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Austin use-of-force cases highlight gap in police review


Highlights

In recent cases, supervisors have given officers a pass on incidents that later sparked public outrage

Breaion King, pepper spray cases point to disconnect between standards of some APD supervisors and community

When a photographer captured video of an Austin police officer shooting pepper spray in a handcuffed man’s face during the worldwide SXSW festival, it bounced around social media and sparked outrage about the amount of force used on a tourist getting arrested for public intoxication.

But inside the Austin Police Department, officer Cameron Caldwell’s supervisors weren’t alarmed.

Even though the incident exploded into a public spectacle, documents show Lt. Allen Hicks instructed a subordinate not to worry about formally reviewing what happened, so Sgt. Scott Stanfield didn’t do so until much later after their bosses got involved. Months passed before Caldwell was disciplined, and Stanfield and Hicks eventually got punished, too, for not acting swiftly enough.

The mishandling of that case wasn’t an isolated incident.

Austin police supervisors serve as the front-line review into whether officers used the proper amount of force — from Tasers to batons to their fists — to subdue a resisting suspect. It’s up to them to review more than 3,000 use-of-force incidents a year, and usually they decide how much scrutiny a case receives, based on whether they find an officer’s actions violate policy. If so, they alert internal affairs for a full investigation.

The American-Statesman has identified two other instances that raise questions about how well the department has policed its own.

The cases show that, at times, supervisors have found little or no fault with officers involved in encounters that later erupted into high-profile embarrassments and lawsuits against the city. At a minimum, they highlight a disconnect between the mindset and standards among some police supervisors, their bosses at headquarters and many in the community.

RELATED: Austin chief vents over high-profile minority policing failures

Yet the extent of the problem remains unclear because department record-keeping makes it impossible to know how often supervisors route cases to internal affairs, versus clearing an officer’s actions.

“We continue to see examples of it, where sometimes the sergeant, sometimes the lieutenant, and sometimes all the way up to commander seem to be doing mental gymnastics to justify the force,” Austin Police Monitor Margo Frasier said. “So you wind up having a situation where the use of force comes to light through some other means and everyone looking at it going, ‘How could three intelligent people have found this to be appropriate or at least not felt that it needs to be investigated?’”

The issue was first exposed in July when the Statesman revealed the violent arrest of Breaion King, a 26-year-old elementary teacher who was thrown to the ground twice after being stopped for speeding along East Riverside Drive. The traffic stop happened in June 2015, and Officer Bryan Richter’s supervisors did not send the case to internal affairs or notify department brass. Instead, they assigned Richter more training.

When former Police Chief Art Acevedo learned about the case, which received national attention, he was outraged and questioned how supervisors concluded Richter acted within policy.

Since then, department officials have created an additional layer of oversight they say decreases the chance that a case could escape proper scrutiny. In addition to an officer’s supervisors, a second commander outside the officer’s chain must review and approve a use-of-force encounter.

“We are still in the process of evaluating what is the best system to move forward with,” Assistant Police Chief Chris McIlvain said. “We are looking at other options, but until we come up with the answer, we feel like we have a good system in place to get that extra level of review.”

An information gap

The most serious force encounters, including those involving an officer firing his gun or when a suspect is critically injured or killed, automatically result in investigations by the department’s special investigations unit, which tries to learn whether an officer violated any laws, and by the internal affairs division, which considers whether an officer acted within policy.

But scrutiny in the majority of force cases begins when officers write an account of what happened and complete a report with basic information that includes the location of the incident and whether it resulted in injuries.

That report is sent to supervisors who review it and sometimes interview the officer and suspect. Supervisors also commonly watch an officer’s patrol car video as part of their investigation.

Once a sergeant completes the review, it is sent to a lieutenant and commander, who must also sign off on a force encounter. That process typically ends any internal review unless the supervisors send it to internal affairs.

It is unclear how often, based on that procedure, supervisors elevated one of the department’s 16,0000 force cases in the past five years for a full-scale internal investigation, versus concluding that the officer violated no policy. Internal affairs detectives can’t say how many reports they received from an officer’s chain-of-command in the past five years, nor can the department provide the number of instances in which supervisors concluded an officer did not err.

