UPDATED: Take It To a Jury: Judge Rules in Carter Shooting

On Monday, a federal judge denied a motion for summary judgment filed by the city and Austin Police Officer Nathan Wagner in connection with the 2011 shooting death of Byron Carter, clearing the way for the Carter family's civil rights suit to proceed to trial.

Updated below to include newly-set trial date.

Judge Lee Yeakel's nine-page ruling reaches conclusions similar to those reached by the city's Citizen Review Panel, which were communicated to Austin Police Department Chief Art Acevedo in a confidential memo issued on Nov. 16, 2011, a copy of which has been reviewed by the Chronicle.

The ruling and the memo both concern what happened the night of May 30, 2011, just east of Downtown. According to APD, Wagner fired his duty weapon repeatedly into a moving car in order to protect his partner, whom he said he believed was being dragged by the vehicle. According to Carter's family, the cops profiled Carter and and his friend Leyumba Webb, both black, as they walked back to their parked car. The cops hid their identities and approached with guns drawn, scaring Carter and Webb (who was driving the car), into pulling the car hastily away from the curb line on East Eighth Street.*

According to APD, Wagner and his partner Jeffrey Rodriguez were on patrol, looking for drug dealers and car thieves near the East Sixth Street entertainment district, when they spotted Carter and Webb, walking near an apartment complex on East Eighth. The cops considered the pair suspicious and began to follow them. They briefly lost sight of the two, only to find them again, in a car parked on East Eighth; the officers say they were clearly dressed as officers, and that Webb gunned the car toward Rodriguez. Wagner has said, through court records, that he believed the car was dragging his partner and that's why he fired a volley of five shots into the fleeing vehicle. Webb was struck once while Carter was struck five times. Carter died in the car, which Webb abandoned just blocks away.

Carter's family has challenged the official version of events, essentially saying that the police intentionally obscured their identities while surreptitiously following the pair – such that when Carter and Webb were confronted after they were already in the car they had no idea they were being approached by cops and simply panicked, trying to get away from what they believed was a random attack. In sum, they argue that the use of deadly force was unreasonable, and a violation of Carter's rights.

In arguing that the civil rights suit filed against him should be thrown out, Wagner has said that his use of force was reasonable in light of the threat posed by the car, and that therefore should insulate him from the suit – necessitating a summary judgment from the court. Wagner’s attorney, Robert Icenhauer-Ramirez, said that despite the judge’s ruling he remains confident that his client will be exonerated.

But in his nine-page ruling signed May 20, Judge Yeakel ruled that the case should go before a jury. "The issue is not simply what Wagner perceived [Webb] to be doing, but whether a 'reasonable' police officer confronted with the same circumstances would have fired his weapon at the car as [Webb] pushed his way out of the parking space," Yeakel wrote. Indeed, he wrote that he "does not agree" with Wagner that "the position and movement of [the] car was so threatening under [Webb’s and an eyewitness’s] version of the facts that any use of force in an attempt to stop it would be objectively reasonable as a matter of law," he continued. "The evidence is clear that Wagner and Rodriguez followed [Webb] and Carter in a manner such that the officers would not be seen by [Webb] and Carter, that the officers approached the car without verbally identifying themselves as law-enforcement officers, and that neither Wagner nor Rodriguez shouted at [Webb] to stop the car." Moreover, he concluded that an "internal report" regarding Wagner's behavior taken together with the conclusions reached by APD's firearms examiner, Greg Karim, indicates that Wagner "was on the driver's side of the car when he fired his weapon," which Yeakel ruled "suggest[s] that Wagner's actions were not objectively reasonable."

Yeakel's conclusions are largely similar to those of the Citizen Review Panel, which is tasked in part with reviewing police shooting cases and making recommendations to Acevedo about issues of discipline and training. In this case, according to the Nov. 2011 memo to Acevedo (not quite five months after the Carter shooting), the CRP concluded that for his actions, Wagner should be fired. "Wagner used deadly force without an objectively reasonable belief that lethal force was reasonably necessary to defend another's life or prevent imminent serious physical injury," reads the memo. The CRP, comprised of seven Austin residents appointed by the city manager, noted the gravity of its recommendation: In the previous six officer-involved shootings "that [resulted] in the death of a civilian" the panel "has not recommended any discipline in any shooting except the one at issue here," they wrote. "We note the fact that we do not habitually recommend discipline in officer-involved shootings to emphasize our opinion that this case is different."

Indeed, the panel made 11 findings related to the shooting, including that Wagner and Rodriguez "intentionally obscured themselves from plain sight during their approach to the vehicle,” and that "Wagner did not have an objectively reasonable belief that [Webb] knew that the police were following him and later attempting to detain him." There was "no legal reason" to detain Webb or Carter, they wrote, no reason to believe that Rodriguez was being dragged by the vehicle, or that "the driver intended to run over or otherwise harm the officers." The panel also concluded that Wagner and Rodriguez "appear to have racially profiled the two civilians involved in the incident."

In a statement released earlier this month in response to questions raised by a KXAN report that detailed portions of the CRP findings, Acevedo said that the department's review of the incident was "exhaustive" and noted that a "diverse" grand jury concluded that the officers "acted in a legal manner" the night that Carter was killed. (Notably, a grand jury also declined to indict Webb on any criminal charges related to his actions that evening.) "I am confident that once all the evidence related to the Byron Carter shooting can be released, the reasons for the grand jury and my findings will be readily supported by the facts and evidence in this tragic incident."

Wagner's attorney, Icenhauer-Ramirez, says he is not at all concerned about Yeakel's ruling and remains confident that Wagner will be exonerated of having acted outside the law. In deciding whether to grant summary judgment, the judge has to construe facts in the light most favorable to the nonmoving party – in this case, Carter's family and Webb – in deciding whether there are facts that remain in dispute. "Frankly, the standard is so low – it's, is there any evidence that a jury could look at that could persuade them" to believe the other party's case. Icenhauer-Ramirez says that when looking at the case through that very special lens, he's not surprised by Yeakel's ruling, but says that he can't imagine that a jury would find Webb and other witnesses called by the plaintiffs to be more credible than Wagner and his witnesses. In short, Yeakel's ruling does "not at all" worry him about his case.

With the summary judgment motion denied, the case moves one step closer to trial – and to the likely vetting in open court of much of the as yet unreleased evidence, to which Acevedo refers, possibly including the CRP memo.

On Wednesday morning, Yeakel entered an order setting the start of the trial for June 3.

To date, the city has not made any move to mediate or settle the case.

*Corrected from original, which misidentified Leyumba Webb.