Excessive Force Firing

Austin Police Officer Gary Griffin was fired, and three of his supervisors were suspended Dec. 28 by acting Chief Cathy Ellison for policy violations in connection with the July arrest at a bus stop in East Austin of a drunk and possibly mentally retarded 24-year-old.

According to Ellison, Griffin used excessive force on Joseph Cruz, who was passed out on a bus-stop bench on July 1. According to Griffin, Cruz reacted violently when awoken, striking out at Griffin. But Ellison says the in-car videotape of the incident proves otherwise – Griffin first failed to identify himself as a police officer (which he should have done – even though he was driving a marked car with flashing lights and was wearing a standard police uniform), used too much force, and then lied about it (a charge apparently leveled at Griffin because his recollection of the chain of events that night didn't match perfectly with the videotaped recording of the incident), all of which brought "discredit" to the department. The "amount of force [Griffin used] was unreasonable and was more than the minimum amount of force that was necessary or appropriate under the circumstances," Ellison wrote in a disciplinary memo to Griffin.

Although Griffin has been on patrol in central East Austin for nearly 10 years without any previous complaints about excessive force, or any other disciplinary actions, said Griffin's attorney Tom Stribling, Ellison nonetheless concluded that handing Griffin an indefinite suspension – the civil service equivalent to a termination – was the most appropriate discipline. Since Griffin thought the force he used was appropriate, Ellison wrote in her termination memo, "it is my belief that any discipline other than indefinite suspension would not change or correct his behavior" – even though there is no evidence that a lesser form of discipline was ever considered or that some sort of corrective action was attempted and failed. (A Travis Co. grand jury no-billed Griffin on Dec. 19; Ellison also handed three of Griffin's supervisors – Cpl. Andrew Haynes, Lt. Deborah Sawyer, and Cmdr. Michael Nyert – temporary suspensions for failing to conclude that Griffin's actions in arresting Cruz were out of line.)

Cruz was arrested for resisting arrest and assault on a police officer, charges that were later dropped by the Travis Co. District Attorney's Office. The three supervisors in Griffin's chain of command reviewed and signed off on Griffin's actions during the Cruz arrest, as within APD policy. But according to Ellison, each of Griffin's supervisors failed to take "immediate corrective action" regarding Griffin's failure to ID himself to Cruz and for excessive use of force. According to the supervisors' disciplinary memos, the fact that none of the three came to the same conclusion that Ellison did regarding the Cruz arrest shows they signed off on the incident without considering the totality of the circumstances, which Ellison wrote was "at best unreasonable and impractical."

Ellison's decision to hand Nyert a one-day suspension surprised many APD insiders, who say Nyert has a reputation as being the department's toughest commander when it comes to use-of-force issues: Nyert doesn't sign off on anything without first undertaking a thorough review, and he is the commander who refers the most cases to Internal Affairs and to the fifth floor for review by department administrators, sources tell the Chronicle. The Nyert discipline may in fact change the way commanders review use-of-force incidents, sources said, and prompt supervisors to send more reports to the assistant chiefs for a final determination on whether an officer's actions fall within policy – in other words, sources suggest that the Nyert discipline may trigger a departmentwide cover-your-ass policy in determining whether uses of force was appropriate.

Stribling, who represents all four officers, says all four will appeal their suspensions to a civil service arbitrator, who will be tasked with deciding if Ellison's conclusions were in fact appropriate.