https://www.austinchronicle.com/daily/news/2021-08-03/is-apd-making-austin-less-safe/

Is APD Making Austin Less Safe?

By Austin Sanders, August 3, 2021, 4:00pm, Newsdesk

Updated 8-4 5:15pm In an explosive pair of letters sent to City Manager Spencer Cronk, Travis County District Attorney José Garza and County Attorney Delia Garza demand an explanation for why Austin police are declining to investigate reported crimes and telling the public that the two prosecutors’ reform-minded policies are to blame.

In separate conversations with Cronk and Austin Police Department interim Chief Joe Chacon on June 23, the two prosecutors shared that they’d received complaints from members of the public based on misleading information about the new “arrest review” policies they’d each implemented. Through an open records request, the Chronicle has obtained correspondence to both offices – including emails sent to them after June 23 – that contain similar complaints.

“I have been told repeatedly that the D.A.’s office is not prosecuting cases of criminal trespass (or drug charges) for the homeless, so people aren’t even being arrested anymore,” reads one email sent by a North Austin business owner to the County Attorney on June 24. Another email, also to the county attorney’s office, reads: “Your office’s unilateral decisions to stop enforcing our laws are continuing to have a dangerous and detrimental effect on our businesses and the citizens that want to inhabit Downtown Austin.”

This week’s letters from the two Garzas, dated Aug. 3, state emphatically that what some “rogue” officers, perhaps with political agendas, have told members of the community is a false characterization. They also argue that APD officers spreading misinformation about the two prosecutors – both elected in landslide victories in 2020 – harms not only them but everyone in town.

“As two of the top elected law enforcement officers in the county,” José Garza wrote in his letter, “we are charged with ensuring that our justice system functions to protect the rights of all involved, and that the community trusts that the system works for them. When sworn law enforcement officers decline to investigate crimes reported by Travis County residents, it erodes public confidence in our justice system and makes our community less safe.”

After six weeks of apparent inaction from City Hall and APD, the letters convey the prosecutors’ frustration. “The public safety of our community demands that we work together,” Delia Garza wrote in her letter to Cronk. “But the continued and increasing reports to my office of the public being told by police officers that they cannot arrest someone for an alleged offense due to the policies of my office has left me no other option than to follow up and ask what your office is doing to address these inaccurate statements by your employees.”

In response, a city spokesperson told the Chronicle on Wednesday that although these concerns were discussed on June 23, the meeting was more broadly focused on how the city could partner with the county’s prosecutors. Following the meeting, Cronk and Chacon requested specific details about officers who may have engaged in the conduct described by the prosecutors, but those details were not provided, according to the spokesperson. “We look forward to working with the District and County attorneys’ offices to get those details so we can ensure that all officers are following procedures and the community can have confidence that all levels of the justice system are working to protect them when crimes are committed,” the spokesperson said.

Also on Wednesday, an APD spokesperson sent the following statement: “"The men and women of APD work hard each day to keep the Austin community safe. We continue to work with the Travis County Attorney and District Attorney’s Office to ensure Austin remains one of the safest cities. Our messaging to department personnel through internal communication and daily briefings, clearly and consistently directs officers to continue enforcing the law and follow all COA/APD policies. If there is an allegation that an officer has violated policy, we will investigate the matter, and hold the officer accountable, as appropriate."

The spokesperson also referenced a July 3 video shared within the department in which Chacon addressed the new policies. In the video, Chacon says he and the APD executive team are engaging in conversations with the D.A., County Attorney, and the city Law Department about the policies. “At this time, we are continuing to enforce laws according to our policy,” Chacon says in the video. “Remember, our protocols remain the same and this issue will continue to be a priority for our department moving forward.”

Chacon acknowledges that the new policies are “challenging” for the department and that there is “concern about enforcing laws that could potentially cause a response to residence and result in additional charges against a citizen or actions against an officer.” (This is referring to the need to gather further evidence to sustain cases, or to the need to later arrest suspects at their homes rather than where they were first identified.) The chief does not reference the specific allegations from José Garza and Delia Garza that some APD officers have declined to investigate suspected criminal activity because of those new policies.

