"Austin Chronicle" Articles
02-29-08: Olsen Hearing Raises More Questions Than Answers on APD Policy
02-01-08: Point Austin: Union Goons
06-14-07:Unsuspended Judgement - Battle lines already drawn over the police shooting of Kevin Brown
03-23-07 : Point Austin: Cops Save Money
09-21-06: Report: Arrests Up, Use of Force Down
06-29-06 : Blue Spectre - Evil Union Plot at City Hall
06-17-06: Complainants against APA PAC in 2005 throws Stones from a Glass House
06-17-06: Follmer fights back
11-09-05: Sharpening Teeth
07-29-05: Tasers helped reduce use of force, APD report says
07-24-05: Rocha Case: New Drug Evidence Raises Questions About County Lab
02-24-05: Futrell Spares Knee: 'Moving Forward at APD'
02-24-05: The Healing of a Wounded Knee
02-04-05: Still Looking for the Truth at APD
01-20-05: When Is a Lie Not a Lie?

2004 STORIES - ARCHIVES
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02-29-08:
Olsen Hearing Raises More Questions Than Answers on APD Policy

By Jordan Smith

After four days of testimony before the city's Civil Service Commission, it was still unclear last week whether fired Austin Police Department Sgt. Michael Olsen will get his job back – precisely because it is still unclear whether Olsen violated APD policy when he shot and killed 25-year-old Kevin Brown early on the morning of June 3, after a foot chase that began in the parking lot of Chester's Nightclub in East Austin and ended in the courtyard of a neighboring apartment complex.

So far, Olsen's disciplinary appeal hearing before the three-member panel has gone forward much like most other police-employment hearings – with a laserlike illumination of the specific reasons for a particular officer's discipline. With respect to Olsen's indefinite suspension (the civil-service equivalent of termination), APD Chief Art Acevedo, in a Nov. 28 disciplinary memo, pointed to Olsen's "failure to follow his training and his failure to exercise common sense and good judgment" in approaching Brown, who was suspected of illegally carrying a concealed weapon in the Chester's parking lot (a private security guard at the now-defunct club told police he thought Brown might use the gun to "bust back" at another patron). Acevedo further faulted Olsen for pursuing Brown on foot with his partner Officer Ivan Ramos, through the parking lot and a small wooded area, then over a fence and onto the property of Elm Ridge apartments, resulting in "avoidable" deadly force.

But as with other officer discipline cases heard in recent years, the city's handling of these matters suggests a pattern of missing the forest for the trees. By focusing on "winning" cases built on a narrow set of details, the city has failed to elucidate the APD policies at issue, thereby missing the opportunity to clarify a real, identifiable standard by which officer conduct should be judged. In Olsen's case, Assistant City Attorney Michael Cronig has, with impressive precision, homed in on several "tactics" that Olsen employed on June 3, convincingly arguing that those tactics were not actually "sound" police practice.

But whether Olsen's decisions were contrary to department policy is entirely unclear – in large part because there is no policy governing foot pursuits and because police academy training does not directly focus on such issues. Moreover, even if policy and training were in place, there is no evidence that they would be applied consistently across-the-board. Indeed, Ramos employed tactics similar to those used by Olsen that night, yet he was never disciplined nor counseled by supervisors regarding his actions.

According to the city, Olsen made several key tactical errors in approaching and pursuing Brown. First, several witnesses testified, Olsen should have waited for backup officers to arrive before approaching Brown in the club's parking lot, near the intersection of East 12th and Airport Boulevard. Going into a large crowd with just two officers was a bad decision, said APD Assistant Chief Leo Enriquez. After a dispatcher told Olsen that no backup units were immediately available to assist him in stopping and frisking Brown, Olsen should have just waited while keeping "an eye on" the suspect. "Unless [Brown] is waving a gun around," Enriquez said, he posed "no immediate threat." Second, if he wasn't going to wait for backup, Olsen should have formulated a better plan of approach before he and Ramos headed into the crowd; according to Ramos, he wasn't sure which man wearing a red shirt was their suspect. Third, after the chase began, Olsen erred first in following Ramos and Brown behind a storage container in the club's parking lot – a potentially deadly "funnel" where Brown could have potentially trapped the officers and shot them – and then erred again when he split off from Ramos as the chase continued into the apartment complex, where Olsen ran around the opposite side of one apartment building, apparently in an effort to cut off Brown's progress. Here, the city contends, Brown could have turned on Ramos, and Olsen wouldn't have been there to help. (None of the city witnesses could explain why one standard would apply to running through a narrow passage behind a storage container while another would apply to running through a similarly narrow space behind a building.) And fourth, Olsen erred in shooting Brown when he wasn't sure whether Brown was holding a weapon. Internal Affairs investigators determined the evidence "inconclusive" as to whether Olsen breached APD policy on use of force – in part, because Olsen's statements that he believed Brown was reaching for a gun were internally "consistent," as they were with the physical evidence provided by APD ballistics expert Greg Karim. Nonetheless, Enriquez said he believed Olsen had no cause to shoot at all: "When all is said and done," he said, Brown was shot twice in the back when he was "actually ... running away from Olsen, so there was not a threat there to address," other than "a fleeing suspect." (Enriquez said he did not review the physical evidence in the case, because he didn't feel he needed to do so.)

So, did Olsen use poor tactics contrary to his training? That isn't at all clear either. According to Sgt. Jason Mutchler, who was assigned to the training academy for nine years, including the time when Olsen was a cadet, the department has never had any policy or training on foot pursuits. Most of the academy training focuses on traffic pursuits, "because that's where the liability is," Mutchler said. (Cpl. John Coffey, who was also assigned to the academy, testified that the only foot-chase training given to cadets – the so-called "rabbit drill," which taught cadets to pursue a fleeing suspect until he could be caught – was eliminated from the curriculum after a participant was hurt.) Although both Mutchler and Coffey agreed that it might be advantageous to have backup when approaching a suspect in a crowd, Coffey said he's pursued possibly armed suspects by himself on many occasions and was never disciplined for doing so. Coffey said it "certainly isn't ideal" to split from a partner during a chase, but there is no policy or training that teaches officers not to do so. Indeed, Olsen testified that the only real training on foot pursuits comes during an officer's rookie tenure on the street; there, he said, he learned that in a foot chase the goal is to try to surround a suspect "so he has nowhere to go," which is the action he took with Brown. When Olsen and Ramos began their pursuit, Ramos was in the lead – and he did not make sure that Olsen, who'd lost his balance during the initial parking lot scuffle with Brown, was actually up and on his feet. As such, AC Enriquez agreed, Ramos did not demonstrate good judgment or police tactics. The "biggest difference" between Olsen's actions and Ramos' actions, Enriquez opined, "is that Sergeant Olsen took a life."

Ultimately, however, it might be Olsen's own assessment of his actions that decided his fate: During his disciplinary review board hearing in November, Olsen told Acevedo and others in his chain-of-command that after reviewing the case, "I feel even more comfortable with my decisions" that night. Olsen's apparent inability to see how he might have done anything differently is troubling, witnesses said last week, because it suggests that no amount of training or reflection might improve Olsen's performance. "Yes, that would give me concern," Mutchler testified. Supervisors expect officers to "look at past actions and hope that they would ... think about how they could handle [a situation] differently," he said.

Indeed, AC David Carter testified that he believed the fatal shooting could have been averted, and that is ultimately the reason Olsen should not have his job back: "All humans make mistakes," he said, but it "seems to me [this] situation was avoidable."

Acevedo is scheduled to testify today (Thursday), and the commission is slated to rule in the case on Friday, Feb. 29.

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02-03-08:
Point Austin: Union Goons
On unions, the 'Statesman' is bull-goose loony
BY MICHAEL KING

The Chronicle editorial board – an informal, movable feast comprising the news staff, editors, and publisher – is currently knee-deep in our endorsement meetings with candidates for the March 4 primary elections (in this county, essentially exclusively Democratic). We're interviewing candidates, reviewing backgrounds, asking questions, and trying to put ourselves in the shoes of voters (like ourselves) walking up to a voting machine and making hard choices. It's an engaging and informative process, time-consuming but instructive, and an opportunity to address at length with both incumbent and would-be public officials a broad range of issues, ranging from children's health care to land use, public schools to capital punishment, mental-health resources to economic development.

What do we look for? I can't speak for everybody, but certainly near the top of our lists are knowledge, competence, and flexible intelligence. These candidates are applying for difficult jobs, for which they'll need to comprehend a wealth of information quickly in order to address – and balance – a multitude of legitimate but often conflicting public interests. It is hardly sufficient to be obsessed with one or two issues filling the recent headlines. And since we're generally considering various shades of Democrat, declaring fealty to one or another progressive agenda is in itself seldom persuasive. Certainly we try to determine whether a candidate is genuinely committed to democratic values, open government, real equity, and honest justice, but beyond those presumptive standards, we also try to weigh fairly whether he or she is best capable of doing the job well.

I'm thinking about these matters not only because we're in the middle of them, but because those good folks at the Austin American-Statesman editorial board, in their latest hysterical rant against the all-powerful city public-safety unions, have helpfully suggested a whole new procedure. "The power play by Austin's public safety unions to enrich themselves through city council elections," declared the editors ominously, "is distasteful on several levels" ("Austin Unions Line Up Bargaining Chips," Jan. 23). That latest screed was in response to the recent joint endorsements of City Council candidates issued by the police, firefighter, and EMS union political action committees – which the Statesman wants us to believe were directly exchanged for promises of cash. "As a reward for the endorsements," the editors – how can I put this? – lied, "past city councils have made Austin police the highest paid in Texas and among the highest paid in the United States."

Should we surmise that these high-minded geniuses presume that other people exchange endorsements for cash or other favors, because that must be ho w they handle their own affairs?
Listen and Decide

At the Chronicle, we're still weeks away from municipal election endorsements, so the unions are way ahead of us. Hoping to learn more about this latest trend in fundraising, I spoke to union leaders about their endorsement process. As you might guess, their firsthand version directly contradicts the Statesman slanders.

"I've been doing this for 12 years," said Austin Police Association Vice President Wuthipong Tantaksinanukij (known universally as "Tank"), "and that has never come up, ever. I give the same opening speech every year – we're not looking for a yes-person or somebody who votes with us all the time. We're looking for someone who will have an open-door policy on the issues that concern us, someone who is capable of making informed decisions, especially about public safety. And not only public safety – we're interested in parks and streets, in economic development, in everything that makes Austin a great city."

