APD suspends Quintana, fires Dunn – but doubts remain about the Nate Sanders shooting
During the nine years that Officer Leonardo Quintana has served with the Austin Police Department, he says he's learned on-the-job lessons to help him better perform his duties as a peace officer – including the best moment to activate his patrol car's in-car video camera.
Quintana has learned through experience that if he activates the camera while following a suspect vehicle but before initiating a stop, the red light that indicates the camera is on can be seen, through the car's windshield, from the car he's following. According to Quintana's union attorney, Tom Stribling, that tip-off can complicate the stop. In one instance, Stribling explained, the moment Quintana made a stop, "four or five people right away bail out of the car and run." When Quintana caught the suspects and asked why they had fled, they replied, "Because we knew you were about to stop us." In order to avoid such situations, Stribling said, Quintana has learned to wait "and not turn on his camera until the last minute."
According to Stribling, that was the scenario just after 5am on May 11, when Quintana spotted a gold Mercedes-Benz station wagon driving along Springdale Road toward the Walnut Creek apartments. Quintana had pulled into the parking lot of a nearby AutoZone and was writing up a report when the car drove by; Quintana had been keeping an eye out for a vehicle fitting the description of the wagon, which he later learned was owned by Austin amateur boxer Sir Smith. Police suspected that the car was connected to a string of robberies that began in March – including that of two cab drivers robbed at gunpoint – and to an incident just two days before, when Quintana and other officers had heard random gunshots being fired from somewhere in the Walnut Creek complex. Quintana pulled out of the AutoZone parking lot and began to follow the car. But he did not turn on his camera – not then, and not at the moment of making the stop.
What began as a traffic stop (albeit a potentially risky one, of unknown suspects who Quintana believed were likely armed) ended with the death of 18-year-old Nathaniel Sanders II. Quintana shot Sanders twice – once in the shoulder, once in the back of the head – and wounded the car's owner, Smith, who took a bullet in the chest (it traveled along his pectoral muscle and exited near his abdomen) but made a full recovery. What we know most precisely (and yet incompletely) about what happened that morning comes indeed from an in-car police video, but not that of Quintana's vehicle. Another responding officer, John Alexander Hitzelberg, had activated his camera, and it captured part of the incident that ended in Quintana's shooting of Sanders and Smith.
On Wednesday, Nov. 4, nearly six months later, APD Chief Art Acevedo announced that Quintana's failure to activate the mobile video recorder that morning would earn him an unpaid 15-day suspension. (Acevedo also meted out a three-day suspension for Officer Mohammad Siddiqui, who was at the scene and who also failed to activate his camera.) But Acevedo said also that despite that failure, Quintana had acted within policy during his encounter with Sanders, Smith, and the driver of the vehicle, Michael Franklin; Quintana's use of deadly force, Acevedo concluded, was justified. "The use of force by ... Quintana was objectively reasonable based on the totality of the circumstances," Acevedo told re-porters last week. "That was consistent with the recommendation of [Quintana's] entire chain of command. That was consistent with the recommendations of the Citizen Review Panel; it was consistent with the findings of the [Travis County] grand jury. And it is my finding as the chief of police."
Nonetheless, the months of investigation – first by APD criminal investigators, by Internal Affairs investigators, and then, at the request of the civilian police oversight panel, by an outside independent reviewer – have not put to rest questions about the shooting. That's especially true for the Sanders family, who believe the relatively light punishment for Quintana is an "insult," said the family's attorney Adam Loewy. The lack of visual evidence is also central to the overriding question that lingers for Sanders' family: Did Nathaniel Sanders II have to die?
Beyond His Control
Austin police cars were first equipped with in-car video recorders in the late Nineties, a technological advancement mandated as part of the settlement of a civil case sparked by the infamous Cedar Avenue incident of Feb. 11, 1995. At least 70 officers responded to a call about an officer down at a large annual children's Valentine's party held by Ira and Charmaine Bedford and attended by their friends, family, and neighbors in East Austin. The police response, to a report that an officer had been hit in the head with a knife by an unknown assailant at the party, turned into a melee, and the case eventually wound up in federal court. The installation of patrol car cameras was part of a plan to improve community relations between APD and Eastside residents, who often felt more threatened than protected by the city's police.
That APD has had the cameras for so long (cameras that use VHS tapes and are now decidedly outdated, a circumstance Acevedo has said he hopes to remedy with an upgrade to digital recorders as soon as possible; see "Cole to Council") makes the lack of video in the Sanders shooting additionally frustrating. Without a complete video picture of the incident, it is difficult to know with certainty what transpired between Quintana and Sanders in the early morning hours of May 11. It is a gravity that Quintana fully grasps, says Stribling: "He knows and understands that the camera is a significant issue."
