By
Tony Plohetski and
Patrick George
AMERICAN-STATESMAN STAFF
Updated: 11:09 p.m. Saturday, Jan. 7, 2012
Published: 8:32 p.m. Saturday, Jan. 7, 2012
Felisha Wallace remembers when she saw her son for the last time.
Byron Carter Jr. was especially talkative, she said, and upbeat about a pending visit with his infant son.
Two days later, Wallace got a phone call before the sun rose. "It's bad," Wallace remembers hearing. She soon learned that her 20-year-old son had been shot dead by an Austin police officer.
"I can't even explain it," Wallace said through tears. "It's horrible."
Police have said that officer Nathan Wagner, who has received high marks in his four years on the force, fired at a car in which Carter was a passenger after it charged at him and his patrol partner, striking and injuring the other officer.
Whether Wagner was justified in using deadly force has increasingly become a flashpoint of community debate, fueled by news last month that federal officials are looking into the case and with the passage of seven months since Carter's death with little new information about what happened. Such investigations have traditionally taken less than six months.
The shooting is expected to receive heightened attention in the next few weeks as a Travis County grand jury begins reviewing it and Police Chief Art Acevedo decides whether Wagner violated any departmental policies.
Police critics, including leaders of community groups who have often objected to police use of deadly force, point out that Carter was only a passenger in the car — not the driver — and that even if lethal force was necessary, the wrong person died. They also wonder whether Wagner and his partner, officer Jeffrey Rodriguez, had ample reason to initially stop Carter, who has a criminal history that includes evading arrest and drug offenses, and his friend.
"We are watching this case with every eye possible," said Nelson Linder, president of the Austin chapter of the National Association for the Advancement of Colored People.
Acevedo said shortly after Carter's death that the shooting appeared to be within policies and Texas law. In a recent interview, he added, "There is nothing I have seen after a very exhaustive investigation that would cause me to retract any previous statements."
As police critics and others have continued parsing and drawing conclusions about what little evidence is publicly known, the American-Statesman consulted with nearly a dozen policing and law enforcement experts nationally for their opinions.
Several said the case involves what they described as an unusual and dangerous police tactic — shooting at a moving car — and that they easily understand community skepticism. Others said they also can readily conceive of multiple scenarios, including the one police described in Carter's death, in which Wagner rightly used deadly force.
Police have released only a brief description of what happened on May 30: Carter and the teen were walking along East Seventh Street about 11 p.m. when Wagner and Rodriguez, who were looking for car burglars, began following them. Police said they were acting suspiciously but have not explained those suspicions other than to say that Carter and the teen appeared to be "casing out the area."
Carter and his friend then got into a car that raced toward the officers, police said. Officials have said the teenage driver struck Rodriguez and pinned Wagner against a Jeep as the officer began shooting. The officers were not seriously injured.
Wagner shot Carter four times, including once in the head. The teen, whose name has not been released because of his age, was shot in the arm and initially charged with aggravated assault on a peace officer and evading arrest in a motor vehicle.
In September, a Travis County grand jury declined to indict him.
A lawsuit filed by the Carter family contends that Carter and his friend had not committed any crimes when the officers, with guns drawn, approached the car. The suit says officers did not identify themselves and, without warning, fired into a car belonging to the 16-year-old.
Police Monitor Margo Frasier and her seven-member citizens panel reviewed the shooting and submitted their confidential findings to Acevedo in November. Under state law and a contract between the police union and the city, that report will not be released unless Acevedo suspends Wagner for at least a day.
With the grand jury decision looming, the case has become a growing political issue for Travis County District Attorney Rosemary Lehmberg, who is up for re-election this year. "I don't know how the district attorney's office, now after six months, has taken no action on this obviously high-profile set of troubling circumstances," said her opponent, former District Judge Charlie Baird.
Lehmberg said her office presents cases to grand jurors "as quickly as we can" and that the case was behind another involving deadly force by police. She said that it will go before grand jurors this month, and she defended her record, saying that "we present these cases to the grand jury thoroughly, and we give them the law, and then we leave the room and let them vote, just like we do in other cases."
Through interviews with his family and court records, a divided picture emerges of Carter, whom family members describe as a loving son and father but who is also described in court documents as having several run-ins with police.
Sitting in the office of attorney Adam Loewy, who is representing the family, Wallace often fights back tears as she talks about how Carter lived — and how he died.