What Is “Arrest Review”?

At the heart of the allegations is frustration among police over new policies implemented by both the C.A. and D.A. that allow their offices’ prosecutors to review probable cause affidavits, which are filed by officers in the field before a suspect is arrested without a warrant and booked into the Travis County Jail. In some instances, this review leads to a case being dropped before the suspect is brought before a judge for magistration. Both the C.A. and D.A. have secured standing orders from the Travis County judges who hear misdemeanor and felony cases, respectively, that require suspects be released from custody if their offices decline to pursue a charge. Both the D.A. and C.A. require their attorneys to reach out to officers in the field to see if any probable cause information is missing from the affidavit before they reject the charge.

In the D.A.’s Office, attorneys reviewing affidavits can reject low-level drug offenses (possession of less than 1 gram of any narcotic) and cases in which there is not enough evidence to support a prosecution. Margaret Moore, the previous D.A., had established a similar, albeit optional, policy, and arrest reviews conducted by assistant D.A.s would typically not occur until several days after a suspect was booked into the jail. An update to the policy instituted by Garza allows a suspect to be detained in jail if the arresting officer believes the suspect poses a threat to public safety, or if prosecuting the individual on charges that would otherwise be dropped would contribute to a larger investigation.

The letters represent the most forceful response yet from either Garza in the escalating conflict between the two prosecutors and the Austin Police Association – one of the unions that represents peace officers in Austin – and the Combined Law Enforcement Associations of Texas (CLEAT), which represents officers across the state. Delia Garza characterized this tension in her letter as the “political elephant in the room.”

“I am very aware that the false narrative of mischaracterizing the policies of this office aligns perfectly with attempts to obstruct reform efforts of our criminal justice system,” the C.A. wrote to Cronk, who was technically her employee when she served on City Council. “At the end of the day, we need to set aside political agendas and remain focused on doing the jobs we have been entrusted to do so we can best serve our community.”

The two unions have honed in especially on José Garza, who has brought indictments against several peace officers in cases involving excessive force, including the high-profile deaths of Javier Ambler and Mike Ramos. But police backers made their opposition to Garza known before he was decisively elected in 2020 after promising to prioritize violent felonies that represent a threat to public safety over other offenses like drug possession or sex work. Justice activists view this as necessary to create a more equitable criminal legal system, but many police disagree.

A recent report from KVUE shed some light on the kinds of cases the D.A.’s Office has dismissed under José Garza’s arrest review policy. The station found that between March 1 and June 30 of this year, the D.A. dropped 142 cases, compared to 17 dropped by Moore’s office during the same time frame last year. About 65% of these were state jail felony drug offenses. The remaining cases, which KVUE reported include some major crimes such as aggravated assault with a deadly weapon, were rejected because prosecutors deemed there was not enough evidence available to support a case.

Principles and Precedents

The arrest review policies, put into effect at the county attorney’s office on March 1 and at the D.A.’s Office on April 1, stem from several principles. One is simply to limit the jail population, an ongoing goal in Travis County for many reasons – ethical, fiscal, and now to prevent the spread of COVID – by not incarcerating people who are accused of low-level, nonviolent offenses and do not pose a threat to public safety.

Another is to promptly identify cases that can’t be prosecuted with the evidence available, so that resources can be devoted to other priorities. The flip side of that is that arrest review can lead to stronger cases being made against people suspected of crimes that merit prosecution, by identifying needs for more evidence or helping officers better understand criminal statutes.

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Data obtained by the Chronicle shows that since April 1, assistant D.A.s reviewed charges against 586 people arrested by local law enforcement. Of those, felony charges were rejected in 96 cases, or about 16% of those brought before a judge for magistration; almost all of these (79) involved drug offenses. A total of 390 suspects went through magistration on non-drug charges. The data we obtained doesn’t indicate the outcome of each case. Some suspects may have been released, or booked on qualifying misdemeanor charges, or released and then returned to jail later after officers collected more evidence, or kept in jail as prosecutors agreed that the case against them was sufficient.

