Ten Seconds to Death
What we know – so far – about the police shooting of Nate Sanders
By Jordan Smith, Fri., Aug. 14, 2009
On one point, there is no dispute: In less than 10 seconds, Nathaniel Sanders II went from being passed-out asleep to being a few breaths short of death.
Almost everything else involved in the police shooting death is still a matter of much debate, including whether a Travis County grand jury made the right decision last week in declining to indict Officer Leonardo Quintana on any criminal charge in connection with Sanders' death. To Austin Police Department Chief Art Acevedo, the grand jury's decision was sound – all the evidence he's seen, he said last week, indicates the shooting was lawful. After the grand jury reached its decision, Travis County District Attorney Rosemary Lehmberg released a portion of the evidence the grand jurors considered – including a videotape of the event, recorded by one in-car camera, and the statements of two backup officers and another from the man who'd driven Sanders home that night. The evidence released describes a tragic encounter, but according to official judgments, not a criminal one. To others, including the Sanders family, the evidence describes a needless tragedy resulting from police overreaction and excessive use of force.
Where the evidence leads and which version of the story holds more of the truth remain open questions.
A Brief and Fatal Confrontation
The confrontation happened just after 5am on May 11, in the parking lot of the Walnut Creek apartments on Springdale Road in East Austin. Sanders was asleep in the back seat of a gold Mercedes station wagon; the car's owner, Sir Lawrence Smith, was asleep in the front passenger seat. Smith's friend Michael Franklin, who'd just driven the passed-out pair back to the complex from the after-hours club Ozone, later told police that although neither Sanders nor Smith lived at the complex, he figured they could crash there for the night. Sanders, called "Slick" by his friends, would stay with his girlfriend, Sally, and Smith could, if necessary, couch-surf at Franklin's place.
But before Franklin arrived at the complex, as he was still driving down Springdale Road, he noticed a police car pull out behind him. The patrol car didn't activate its lights or siren; it simply followed. When Franklin pulled into the Walnut Creek parking lot, the police car was still behind him (as he told investigators in his first sworn statement, made to police later that day). When he pulled into a parking space facing a fence along the southern edge of the complex, the police car, driven by Quintana, also stopped, his "front left bumper ... about perpendicular to the back of Sir's car," Franklin said. "As soon as I got out of the car, I heard the officer yell at me to, I believe, 'Don't move,' or 'Put your hands on the car.' I think he said both of these things, but I can't remember which one he said first." Franklin complied, was frisked, and then placed in the back of Quintana's car – he wasn't under arrest, but Quintana wanted him to wait there while he woke the two passengers. (Crucially, although standard rules of procedure required Quintana to activate his in-car video camera, he did not do so.)
By this time, two additional officers, each driving a separate car, had arrived on the scene – first to arrive was Officer John Alexander Hitzelberg, followed almost immediately by Officer Mohammad Siddiqui. Hitzelberg, who pulled in just to the right and forward of Quintana's car, diagonally facing the fence line and a Chevy sedan that was parked in the space directly right of the Mercedes, doused his headlights as he pulled to a stop – he didn't want to "backlight" Quintana, he said; nonetheless, he'd already activated his in-car camera system. Of the three officers at the scene, Hitzelberg was the only officer who remembered to do so.
Hitzelberg and Siddiqui had radioed that they would provide backup for Quintana to stop the Mercedes – police had information suggesting that this car, and these occupants, could have been involved in a string of recent robberies, including one at the Walnut Creek complex that ended with a victim being shot. During several days of canvassing for suspects, Quintana and other officers had received information that the Mercedes might be involved in the robberies; there was also a recent report that someone had been randomly firing a weapon on the complex grounds.
Hitzelberg asked Quintana how he wanted to handle extracting Sanders and Smith from the car. "Due to these being suspects in aggravated robberies and a shooting, we felt that they both might be armed with firearms," Hitzelberg said in a statement. "I felt that we would have a tactical advantage if we handled [them] one at a time."