Born and raised in Austin, Carter went to Andrews Elementary School and Dobie Middle School. He attended LBJ, Travis, Reagan and McCallum high schools, according to school district records.
"He's always been a mother's child," said his father, Byron Carter Sr., who works for the City of Austin's Public Works Department. "When he and I got older, that's when we really bonded." The younger Carter enjoyed going over to his father's house on the weekends to play cards and video games, he said.
The elder Carter and Wallace never married, but they have always been involved in their son's life, they said. Wallace said her son enjoyed going to the library to read and use the Internet, and he loved to play basketball at the gym. But what Carter loved doing most, she said, was spending time with his son, Byron Carter III, who was born last year.
"He was excited he had a baby and couldn't wait until he could walk," Wallace said. Byron Jr. would change diapers, push a stroller and "do the things a father should do," she said.
But Carter also had a criminal history.
In July 2008, he was inside a stolen van that fled from a police officer during a traffic stop, according to an arrest affidavit. After a chase, four occupants jumped out and fled, the affidavit said. One of them was Carter, who was charged with misdemeanor evading arrest. He received probation.
In July 2010, undercover officers in East Austin encountered Carter, who sold them $20 worth of crack cocaine, an arrest affidavit said.
Four officers approached Carter to arrest him after the deal was done, and he ran despite being told to stop, the affidavit said. Carter was caught about 40 yards away and charged with possession and delivery of a controlled substance and evading arrest. He was sentenced to 30 days in jail, court records show.
Carter also had charges of criminal trespass and possession of marijuana, all of which were misdemeanors, court records show.
An autopsy report on Carter's death, released last fall by the Travis County medical examiner's office, said officers found a bag containing crack cocaine at the scene and cash strewn around the floorboard and passenger's seat. Carter tested positive for cocaine and marijuana, the report said.
"People make mistakes growing up," Byron Carter Sr. said. It didn't make his son a bad person or a violent one, he said.
Wagner and Rodriguez were hired in 2007 and graduated in the same cadet class. They worked in the Downtown Area Command, a police sector that runs from Lamar Boulevard to Chicon Street in East Austin. It is one of the busiest areas for officers in the city and is where the majority of incidents of police use of force occur, something officials attribute to a large number of people condensed in that area coupled with high alcohol consumption in the entertainment district.
An extensive review of the two officers' personnel files revealed that both were praised highly by their superiors and got good marks on performance evaluations.
A 2009 memo from Sgt. Scott Ogle said Wagner was a "highly effective" officer while working in the West Campus area who showed initiative during police work.
In his most recent evaluation, covering 2010 and 2011, a supervisor described Wagner as a "very capable officer ... who is an asset to the shift."
The evaluation said Wagner was involved in a "critical incident" on May 31 — presumably the Carter shooting — that led him to be absent without leave for a day in July. "Officer Wagner needed to reach out to me or another who could assist him with his emotional psychological response following this critical incident," the evaluation said.
Rodriguez was praised for his investigative skills in an evaluation covering 2008 and 2009. One evaluator said there was "no finer officer in the Austin Police Department."
Another supervisor, in an evaluation covering 2010 and 2011, praised Rodriguez's sense of humor and said he enjoyed his job. Rodriguez was injured on the job twice, once when he was struck by a car — presumably referring to the night of the shooting — and once in a struggle with a suspect. The evaluation does not elaborate.
"Officer Rodriguez leads the shift in (possession of controlled substance) arrests," a supervisor said in that evaluation. He "has an innate ability to see criminal activity and knows the laws and policies to create a good stop."
Rodriguez received a one-day suspension in July 2010 after his gun accidentally discharged during a foot pursuit. No one was injured.
Sgt. Wayne Vincent, the president of the Austin Police Association, said both officers have good reputations. Rodriguez has returned to regular duty, and Wagner is back at work in a special assignment until the case is resolved.
"They are levelheaded, reasonable officers who have the respect of the people who worked around them," Vincent said.
He said he and other union officials believe the shooting was justified.
"When a police officer is put in a position where he sees his partner injured, there are only two things that can happen: action or inaction," Vincent said. "And inaction isn't an option."
Experts interviewed by the American-Statesman included university professors who have studied or worked in law enforcement and former police chiefs now operating private consulting businesses, advising departments on policies and testifying in court cases arising from use-of-force encounters.