Similar prosecutorial review programs have been in place in Harris County since 1973, in El Paso County since 1994, and in Montgomery County (Conroe and The Woodlands, north of Houston) since 2008. Each program slightly differs, but as in Travis County they involve prosecutors being available most hours of the day to work with officers to determine if what arrestees have been accused of doing actually violates the law, and if the evidence available is sufficient to jail the suspect and sustain a case.

A 2006 study conducted by Texas A&M on intake systems, including those in El Paso and Harris counties, concluded that the case reviews allowed for more efficiency and coordination between peace officers and prosecutors. The study identified similar benefits to those that the Travis County prosecutors hope to achieve: the early dismissal of cases that could not be prosecuted successfully, up to 18% fewer defendants held in pretrial detention, and overall stronger case quality as prosecutors notify officers in the field of potential missing information.

A 2019 study, published by the College of William & Mary Law School and focused more specifically on prosecutorial review of warrantless arrests, came to similar conclusions. “In sum, by prescreening warrantless arrests,” wrote the study’s author, Adam M. Gershowitz, “Harris County prosecutors are able to prevent flawed cases from being filed, reduce the number of charges to prevent clogs in the system, and screen out charges that while technically appropriate might be unjust.”

What Does the Law Say?

These endorsements notwithstanding, APA President Ken Casaday says that the way in which the two Garzas have implemented arrest review in Travis County violates the Texas Code of Criminal Procedure – specifically, articles 14.06 and 15.17, which cover arrests without and with a warrant, respectively. Both sections say that when a suspect is taken into custody by a peace officer, they must be brought before a judge for magistration.

Casaday says that in Harris County, officers are not allowed to make a warrantless arrest until they call the intake hotline and have their case reviewed by a prosecutor. Casaday argues that once an arrest has been affected, the code requires magistration. “The policy was an issue when [former APD Chief Brian] Manley was here and City Legal started looking at it, but all of a sudden APD was told it’s not in their purview,” Casaday told us. “That’s the problem. We have people in the city recognizing the issue with the Code of Criminal Procedure, but they’re not doing anything because of politics.”

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It is unclear to what extent the city’s Law Department was involved, but after urging from police, Assistant City Manager Rey Arellano, who oversees the city’s three public safety agencies, wrote a letter, dated March 8, to Delia Garza and Travis County Sheriff Sally Hernandez that outlined objections to the county attorney’s arrest review policy and asked that it be temporarily suspended. (The equivalent policy in the D.A.’s Office had yet to be implemented.) “I understand that these changes have been made for reasons that include reducing the burden on courts and keeping people with low-level offenses out of jail,” Arellano wrote. “These reasons are consistent with City Council policy goals as well.”

However, the change was implemented “without any consultation with [APD] or City management,” Arellano wrote. Instead, he felt the new policy should have been brought for discussion to the coordinating committee established under the interlocal agreement between the city and Travis County to manage Central Booking at the jail. “While it is not entirely clear to me at this time how these new processes will be implemented,” he wrote, “they have the potential to fundamentally disrupt the Interlocal Agreement, which requires the County to receive, hold, and house all city prisoners tendered by APD and accepted by the TCSO.”

Arellano also argued that the new policy violates Article 14.06 of the Code of Criminal Procedure. City Attorney Anne Morgan was copied on the letter. When the Chronicle asked if Arellano had sought an actual opinion on the matter from the city’s Law Department, a city spokesperson responded: “Decisions on how to prosecute crimes that fall into the jurisdiction of the District and County Attorney are the responsibility of those officials.” Arellano does in the letter cite a nonbinding legal opinion from the Texas Attorney General’s Office (GA-0426), which argues that arrested individuals are required to be taken before a judge for magistration so that the suspect can have their Miranda rights read to them.

