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.
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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
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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.
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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.
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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
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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,
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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.