It is also possible, officials said, that in some instances, supervisors may have expressed concerns about an officer’s conduct, but not enough to send the case to internal affairs. Instead, they may have required additional training, but the department can’t say how often that’s happened, either.

Auditors cited that information gap — and a general lack of record-keeping about cases — after studying the city’s complaint process for civilians against the police several months ago.

“Several issues with APD’s policy … and how that policy is applied make it difficult to ensure consistency regarding the handling of complaints,” the audit concluded.

But several recent cases highlight how supervisors have concluded — wrongly, according to department brass — that an officer acted within policy and that the case did not merit further investigation.

Department officials have not yet finalized an internal review of how Richter’s supervisors evaluated his actions in King’s arrest.

But records in the Sixth Street pepper spray case reveal what officials say was an alarming indifference to reviewing what happened.

Months passed before Caldwell got suspended for 45 days for using excessive force. And ultimately, Stanfield and Hicks got more severe punishment — lengthy suspensions and demotions after department officials said they had neglected their duty to supervise officers.

Hicks, a department memo said, had a history of not completing reviews of force encounters over a four-month time frame investigators studied.

“Hicks acknowledged he failed to document policy and training issues and neglected to properly supervise his subordinates,” the memo said.

While his immediate supervisors did not take it seriously, department brass were so concerned about Caldwell’s conduct that they asked Travis County prosecutors to consider whether he had committed a crime. Earlier this month, a grand jury declined to indict him on any charge.

Caldwell has said he used pepper spray on the man because he did not comply with his orders to stop kicking the door of a police transport van and that he feared the man could injure an officer or himself.

In another recent case, Officer Steven Martinez chased a robbery suspect for nearly 10 minutes. reaching speeds of 105 mph — 79 mph in a 25 mph residential area — blazing through stop signs and traffic lights along the way.

A disciplinary memo said Martinez called the suspect “stupid” during the arrest. Later, he told the driver of the getaway car that “you’re either going to get out or you’re gonna fly out” when the man refused to exit his patrol car after arriving at a police station for questioning, the memo said.

Martinez forcibly removed the man from the patrol car, a disciplinary memo said, but didn’t document it.

His supervisors first concluded Martinez did nothing wrong. But Martinez was suspended for 20 days in July for violating the department’s pursuit and use of force policies.

McIlvain said he flagged the case when it landed on his desk, and he was upset Martinez’s supervisors had decided that he did not err.

“After watching the video I felt the pursuit was reckless and that there were issues that I felt warranted a full internal affairs investigation,” McIlvain said. “That was not an opinion shared by the chain at that time.”

Ultimately, McIlvain said, other members of the officer’s chain-of-command also became targets of an investigation into whether they properly reviewed the case, but none received serious discipline.

Backing the troops?

Experts say it is common in departments across the country for officers’ immediate supervisors to serve as the first reviewers of a use of force and to decide what should happen next.

“I can see how my subordinate did their job,” said Gene Paoline, a criminal justice professor at the University of Central Florida, where he has studied police use-of-force. “If I see that you are coming up a lot, it could be perfectly fine behavior, but it will clue me in. It is good to see who is using force and the circumstances. If we are seeing that every other traffic stop is resulting in an arrest and use of force, we might be able to nip some things in the bud.”

“Who is more appropriate to do that work?” said Steve Ijames, a national police force expert. “The supervisor works with them every day, he knows their personal issues, training issues, so they have skin in the game.”

But experts also point out that the approach provides room for error, subjectivity and for supervisors’ opinion to be clouded by their relationship with the officer.

Frasier said she is concerned that some supervisors may fear their reputation among peers if they are viewed as heavy-handed.

“Sergeants who are out there with their troops don’t want to be viewed as not supportive of officers,” she said. “And the word you hear, when they start holding their officers accountable, is that they don’t back his or her troops.”

Frasier said she also has questioned whether the Austin Police Department has provided supervisors enough training with how to properly evaluate a force incident.

“It makes me wonder if no one has trained you as far as what standard you should be using,” Frasier said.

McIllvain said the department will spend the next few months researching how other departments ensure that an officer’s use of force receives proper evaluation.

He said he is pleased that in the three months the department has added the extra layer of review, no commander has said he disagreed with assessments by another chain-of-command.

“For the most part, I think they are reviewing them properly,” he said.



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