Matters of Perception

On Tuesday morning, the arbitration hearing regarding the Austin Police Dept. dismissal of former officer Timothy Enlow was suddenly interrupted by a separate legal action: a temporary restraining order, granted in state district court on behalf of the Austin American-Statesman, opposing the arbitrator's ban on cameras in the hearing room. On Oct. 4, the daily's attorneys will argue that under the state Open Meetings Act cameras must be permitted in the hearing room at the city's Learning and Research Center at Bergstrom Airport. Pending the court decision, the arbitration hearing will resume in mid-November (see "The Statesman ... Files a Motion," below).

Whatever the outcome of that legal dispute, by Monday afternoon, following five days of testimony, one thing was already abundantly clear: The APD needs to design a new departmental policy that will define the difference between a "lie" and a "mistake." According to Assistant Chief Jim Fealy, who testified Thursday, when officers are charged with dishonesty, APD administrators have to choose whom to believe. In those cases when the department decides to retain the officer, Fealy said, the charge of dishonesty has generally been interpreted as "a matter of perception, or a matter of [making] a mistake." Enlow, on the other hand, was not afforded this benefit of the doubt. Instead, Fealy concluded, "There was no benefit of the doubt to be given in my mind."

The first week of Enlow's arbitration hearing (before the hearing's interruption, testimony had been scheduled to end Wednesday, Sept. 25) raised more questions than it answered, chiefly: Why were certain investigative avenues ignored; why was Enlow fired for violating policies other officers routinely violated or ignored; and, in its determination to oust Timothy Enlow, did the city violate its own laws or APD regulations?

In short, it's difficult to tell exactly how or why some officers are determined to be "lying," while others are judged to have merely "made mistakes."

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The Burden of Proof

Enlow was fired in August 2001 for a host of alleged violations of department policy, including: lying, insubordination, taking improper police action while off-duty, and "failure to maintain an impartial attitude." The last charge quickly generated headlines when APD Chief Stan Knee told the Statesman that Enlow had engaged in "racial profiling" and had thereby become the first APD officer fired on such grounds. (The charge was reiterated by Assistant Chief Mike McDonald during The Wake-Up Call, Frank Garrett's morning KAZI radio talk show.) Enlow's dismissal was upheld by Chief Knee during an August 2001 Disciplinary Review Board hearing, after which Enlow was "indefinitely suspended" -- the civil service equivalent of "fired." Also at issue in Enlow's hearing were two other off-duty arrests he made in February 2001 at the Oak Lodge apartment complex on East Oltorf (where he was living at the time), and another he made while working off-duty at the Fiesta grocery on 381é2 Street.

Assistant City Attorney Mike Cronig told arbitrator Harold Moore that local media, seizing upon the "sexiest" allegation, had overemphasized the racial profiling charge -- but that, in fact, all of Enlow's alleged infractions add up to a textbook definition of "police corruption." Enlow's attorney Mike Rickman responded that the city's crusade against Enlow is essentially retaliatory. "The city has not carried the appropriate burden of proof on the charges," Rickman said. "They went out of their way to sustain the charges."

Cronig elicited testimony from several officers who say they believe Enlow lied in police reports on the three off-duty arrests -- lies that Cronig described as reprehensible because police reports provide the documentary basis of the entire criminal justice system. APD supervisors say Enlow also ignored a direct order from a supervisor not to use his police car to patrol the parking lot where he worked off-duty security. Finally, city witnesses said that while off-duty, Enlow should not have arrested apparent lawbreakers, because in doing so he didn't use good judgment. Cronig's case, and by extension the APD administration's position, reflects a persistent irony: Testimony given by the same city witnesses suggests they also haven't conformed precisely to every APD policy -- and, in some cases, haven't been completely honest.

For example, Cpl. Carlos Dominguez testified that he never filed a required supplemental police report after responding to a Feb. 21, 2001, call to "assist [off-duty Enlow] and transport" two prisoners from the Oak Lodge apartments to the Travis Co. Jail. Another witness, Sgt. Robin Orten, was on duty March 13, 2001 -- when Enlow was working off-duty at the Fiesta and stopped two juveniles in a pickup truck, then made the arrest that led to the racial profiling charges. Orten said he suspected Enlow was lying about why he had tried to stop the youths and that the arrest was illegal -- yet Orten never filed a formal report detailing his suspicions nor did anything to get the suspects released. Even Enlow's former commanding officer, Cmdr. Joe Putman, testified last week that he has used his police car to patrol his off-duty jobs -- as is allowed to officers who are SWAT team members, as was Enlow. "If I can use my personal car [to do something]," said Putman, "then I can use my police car." (See "When Is a Violation Not a Violation?" below.)