Stephen Truesdell, president of the Aus­tin Firefighters Association, reiterated that pay issues "weren't discussed at all" with the candidates and that most of the discussion (to which general membership was invited) concerned "public safety and working conditions," especially matters like expanding fire protection for Downtown high-rises. "We want someone who's going to listen and who will make informed decisions," Truesdell said. It's certainly no secret that all three organizations are concerned about staffing levels for a growing city – a concern shared by literally everyone at City Hall and all interested observers. But to the Statesman, there's inherently something sinister about union members trying to figure out how we're going to protect a fast-expanding city – because it's going to cost real money.

Steve Stewart represents the EMS union, smallest of the three, but also with responsibility for both city and county. He says they talked to candidates about how to improve city-county emergency management, as well as overall emergency response times, and they ended up endorsing those candidates who they believe have the most specific proposals to help do those things. "We're not in the same position as cops and firefighters," said Stewart, a bit wryly. "But we've never really asked for money. We've asked for the tools to do our jobs."

All three men shrugged off the States­man's cheap shots, but they still stung. "It's just more of the same," said Trues­dell. "They seem to believe we shouldn't be able to exercise our rights."
The Gods Must Be Crazy

Alas, the union reps were no help to me in learning how to turn the Chronicle endorsement process into ready cash. No doubt, like all of us, they have their own best interests in mind; but in making their endorsements, it sounds like they pretty much proceed like most citizens, trying to determine who are the best candidates for the job at hand. (The three reps were each frankly surprised that they were able to issue a joint endorsement on all candidates; they entered the process presuming they would differ on some.)

It's no news to Chronicle readers that governing the city is a complicated, demand-heavy, resource-short, interest-balancing proposition and that we're entering another economically perilous period in a city already stretched for funding – there are going to be hard arguments about every last dime. Public safety needs indeed must be balanced against every other myriad public need. But reflexively blasting the unions as money-grubbing blackmailers is, to put it prissily, "distasteful on several levels."

Of course, unlike the Statesman editors, who make their weighty decisions from the objective realms of Mount Cox Olympus, the rest of us just do the best we can.

06-14-07:
Unsuspended Judgments
Battle lines already drawn over the police shooting of Kevin Brown
BY JORDAN SMITH

At a press conference last week outside the Austin NAACP offices, the family of Kevin Brown, shot and killed by Austin Police Department Sgt. Michael Olsen after a scuffle and chase outside a nightclub June 3, implored the media to remember that Brown had been a good boy. He was 25 years old, the father of a 5-year-old, well-liked by many, enjoyed sports and video games, and was an active member of the Mount Zion Baptist Church. He had a modest criminal record – including a pot possession charge and a felony assault charge (in connection with a botched pot deal) – but that didn't mean he wasn't a kind person, Austin National Association for the Advancement of Colored People President Nelson Linder and members of Brown's family said, and it certainly didn't mean he deserved to be shot in the back.

All this is true.

Also true is that Olsen, a 12-year APD veteran, has enjoyed a reputation within and outside the department as a thoughtful, articulate man. Olsen is a father, active in his church, and admired for spending his vacation time doing missionary work in Africa. Olsen too has had his run-ins with the law – including (most infamously) a 60-day suspension connected with the 2002 arrest of Jeffrey Thornton on East Sixth Street. But, in the same way that Brown's record doesn't necessarily mean he was a bad person – a thug, up to no good, dangerous, or, ultimately, a violent, deadly threat – Olsen's record doesn't necessarily mean that he's a bad cop, racist, ill-trained, or a hothead who should have been dumped from the force long ago.

Brown and Olsen might both be great, wonderful people. Or, they might both be complete screwups. Most likely, the truth about their characters lies somewhere in between – and right now that truth is irrelevant. What is relevant to our community understanding – and still largely unknown – is the truth of what happened just after 4am on June 3, in the parking lot behind Chester's Nightclub and in the space between the parking lot and the courtyard of a nearby apartment complex where Brown died, from two gunshots in his back. What is likely even more relevant, and much harder to determine, is the truth of why all this happened.

Officer Michael Olsen is known for using his vacation time for missionary work.

Officially, details of the shooting have thus far been sparse but consistent: Olsen was working overtime on a directed neighborhood detail with at least one other officer, Ivan Ramos, near Chester's on East 12th near Airport Boulevard, when he was approached by a club employee, who was worried that a man in a red shirt, Brown, was carrying a handgun. Brown was standing among a crowd in the club's parking lot when Olsen and Ramos approached. In a briefing last week, APD Assistant Chief David Carter said a "struggle ensued" when Olsen attempted to question Brown and that Brown fled, scaled a fence, and took off running through a neighboring apartment complex. (The very brief struggle, during which Brown slapped Olsen's hand away from his shirt and ran, was recorded on an amateur video broadcast repeatedly on TV news and posted online.) The officers followed – Olsen ran around the fence, trying to head Brown off, said attorney Tom Stribling, a union lawyer who represented Olsen in the first hours after the shooting. By the time Olsen made it into the complex, he was ahead of Brown, Stribling explained, and Brown was still running, toward Olsen. Olsen saw Brown fidgeting as he ran, reaching repeatedly toward his waistband, where, Olsen had been told, it appeared that Brown had stashed a handgun. Olsen repeatedly yelled for Brown to "show his hands," Stribling said. Brown slowed his pace but did not stop running. Olsen again yelled for Brown to raise his hands; he didn't, and Olsen fired several rounds, killing Brown.

Initially, officials asked Travis Co. Medical Examiner David Dolinak to withhold the preliminary findings of Brown's autopsy, reasoning that it would help maintain the integrity of the criminal inquiry, to ensure that the recollections of any witnesses remained untainted by outside information. But the decision angered some, including the NAACP's Linder, who charged the decision was likely nefarious, giving the police a chance to shore up a fabricated story about the shooting. Notably, the official story hadn't changed by the time Dolinak released a brief summary on June 7, reporting that Brown was shot twice in the back.

The location of the shots has fueled rumors, accusations, and speculations that now dominate public discussion about the shooting – suggesting it's impossible to view Olsen's actions as justified. That might or might not be the case – there's still no information regarding the angle or trajectory of the shots, which means there's no way to determine exactly what Brown was doing when he was shot. Perhaps Brown turned as Olsen fired, for example. Or, maybe Olsen panicked; maybe he thought he saw something that wasn't there. At this point, there's no way to tell – and there are no facts to suggest that the official story is a lie, nor is there enough detail available to determine whether the shooting was justified.

The official request of city leaders – including APD acting Chief Cathy Ellison and Assistant City Manager Mike McDonald – is that the community allow the investigation to run its course and that people withhold speculation and judgment until the criminal investigation is complete. As the investigation entered its first day, it appeared that maybe – just maybe – this would happen: that APD officials would approach the public with straightforward transparency. So too, it appeared that community members – particularly, in this case, the NAACP, the Texas Civil Rights Project, and the media (most importantly the Austin American-Statesman, but also local TV) – would not only welcome this approach (if not embrace it whole) but would also follow course. Immediately following the shooting, Austin Police Association President Jim Beck took the unprecedented step of calling Linder directly, with news of the shooting – a step that the daily praised on its editorial page.

This is not to say that the police department or the officers involved in Brown's death would not, or should not, be held accountable, their actions scrutinized and judged. But for a brief moment, it looked like this time the shooting might not be plagued by knee-jerk assumptions: that the police are completely incapable of conducting an investigation of their own – that their only interest would be in covering for Olsen and Ramos, regardless of what eyewitnesses or the evidence tells them; or, conversely, that Brown was alone responsible for his own death – that cops risk their lives every day to protect others and that if Brown weren't guilty of something, he never would have run.

The Real Problem

The facts still aren't in, but the hope that things might be different has all but disappeared. Controversy and conflicting accounts of the shooting continue to dominate the public discourse. On June 8, the daily reported that a witness, Jason Johnson, saw Olsen begin firing almost immediately, right after Brown jumped the fence and before Brown made it onto the apartment complex grounds. For whatever reason, it wasn't until the following morning that the daily published police reaction to the account, reporting that APD homicide investigators in fact had found no evidence to support Johnson's assertion. The evidence "will show that all shots were fired from the same area," Lt. Pete Morin told the paper.

Unfortunately, Chief Ellison inadvertently added fuel to the fire on Thursday, June 7, when she told reporters that, at least on its face, the fact that Brown was shot in the back suggests Olsen might have violated the department's use-of-force policy, which bans the shooting of a fleeing suspect – unless that person "poses a threat of death or serious physical harm to either the officer or another."

Ellison's comments prompted Beck to issue the union's first public comment on the incident, saying that Ellison was out of line to make such statements before an administrative inquiry had even begun. Whether Olsen violated any specific department policy will not be vetted until the criminal inquiry is complete and a grand jury has decided whether Olsen will face any criminal charges. "It is premature to release such an opinion," Beck said. "We call upon the leaders of our community and now our acting chief to not rush judgment when we only know part of the facts." Ellison responded quickly, sending out a department-wide e-mail explaining that reporters had used only a portion of her comments. In all, she said, while "it may appear that the shooting doesn't look consistent" with the use-of-force policy, it is important to "wait for more details before drawing any conclusion."

As mourners gathered for Brown's funeral Friday morning, additional, disturbing details of the shooting were offered by another witness, Antoine Thompson, during a press conference called by TCRP Director Jim Harrington. According to Thompson, he was sitting with his girlfriend in the bedroom of her apartment just after 4am when he heard gunshots. "I was like, these gunshots are too close," he recalled, and he jumped up to look out the window, which looks directly into the complex courtyard. Below, he said, in the scene illuminated by a police flashlight, he saw Brown lying face down with his shirt hiked up to his armpits, an officer sitting astride his buttocks, fastening him into a set of handcuffs. Thompson said he could hear Brown repeating a single phrase: "I don't want to die."

