29 de noviembre de 2021

Queja formal: Propósito y alcance y otras violaciones a políticas

El querellante alega que los oficiales de la policía de Austin incautaron de manera incorrecta videos de seguridad de una organización comunitaria, intimidando a los empleados y dañando la propiedad. La OPO recomienda que esta alegación reciba una clasificación B.

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1 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. ICMS #: 2021-1170 November 29, 2021 Complaint: The complainant alleges: “Summary of Complaint Austin Police broke open the door of a closed-for-renovation non-profit office and seized the non-profit’s entire security footage recording apparatus, including weeks of confidential video recordings, instead of simply emailing a subpoena for the relevant two hours and five minutes of footage to the organization’s Executive Director. In other words, Austin Police sent five armed officers in at least four separate city- owned vehicles to raid a non-profit for evidence that could have been collected faster, cheaper, and more precisely via a proper email. This intimidating show of force targeted at the has further damaged Austin Police’s already shaky relationship with the immigrant community. And it belies Austin Police claims about understaffing. Most troubling of all, Austin Police appear to have no clue why their decision to dramatically bust open the door of an immigrant workers’ rights and legal services non- profit was so problematic. Supervisors at the scene rudely dismissed attorneys who pleaded with Austin Police to display some respect and compassion for the community that serves. Finally, Austin Police needlessly traumatized and detained two of the non-profit’s administrative employees who were packing boxes and removing wall fixtures inside the closed offices when armed officers broke into the building. The evidence sought was subject to confidentiality rules Austin Police sought video footage of an alleged attempted assault that occurred in the non-profit’s parking lot on . The cameras record everyone who enters and exits the building. The video footage—which could show the organization’s legal services clients entering and exiting the building—is subject to important confidentiality and privacy restrictions. provides legal services to immigrant working families. It is, in other words, a law firm. The attorneys and staff who work for the non-profit must follow ethical and statutory rules regarding the confidentiality of information related to legal representation. 2 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. The Texas Disciplinary Rules for Professional Conduct of attorneys broadly and clearly define the types of information that attorneys cannot release without the client’s consent or a court order: Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. The attorneys at the could lose their law licenses if they simply handed Austin Police confidential information about their legal clients. This information can only be released with the consent of the client or under a court order. What should have happened The alleged attempted assault occurred on . A subpoena for two hours and five minutes of the non-profit’s video footage was obtained on . The subpoena should have been emailed on to Executive Director with an electronic return acknowledgement requested. The Texas Code of Criminal Procedure (art. 24.04(a)) is clear: A subpoena is served by: (1) reading the subpoena in the hearing of the witness; (2) delivering a copy of the subpoena to the witness; (3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or (4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness Next, the officer who emailed the subpoena to the organization’s Executive Director should have filed a return of service documenting that he properly served the subpoena. Again, the Code of Criminal Procedure (art. 24.04(b)) is quite clear: The officer having the subpoena shall make due return thereof, showing the time and manner of service, if served under Subsection (a)(1) or (2) of this 3 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. article, the acknowledgment of receipt, if served under Subsection (a)(3) of this article, or the return receipt, if served under Subsection (a)(4) of this article. If the subpoena is not served, the officer shall show in his return the cause of his failure to serve it. Had Austin Police served the subpoena on , organization attorneys would have pulled the footage, reviewed it for attorney-client privilege, and turned over the responsive information to Austin Police by . Instead, Austin Police waited until to conduct a raid and seize an unknown number of days of confidential footage stored on the recording device’s hard drives. Ironically, the footage sought by Austin Police was likely automatically recorded-over when it was 21 days old on . This was three days AFTER Austin Police would have obtained the footage had they served the subpoena and ten days BEFORE they raided the non-profit. List of Complaints Austin Police obtained a subpoena for two hours and five minutes of a non-profit’s private video footage but then failed to even attempt to serve the subpoena. Austin Police either do