City Agrees to $2.25 Million Settlement in Fatal APD Shooting

In another case where the Austin Police Department’s response to a mental health crisis ended in a fatal shooting, City Council has agreed to pay $2.25 million to settle a wrongful-death suit brought by Albina and Vicente Roque against APD Corporal James Harvel, who killed their son Jason Roque in 2017.

The 10-1 vote at Thursday’s (Sept. 2) Council meeting came less than a week after the indictment of two APD officers on first-degree murder charges in the death of Mauris DeSilva, also experiencing a mental health crisis when he was shot and killed in a Downtown Austin condo tower in 2019. It also follows an April ruling against Harvel at the 5th U.S. Circuit Court of Appeals, which held the officer was not entitled to qualified immunity for firing the fatal shot. As the city was obligated to pay for Harvel’s defense, and any judgment awarded in a jury trial, it opted to instead seek a settlement.

Police were dispatched to the Roques’ home in Northeast Austin in response to two simultaneous 911 calls on the morning of May 2, 2017. One was from 20-year-old Jason, complaining about a man with a black pistol roaming the street and “going crazy,” without revealing he was actually referring to himself. Meanwhile, Albina Roque called to ask for help, saying her son was suicidal and carrying what was actually a non-lethal BB gun.

Multiple officers arrived and took up positions 75 yards from the Roques’ home. They found Jason Roque pacing near his house, the gun in his waistband, screaming “Shoot me!” As Albina Roque stood on her porch imploring her son, Roque turned toward her and away from the officers while pulling out the BB gun, pointing it at his head, and yelling, “I’ll fucking kill myself!” An officer then yelled back, “Put the gun down!”

Video from two home-surveillance systems (both referenced in the 5CA opinion) shows what happened next. The video shows Roque turning back toward the officers waving the gun in the air, though they claimed they could not see where it was. As he was turning, Harvel – screened behind a fence, three-quarters of a football field away – fired his semi-automatic rifle, striking Roque in the abdomen.

“The video shows Jason immediately double over, drop the gun, and stumble from the sidewalk toward the street (away from his mother and the officers),” Circuit Judge Don Willett, formerly of the Texas Supreme Court, wrote for the three-judge 5CA panel. “The video also shows the black gun hitting the white sidewalk in broad daylight.”

Harvel fired again two seconds later, missing Roque, and then again, killing the young man as his mother watched. The Roques, represented by attorneys Jeff Edwards and Steven Lee, filed suit in federal district court against both Harvel and the city in 2018 with several claims, including that Harvel’s use of excessive force violated Jason Roque’s Fourth Amendment rights.

Both the city (successfully) and Harvel moved for summary judgment to dismiss the suit; Harvel maintained that, as he took each of the three shots (within a five-second span), he believed Albina Roque’s life was in danger, and thus acted reasonably. Police officers are generally granted qualified immunity from civil liability in such cases, as Harvel was – but only for the first shot he fired.

The officer appealed to the 5CA, without success. “If Jason was incapacitated, he no longer posed a threat,” Willett wrote. “And if he no longer posed a threat, Harvel’s second and third shots were excessive and unreasonable.” Later in the ruling, Willett refers to prior case law that puts the question beyond dispute: “By 2017, it was clearly established – and possibly even obvious – that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

Speaking with the Chronicle this week, Edwards said, “What the Fifth Circuit did here was essentially say, ‘Enough is enough. We are not going to protect everything you do if it is unreasonable.’ Each shot counts for itself, and you can’t just blindly continue shooting when someone is not a danger.”

Harvel continues on the force, having been promoted to corporal since the shooting; he was cleared of wrongdoing by an APD internal investigation, and former District Attorney Margaret Moore declined to prosecute. Council Member Mackenzie Kelly cited these decisions as prompting her vote against the settlement, adding that “Any loss of life is tragic and my heart breaks for the Roque family.”

Austin Police Association president Ken Casaday also decried the settlement, the second-largest paid by the city in an APD excessive-force case.(The largest, $3.25 million, was paid to the mother of David Joseph, another young man killed by police while experiencing a mental health crisis in 2015.) Casaday told the Austin American-Statesman, “It’s a shame that we’re paying out a lawsuit where Internal Affairs and the District Attorney’s Office found no wrongdoing by the officer.” Moore’s policy of declining prosecution of some cases involving law enforcement was reversed by her successor José Garza, who has pledged to present every excessive-force case to a grand jury for consideration.

Edwards says, however, that neither the DA nor APD Internal Affairs thoroughly investigated the case. “The district attorney did such a terrible job in dealing with this case, it's difficult for me to comment on it without getting angry,” he told the Chronicle. “They didn't talk to doctors or even the medical examiner about the third shot: Did it hurt him? Did it kill him? And we did; we provided evidence to the court that the third shot ... actually killed him. But even if it didn’t, it's still not a justified shot. It's essentially a murder, or an attempted murder. That's what happened here, and this isn't some game.”