Thompson said Brown's words – more mournful than pleading – shook him. "I panicked, thinking, maybe I could help, bring them some towels or something." Thompson said he rushed out of the apartment door, but before he could offer to lend a hand, he was jumped by several officers, who pushed him to the ground hard enough to knock out a dental bridge. He was quickly arrested – for "interfering with the duties of a public servant" – and taken to jail (where he says he was roughed up again by sheriff's deputies) but released just hours later. When he returned to the apartment complex that afternoon, police were still there. At no point did police record Thompson's witness statement, Harrington said – and as of June 8, he noted, there was no official record of Thompson's arrest. The odd case of Thompson's encounter, Harrington said, again calls into question the integrity of the process. "This is part of the problem with transparency," he said. "[It] seems like they just wanted to get him away from the scene." Police spokeswoman Toni Chovanetz confirmed only that police "did take an individual into custody" at the scene, and that person was later released.

By now, what seems clear is that the idea that the criminal inquiry might be allowed to conclude without battle lines being drawn is wishful thinking. There are plenty of reasons members of the community – and, particularly, members of the black community – might not trust the cops. In each of the last four officer-involved shootings, for example, the victim was black or brown, and the cop shooter was white. That is a completely relevant fact, but its specific meaning isn't so easy to pin down. "It's déjã vu all over again," said Eastside activist the Rev. Sterling Lands. "The reality is that I'm just sick of black men getting killed." Still, Lands said, the real question is how do we keep this from happening again? What is the real problem – do we know or want to find out? "We don't like to use the word 'racism,' but the reality is that [racism] is entrenched in every system," he said. "It is an issue that can be solved. ... But you have to want to solve it."

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03-23-07:
Point Austin: Cops Cost Money
We've been plugging the dike with overtime, and the cracks are showing
BY MICHAEL KING

It's early, but those dull booms you hear in the distance are the first salvos in this year's city budget wars. Not surprisingly, it's the police budget raising the early ruckus – and even less surprisingly, it's the Statesman sounding the alarm. Last month, the daily reported that the Austin Police Department was on a pace to exceed its overtime budget for the year. "Police department spend [sic] 37% of overtime budget in 4 months," read the Feb. 24 headline on Tony Plohetski's story, which helpfully anticipated 10% in excess overtime spending if the rest of the year proceeds "at its current pace." The story did note that the first four months of the fiscal year included January's massive ice storm – an emergency expense not necessarily anticipated in August.

Like most such budget numbers, much depends on who's counting and how. The Statesman has been on an overtime drumbeat since last year, when it suddenly discovered that 70% of the general fund was going to public safety (primarily police and fire departments). Was this a consequence of City Council policy, of city budgeting decisions, or even of the relative reluctance of supposedly liberal Austin to spend money on matters other than cops and firefighters? Hardly: "The uncommonly high public-safety increases during the past five years," deduced the editors last July, "are driven by police and firefighter unions that view the city budget as a candy store" ("Overtime expenses breaking the city bank," July 13, 2006). Apparently, until about 2001, cops and firefighters were an abstemious lot; then for mysterious reasons (those nefarious union goons, I guess) they suddenly got greedy.

In fact, the strain on APD's overtime budget has several threads. In the first place, the recession that followed 9/11 cut hard across the board, and among the austerities imposed at the time was to cut back on hiring, including new officers. But the declared policy goal remained "2.0 officers per thousand" city residents, and simultaneously the city adopted a minimum staffing policy of 80% per shift – that is, if an APD unit dropped below 80% of personnel on a given day (because of vacations, illnesses, or other absences), supervisors had the authority to call in officers on overtime to make up the difference.
Shuffling the Numbers

Not surprisingly, overtime expenses rose, although the expectation has been that new cadet classes would steadily lessen the necessity, and the city cut the anticipated overtime budget for this year by roughly 25%, to $7.1 million – the estimated figure we're now "exceeding." But the department remains about 80 officers short of current capacity (that ever-receding 2.0 per thousand), at least until July, when the latest cadet class graduates – so we can expect at least one more exposé of the overtime "candy store" before budget deliberations resume.

Asked about these numbers, Assistant City Manager Mike McDonald acknowledged that APD's current overtime expenditures are running higher than expected ("about 12 percent above budget"), but he was quick to note that APD spending as a whole is only about 2% above budget. "Overtime is not just an island by itself; overtime is only about 3.6 percent of the entire $197 million APD budget," McDonald said. "So our overall budget is tracking pretty good." He said the department has thus far been able to cover the expense from elsewhere and that he's meeting with all the public-safety administrators "so we can deal with this proactively." He's also anticipating some relief when the current cadet class graduates, to be followed immediately by another class, and says the city's goal is to reach full capacity again some time next year.

McDonald says the staffing strain shows mostly on "second priority" calls – not of crimes in progress but those reported after the fact. "This entire city was stretched thin" during the recession, he noted, but "public safety remains a priority, and we do whatever we need to do to hold that harmless."
Pay Now or Later

The discussion will hardly end there – in response to Plohetski's piece, Council Member Mike Martinez circulated an e-mail commentary, noting that he had raised some of these questions last year during APD budget presentations and that he's still not happy with the answers. In sum, Martinez believes the city lowballed the overtime estimates – "in part, as a response to the Statesman's [July] editorial" – and is now scrambling to make up the difference. "You can't have your cake and eat it too," wrote Martinez. "You can't pat yourself on the back when it's time for recognition and then try to present a budget that is unrealistic during budget season."

Martinez told me that while it's too early to determine how the budget may need to be adjusted, he wants to "start the conversation" now. "Public safety is expensive," he said, and while he supports the 2.0 per thousand goal and the 80% minimum staffing, "we need to be honest about how much that costs." "If we're going to make a commitment to that level of staffing," he concluded, "we need to put a plan forward that gets us to that level." He said he asked for that plan last year – when he saw what he considered to be the unrealistic projection for this year's overtime costs – and that he's yet to receive a satisfactory answer. "At that time we had about 60 vacancies," he said. "Now we've got about 80. ... I believe there's already been a cost of civility and safety, and even fatalities, on our roads. Those are extremely tangible effects."

While it's not at all clear that "X" number of officers equals "Y" amount of safety (that magical "2.0 per thousand" is a discussion for another day), the current policy of plugging the dike with overtime is both expensive and of diminishing returns – better more cops working straight shifts than tired cops working time-and-a-half. "We have to address the vacancy problem," said Austin Police Association President Jim Beck, "because every one of those jobs has a full-time responsibility, right now going unfilled."

Either way – overtime or straight time – it's going to cost us.

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09-21-06:
Report: Arrests Up, Use of Force Down
BY JORDAN SMITH

While there was an overall increase in arrests made by Austin Police in 2005 – up 6.7% over 2004 – the overall rate of police use of force declined by 4.5%, according to a report compiled last month by the APD. While police use of force increased against both whites and blacks (10.6% and 10.8%, respectively), the rate of force used against suspects per 1,000 arrests declined 4.3% for whites, while it increased 6.8% for blacks. (Overall, the arrest of white suspects increased 15.5%, while the number of arrests of blacks increased just 3.7%.) In contrast, the incidence of police use of force against Latino suspects declined 9%, as did the rate per 1,000 arrests.

According to the report, the increased use of force rate against blacks was driven by a "significant increase in the number of black subjects that used aggressive actions requiring force." Nonetheless, the report notes that, overall, "fewer black subjects were injured" as a result of police force. Nelson Linder, president of the Austin chapter of the NAACP, thinks that's nothing more than a rationalization. Nationally, he said, there is no data to back up an assertion that blacks are more combative with police. While Linder says he's "thankful [for the] overall reduction in force," he still finds the increased incidence of use of force against blacks – and the city's apparent explanation for the increase – "very problematic." (Linder says he is working on crunching the numbers for himself and that he finds it interesting that the Northeast Area Command saw such a significant reduction in use of force – from 114 reports in 2004 to 91 in 2005, a 20.2% drop. "I think that is something the department should explain – why such a large decrease there," he said, and not in other sectors of the city? APD spokesman Kevin Buchman says APD isn't sure what's behind the NEAC decrease but is in the process of "studying" the data.)

The department also reports that police use of Taser weapons has decreased nearly 36%, while officers reported a similar increase (31.3%) in the use of so-called soft-hand control techniques – including "escort holds" and pressure-point manipulation.

Still, as in years past, in 2005 officers working the Downtown Area Command, which includes the Sixth Street entertainment district, filed the most police use of force reports, 37.1%. Also unsurprisingly, and in keeping with past data, most incidents take place on the weekend (52%) and between 10pm and 3am (57.1%).

Overall, the numbers are encouraging, says Mike Sheffield, president of the Austin Police Association. "We have a city where [police] make well over 1 million [citizen] contacts per year," Sheffield said. "We notice that minorities have a disproportionate representation in arrest statistics, and people may assume that race is the issue, but it's not; it's poverty, and poverty generally equates to an increase in crime." Social factors – "lack of educational opportunity and lack of adequate health care" – are the real culprits, he says, "and it has not a lot to do" with race. "If we look at the overall context, we're doing a lot better job arresting more people and using less force than ever," he said. "To me, that's the crux of the story."
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06-29-06:
Blue Spectre
Evil union plot at City Hall
BY MICHAEL KING

A spectre is haunting Austin.
It's not exactly the red spectre of Communism that once haunted Europe. It's a deep-blue apparition known as the Austin Police Association, and it's only haunting the Bat Cave on Town Lake, headquarters of the Austin American-Statesman. This week the pith-helmeted defenders of editorial earnestness delivered three alarming screeds on the awesome municipal power of the APA.

First they warned that a City Council proposal to do a feasibility study of merging three small police agencies (park police, airport police, and municipal court marshals) into the APD would bankrupt the city and, worse, constitute "aggrandizing the power of the unions at the expense of taxpayers" ("Council member's plan handcuffs the city to help police union," June 22). Then followed Sunday's encomium to Dallas Police Chief David Kunkle ("Dallas' police chief has the power that Austin's sorely lacks," June 25) for having fired a dozen officers. Since Dallas officers have no effective union, Kunkle doesn't worry about being "second-guessed by outside labor arbitrators" (as required by APD's appeal process).

Finally ("If it's bad for Vermont, is it bad for Austin?" June 27), the Deep Thinkers considered the Supreme Court's striking down Vermont's campaign-finance limits, and saw again the blue shadow, arguing that Austin's low personal-contribution limits (now $300) produce "a multiplier effect ... for the political influence of the Austin Police Association" (apparently, the downtown real estate lobby and other business groups, where the real money is, don't know how to multiply).