The experts said that fully dissecting Carter's death is difficult without viewing all of the evidence, but they offered opinions about what little information is known.
Several experts had differing perspectives about whether Wagner and Rodriguez had appropriately targeted Carter and his companion, touching off the events that ended with the shooting.
Tim Braaten, former director of the Texas Commission on Law Enforcement Officer Standards and Education and police chief in Victoria, said officers appeared to have been doing their jobs — actively patrolling for criminals.
"You have a responsibility to prevent crime, rather than to just catch criminals," he said. "So when they see something that through their experience and education and training appears to be suspicious, I would expect that they would try to find out what is going on. I don't see anything inappropriate with that. In fact, I would expect it."
David Klinger, an associate professor in the criminology and criminal justice department at the University of Missouri-St. Louis, added, "You do not have to have a reason to arrest someone just to detain them. Police officers are allowed to detain individuals when they have reasonable suspicion that they could be involved in some sort of criminal activity."
However, Sam Walker, a nationally recognized expert on police accountability and emeritus professor of criminal justice at the University of Nebraska at Omaha, said he is concerned about the amount of evidence officers had before trying to stop the men. For instance, he wondered whether they had witnessed them actually committing a crime — such as trying to break into cars — or had seen them with possible burglar tools.
"The beginning of it is problematic, in my mind," Walker said. "Had the police not chased them in the first place, none of the rest of it would have followed."
Once the encounter escalated, whether Wagner was justified in opening fire largely depends on his tactics in the moments before he shot and his mindset when opening fire, according to the experts. Among the questions: Did Wagner or Rodriguez intentionally place himself in the car's path? Could they have gotten out of the way? Did Wagner have a reasonable fear that the car posed an immediate threat?
"You can't just look through a rearview mirror" when assessing an officer's actions, said Geoffrey Alpert, a professor of criminology at the University of South Carolina. One has to consider what he or she was thinking and seeing at the time, Alpert said.
"It all happens in a split second," he said.
Investigators and grand jurors also probably will study the seriousness of Rodriguez's injuries, the experts said. If the car only clipped him, it might not have been enough to justify deadly force, Alpert said. But if Wagner felt his partner was in grave danger, it might, he said.
In many departments nationally, shooting at moving cars is often against policy unless officers face a life-or-death reason to fire. Klinger, a former Los Angeles officer, said that "most police agencies do not look kindly" at the tactic.
Austin police policy states that a firearm should not be used against a moving vehicle unless an officer believes deadly force is necessary to defend his or another person's life.
Austin and Travis County have had a few such instances in recent years.
One of the highest-profile cases happened in August 2009, when agents for the Texas Alcoholic Beverage Commission shot and killed a man who they said tried to run over them in his pickup in an apartment complex parking lot on Wickersham Lane in Southeast Austin. After her review, Lehmberg expressed concerns about the shooting, including whether the agents were acting outside their core mission. Three months later, a grand jury declined to indict them.
Last spring, grand jurors took no action against a Pflugerville police officer who shot and wounded the 16-year-old driver of a stolen SUV during a high-speed chase as the teen raced toward him, the officer said.
Part of the problem in shooting at a moving car is that the driver could swerve out of control and strike pedestrians or other motorists if he or she is wounded or killed, said Richard Lichten, a retired Los Angeles County sheriff's department lieutenant.
"It's so dangerous that it's not very effective," he said. "It's only done under extreme circumstances."
Another issue is that the bullets might not strike the intended victim — the driver — and instead might hit bystanders, they said.
In this case, experts deemed the death of a passenger an obvious concern but added that it might have been an unfortunate result to a justified shooting.
"It is very understandable to me that officers, under great stress, might not shoot as accurately as we might want them to," said Greg Meyer, who helped the Los Angeles Police Department revise its force policies a few years ago.
Walker said, "In an emergency, he missed. It's very unfortunate, but I don't see that as a major legal issue. It's just a mistake."
Carter's parents said their son's death is a tragedy that they grieve over hour by hour, day by day. In coming weeks, they said, they hope to learn more about what happened.
No matter what the police evidence shows, what the investigators conclude or what the experts say, Wallace said she is left with a final thought: "Byron should be alive, right here today."
tplohetski@statesman.com; 445-3605
pgeorge@statesman.com; 445-3548