Moreover, the list of APD charges against Enlow was sustained in August 2001, yet the city failed to interview at least one key witness until a full year after Enlow's alleged "improper" arrest of February 2001 -- although the Texas Local Government Code mandates such investigations be completed within 180 days. Coby Carter, arrested by Enlow on an outstanding misdemeanor warrant in February 2001, said he was not contacted by the APD Internal Affairs Division or Cronig until nearly a year later. "I think it was a year to that day almost," Carter said -- although by mid-2001 the APD had already decided Carter's arrest was illegal. Moreover, Internal Affairs investigators neither recorded their interview with the 16-year-old who was driving the truck during the March 2001 Fiesta incident, nor even had him sign his statement. Yet the teen told Enlow's attorney Rickman that the statement was partly inaccurate: "I'd say, in, like, a few [instances]." The APD also offered no explanation for never even interviewing the other occupant of the truck -- identified by his companion only by the nickname "Little Coon."

Enlow's August 2001 termination letter from Chief Knee additionally claims Enlow lied when he told investigators why he was still in uniform the night he arrested Carter. According to Knee's letter, Enlow told IAD investigators he was still in uniform "because he had just left a briefing by [SWAT team] Sergeant Rush. ... Sergeant Rush stated that no such briefing occurred. ..." Yet IA Detective Sandy Hutchinson, who investigated all the allegations against Enlow, directly contradicted the chief's termination letter, testifying that Enlow never made any such statement to IAD and that her report therefore does not address it.

"Did [Enlow] tell you he was coming from a briefing?" asked Rickman. "No," Hutchinson said -- nonetheless, that was one of the allegations for which Enlow purportedly was fired.

Finally, Enlow's termination letter cites the officer's "failure to maintain an impartial attitude." Knee wrote that Enlow "did not objectively and equitably treat [the two juveniles] because of their race, African American," and later told the Statesman he believes Enlow is "the first Austin officer to be fired for alleged racial profiling." Knee's letter continues, "Officer Enlow was using a racial profile to stop the vehicle, which is not only a violation of department policy, but is a violation of the civil rights of the occupant." At the time, however (March 2001), the APD did not have a departmental policy even addressing racial profiling.

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Accepting Responsibility?

On Monday -- closing the city's case -- Chief Stan Knee testified for nearly three hours. He said that in choosing to sustain the myriad allegations against Enlow, he took into account "what is best for the department as well as what is best for the officer." Knee said that Enlow took "inappropriate" police action when he made his off-duty arrests, and that he "knowingly" lied in his police reports and to the department's IA detectives. "I take no pride in having to terminate a police officer," Knee told the hearing. "In this case there were three separate [off-duty] incidents that I felt were serious violations, and officer Enlow had not learned from these situations. Termination was the only [option]."

Yet Knee's apparent certainty was often undermined by his own testimony. He said that he stands by the allegations contained in his termination letter, but also said he didn't recall what documentation supported several "facts" asserted in the letter. Knee admitted, for example, that his allegation about Enlow's "lying" about why he had remained in uniform came from a leap in the chief's own reasoning. Apparently Enlow had told investigators he'd attended the funeral of Travis Co. Sheriff's Deputy Keith Ruiz, and then went back to police headquarters before heading home -- Knee merely assumed that Enlow was saying he'd gone to a briefing.

"So when it's in your letter it's just a mistake, it's not untruthful?" Rickman asked Knee. "I think there's a difference," Knee said. "When someone knowingly misrepresents [facts], it's untruthful. When someone says something they believe to be true at the time, it's a mistake."

Knee also testified that in one incident, the off-duty Enlow had no authority to approach a man who the officer believed fit the description of a drug dealer identified by a confidential informant. Earlier testimony had established that Enlow approached the man to determine his identity -- a request the man could have rebuffed. On the stand, Knee insisted any approach was inappropriate. Yet, when asked about the alleged "racial profiling" arrest of the two teenagers, Knee said Enlow should have approached them and asked for identification. "If he honestly felt they were too young [to be driving]," Knee said, "it seems reasonable he would've walked up to them."

"But they hadn't violated anything," Rickman said. "But if he thought they were too young, a normal police officer would've made contact," Knee said.

Earlier in the hearing, Assistant Chief Jim Fealy had testified that Enlow had lied in several police reports, had disregarded orders from his superiors, and had taken inappropriate police action while off-duty. Even worse, Fealy said, Enlow has yet to accept "responsibility" for those actions -- that is, officer Enlow is also guilty of not agreeing that he's guilty. "I consider Mr. Enlow, based on performance, to be totally unsuitable ... to be employed as a police officer," Fealy said. "He's that untrustworthy."

Yet according to the hearing testimony, several other officers -- including Chief Knee himself -- have overlooked particular APD duties or have made misstatements, but have yet to accept their responsibility for those actions. The arbitrator and the public are presumably meant to conclude that for everybody but APD officer Timothy Enlow, those actions were only "mistakes."