By this weekend, I'm expecting the Statesman editors to discover that the APA is responsible for the latest Texas heat wave.

Don't Even Think About It
It's a toss-up which of these meditations is the looniest. Idealizing the Dallas PD, where a grotesquely politicized administration, racial polarization, and outright corruption are endemic, is a reach – that they can fire officers more easily there hardly seems to merit celebration. The Supreme Court's refusal to distinguish money from speech – a distinction most children demanding an ice cream cone can manage – is lamentable, but to lay that egg at the feet of the APA requires a real leap. The prize should go to Thursday's thumb-sucker, where a request to study the feasibility of police consolidation was treated as a done deal and a union-sponsored attempt to rob the taxpayers. A merger "would expand the clout of the already powerful Austin Police Association union," the editors thundered, "and it would drive up the ballooning cost of the public safety budget."

I have no position on police consolidation, although it seems odd that roughly 110 local officers who perform essentially the same functions as more than 1,400 APD officers are recruited, trained, and managed separately, and paid far less than their APD counterparts. It would seem that merging the departments would increase some costs while lowering others – setting aside administrative, organizational, and liability advantages. Let's see what the study says.

Council Member Lee Leffingwell (singled out for abuse), who with Mayor Will Wynn proposed the study, says he's also waiting for the study. He told me, "Potentially, it has a lot of benefits, like you could have uniform command and control ... efficiencies in administrative support, and command structure ... uniform training, consolidated training facilities ... You can think of all these things that might be advantages. I do know there's a pay differential, and it's significant, too. ... So we just asked for a feasibility study, to try to work all these factors into some equation [and] maybe try to make a rational decision about what we want to do, if anything."

Who's in Charge?
Seems reasonable enough – research the issue and decide what to do. To the Statesman, the study is an attempt by Leffingwell (curiously, Wynn gets a pass) to "represent a union instead of the taxpayers." Taking a shot at former firefighters union president Mike Martinez, the paper strains to reiterate its chorus that the all-powerful unions are dictating policy. Setting aside the budgetary sanctimony, this is one more riff in the Statesman's ongoing drum solo against unions. Yet based on their complaints, the editors aren't against consolidation at all. They'd just prefer that the APD merge into the park police, that civil service be abolished, and that every officer get busted down to low-paid, at-will employees. (That's how they do things at Cox Communications.)

Said Leffingwell, "It's no secret that I was a union member. I was a member of the Airline Pilots Association for over 31 years. But this really has nothing to do with unions. This is something I would be looking at if there were no union, there were no civil service, if we were just talking about city employees. It has to do with a basic fairness issue, and efficiencies, and uniformity that we can have, and possibly even some public safety benefits." He added that his "primarily responsibility is to the taxpayers of Austin, and not to any special group, regardless of who it might be – whether it's some union group, or somebody else, some newspaper group, even."

Martinez said he has grown accustomed to the Statesman's anti-union posturing. "This 'progressive-minded' town is not nearly as progressive as they like to think they are when it comes to unionism." He said the daily wants the city to control costs without planning how. "We are under somewhat of a mandate by the Statesman," Martinez said, "to try to find ways to reduce the cost of public safety while not reducing the level of service. How are we supposed to do that if we don't conduct things like a feasibility study, and [know] whether or not we can reduce our expenditures in public safety by some consolidating and elimination of dual roles?"

There is even a more curious backstory to this otherwise unremarkable proposal. On Wednesday morning, I learned that in fact the city staff has already conducted an assessment of the smaller police forces – commissioned by Assistant City Manager Rudy Garza last fall and submitted in late March by APD Assistant Chief Rick Coy.

Yet the study wasn't brought up during the June 22 council meeting, and the council was completely in the dark. Didn't it seem worth a mention? Asked about the omission, Garza described the report as a preliminary review for the benefit of three smaller agencies, initially merged last fall. "This is something we will use for information," Garza said, in compiling the feasibility study.

The merger of Austin police forces is not the most burning city issue. On the list of things like budgets and bonds and zoning, police consolidation lies somewhere in the great gray middle. But so far as I can tell on preliminary review, the Coy Report shows no evidence of actually being a sinister attempt by the Blue Spectre of APA to assume complete control of city government. Unless, of course, like everybody else at City Hall, Toby Futrell is now taking orders directly from APA President Mike Sheffield.

The Statesman needs to get on that story, right away
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06-17-06:
Complainants against APA PAC in 2005 throws Stones from a Glass House

Libertarian Ganders Goosed by Aleshire - 216 Times
BY AMY SMITH
Over the last few city election cycles, Libertarian activists Wes Benedict and Arthur DiBianca have made minor careers as political gadflies by churning out campaign-finance complaints against opposing candidates and organizations of all stripes. So last week, when Benedict and his
Libertarian Party of Texas got a taste of what they dish out every election season, even he had to laugh. "I'm sure your readers will enjoy the irony of the situation I'm in as much as I have," the LPT executive director and ex-City Council candidate said of the complaint brought by former Travis County Judge (and political gadfly emeritus) Bill Aleshire.

The Texas Ethics Commission has agreed (perhaps a little gleefully) to investigate Aleshire's allegations and has set a mid-July deadline for Benedict, as well as LPT treasurer Geoffrey Neale of Austin, and past treasurer Anthony Garcia of Houston, to respond to the charges.

"Gander sauce," Aleshire said with a chuckle. "What's good for the goose is good for the gander. They were taking delight, even advertising on their Web site and in their newsletter, about everybody they were attacking under the campaign-finance law, and they didn't have the decency to admit they were in violation themselves." Aleshire, now an attorney in private practice, credited some unnamed sources with piquing his interest in the organization's financial records on file at the Ethics Commission. After poring over reams of the LPT's handiwork, Aleshire drew up a list of about 216 things he found wrong with the group's reports from August 2004 through February 2006.

Aleshire's 52-page complaint alleges many of the same types of infractions that Benedict and company have accused others of committing. "I admit and understand that campaign finance laws are tricky, but that's not my point," Aleshire said. "I think they've got more persistent violations than what they've pointed out [in other complaints]." Aleshire notes, for example, that the LPT in 2004 accepted a $25,000 loan and hired Benedict before the organization appointed its campaign treasurer, as state law requires. The complaint also suggests that more than half of the $80,878 the group has received in contributions since 2004 has gone into Benedict's pockets, in excess of his reported monthly salary of $1,670, plus 20% commission on party revenues. "There's something funky going on there," Aleshire said.

Benedict, for his part, denies there's any funky business in play, explaining that much of the money he received covered reimbursements for out-of-pocket expenses he made on such items as office supplies or postage. He also allowed that LPT has had a run of bad luck with treasurers since the state party hung out its shingle almost two years ago. "Obviously there were challenges if the LPT is on its fourth treasurer," Benedict said, adding that he's confident in the current treasurer's ability to get the job done properly. While declining to comment further on specific allegations outlined in the complaint, Benedict went on to explain that the reason he files so many ethics complaints "is to demonstrate that almost nobody follows all of the rules, because they are so complicated," he said. "I have never claimed that Libertarians are better at filling out campaign-finance forms than others."

In any event, Benedict and his research partner DiBianca are not likely to let one complaint against the LPT - albeit for 216 alleged infractions - disrupt their filing streak. Last week, the Ethics Commission agreed to accept DiBianca's complaint against Advanced Micro Devices, for failing to identify the names of "employees and consultants" the company paid $10,000 to help defeat Props. 1 and 2 in the May city election. And two days before Aleshire filed a complaint against the LPT, Benedict decided to take on the influential political action committees of the Building Owners and Managers Association of Austin and the Austin Apartment Association.

Read the complaint here

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11-17-06:
Follmer Fights Back
BY JORDAN SMITH

Although former rookie Officer Joel Follmer was an "at will" employee of the city of Austin, and as such not officially covered by civil service law when he was terminated earlier this month by Acting Police Chief Cathy Ellison, he nonetheless is barred from seeking reinstatement via policies that protect "regular" city employees, city Human Resources Director Cathy Rodgers opined on June 12. In other words, says Follmer's attorney Tom Stribling, it appears that being a probationary public safety employee in Austin - either a rookie cop or firefighter - means being an employee of no-man's land, working toward the promise of civil service protection, but without any interim employment protection. "The point is that [the city] just [doesn't] want to give rookie police officers and firefighters who've worked for the city at least six months, but are still on probation, any route for an appeal," Stribling said. "Not even the route that other city employees have."

Ellison fired Follmer on June 2 for using excessive force last fall while arresting 25-year-old Ramon Hernandez. Although Follmer was one of three officers involved in the arrest, he was the only officer fired in connection with the incident. An APD in-car video camera recorded a portion of the arrest; the video depicts Officer Christopher Gray, Follmer, and former Officer William Heilman pinning a handcuffed and sometimes-squirming Hernandez face-down on the ground. During the struggle, Gray is seen delivering numerous blows to Hernandez's lower back/kidney area, while Heilman keeps Hernandez's torso and head planted in the dirt and Follmer keeps Hernandez's legs pinned while intermittently delivering several seemingly light blows to his legs. The three officers were indicted by a Travis Co. grand jury last winter on a charge of official oppression for their actions while arresting Hernandez, who'd fled from the scene of a traffic accident. Gray and Heilman (who resigned from the department shortly after the Hernandez arrest) were both tried and acquitted in Travis Co. district court, and prosecutors later dropped the criminal charge on Follmer; in April, former APD Chief Stan Knee handed Gray a 70-day suspension for using excessive force during the arrest and for "acts bringing discredit" to the department. Officially, Follmer was let go for failing to "meet the standards expected of a probationary police officer," Ellison wrote in a one-paragraph termination letter. "Since you are a probationary officer, my decision is final and not subject to the appeal process" outlined in civil service law. Since Follmer was only several months out of the academy, and was still facing a year on probationary status, and thus not protected by civil service law - meaning he is barred from pursuing reinstatement through arbitration - Ellison was not required to pen a disciplinary letter containing the detailed reasons for Follmer's termination

Nonetheless, Stribling says Follmer's termination seems to hinge on what Ellison sees as "inconsistencies" in the statements Follmer gave to Internal Affairs detectives and to investigators in the department's Integrity Crimes Unit, which reviews allegations of criminal misconduct by police and other public officials. Stribling says that during Follmer's disciplinary review-board hearing, Ellison focused on a single answer Follmer gave to IA detectives as evidence that Follmer offered inconsistent explanations as to why he hit Hernandez. According to Stribling, Follmer told both IA and ICU officers that he hit Hernandez because he continued to struggle with the officers. Late in the questioning, however, Follmer told IA - in response to a direct question - that he might not have struck Hernandez if Gray, who was Follmer's field training officer and thus responsible for evaluating Follmer's performance during part of his probationary period, hadn't first struck the handcuffed man. Stribling says it was that answer that Ellison used as the basis to complain that Follmer was inconsistent.