Most of what happened next can't be seen on Hitzelberg's in-car camera, because it is parked at an angle that shows only the Chevy that was parked to the right of the Mercedes. Regrettably, what is missing is the interaction between Quintana and Sanders, a crucial piece of visual evidence unavailable. Most of what is said aloud apparently can be heard on Hitzelberg's audio track, including most of what Quintana says (though muffled at times) while trying to wake the teen. Just before 5:09am (as timed on the videotape), Quintana, approaching the car at the left rear door (and therefore not visible on the video), first addresses the sleeping Sanders. "Hello?" he asks. At 5:09:02am he tries again: "Wake up," he says, followed by what sounds like a hand slapping against skin, as if Quintana is slapping Sanders in an attempt to roust him. (Because the administrative inquiry into Quintana's actions is still pending, his interview with investigators was not among the evidence released last week. Still, police and D.A. Lehmberg said that Quintana then employed a "sternum rub" technique to try to wake Sanders – an assertion corroborated by Hitzelberg in his statement.) Two seconds later, the officer tries once more. "Hello?" he asks.
The next four seconds are silent. The silence is broken by Quintana (what he says first isn't clear, though after reviewing the tape numerous times, it sounds most like he says, "Oh, careful"), then one second later: "32! 32! 32!" (the police code for "gun"); three seconds later, two shots ring out; two seconds later, there are three final shots. During this sequence, Quintana is moving backward and around the rear of the car to the right; indeed, according to the police trajectory sketch (see trajectory sketch, below), all his shots originate from directly behind or from the right rear of the Mercedes.
By the end of the volley, Sanders sat slumped forward in the back seat of the car, blood dripping from an exit wound in the front of his head, and Smith lay facedown on the pavement, crying out with a wailing moan thick with fear. (Smith survived.) His voice is soon joined by a chorus of residents' cries and screams.
Four Silent Seconds
For reference only. Overhead view of approximate trajectory of projectiles/fragments. Approximate scale.
The evidence released Aug. 5 – the video and the statements of two officers and Franklin – is part of what the grand jurors considered during a total of 27 hours of testimony stretched over two weeks. They heard from 19 witnesses, Lehmberg said in a press statement, and were "assisted by expert testimony" in the areas of fingerprints, DNA, ballistics, and "bullet trajectories and reconstructions of the scene." All that in hand, the jury concluded that Quintana's actions were legally justified.
But others aren't so sure – including Sanders' family and their attorney, Adam Loewy.
Although there is not much to be seen in the in-car video, for example, what is visible raises questions, says Loewy. According to police, after being unable to wake Sanders with a pat or rub, Quintana reached into the car and tried to pull Sanders toward the door. It didn't work. Quintana then allegedly reached for Sanders' waist, to check for a weapon. As he did so, police say, Sanders woke up and also grabbed for his waist; a struggle for the gun ensued, and Quintana and Hitzelberg began to retreat – they were worried Sanders was preparing to emerge from the car, gun blazing. But it was Quintana who fired the five shots, in a sequence as he strode quickly backward and away from the car. The bullets struck Sanders twice – once in the left shoulder, just below his clavicle, and once in the back of the head, a shot that exited near his right ear.
But all of the action in the car, the entire "struggle" between Quintana and Sanders, apparently took place in silence; there is no audio to suggest trouble inside the vehicle. Moreover, the entire interaction – the exchange that police have said forced Quintana to act – took place in a total of just four seconds. "Those are the four most important seconds in this case," Loewy said during a press conference Aug. 6. "If you want to believe the APD's story ... in those four seconds you would have to believe" that Sanders wakes up, grabs Quintana, and fights to keep his gun – all within a span of four seconds.
In Motion or Panic?