not know or do not care how to properly serve a subpoena. Texas Code of Criminal Procedure 24.04(a) states that a subpoena can be hand-delivered, read aloud, emailed with a return acknowledgement, or mailed certified mail. Austin Police failed to prepare a return of service as required by Texas Code of Criminal Procedure 24.04(b). Austin Police misled non-profit staff about the organization’s legal obligations regarding the department’s investigation of an alleged attempted assault that occurred in the parking lot. Austin Police do not understand or purposely misrepresented the differences between a search warrant that is signed by a Judge and a Grand Jury subpoena that is signed by an Assistant District Attorney. Austin Police said they would come in person to serve the subpoena on and but to knowledge failed to show up both days. Austin Police misrepresented the status of the subpoena to Austin Municipal Court Judge and obtained a search warrant from her under the false pretense that a subpoena had been served. 4 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. Austin Police wasted city resources when they sent five armed officers in at least four separate city-owned vehicles to execute a search warrant instead of simply emailing a subpoena. Austin Police at the scene expressed contempt for immigrant communities’ anxiety regarding law enforcement. The officers’ statements directly contravene the department’s stated values about equity, cultural competency, and community engagement. Austin Police escalated the confrontation with attorneys in the parking lot by shamming that two women attorneys were a threat. By way of example, one officer slowly circled an attorney’s minivan while she argued with police supervisors at the scene. He peered intently in the open windows as if contraband were hidden among the car seats and kid detritus. By way of another example, officers hassled the second attorney when she tried to park her car in the organization’s parking lot. Austin Police escalated the confrontation by preposterously and falsely accusing a non- profit employee—who was removing bathroom fixtures with a drill—of tampering with evidence. Austin Police damaged the non-profit’s front door when they broke in to conduct the raid. Austin Police left the non-profit without a functional security system when they seized the entire DVR. Austin Police inappropriately profiled a non-profit employee inside the building. The first words they spoke to the employee were “Do you speak English?”. Austin Police failed to wear face masks even through there were visible signs calling for masking and the two staff people inside the building were appropriately masked. Austin Police needlessly drew their weapons after entering the building. At every stage, they escalated instead of de-escalating. Austin Police improperly continued to search the non-profit’s building even after seizing the security footage recorder authorized under Judge search warrant. Even after seizing the evidence authorized by the search warrant and even though non- profit staff had unlocked each room that they were requested, Austin Police broke into an additional locked room, which contained attorney-client privileged legal files in a filing cabinet. 12 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. and Austin Police’s confrontation was heated and it escalated as the parties failed to find common ground. tried unsuccessfully to convince the Austin Police that they did not need to break in the door and terrify the people inside but rather should simply serve the subpoena. eventually did convince the Austin Police supervisor at the scene that mistakes had been made with the subpoena. He was so angry at that point that he told her he did not care and they were going in the front door anyway. tried to inform an Austin Police supervisor at the scene that the search warrant had likely been obtained under the false pretense that a subpoena had been served and that the search warrant was therefore improper on its face. begged Austin Police to consider the impact that their unnecessary show of force would have on the community and its already troubled relationship with Austin Police. Around the staff attorney (i.e., the non-profit’s in- house attorney) arrived at the office and joined in discussing this matter with Austin Police in hopes of understanding what could possibly necessitate a raid on the nonprofit’s office. Austin Police then intensely escalated the situation by claiming that non-profit staff inside the building were seen destroying evidence near or on a media tower. They made the two attorneys believe that this had turned into an exigent emergency. It turned out that Austin Police who had hopped the fence and were peering in windows saw a staffer using a drill to remove the toilet paper and paper towel dispensers from the wall in preparation for painting the bathroom. Austin Police were spying into a bathroom (believable) and mistook a bathroom shelf for a media tower (not believable). This unequivocally false claim that organization staff were tampering with evidence alarmed the two attorneys outside. They feared this escalation would lead to someone inside being injured and so they stopped trying