That makes little - if any - sense to Stribling. Follmer repeatedly tried to explain that Gray's presence and actions weren't his primary reason for
striking Hernandez and that he had merely answered honestly a question put to him, Stribling said. Nonetheless, Stribling recalled that Ellison kept saying that given the inconsistent statements she didn't know how the department would be able to trust his reasoning in the future. With that,
she dismissed his employment - a move that is, at best, ironic, said Stribling, considering that Gray, who punched Hernandez repeatedly - a show of force that Chief Knee deemed excessive and outside policy - and who was supposedly acting as Follmer's seasoned mentor, was allowed to keep his job.

To some officers, Ellison's decision isn't exactly a harbinger of an even-handed disciplinarian - instead, the new sitting chief's first punitive decision looks more like an arbitrary smackdown, they say. Stribling tends to agree - Follmer was allowed to return to the street for several months after the incident but before he was indicted late last year, a move that appears to belie Ellison's assertion that Follmer is not to be trusted. "I'm sitting there [in Follmer's DRB hearing], thinking, 'If you're being intellectually dishonest [with your reasoning], well, okay; but if you're really that stupid [as to believe Follmer's answers were "inconsistent"] then that's scary.'"

Stribling filed an official notice of Follmer's appeal with Human Resources' Rodgers on June 7, seeking review by a hearing examiner who would be tasked with reviewing the case and then recommending to City Manager Toby Futrell whether Follmer's termination should be upheld or whether a lesser punishment would be warranted; Futrell would have the final say. As it stands, however, Rodgers has - at least for now - quashed Follmer's request, thus upholding his firing. At press time, Stribling said he was reviewing city policy and exploring the possibility of other avenues for appeal.
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11:09:05:
Sharpening Teeth
Remedial dentistry in order for Police Monitor
BY MICHAEL KING
"People come to us thinking we're a Supreme Court, and that we'll hear their complaint and take action. They're very disappointed to discover that's not within our authority. … The panel needs more enforcement power." – Roy Butler, Citizens Review Panel
photo by John Anderson

The Oct. 31 public hearing of the Citizens Review Panel of the Office of the Police Monitor was devoted primarily to the Daniel Rocha case – a police shooting death termed, in OPM parlance, a "critical incident." (See last week's "Point Austin.") But nearly an equal amount of discussion focused on the CRP and the OPM itself, how it might, in the words of retiring CRP chair and former mayor Roy Butler, "get some teeth." As things stand now, the monitor's office can hear citizen complaints, has access to the APD's Internal Affairs investigative files, and follows the departmental investigations to their conclusions. But the group can only issue "recommendations" to APD Chief Stan Knee, he is not bound by those recommendations, and the recommendations themselves become public only should the department issue some form of discipline to the officer involved (as has in fact occurred in the most high-profile cases of recent years).

These limitations were the subject of much lament in the public hearing (mostly off the dais, with the exception of Butler), the immediate and naive implication being that if only the OPM weren't handcuffed, harsh justice against offending officers would be swift and terrible. Butler himself is not nearly so absolute, saying he believes the current system is useful but that he is "frustrated" by the sense that people come to the panel in hope of specific recourse, only to be dismayed by the body's lack of official power. "People come to us thinking we're a Supreme Court," Butler told me, "and that we'll hear their complaint and take action. They're very disappointed to discover that's not within our authority. ... The panel needs more enforcement power."

Butler quickly adds that under state civil service law, the overall ability of officials to discipline police is quite circumscribed. "Not even the police chief can give more than a 15-day suspension without the agreement of the officer," he said. Beyond that, the matter often goes to an independent arbitration where, says Butler, many of the officers are reinstated after a hearing. Under those circumstances, he acknowledged, "I don't know that there's much more we can do. But people, when they come to us, they believe they're going to get some relief."

Knowledge Is Power
APD's critics point to Mike Sheffield, president of the Austin Police Association, as the main obstacle to stronger police oversight, because the current meet-and-confer contract with the APA (which runs to October 2008) sets the limits of the OPM, as specific exemptions to state civil service law. Butler says the union ought to "put up a statue" to Sheffield, because "he simply out-traded the city at negotiations." Sheffield himself, who with the panel took his share of public abuse at the Rocha hearing, is skeptical that the panel needs more power, at least until it uses more effectively the power that it already has. "They have all the ability they need to do their job," Sheffield argues, "if they have effective leadership." According to Sheffield, the monitor's office has been lax in educating the public about its own role as a watchdog, and more specifically has failed to do the kind of day-to-day education that would enable citizens to see that APD discipline of officers, on a regular basis, is not only effective but strict.

"The public generally only gets involved on these contentious, high-profile cases [like Rocha], which polarize the discussion," says Sheffield. "Overall the departmental discipline is very strict, even harsh – with officers being disciplined for even using rude language in traffic stops. If the monitor was doing his job, they would be gathering and disseminating statistics on all this discipline over time, and people would see that officers get hammered for every little thing." Sheffield says that the OPM was in theory modeled on the San Jose, Calif., civilian oversight process, which is known for maintaining and publicizing detailed statistical reports on police discipline, with the result of greater citizen satisfaction. "The Austin monitor should be doing the same thing, collecting all that information and telling people what's going on behind closed doors. They've got that power – but there's not a whole lot to show for it."

What You See ...
Sheffield's implicit criticism of current Monitor Ashton Cumberbatch (who steps down next month) and explicit criticism of City Manager Toby Futrell, who appointed Cumberbatch, doesn't raise the hackles of the always polite police monitor, who has grown accustomed to taking public shots from the other side because his office is more watchdog than attack dog. "People need to look at the whole process," he says patiently. "Before this office existed, there was no access to the IA system – it was completely closed. Now we have access, and that's extremely significant. They don't have to follow our recommendations, but if discipline is involved, those recommendations become available, and the public can see any discrepancy. That increased transparency is extremely important for public understanding."

Cumberbatch hopes for improvement of the system – for example, direct participation in the disciplinary deliberative process, from which his office is now excluded, and even a mediation procedure – but he notes that the public perception is currently somewhat distorted by its focus on headline-grabbing critical incidents. "We know that officers are now aware of our involvement and on a daily basis are more conscious of potentially inappropriate behavior, because they don't want to get caught up in this process with our oversight. I even had one officer who had been disciplined thank me," he added, "because it made him aware of things he shouldn't be doing, and that unchecked could lead to much worse behavior." Cumberbatch, along with other members of the panel I spoke to, agreed that while the process could always be improved, there's plenty to be said for the fledgling (four years old) OPM. "We have a lot further to go," said Cumberbatch, "but we have added value to this community."

Butler might well have been speaking for the whole group – and a good portion of the public, if not the department or the APA – when he repeated his lament: "I just wish we could put more teeth in it."

Austin Chronicle - 07-29-05: Tasers helped reduce use of force, APD report says
BY JORDAN SMITH
Incidents of police use of force declined in 2004 along with the number of serious injuries to both officers and suspects, a fact the Austin Police Department attributes in large part to the increased availability of Taser-brand electro-shock weapons, according to a new report from the APD. Still, critics say the department has not done enough to reduce the rate of force used against minorities and are still questioning whether Tasers are a less-than-lethal alternative to deadly force.

According to the department's analysis, only 2.5% of all arrests in 2004 resulted in the filing of a use-of-force report – that is, out of just over 48,000 arrests, there was a total of 974 force reports filed by police. Police are required to file a UoF report any time they take "any physical action that causes apparent injury, or causes a person to complain of pain or injury." That decrease was coupled with a reduction in reports of serious injury to both officers and suspects, the department says. The APD reports that serious injury to suspects – that is, injuries that require "hospitalization or intensive medical treatment" – declined 82.4% last year, with just three cases of serious injury vs. 17 in 2003, while serious injuries to officers decreased by 50%. "[M]uch of this reduction [in injuries] can be attributed to the availability of Tasers," reads the report.

In 2003, the department had 160 Tasers, which were used 66 times and accounted for just 5.7% of force reports filed that year. In contrast, in 2004, the department had nearly 1,000 Tasers, which were used 334 times and accounted for 33.4% of all force reports. The increase in Taser use also accounts for the decrease in other types of force – specifically, to the decline in "soft hand control" and "hard hand control," including hand strikes, leg strikes, and neck restraints, which "have a high probability of injury," according to the report. Use of Tasers has led to a decrease in "physical contact between officers and subjects" and "seems to have contributed to fewer injuries overall for officers and fewer serious injuries for the subjects."

Nonetheless, concerns about the safety of Tasers – specifically, questions about what, if any, long-term physical effects they might cause – continue to surround their use. Although manufacturer Taser International has repeatedly said that no one has died as a result of Taser use, critics of the device, like Amnesty International, claim that Taser use has been at least a contributing factor in nearly 100 deaths. Back in April, EMS Medical Director Ed Racht told the City Council that out of 40,000 documented Taser uses, there are only four deaths associated with the weapon that have been "critically analyzed" in peer-reviewed medical literature. In each case, "the strong weight of the evidence is that those four deaths are related to [a] pre-existing drug state … and not the tasing event," Racht said. The new UoF report cites the case of one suspect who died while in police custody last June after being shot several times with a Taser. According to the report, the suspect was arrested after forcing his way "into a strange home." When police arrived at the house the suspect "would not comply with verbal instructions and began to struggle with the officers." After the suspect was tased and placed in handcuffs officers "noticed that the subject had stopped breathing." Resuscitation efforts were unsuccessful; the autopsy report listed "accidental overdose" as the official cause of death. What role the Taser might've played is unknown and wasn't commented upon in the APD report.

