreases our options.” • The CPRC finds Officer A, objectively reasonable to conclude “the only thing I could do was close with him and get as close as I could” i. The CPRC does find Officer A, objectively reasonable to conclude it was important to close distance to ensure use of force was accurate IF required or necessary. ii. But the CPRC does NOT find the use of force without identifying by Officer A objectively reasonable as this officer did not witness any threatening behavior or use of force from Mr. Hutchison. It is our determination that even with the unique circumstances occurring in this incident Officer A had the time, training, and duty according to the to identify themselves and issue verbal commands. The CPRC finds it NOT objectively reasonable for Officer A to believe use of force as immediately necessary to make or assist in a detention or an arrest, or to conduct a search in this incident. According to the evidence provided in this IA investigation, Officer A did NOT, provide verbal commands, identify themselves, or make reasonable assumptions before using force on a person they did not witness use force. Officer A did not witness Mr. Hutchison use force or threaten to harm other around him. It is unreasonable to assume that reckless possession of a firearm constitutes threatening behavior in the moment of a rapidly. Recommendation 3: The CPRC finds Officers who witness the vehicle collision at the intersection of 7th fail to properly investigate. The CPRC finds these officers in violation of policy 900.4.3 NEGLECT OF DUTY and recommends discipline in accordance with the Discipline Matrix of an Oral Reprimand. Officers who witnessed the vehicle collision at the intersection of 7th and Neches on March 17th, 2019, occurring at approximately 2:45 am just before the altercation at 700 block of East 7th Street. Based on following policy violations and facts: 900.4.3 (C) NEGLECT OF DUTY (c) Failure to take appropriate action on the occasion of a crime, disorder, investigation or other condition deserving police attention. Recommendation 4: The CPRC finds Officers who witnessed the vehicle collision at the intersection of 7th failed to properly investigate. The CPRC finds these officers in violation of policy 900.4.1 DISCRETION AND REQUIREMENT TO TAKE ACTION, 401.4 401.4 CRIME SCENE MANAGEMENT and recommends discipline in accordance with the Discipline Matrix of an Oral Reprimand. Officers who witnessed the vehicle collision at the intersection of 7th and Neches on March 17th, 2019, occurring at approximately 2:45 am just before the altercation at 700 block of East 7th Street. 900.4.1 DISCRETION AND REQUIREMENT TO TAKE ACTION 401.4 CRIME SCENE MANAGEMENT (a) Officers arriving at a crime scene are often faced with the immediate need to search for and render aid to victims as well as determine if suspects are present and continue to pose a threat 1. Searches are limited to "plain view" in the immediate area unless exigent circumstances exist (e.g., additional suspects, injured persons). 2. Once officers are satisfied that no additional suspects are present and/or there are no injured persons to be treated, exigent circumstances will likely no longer exist. 3. Officers should secure the scene and conduct no further search until proper authority for the search is obtained. 4. While consent to search should be obtained from authorized individuals where possible, it may be more prudent to obtain a search warrant in the case of serious crimes or major investigations. CPRC will provide specific policy recommendations in the coming weeks.