Franklin told police that from where he was seated, in the back of Quintana's patrol car, he could see Quintana trying to wake Sanders. Quintana tried "to pull him out" of the backseat, he said, "but ... Slick fell back into the car with what looked like dead weight." That wouldn't be surprising: Among the substances in Sanders' system were, notably, traces of cocaine, alcohol, and Xanax – a muscle relaxer and sedative used to treat anxiety disorders but also used as a street drug to come down from a cocaine high. How much Sanders had ingested isn't clear, but Loewy argues that the cocktail of substances suggests Sanders would have been very difficult to wake – a fact that he believes actually bolsters "what we're saying. ... Or, put differently – he was totally out of it."
Too out of it, Loewy argues, to have known what was happening in the back seat of the car and too out of it to put up a fight, let alone to pose any serious threat to Quintana. Loewy supported that contention by considering where Sanders was shot – once in his left shoulder (from the front) and once in the back of the head. Both shots were taken as Quintana was moving away from the Mercedes, around its back and off toward the front of Hitzelberg's patrol car. APD Chief Art Acevedo said last week that he felt the grand jury made a correct decision and that the location of the wounds on Sanders could be explained by the fact that Quintana was "moving, and while he's moving, he's shooting." But that's problematic, says Loewy: "Is it proper for a police officer to be running away shooting his gun, like it's the wild, wild West? We believe that's an excessive use of force."
The Next Steps
While Acevedo and the grand jury may agree that Quintana acted lawfully in shooting Sanders, it remains unknown how Quintana's actions (and those of backup officers Siddiqui and Hitzelberg) will be judged by Acevedo, now tasked with determining whether Quintana followed APD training, policy, and procedure during the deadly encounter.
Quintana will almost certainly face discipline for his failure to turn on the video recorder in his car – based on the position of his car at the scene, had his camera been working, it would likely have captured whatever struggle happened in the back seat of the car. And there are other questions – notably, the possibility that Quintana may have put his fellow officers in the line of fire.
On the video Quintana can be seen retreating quickly from the car and firing at the same time, his arm outstretched as he pulls the trigger. At one point, Officer Siddiqui can be seen dropping to the ground below Quintana, alternately scooting and then rolling away to cover behind the Chevy parked next to the Mercedes. While Quintana's position there might have provided cover for Siddiqui from the perceived threat posed by Sanders (had he been trying to fire a gun at the officers), it is the position of Hitzelberg that is more troubling. Indeed, according to Hitzelberg's statement to investigators, he was positioned near the Mercedes' bumper when the shooting started. In fact, when the first bullet hit the rear window of the wagon, he thought it might have come from inside the car. He was so close to the shot, Hitzelberg said, that he "felt glass fragments from the window strike my face."
Putting a fellow officer at risk has factored into disciplinary decisions in the past, notably in the termination of former Officer Julie Schroeder, who was fired for the 2005 shooting death of Daniel Rocha. In that instance, then-Chief Stan Knee determined that in shooting Rocha at close range, she'd put her colleague, Sgt. Don Doyle, in harm's way. A similar consideration could factor into Quintana's case.
The department has closed its administrative inquiry and forwarded the case to Police Monitor Clifford Brown on Tuesday, Aug. 11. The Citizen Review Panel will begin its review of the case during its meeting Tuesday night, Aug. 18, at City Hall, and will be taking public comments. Upon concluding the review, which will likely take several weeks, the panel could agree with whatever conclusions APD has reached or could ask for a second, independent investigation. Loewy said last week that the Sanders family isn't waiting to see whether that will happen. On Aug. 6 he said that he would be asking investigators with the Civil Rights Division of the U.S. Department of Justice to conduct its own investigation, as part of the feds' ongoing review of Austin Police use of force first requested in the wake of the 2002 shooting of Sophia King. "I believe Chief Acevedo needs to explain to this community how a young man has a bullet in the back of the head and how that young man posed a threat to that officer that was running away," Loewy said. "This is a matter of federal concern, and we believe based on these facts that the [feds] need to get involved."
Read the released witness affidavits and review the available in-car video of the shooting in "The Available Evidence" sidebar, below.
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