That troubles Austin NAACP President Nelson Linder, who says that so far Tasers represent a catch-22 for Austin residents. "We don't want the use of deadly force," said Linder, who is still concerned about the weapon's long-term health effects. "That's a big issue," he said, and the main reason that the NAACP has called for a moratorium on the weapon's use. Virginia-based forensic scientist James Ruggieri caused a stir earlier this year after reporting to the American Academy of Forensic Examiners that his research showed that heart damage and "fatal heart rhythms" can develop hours after a Taser shock, and that both suspects and police officers who have been subjected to shocks during training "may have unknowingly incurred permanent heart damage," The Arizona Republic reported in March. (The daily also reported that several Arizona police officers had "suffered career-ending injuries that they attribute to Taser shocks," including one officer who says his back was broken by a shock from a Taser fired in direct contact with it when the gun was in so-called "drive stun" mode.)



Meanwhile, the decrease in UoF filings last year also caused the department's "rate of force" to sink 10.5%, to a rate of 20 incidents per 1,000 arrests. (In 2003, the rate was 22.3 per 1,000 arrests.) The rate of force per 1,000 arrests broken down by ethnic group also decreased in 2004: The use of force rate for blacks was 22.6 per 1,000 arrests, 18.7 for Hispanics, and 17.4 for whites. That's compared to 2003 numbers of 23.0 per 1,000 for whites, 19.5 per 1,000 for Hispanics, and 22.9 per 1,000 for blacks. Linder thinks the numbers are "still very problematic" when compared to each group's share of the overall population, however. According to demographic statistics reported by the city's demographer earlier this year, whites make up nearly 53% of the population, Hispanics nearly 31%, and blacks just under 10%. Assistant City Manager Rudy Garza said that comparing force rates to arrest rates might offer a clearer picture of the UoF rate. In all, Garza said, blacks and Hispanics accounted for 61.3% of all APD arrests in 2004 and, similarly, were the subject of 62.11% of all UoF reports. What that means is up for debate. To Linder, APD's overall rate of force used against minorities is an indicator that the department still has work to do to ensure that officers are accountable for their actions. "When you look around the country, [you see that] if you have accountability," you don't have problems of disparate treatment of minorities, Linder said. Garza said he is "pleased" with the progress APD is making, but that he feels "pretty confident in saying, for the chief on down, that we can always do better." back to top

Austin Chronicle - 07-24-05: Rocha Case: New Drug Evidence Raises Questions About County Lab
BY JORDAN SMITH
There's more trouble and confusion in the Daniel Rocha police homicide case.

Travis Co. Medical Examiner Robert Bayardo originally reported that Rocha was drug-free the night he was killed during a June 9 encounter with Austin police. On Monday, July 18, Bayardo reversed that assessment, reporting that a subsequent toxicology screen revealed the 18-year-old had marijuana in his system the night he was shot by Austin police. The abrupt about-face has raised questions not only about the handling of the Rocha case, but also about the general reliability of evidence coming from the ME's office. "The Medical Examiner's office apologizes for the confusion caused by the reporting of a false negative result … in the initial toxicology report," Bayardo wrote in an open letter. "The probability of a false negative occurring … is very low, unfortunately it did occur in this case." The reversal prompted APD Chief Stan Knee to request that the blood and urine samples be submitted to outside, third-party analysts for additional testing.

On June 9, APD Officer Julie Schroeder fired a single 9mm round into Rocha's back, killing the 18-year-old during a traffic stop made in connection with an undercover drug operation in the Dove Springs neighborhood. According to the department, Schroeder shot Rocha because she thought that he'd grabbed her Taser and was preparing to use it on Sgt. Don Doyle, whom Rocha allegedly knocked to the ground during a struggle with the officers near the intersection of South Pleasant Valley Road and Quicksilver Boulevard.

On June 15, Bayardo reported that the results of initial toxicology testing meant that Rocha was drug-free that night. The clean report quickly became fodder in the debate over Rocha's death – particularly regarding the police version of events. If Rocha was killed during a traffic stop connected to an undercover drug sting, as the police have said, why then was he drug-free? And didn't that fact undercut the cops' argument, suggesting instead, perhaps, that Schroeder acted prematurely or carelessly – or worse – when firing a single 9mm round into Rocha's back? With the revelation on July 18, that Rocha did, in fact, have a small amount of marijuana in his system on the evening of June 9, the argument hasn't changed much. Critics have charged that the APD somehow unduly influenced the ME's office to manipulate the test results in order to bolster their argument that the shooting was justified. Attorney Bobby Taylor, representing the Rocha family, said that Daniel's family is upset that the discrepancy may be used to paint a negative picture of Daniel and to take the focus away from Schroeder's actions. "My client is concerned that everything that is being done is taking the focus away from the officer, Schroeder, who shot Daniel in the back," he said. "Are we getting away from [that] fact?"

Nonetheless, Taylor agrees that there is a potentially more devastating question: How did the mistake happen and have there been any others? Indeed, the change in tox results is the second revision Bayardo's office has made in the Rocha case. Initially, Bayardo said there were no scratches, cuts, or bruises on Rocha's body that would indicate there had been a struggle, as the cops have said. Several days later Bayardo corrected that, saying that his office had, in fact, found marks on the body that initially were unreported to the public.

As for the tox results, Bayardo explained that his office decided to do the retest after receiving a call from APD Detective Art Fortune, who told the ME that there "was considerable evidence that … Rocha may have smoked marijuana prior to the incident that led to his death," Bayardo wrote. As a result, Bayardo had toxicologist Brad Hall run the test again – this time by running a "gas chromatography/mass spectrometry" test on Rocha's urine, and by running a simple blood test. The second time around, both came back positive, showing a small amount of marijuana metabolite and traces of tetrahydrocannabinol, or THC, the active ingredient in marijuana. Bayardo told the Chronicle that the levels found in Rocha's system would be consistent either with an infrequent user who smoked a small amount in the hours prior to death, or, in the case of a chronic smoker, with the remnants of marijuana smoked up to a month before the shooting.

Bayardo said the problem is that the standard "immunoassay" testing – in which the lab takes a drop of urine, mixes it with "reagents" and then looks for a reaction – that was originally done on Rocha's urine has the potential to produce false results. "Although the immunoassay screening technique … is widely used and accepted as an accurate method in the forensic toxicology world, there is the potential for both false negatives and false positives," he wrote. But unreliable results, he told the Chronicle on Tuesday, are uncommon. In the 27 years that Bayardo has been ME, he said, he has never had another case where subsequent tox testing has contradicted the initial immunoassay results. Bayardo acknowledged, however, that his office only does retesting upon request (typically from family, police, or lawyers), and as such concedes that there is the possibility that false results have happened in cases where there has been no subsequent retest. "There hasn't been a false result in 27 years," he said, "at least not that we know of."

Beyond the Rocha case is the specter of other potential and as yet unknown errors coming out of the ME's office. "Right now, this makes me question everything that is coming out of that lab," said Mike Sheffield , president of the Austin Police Association. "If they are missing things like this, what else are they missing? As law enforcement, we rely on that office to give us the best, correct evidence the first time around." In a written statement, Chief Knee said that he too "is disturbed by the inconsistent findings" and that he contacted District Attorney Ronnie Earle's office to ask that his office "seize the blood and urine evidence and send it to a third party laboratory for analysis," which, he said, Earle's office has agreed to do.

County Judge Sam Biscoe said that the false results "concern" him, but that Bayardo's explanation for the false result makes sense. The bigger question, he said, is "should we have conducted the blood analysis to begin with?" Bayardo said that the immunoassay test is standard, primarily because it is far less costly than gas chromatography testing and takes less time to conduct than do gas tests or blood tests. Biscoe says he wants to know what the standard procedures are at labs in Texas' other urban counties as well as what is considered best practice nationwide. He said that county commissioners will be conducting a "protocol review" today (Thursday) to determine "how the tests are run and how they should be run, with an eye toward any changes that [are] needed to make things better." The review is part of an ongoing county debate over whether to pursue accreditation for the "whole lab – what we would need to do and what it would cost," he said. "So, if you ask, have I lost confidence in [Bayardo], I want to say I have not yet. But I've got some questions."

Attorney Taylor agrees that the false testing in the Rocha case may have far-reaching implications. "I agree that this is very disturbing," he said. "As a practicing attorney I would certainly be going back and looking at cases where Bayardo's lab was primary to convicting a person – it makes you wonder if we have a Houston lab situation. I would certainly say that." For his part, Bayardo says that the Rocha tox result situation has been an eye-opener for his office. "Maybe we've learned our lesson," he said, and that "in special cases we need to do special testing." back to top

Futrell Spares Knee: 'Moving Forward' at APD
02-24-2005
According to City Manager Toby Futrell, Austin Police Chief Stan Knee did not harbor any ill intent when he misrepre-sented the department's reason for seeking an exemption to the state civil service law's officer disciplinary timeline, in order to "protect" an ongoing investigation into Officer Vernon Stevenson. Therefore, concluded Futrell, Knee will not be disciplined for the infraction. "There is no doubt that the circumstances preceding and surrounding the preparation and signing of the Stevenson letter clearly shows significant management issues with the [APD]," Futrell wrote on Feb. 17, in a two-page memo to Knee. "What I don't find in reviewing this situation are the elements of intent and harm that I would look for in considering a disciplinary action." Futrell wrote that when a management "problem is surfaced" she expects her managers to accept and clean up their own messes. "That's what I hold my team accountable for and that's what you are doing," she wrote. "From my perspective, our efforts should now be focused on moving forward."

Knee was in Futrell's sights for contradictory statements he made in connection with an officer's civil service disciplinary appeal arbitration last month. In an Aug. 11 letter to the Attorney General, Knee wrote that he needed to extend the 180-day window during which he may impose officer discipline, in order to "protect" an ongoing criminal inquiry into Stevenson, which had been prompted by a 911 hang-up call he made last March. In his letter, Knee also wrote that, based on the information he had at the time, it was likely that ultimately he would fire the officer. Unfortunately for Knee, at the time he signed off on the letter (prepared for him by Assistant City Attorney Mike Cronig), there was no ongoing investigation and, he testified in arbitration proceedings last month, he in fact had no intention of terminating Stevenson. "I believe that that's an incorrect statement," he testified in January regarding the letter. "I signed it because I wanted to extend the 180 days." (For more on Knee's inconsistent statements, see "City Attorney Report on Knee Calls for Changes at APD," Feb. 18.)