to reason with Austin Police about the subpoena and search warrant and instead focused on ensuring that the staff inside knew how to conduct themselves when Austin Police broke in the door. The staff attorney—in an attempt to forestall physical violence against the two staff inside and to help the officers feel safe and unthreatened, instructed the staff inside to stand in the entryway with their hands visible. She informed officers that two people would be standing in the entryway with their hands visible. Around , Austin Police used a crowbar to break into the office. The Austin Police who initially entered the building did not wear masks to protect staff from the spread of COVID19. Throughout the raid, only one of the five Austin 14 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. Conclusion The events of 1 could have been avoided. Austin Police could have, quite simply, properly served the subpoena. Upon arriving at the office and speaking with the non-profit's legal representative, Austin Police could have negotiated a peaceful resolution to obtaining the security footage. Instead, five Austin Police wasted their time and the taxpayers’ dollars terrorizing staff. Austin Police paraded through the non-profit's building, including its legal services office, with their guns drawn and raised. Neither nor its staff members have been accused of a violent crime (or any crime for that matter). The staff inside complied with every command, unlocked offices, and answered questions regarding the security footage recording system. Yet, Austin Police behaved as if they were interacting with dangerous individuals in dangerous circumstances instead of two young people who were at work. Most importantly, this event has further eroded the very limited trust the immigrant community has in Austin Police. We, therefore ask that the Office of Police Oversight investigate the actions of Austin Police leading up to and on and take all steps within its authority to ensure that such an injustice does not reoccur.” This notice of formal complaint is a request for Internal Affairs to initiate an investigation to determine if the employee conduct is within compliance of APD policy, Civil Service Rules, and Municipal Civil Service Rules. Recommended Administrative Policies to Review (to include but not limited to): 301.1 PURPOSE AND SCOPE All persons deserve protection by fair and impartial law enforcement and should be able to expect similar police response to their behavior wherever it occurs. Employees will serve the public through direction, counseling, assistance, and protection of life and property. Employees will be held accountable for the manner in which they exercise the authority of their office or position. Employees will respect the rights of individuals and perform their services with honesty, sincerity, courage, and sound judgment. 301.2 IMPARTIAL ATTITUDE AND COURTESY Employees shall provide equal and fair protection of all rights under local, state, and federal law for all members of the community. Law enforcement will be conducted in an impartial and equitable manner. In an effort to create an organizational culture that is inclusive and nondiscriminatory, employees shall act professionally, treat all persons fairly and equally, and strive to interact with the community in a positive manner. Employees will perform all duties objectively and without regard to personal feelings, animosities, friendships, financial status, occupation or employment status, 15 NOTICE OF FORMAL COMPLAINT The City of Austin is committed to compliance with the American Disabilities Act. Reasonable modifications and equal access to communications will be provided upon request. sex, disability status, housing status, mental health or ability, citizenship, language, national origin, creed, color, race, religion, age, political beliefs, sexual orientation, gender identity, gender expression, ethnicity, or social or ethnic background. Employees will endeavor to understand and respect cultural, national, racial, religious, physical, mental, and other differences. 306.1 PURPOSE AND SCOPE Both the federal and state Constitutions provide every individual with the right to be free from unreasonable searches and seizures. This order provides general guidelines for Austin Police Department personnel to consider when dealing with search and seizure issues. 900.1.1 RESPONSIBILITY TO KNOW AND COMPLY The rules of conduct set forth in this order do not serve as an all-inclusive list of requirements, limitations, or prohibitions on employee conduct and activities; employees are required to know and comply with all Department policies, procedures, and written directives. 900.3.2 ACTS BRINGING DISCREDIT UPON THE DEPARTMENT Since the conduct of personnel both on-duty or off-duty may reflect directly upon the Department, employees must conduct themselves at all times in a manner which does not bring reproach, discredit, or embarrassment to the Department or to the City. Recommended Classification: The OPO is permitted to make a preliminary recommendation on the classification of administrative cases. The OPO recommends this complaint receive a B classification.
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