https://www.austinchronicle.com/daily/news/2013-06-11/carter-case-goes-to-jury/

UPDATED: Carter Jury Clears APD Officer

, June 11, 2013, 4:57pm, Newsdesk

UPDATE:

The eight-person jury tasked with considering the civil rights case brought by the family of Byron Carter has reportedly determined that his death was not caused by excessive force on the part of Austin Police Department Officer Nathan Wagner. Wagner has been cleared of any liability in connection with the May 30, 2011 shooting death.

In a statement, APD officials thanked the jury for its "thoughtful" deliberation. "First and foremost, APD believes that there is no winner when an officer is required to use deadly force," reads a statement emailed to media. "Any loss of life is tragic, and our deepest condolences go to the family of Byron Carter, Jr. No officer ever wants to be in the position of having to take the life of another. The facts of this case confirmed that Officers Wagner and Rodriguez were placed in a life-threatening situation that required the use of deadly force."

EARLIER:

What happened on the night of May 30, 2011, ending with the death of 20-year-old Byron Carter, was not a matter of routine police work, Adam Loewy, the lawyer representing Carter's family, told jurors during closing arguments in the civil rights case against Austin Police Officer Nathan Wagner who fired the fatal shots that night.

Carter and Leyumba Webb, Carter's then-16-year-old friend who was driving the pair that night, "had done nothing wrong, but you had officers who decided they [would] sneak up on them," Loewy told the six man, two woman (all white) federal jury. "Their testimony is that this is normal, this is police work, this is what we do." But how many times had the jurors walked back to their cars, gotten inside and prepared to drive away, only then to have cops appear out of the blue, Loewy asked. "This is not normal police work. Do not let them get away" with describing it as such, he implored. "It's not normal."

According to Loewy, Carter and Webb were merely sitting in the car, readying to pull away from a parallel parking spot on East Eighth Street, just east of I-35, when they were startled by figures that appeared near the car. They tried to pull away rapidly, and as they did Wagner opened fire, striking Carter four times and killing him.

Whether that's the case – or whether Wagner was defending himself and his partner – is now a matter for the jury to decide, after an hour-and-a-half of passionate closing arguments by Loewy and by Robert Icenhauer-Ramirez who is defending Wagner against the claim that he used excessive force the night Carter was killed. Wagner had an "objectively reasonable" belief that he and his partner were in danger, justifying the force, Icenhauer-Ramirez argued.

According to Loewy and to testimony from Webb (who sustained a bullet wound to his right arm during the incident), the pair walked back to the car from East Sixth Street and turned on the air conditioning before preparing to pull away. Suddenly they were startled by figures standing over them and Webb pulled away hastily, fearing they were in danger.

That's not at all how Wagner and his partner, Officer Jeffrey Rodriguez, described the event. They admit they had been following the pair because Carter and Web looked "suspicious" – though neither was doing anything illegal, they added – and admitted that they used cover of night to avoid being illuminated as they made their way up the Eighth Street hill where, it turned out, Webb had parked the borrowed red Oldsmobile Alero he was driving that night. As they approached the car they made it known that they were police, they testified. But the car engine suddenly revved and the machine jerked out of the parking spot, heading straight for Rodriguez who was knocked to the ground. Wagner fired a series of five shots; he was trying to stop the vehicle from severely injuring – or even killing – Rodriguez, Icenhauer-Ramirez argued this morning.

There's a very "fundamental right we all have: the right to self defense against those trying to do us harm, or those we believe are trying to do us harm," Icenhauer-Ramirez argued. And Wagner "doesn't give up that right to self-defense" just because he's a cop on the beat. Indeed, Icenhauer-Ramirez argued not only that Wagner had the right to protect himself, but the duty to defend Rodriguez who he saw go down before opening fire.

That may be the case, but only if Wagner or Rodriguez had been injured, or were in danger of being injured and that's not what happened, Loewy asserted. Rodriguez was not injured by the car, he argued. Rodriguez had previously injured his Achilles some weeks before and Loewy contends that in moving aside as Webb drove the car past him that night, Rodriguez somehow re-injured his ankle. He pointed to a photo of Rodriguez taken at Brackenridge the night of the shooting that depicts Rodriguez sitting on the edge of a hospital bed, his right ankle wrapped in gauze, but otherwise appearing free of bruises, scratches, or of dirt or asphalt marks although Rodriguez said he was knocked to the ground. Moreover, the hospital report noted only that Rodriguez had a hurt ankle, for which he should take Motrin, Loewy said.

The notion that Rodriguez was injured was a lie concocted by the officers and the APD in order to justify the actions of a rogue officer firing into a car simply to stop it, Loewy asserted. "It is against all police procedure, it is against all common sense, and it is why Byron Carter, the passenger" in the car was killed that night, he said.

Actually, Icenhauer-Ramirez argued, it was Carter and Webb's fault that the interaction went sideways – imploring the jury to not hold it against his client if they were offended by his straightforward assertion: "A tragedy is a misfortune that somehow befalls someone," he said. "These two men decided to do what they did" to pull away from the curb quickly – prompted by Carter's admonition to Webb that he "Go!" – and to aim the vehicle directly for two police, putting the cops – and themselves – into harm's way.

According to the defense, Webb and Carter were more likely up to no good that night. As they sat in the car before, with the a/c on Carter suddenly yelled "Go!" because he knew that he and Webb were in danger of being caught doing something wrong, the defense has asserted. Found on Carter's lap that night was a pile of cash, in small denominations, Icenhauer-Ramirez noted during closing – and the jury should use common sense to deduce where it came from. "It can't be a tragedy if you know [what you're doing] before you do it," he said.