Knee's contradictions prompted an internal review by City Attorney David Smith, who concluded – after consulting First Assistant District Attorney Rosemary Lehmberg – that Knee had not broken any law (specifically, tampering with a government record or perjury). Smith did report that the department has "significant management issues" related to investigating officer transgressions and imposing discipline. In her memo to Knee, Futrell echoed Smith's conclusion – APD "misinterpreted and misapplied" the civil service timeline extension exemption, she wrote, but Knee has "rightly accepted full responsibility for this problem" and is working with the DA, the Office of the Police Monitor and the Austin Police Association to remedy the situation and to create "clear procedures for moving forward." Indeed, although he has not spoken publicly about his transgressions, Knee has issued two apologetic public statements, and last week he pledged to reform the disciplinary process. "The [APD's] management staff has already begun analyzing the disciplinary process and is currently looking at a system that would increase departmental flexibility in dealing with lesser disciplinary issues," he wrote. "In addition, a department policy regarding the 180-day provision … will be formulated in order to prevent any further controversy." Indeed, according to Futrell's memo to Knee, the department has already begun tweaking its discipline process, including working on introducing "mediation into the Department as a way to resolve internal employee disputes and certain categories of citizen complaints outside the investigatory process," which should help to "improve" officer morale, she wrote.

Officers have long been critical of the department's process, which they say is capricious and often results in disparate suspensions for strikingly similar infractions – in that context, Futrell's decision not to suspend Knee (or even issue any real reprimand) came as little surprise. APA President Mike Sheffield said the union will closely monitor any Knee-imposed reforms. He said the situation brought to his mind a biblical passage that "Knee will have to think about as he disciplines officers in the future – 'You hypocrites, first take the plank out of your own eye, then you will see clearly to remove the speck from your brother's eye.'"

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The Healing of Wounded Knee
A tale of two city memos suggests that more than paper-shuffling is needed at APD
02-24-2005
BY MICHAEL KING

The other shoe has dropped in the city's conduct review of APD Chief Stan Knee, and it was not exactly a steel-toed work boot. City Manager Toby Futrell responded to City Attorney David Smith's perfunctory report by echoing Smith's bland description of "significant management issues" within APD, but concluded that no managerial discipline of Knee is necessary. The bureaucratic language implies some administrative clarification of standard procedures. That would help. But a casual observer might also suggest that there appear to be no standard procedures, and that the brass needs to be held to at least the same standards of honesty, judgment, and fairness reflexively (but inconsistently) expected of line officers.

To recap: In the course of disciplining two officers who had briefly concealed a domestic dispute involving one of them, Knee had (many weeks later) filed a false report with the attorney general's office – citing a nonexistent criminal investigation and pending termination – in order to request an extension of the already generous 180-day civil service time limit for disciplinary actions. Knee's conduct was compounded because he was charging the other of the two officers with "falsifying a government document" (the initial dispatch report) as grounds for termination. If that sounds to you both contradictory and unfair, you're not alone – the arbitrator of the officer's appeal reversed the termination, finding the punishment extreme, arbitrary, and inconsistent with previous discipline in similar cases.

Futrell decided that since the city attorney quickly determined that Knee had committed no crime, had apparently acted without malicious intent, and had "accepted full responsibility" for his mistakes, she would support Knee's efforts to work with the DA, the police monitor, and officers' union "to correct the problem by creating and communicating clear procedures moving forward."
What's Sauce for the Head Goose ...

There is little reason to object to Futrell's decision – as far as it goes. The immediate question is whether the disciplinary procedures and standards applied to the chief – swift review, independent investigation, consideration of (in Futrell's phrase) "intent and harm," and measured response – will henceforth be applied to the conduct of ordinary officers. Individual officers, their organizations, and outside observers complain that APD discipline appears uncertain, arbitrary, and excruciatingly slow. For immediate example, why did it take more than a week, let alone more than the statutory six months, to determine that the two officers had screwed up, immediately admitted their mistakes, and needed some short-term discipline and training to make certain it didn't happen again?

Moreover, the radically disparate discipline accorded the two officers for virtually identical, simultaneous infractions – nothing for one, termination for the other – simply makes no sense. Nor does the city's explanation of the false request to the AG – that it was in effect a "form letter" in which the all-purpose, dishonest language had allegedly become something like "there's a criminal investigation and we're terminating this guy"! If that is in fact true, then it was an institutional abuse of the civil service process, and the city attorney who drafted such an idiotic document needs to return to law school.
The Invisible Mob

Ideally, the outcome will be a fairer and more effective disciplinary process, and a chief who can understand personally why officers wonder exactly what's expected of them. It would also be helpful if the public sees that the department is developing disciplinary standards proportionate to momentary lapses in judgment as opposed to persistent misconduct – especially persistent use of excessive force by some officers.

That project is unlikely to receive much help over at the Statesman, where in order to defend Chief Knee (and by the way slander the police union) the editors fantasize a lynch mob demanding a "public whipping" of the chief. The editors first weighed in on Feb. 15, under the misleading headline "Police chief's critics can't be allowed to win," both misrepresenting the original incident and dismissing Knee's response (the "form letter" again) as trivial. Last Saturday, following Futrell's decision, editorial page editor Arnold Garcia chimed in again, this time under the utterly ludicrous headline "The chief escapes, despite mob's penchant for public whippings." Again, Garcia both exaggerates the initial incident between the two officers and trivializes Knee's disciplinary response.

Garcia's "mob," it turns out, is exactly one officer e-mail, in which the officer suggests that a fit response to Knee's infractions would be a "4 or 5 months" investigation followed by a 90-day suspension. "Why not?" asks the e-mail. "He makes his officers go through that." The complaint against inconsistent and therefore unfair treatment couldn't be clearer – but to Garcia, the notion that any officer, or indeed any citizen, should expect that the chief of police be held accountable equally with his officers is simply intolerable. He hallucinates, "[Knee's] discrepancy was a mistake, to be sure, but hardly justifies a screeching, hair-pulling, apparel-rending Austin-style temper tantrum, much less a public beating." Yet he then has the gall to suggest that it's the "community's political players" who have no "sense of proportion." Please.

To their mutual credit, Chief Knee, City Manager Futrell, and the Austin Police Association have responded together to the situation with far more maturity and insight than is available at the daily (admittedly, not much of a standard). Let's hope it's not a momentary rapprochement, but the beginning of a real change in direction.

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Still Looking for the Truth at APD
02-04-2005
BY JORDAN SMITH

APD Chief Stan Knee
photo by John Anderson

Austin Police Officer Timothy Little's employment troubles may be over – but trouble is now brewing for APD Chief Stan Knee (see "When Is a Lie Not a Lie?," Jan. 21). Late last week, the independent arbitrator hired to consider Little's civil service appeal overturned Knee's decision to fire Little for failing to report an officer-involved 911 call and then falsifying a government document in order to "cover" for the officer. According to arbitrator Herman Bennett, Knee's decision to terminate Little was too harsh. There was "too much disparity between the termination imposed on [Little] and [the] far lesser discipline imposed on officers [who, in the past,] engaged in the same or similar conduct," Bennett wrote. Bennett reversed the termination and imposed a 90-day suspension, retroactive to Oct. 10, the day Little was fired – meaning Little should be back on duty this week. "He's extremely happy," said Little's attorney Tom Stribling.

By contrast, Knee has taken Little's place on the hot seat, in connection with his testimony during Little's arbitration. That testimony has called into question Knee's own "credibility and integrity" – the very factors he cited in terminating Little. Little was fired after failing to report his contact with a fellow officer, Vernon Stevenson, after Little responded to a 911 hang-up call made from Stevenson's apartment on March 13. Stevenson initially denied making the call, before admitting to Little that he had called after getting into an altercation with his girlfriend, Jennifer Tomeff, an APD dispatcher. (APD investigators ultimately determined that Tomeff was the aggressor in the fight.) Since Tomeff had left the home and Little believed Stevenson's account, Little officially reported via his patrol car computer that there was no response at the home – effectively "falsifying a government document." Almost immediately, Little realized he'd made a grave error – in both judgment and deed – and confessed the mistake to supervisors.

APD Internal Affairs and the department's officer-involved crime unit investigated the incident, and in September a Travis Co. grand jury no-billed Little on the record-tampering charge. But in October, Knee fired Little, condemning his behavior as having forever undermined his integrity and credibility. Yet in handling the case, Knee himself made apparently intentional misrepresentations in order to stall the final disposition of the administrative inquiries into both Little and Stevenson's conduct.

Little's case records reflect that the department's criminal inquiry into his conduct was completed in June. Yet it wasn't until two months later, on Aug. 10, that Knee wrote a letter to Texas Attorney General Greg Abbott, requesting an extension of the civil service law's 180-day window for imposing discipline. (In Little's case that window would've closed on Sept. 10.) The legal extensions are intended for cases in which the handing out of administrative discipline may jeopardize an ongoing, and underlying, criminal inquiry – something that, according to Knee's own investigators, was not an issue in this case.

Questioned about that contradiction, Knee testified that he wrote the letter not because there was an "active" criminal inquiry going on within the department, but because he didn't yet know whether the Travis Co. District Attorney's office might want to present Little's case to a grand jury. "We don't want the administrative to hinder the criminal [investigation] in any way whatsoever," he testified on Jan. 11. "We consider [the criminal investigation] completed after the [DA] advises us that he has no further interest in the case or the grand jury rejects the case." Unfortunately, the DA's office doesn't share Knee's understanding. Assistant DA Claire Dawson-Brown told the Chronicle that the DA's office tries to keep its inquiry separate from the APD's administrative review – especially because the APD must follow a civil service timetable. "[W]e don't interfere with those," she said. "We really do try to keep them separate."

Knee may be able to defend his request for an extension in Little's case, but in Stevenson's case his justification for a similar request collapses. Stevenson's conduct was also reviewed by criminal and administrative investigators, and on Aug. 11 (one day after he signed the Little extension request), Knee again asked the AG's office to extend the disciplinary period, this time for Stevenson. Knee wrote that he needed an extension in order to protect the criminal case and that, "based on information available to me at this time, I intend to order an indefinite suspension of Officer Stevenson." Unfortunately for Knee, the department had finished its criminal inquiry into Stevenson's conduct that spring – on April 6, Knee had already been told that the DA's office wasn't interested in pursuing a case against Stevenson. In other words, by Knee's own definition, the criminal case against Stevenson had been "closed" four months before he wrote to the AG.