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In a response sent the same day, March 8, Delia Garza sought to clarify the “misinformation” or “inaccurate details” Arellano had received about the policy. In the letter, Garza wrote that her new policy merely moves up the time in which prosecutorial screening occurs – to before the suspect is booked into jail instead of after. “The changes we have implemented are an attempt to expedite [arrest review] and will not only save and redirect our limited taxpayer resources, but also ensure individuals are treated fairly in the interest of justice,” Garza wrote. “It would be irresponsible and inhumane to waste taxpayer dollars by holding someone who will be released later.”

She argues that the policy does not violate the code, because when the state decides not to pursue a case there is no reason for suspects to be booked into jail at all, and the standing order from the criminal court judges allows suspects to be released if a prosecutor declines charges. In her letter, Garza notes that the Central Booking interlocal agreement does not prohibit prosecutors from reviewing cases prior to arrest or booking; she does not address Arellano’s claim that the coordinating committee should be consulted.

However, Delia Garza did later meet with APD, the Sheriff’s Office, and other county law enforcement agencies to clarify aspects of the county attorney’s policy – noting that attorneys review each case individually to determine if the state should proceed with charges and that some types of cases are not eligible to be dismissed before magistration, including driving while intoxicated or charges relating to family violence. For his part, Casaday told us he would be willing to “sit down and talk” with the D.A. and C.A. about instituting a version of the policy that, in his view, adheres to the code; he did not go so far as to endorse the Harris County model of preclearance for all warrantless arrests.

A city spokesperson told the Chronicle on Wednesday that “the City recognizes the significant initiatives that both the County Attorney and the District Attorney have embarked on to reform the criminal justice system. We consider the issue of compliance with Article 14.06, once an arrestee is turned over to the Central Booking Facility, to be a matter for the County Attorney to address.”

“We’re Going to Take Their Lead”

What Casaday and other police backers – including the Save Austin Now political action committee and Gov. Greg Abbott and the leaders of the Texas Legislature – think of the Garzas’ policies translates directly into what officers in the field are telling Austinites who call for help, according to the two prosecutors. José Garza makes reference in his Aug. 3 letter to Casaday’s comments after Garza defeated Moore in the July 2020 primary run-off. In an interview with Fox 7 News, Casaday said, “What I’m telling my guys is, ‘Answer your calls and that is it.’” He said Garza’s election signaled that Austinites did not “want an active police department … They’re very clear and we’re going to take their lead.”

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In his letter, Garza writes, “It appears that some rogue APD officers have answered Mr. Casaday’s call. … This tactic mirrors tactics used by police unions in other cities.” Right now, law enforcement unions are trying to force an election to recall progressive San Francisco D.A. Chesa Boudin; last year, reformist Philadelphia D.A. Larry Krasner beat back a fierce primary challenger propped up by the local police association.

In response to the letters from the Garzas, Casaday told the Chronicle, “It’s very clear to the association that the officers are doing their job because they’re making numerous felony and misdemeanor arrests which are not being prosecuted by the District and County Attorney offices. A story yesterday [referring to another Fox 7 Austin report] showed there are hundreds of cases not being prosecuted. That’s not the officers declining to do their job, that’s the County and D.A. not doing their job.”

Addressing the broader allegation that some officers are declining to investigate suspected criminal activity, Casaday said: “If the allegations are factual, that’s inappropriate. Our officers know they need to be conducting criminal investigations. We can’t control what the County Attorney and D.A. do, but we need to do our job.”

The letters represent a potential rupture in what has appeared to be a more productive, or at least less contentious, working relationship between Chacon and the prosecutors than the defiance shown by Manley, who retired in March, to the reformist policies sought by City Council, including then-Mayor Pro Tem Delia Garza. Chacon is one of seven candidates still in the running to be Austin’s next permanent chief of police; most of the contenders are distinguished by their work at improving police-community relations and moving their departments in the direction of reform.

This is a developing story that was originally published Tuesday, Aug. 3 at 4pm and has been updated since. Check back for further updates.