Mala Sangre Flows Again at APD

One of Jeff White's attorneys, Derek Howard (Photo By John Anderson)

Attorneys representing the city and Austin Police Dept. officer Jeff White were in court on Dec. 10 for the first round of wrangling in a whistle-blower lawsuit that White filed in May. The city, represented by private attorney Pat Bernal, is arguing that the suit should be dismissed; White's attorneys Derek Howard and Bob Schmidt argue that the parties haven't done enough investigation for a judge to make that call. Visiting District Judge David Cave (in for vacationing Judge John Dietz) agreed with White, denying the city's motion until more discovery can be conducted.

In the meantime, confidential police documents attached to the city's petition have raised the hackles of the police union, possibly setting the stage for even more bad blood.

White's suit is at least the third action filed against APD in connection with a mid-Nineties task force narcotics investigation -- code-named Mala Sangre or Bad Blood. The other suits, which were rolled into two combined actions back in 1997, were brought by the original Mala Sangre investigators -- including officers Stan Farris, David Gann, Dennis Clark, and Cecil Huff -- who alleged they were reassigned when they began to focus on charges that certain Austin police officers were involved in criminal activities and were aiding the drug traffickers targeted by Mala Sangre. (For more on Mala Sangre, see "Bad Blood," Feb. 15, 2001.) White, assigned to the operation after the other officers were transferred, alleges in his whistle-blower suit that he, too, was transferred from APD's narcotics division earlier this year by Assistant Chief Jimmy Chapman in retaliation, after White reported his suspicions that certain officers (including Chapman) may have been involved in illegal activities. White argues in his court filings that his predecessors were reassigned in an attempt to thwart Mala Sangre and that his assignment to the operation was a "setup for failure" -- "It would have been impossible for one person to adequately handle an investigation of that scope and magnitude."

To support the city's motion for summary judgment, attorney Bernal is proffering a two-fold argument. He argues there is no connection between White's statements to investigators and his alleged retaliatory transfer this year and also that White didn't ever actually blow the whistle to the proper authorities. Back in 1998, White was named as a potential witness in the suit brought by Farris, Gann, and Clark, and he was interviewed by Internal Affairs detectives before being called to Chapman's office to be interviewed by Lowell Denton, the private attorney the city hired to handle that case. In both interviews, White expressed his concerns about the truncated investigation. But on Dec. 10, Bernal told the court it was "incredulous" that White, a 12-year APD veteran, would think that sharing his misgivings about Mala Sangre with Denton would constitute a whistle-blower action.

White's attorneys counter that Denton told White he was the person chosen to "get to the bottom" of the allegations -- thus indicating that he would be a proper authority with whom to register his concerns. "In the course of our meeting Denton directly asked me, 'Where should I begin my investigation of wrongdoing in the [APD] to get to the bottom of this mess?'" White said in his affidavit. "In response to his question ... I pointed directly to Chapman's nameplate on his desk, saying, 'Right here.'" Based on Denton's representations, White said he believed the lawyer would look into his allegations, "since he represented the city and had the best interests of the city at heart."

The city also argues in its motion for summary judgment that White's suit should be thrown out because he "cannot present any evidence to support his assertion that, but for his reports in 1998, he would not have been transferred out of the task force in 2002." This four-year gap, the city suggests, works against White's claim of retaliation. But Chapman was not transferred into White's chain of command until late 2001. Three months later, White was reassigned, and White's attorneys argue that this timing obviously suggests retaliation. According to White's affidavit, he was told his transfer was for "poor performance." Yet in September 2001 White had received a favorable performance review by his supervisor, Sgt. Troy Long, who wrote (in a document attached to the court records) that White "is an asset to [the] Narcotics Conspiracy unit."

With Cave's action on Dec. 10 keeping White's case alive, Howard says he will likely depose Denton this week, and Bernal says he would like to depose White shortly thereafter. Both sides will likely meet again in court next month.

Meanwhile, an exhibit attached to the city's motion for summary judgment has caught the eye of the Austin Police Association -- and will potentially increase scrutiny of White's case as it plods through the court. In an apparent attempt to show that White doesn't have a case, Bernal attached a copy of the officer's November 1998 interview by APD Internal Affairs detectives -- documents that are confidential under the civil service code, because IA investigators are able to compel officers to provide statements even when doing so may violate their constitutional rights. As a result, the use of IA statements is heavily regulated; indeed, the 1998 White interview attached to the court documents carries a confidentiality warning -- "It is my belief and understanding that the Department requires this memo solely and exclusively for internal purposes and will not release it to any other agency or authority."

The union's president, Mike Sheffield, said that he and APA General Counsel Tom Stribling are concerned about the city's decision. "The issue is that we believe all statements that officers are compelled to give should remain privileged," said Sheffield. "We're exploring how this came to be and what our options are to prevent these statements from being used by the city without an officer's consent."