Asked about that letter under oath, Knee admitted he had no reason to believe that Stevenson would be fired. "I believe that that's an incorrect statement," he said about the content of his letter. "I signed it because I wanted to extend the 180 days." Thus, it appears Knee may be guilty of "falsifying a government record" – the same infraction for which he tried to fire Little. (Incidentally, Stevenson was not disciplined for his conduct in the case, although he gave apparently conflicting statements to investigators.)

According to Assistant City Manager Rudy Garza, Knee has requested that the city review his conduct. Garza says that he and City Manager Toby Futrell "sat down and talked" with Knee, and the chief asked that City Attorney David Smith review the letters he wrote to the attorney general, the transcript of his arbitration testimony, and the applicable section of the Local Government Code. Garza added that Smith will speak "directly" with the DA's office regarding the process for reviewing cases against officers. Smith's review should be completed by the end of this week, and he will brief Futrell and Garza. "At that point, the city manager will give any further directions."
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AUSTIN CHRONICLE

When Is a Lie Not a Lie
Ask an APD Supervisor
BY JORDAN SMITH

APD Chief Stan Knee
photo by John Anderson

Troubling questions about Austin Police Department Chief Stan Knee's handling of officer discipline were raised again last week during the two-day civil service arbitration hearing of Officer Timothy Little, who was "indefinitely suspended" (that is, fired) on Oct. 10. According to Knee, Little betrayed the most basic tenets of police work – honesty and integrity, "the cornerstones of our profession" – when he failed to report an officer-involved 911 call and then falsified a government document in order to "cover" for the officer.

Little testified that he knows he made a grave error in judgement but asked for a second chance. Prior to the incident that led to his dismissal, Little had never been in trouble during his two-year tenure and had even been selected to attend the exclusive West Point leadership class.

Moreover, Little had confessed his error to his supervisors, and was equally forthcoming when questioned by APD Internal Affairs. IA Detective Alvin Thomas, who handled the Little inquiry, testified that he had been "in all honesty, surprised" to learn that Knee had decided to fire Little.

Little's attorney, Tom Stribling, general counsel for the Austin Police Association, presented to civil service arbitrator Herman Bennett evidence of at least a dozen similar cases in which Knee had responded more leniently (from three to 60 days off), and not a single offending officer had been terminated. Stribling questioned the APD's apparently arbitrary distinction between what the brass considers a "mistake" versus a "lie."

It appears that in his handling of Little's case, Chief Knee himself committed one or the other, perhaps resulting in "falsifying a government document" – precisely the offense for which he fired Little.
"A Big Mistake"

Shortly before 5am on March 13, 2004, rookie patrol Officer Little arrived at an apartment in East Austin, responding to a 911 hang-up call logged by dispatchers. Little knocked, but no one responded. He took a step back to see if he could see inside through a window, returned to the door, and knocked again. The door opened, and Little was surprised to find Officer Vernon Stevenson, a fellow rookie cop. Stevenson initially denied making the hang-up call, but realized Little could tell "something was not right," Little recalled. "He looked up [at me and] told me everything that happened that night."

Stevenson had broken up with his girlfriend, APD dispatcher Jennifer Tomeff, that evening, leading to a fight. Tomeff left the apartment, and Stevenson didn't know if she was injured, but told Little he could come inside the apartment and look around. Little declined, telling Stevenson he believed his story. Looking at Stevenson, "I felt real bad for him," Little testified. "I was thinking, this was a 911 hang-up call," and since Tomeff wasn't there and Little believed Stevenson's account, as far as anyone else knew "it was still just a 911 hang-up call." Little looked at Stevenson: "I said, 'We never talked.' He said, 'OK.'" At 4:54am, Little logged the call disposition into the patrol car computer terminal, writing that no one answered the door, that no lights were on, and that he couldn't see inside. Within 30 minutes, Little realized he'd made a big mistake.

According to APD policy, when Little discovered that another APD employee had made the 911 call, he should have called a supervisor. He also should have investigated to determine whether anyone was inside the apartment or hurt, and should have filed a family violence report regarding the altercation. Little did none of those things and instead fabricated the only report he did make – the call disposition he entered into the computer-aided dispatch system. Little had, in effect, "falsified a government document," technically a class A misdemeanor. A bit later, Little realized that Stevenson's supervisor had been called out to the apartment (Stevenson subsequently decided to report the fight), and within an hour Little had confessed his error, not only to his supervisor, Sgt. Beth Young, but also to Stevenson's supervisor, Sgt. Ken Connor. "I told him I made a big mistake," Little said.

APD Internal Affairs and the department's officer-involved crime unit investigated the incident, and a Travis Co. grand jury subsequently no-billed Little on the record-tampering charge. Nonetheless, in October, Knee dismissed Little from the police force. Little appealed the disciplinary decision, and during emotional hearing testimony last week said that he knows he broke trust with his peers and with the community, but that he'd never make such a mistake again.

Different Shades of Blue
According to Knee, for "knowingly and intentionally" entering false information into the CAD as a "favor" to Stevenson, and for breaching the department's policies on truthfulness, credibility, and integrity, Little must pay with his job.

But as attorney Stribling pointed out during the hearing, that hasn't been the price for other officers who've committed similar infractions. Stribling offered evidence of more than a dozen similar cases, none resulting in termination. Among them were several in which officers pulled over an off-duty officer for drunk driving, failed to report the incident, and then drove the inebriated officer home. One case involved Assistant Chief Cathy Ellison, who early in her career had asked an officer to skip a court hearing in order to help a friend get out of a traffic ticket. Knee said it would be hard to trust an officer who has broken trust – yet he chose Ellison for assistant chief.

Knee tried to distinguish those cases by claiming that what really disturbed him about Little's case was that the officer failed to conduct any investigation into a domestic disturbance during which someone might have been hurt. Yet Stribling recounted a case in which an officer had pulled over a drunken off-duty officer and drove the officer home, where he found evidence of a domestic dispute. The officer called the department psychologist but failed to do any other investigation. As punishment, the officer received four days off. (Incidentally, the department took no disciplinary action against Officer Stevenson, who may have made several unreliable early statements regarding the March 13 hang-up.)

Knee and other APD supervisors insisted Little must go because they would not be able to ensure that he wouldn't be involved in any further fabrications – lies that might not only be criminal but that might hurt the department's public image. Lies like Little's, said Knee, can reinforce the mistaken perception that the APD operates behind a "Blue Wall of Silence."
The Chief, the Attorney General, and the DA

The department's pretense of absolute rectitude in Little's case appears contradictory. For in handling the case, Chief Knee made an apparently intentional misrepresentation in order to stall final disposition of the administrative case – committing a version of the very infraction that may result in Little's permanently losing his badge. Department records reflect that the criminal inquiry into Little's conduct was completed in late June. Yet it wasn't until two months later that Knee wrote a letter to Texas Attorney General Greg Abbott requesting an extension of the civil service law's 180-day window for imposing discipline. Knee cited the need to "protect" the department's criminal inquiry into the matter. "I consider it necessary to delay my disciplinary action until after the 180-day period," he wrote to Abbott on Aug. 10, "in order to protect the continuing criminal investigation of Officer Little's conduct."

Asked by Stribling to explain the time discrepancy in the documents, Knee initially sat mute. After a long silence, he claimed that there was, indeed, a valid reason for his belated request. It wasn't that there was necessarily an "active" criminal inquiry going on, Knee said, but that the department didn't yet know whether the Travis Co. District Attorney's Office might want to present Little's case to a grand jury for possible indictment. (In late September, a grand jury declined to act against Little.) The APD, Knee said, "considers [a criminal inquiry to be] open until ... the County Attorney or the District Attorney respond back to us." Knee said that he hadn't talked directly with any prosecutors about Little's case, but that he'd gotten an "indication" in one briefing or another that suggested they might be interested in filing charges.

Stribling asked how the DA's decision could have "affected this case if you'd imposed discipline before the grand jury" acted? There may be cases, for example, where evidence would be placed in jeopardy or an ongoing undercover operation could be threatened by the imposing of discipline before the completion of a criminal inquiry. But Little's case has none of the investigative qualities that would normally necessitate an extension.

Nonetheless, Knee explained, it was not his decision: the DA's office maintains a blanket request that the PD refrain from imposing administrative discipline until prosecutors are done contemplating a criminal case. "See, in some cases, the DA may say its okay to do A, B, and C," Knee said. "No one case is the same as another. It depends on what the DA wants and what the criminal investigator decides as they move through."

Unfortunately for Knee, the DA's office says it doesn't share his procedural understanding. There may be certain unique cases "too hot ... to let anything civilly interfere with it," says Assistant DA Claire Dawson-Brown. Far more common are cases "where the crime is complete," there is no possibility of evidence tampering, and the investigation "can really be developed through an administrative inquiry." In other words, cases just like Little's. The PD's administrative, disciplinary inquiry "goes its own way, and we go ours and nothing interferes. And that's the more typical situation."

Frequently, Dawson-Brown said, APD's IA investigations move more quickly than do the DA's criminal inquiry, and "a lot of times [IA investigations] kick in before we get those [cases] criminally." Civil service law imposes a 180-day limit, Dawson-Brown noted, and therefore the PD has a "timetable." "And we don't interfere with those. We really do try to keep them separate." The DA's office, she said, is accustomed to "these parallel proceedings."

DA Dawson-Brown's explanation of her office's procedures appears to directly contradict Knee's sworn testimony before the arbitrator. Asked about the apparent conflict, Stribling said that pending the arbitrator's decision in the matter,"it may be necessary to resolve these conflicting statements through the judicial system."

While the verdict remains out on the truth of Knee's testimony, the chief's arbitrary and unforgiving axe of honesty has come down hard on Timothy Little. And although Knee says he considers Little untrustworthy, during the entire seven-month period from the March 13, 911 hang-up call until October, when Knee fired him, Officer Little remained on full duty with pay, and continued his training in the West Point academy leadership class.
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