Panel Upholds Olsen Firing, but Case Doesn't End Here

APD officer loses first round of appeal challenging his firing

Panel Upholds Olsen Firing, but Case Doesn't End Here
Photo by Rodolfo Gonzalez, Austin American-Statesman

Sgt. Michael Olsen was "impulsive" and too "quick to act" when he shot and killed 25-year-old Kevin Brown last summer, Austin Police Chief Art Acevedo told the city's Civil Service Commission last week, adding that his decision in November to fire Olsen was "based on the totality" of the circumstances surrounding the shooting. Apparently, the three-member CSC agreed; on Feb. 29 they upheld Olsen's termination.

Acevedo's first appearance as a sworn witness since taking the top cop job last year lasted nearly four hours Thursday and concluded five days of witness testimony in Olsen's appeal hearing. Acevedo told the commissioners that he didn't believe Olsen was a bad person, only that he wasn't a great policeman. In confronting Brown early June 3 in East Austin, "he went 100 miles per hour," without stopping to assess the potential threat and surrounding environment, which set off a chain of events that escalated to deadly force. The fact that Olsen "didn't slow down was a reason that a lot of these mistakes were made," Acevedo said. Kevin Brown, he added, "did not have to die that night."

Further, Acevedo said that deadly force should be used only when "absolutely necessary" and that officers have a duty to confirm that a potential threat is real before firing their weapon. In other words, he said, officers need to wait until they see that a suspect is actually carrying a firearm and are actually threatened with that firearm (or other weapon) before pulling the trigger. "Simple possession of a firearm does not justify the use of deadly force," Acevedo said. The only situation in which an officer can be "100 percent certain" that a threat exists is when "they see a gun or something that looks like a gun ... that will put your life or the life of another in jeopardy." Until that threshold is met, the use of deadly force is not justifiable – just as it wasn't in Brown's case, Acevedo said. "If all you see is a guy moving around, I don't think that's reasonable [to use deadly force]."

Acevedo's interpretation of the deadly force provisions of the department's use-of-force policy is more restrictive than past interpretations, argued Olsen's attorney, Tom Stribling. Moreover, Stribling noted in his closing arguments Feb. 29 that the chief's interpretation of policy is fine but nonetheless represents a newly articulated standard that simply can't be applied to Olsen because Acevedo did not take over as chief until after the Brown shooting, and the Acevedo standard does not comport with what Olsen and other veteran APD officers have been taught.

Indeed, Austin Police Association President George Vander­hule, who spent six years as a lieutenant in the department's training division, said that Acevedo's interpretation of the APD policy on deadly force diverges significantly from current academy training. And, he said, on its face, Acevedo's interpretation is a tad troubling. Vanderhule said it is clear that an officer can't use deadly force for no reason at all – because a motorist happened to shift in his seat as an officer approached him during a traffic stop, for example. He argued, however, that there are situations where officers may not have proof that a suspect is carrying a weapon but where the totality of the circumstances – the suspect's actions, combined with "furtive movements," for example – provide the officer with reasonable evidence of imminent danger. Historically in such situations, an officer's use of deadly force has been upheld as lawful and found to be within APD policy. Vanderhule says that in reality the two standards – that an officer doesn't have to see a weapon, and that an officer should wait to see a weapon – are not mutually exclusive. "But you have to apply them in two different circumstances," he said. "There would be times when you'd want to see a weapon – when you think a suspect has a gun, but nothing is going on. That is not the case here: [Olsen] believes he has a gun, [Brown] pushes him away, and he's grabbing at his side. The evidence in this case certainly supported his belief" that threat existed.

Still, Assistant City Attorney Michael Cronig argued Friday that Brown never posed a threat and that Olsen should have recognized that. "There was no urgency," and thus no need to confront Brown immediately, Cronig said. Brown "was just standing there [in the parking lot,] talking." If Olsen had stepped back and slowed down, he said, it is unlikely that the situation ever would've gotten so out of control. Olsen is "impulsive, and he makes decisions – bad decisions ... that have tragic consequences," he argued.

Still, the Olsen case is not yet closed. Indeed, it will now move to Travis Co. District Court, where Stribling will appeal the CSC ruling. Among the questions for the court is whether the CSC even had the legal jurisdiction to consider and ultimately rule on Olsen's case. Civil service law requires the parties in the case – the city and Olsen – agree on a "date certain" by which the commission will close the case and render its decision, says Stribling. While Olsen agreed in writing to postpone the hearing until Feb. 19, he did not agree to the subsequent hearing schedule, which was spread over two weeks. And Olsen's attorneys objected vociferously to the scheduling of Acevedo's testimony on a date four days after Olsen rested his defense. Stribling first raised the issue of jurisdiction with the commission on Feb. 20; the commissioners denied the motion and ruled in favor of allowing themselves to retain control over the case. If the district court were to find that the commission erred in doing so, Olsen would automatically win the right to be reinstated with APD.

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Michael Olsen, Kevin Brown, APD, use-of-force, Civil Service Commission, Art Acevedo, Tom Stribling, Michael Cronig

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