Investigation of Officer-Involved Shooting Closed

Wagner will face no discipline

Byron Carter was killed May 30, 2011
Byron Carter was killed May 30, 2011 (Courtesy of Carter family)

Austin Police Department Chief Art Acevedo today announced that the administrative investigation into Officer Nathan Wagner has been closed and that the officer will face no discipline in connection with the fatal shooting in May 2011 of 20-year-old Byron Carter.

After considering the "totality of the evidence," Acevedo said that Wagner's use-of-force on May 30, 2011, that ended in Carter's death was "objectively reasonable." After an "exhaustive" review of the actions of Wagner and his partner, Officer Jeffrey Rodriguez, he had concluded that the tactics employed by the officers and the decision by Wagner to use deadly force were in line with Texas law and department policy. "Our hearts, as always in these cases … go out to [the Carter family] for the loss of their son," a solemn Acevedo said during a press conference. Nonetheless, he said the tactics used were "solid" and "appropriate" and Wagner's decision to fire his weapon – five rounds in less than 1.5 seconds – was "based on [Wagner's] reasonable belief" that his and Rodriguez's lives were in danger.

Carter was shot multiple times as he rode in the passenger seat of a car driven by a 16-year-old friend on the evening of May 30, off East Eighth Street. Wagner and Rodriguez were patrolling the area as part of an effort to reduce a surge of vehicle burglaries in the area. The officers spotted Carter and his friend walking down the street; the two allegedly acted furtively after spotting the officers – they made eye contact, then looked away and quickened their pace, Acevedo said – prompting the officers to follow in an attempt to have a "consensual contact" with the pair. Instead, Acevedo said, the two quickly got into their car and before the officers could make contact the juvenile "suddenly, without warning, accelerated" the vehicle, striking Rodriguez and forcing Wagner to press himself against a parked car to avoid being hit. Wagner knew Rodriguez had been hit, Acevedo said, and made the decision to use deadly force. Although Wagner did so with the intent to stop the driver, the teen was only grazed; instead, four rounds hit Carter – including one round to the head, one to the gut, and a third that shattered his femur.

The fact that Carter was killed is regrettable, Acevedo said, but even though he was not the intended target, the officer behaved in accordance with the law. Acevedo said that the responsibility for the Carter shooting falls to the teen driver, whose actions put Carter in harm's way. He likened the situation to that involving a hostage; if a person had a gun to someone's head then threatened officers standing nearby and the officers fire, intending to hit the suspect, but strike the hostage instead, the culpability for that shooting falls squarely on the perpetrator, he said. "It was a very volatile situation," he said, that happened "very quickly. The officer's [intention] -- and ballistics support this fact -- was to stop the driver."

Acevedo's announcement closing the administrative inquiry into the shooting followed an announcement by District Attorney Rosemary Lehmberg this morning that a grand jury convened to consider criminal charges against Wagner in connection with the shooting had declined to indict the officer. "The grand jury that investigated the incident met regularly, starting in late January, and heard from 30 witnesses over 10 … sessions before returning their decision today," Lehmberg said in a statement. The grand jury was diverse, she said, and included five African Americans, three Hispanics, three Asian Americans and one white person.

Among the witnesses called before the grand jury was the teen driver, reported Lehmberg, who said that he and Carter were preparing to drive away when Carter used a "danger-type" voice, saying "Go." The teen said he saw a person standing outside the vehicle wearing a dark shirt, but didn't recognize that it was a police officer. "Upon hearing Carter say 'go' he accelerated, hit the vehicle in front of him and forced his way out of the parking space," Lehmberg said. A previous grand jury declined to indict the teen in connection with the shooting.

Rodriguez, who sustained an injury to his heel, has returned to patrol. Now that the case against Wagner has been closed, he too will return to the streets, Acevedo said.

More on the story can be found here.

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Austin Police Department, Courts, officer-involved shooting, APD, cops, Byron Carter, Nathan Wagner, Jeffrey Rodriguez, use of force, police shooting, Rosemary Lehmberg, Art Acevedo

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