Although the city has not yet released the investigative file assembled by APD's Internal Affairs, other documents released last week – including several disciplinary memos penned by Acevedo and a partially redacted report compiled by the outside investigators with KeyPoint Government Solutions – provide more information about what happened that morning and further insight into the remaining controversy.
Quintana is not speaking to reporters, so his narrative of the incident is being provided partly by Stribling and partly from Quintana's documented accounts to APD investigators. When the gold Mercedes pulled into the apartment complex parking lot that morning, Quintana followed. He did not turn on his lights and siren, nor did he turn on his camera. He intended to do so, Stribling says, but he didn't intend to approach the car until backup arrived and thus didn't want to turn on the camera and signal his intentions to the occupants of the station wagon. He drove past the parked car and then turned around. As he pulled up behind it again, the car's driver, Michael Franklin, was already getting out. "Franklin opened the door and gets out, and [Quintana] needed to be on the ground, talking to him," Stribling said. "Tactically, you don't want to be the officer sitting in the car with someone approaching you." At that point, according to Stribling, turning on the camera simply "went out of his mind. In the beginning it was a tactical decision, but when events sped up they got beyond his control, or he just forgot."
What happened next indeed happened quickly. Officers Hitzelberg and Siddiqui arrived within moments of each other, just as Quintana was putting a handcuffed Franklin into the backseat of his patrol car. Sanders and Smith, who had been partying at an after-hours club, were apparently still passed out in the car. According to police, Quintana tried to roust Sanders, who was asleep in the backseat, by slapping his cheek and rubbing his sternum. In the course of trying to wake the 18-year-old, police say, Quintana realized that Sanders was carrying a weapon in his waistband; suddenly, police say, Sanders started awake and tried to pull the weapon on Quintana. Quintana retreated, warning his fellow officers that Sanders had a gun (yelling "32! 32!" – the code for an armed suspect), then fired into the rear of the car, killing Sanders.
"I know I reached out – as soon as I lifted [Sanders'] shirt and I saw the gun, I reached for it," Quintana told investigators with an APD special inquiry team. "[H]e reached for it almost at the same time ... he grabbed it, and like I said, I don't know if he grabbed my hand or grabbed the gun, but it was just ... real quick. I tugged, he tugged, and then he leaned all the way into the car ... he had full [grip] ... of that gun, and he was pulling it out," Quintana continued. "I could just see his silhouette coming up from his leaning position, pulling it out, and ... that's when I fired."
Despite Acevedo's decision, Loewy and the Sanders family remain unconvinced that Quintana's actions were justified. For example, although Quintana says he struggled with Sanders for control of a pistol, the only audio recording from the scene, taken from Hitzelberg's mic, is nearly silent on this point. Quintana can be heard talking to Sanders, trying to wake him, but there is no audio suggesting a struggle took place, Loewy says: "You can't hear any struggle because no struggle occurred in that car." Moreover, Loewy notes that witnesses at the scene – among them Sanders' girlfriend, who was standing with a group of young people in the parking lot while the incident went down – each told police that Sanders was not struggling, and from their vantage point it appeared that he was "barely awake." But the APD ignored those statements, Loewy contends. Quintana acted recklessly, he says, and APD has simply given him a pass. The investigation into the shooting, he says, was "biased and rigged from the start."
In fact, according to the outside investigators with KeyPoint (and ultimately Acevedo), there was indeed bias in the Internal Affairs investigation: IA detectives asked leading questions, the investigators wrote; one investigator in particular, Detective Chris Dunn, expressly approached the investigation with a bias toward clearing Quintana, as demonstrated in e-mails that he wrote concerning the case and in his decision to ignore questions that the APD's legal counsel, Assistant City Attorney Michael Cronig, wanted them to ask Quintana. Dunn didn't want to ask those questions, he told investigators, because whatever answers Quintana gave might tend to incriminate him.
The revelations about Dunn's actions prompted Acevedo to appoint a special group of officers to comb through the IA file and to reinterview Quintana, to make sure all avenues of inquiry had been covered. Acevedo also began an investigation into Dunn's actions and, on Nov. 5, announced his decision to fire Dunn (see "Acevedo: Chris Dunn Is 'Damaged Goods'"). "Integrity is the cornerstone of the [APD] organization. Internal Affairs is in a position of even greater trust. If you violate that ... you really become damaged goods," Acevedo said last week during a press conference. Dunn not only "failed the Sanders family, Officer Quintana, [and] the community, but also failed the APD and the fine men and women of this organization."
Yet Acevedo concluded that Dunn's actions did not impact the ultimate outcome of the investigation. The criminal investigation was not marred by bias, Acevedo said, and their work became the basis of the IA review. Moreover, he said, the Citizen Review Panel agreed that Quintana's use of deadly force was justifiable given the facts he had at hand that morning in the parking lot at the apartment complex. The panel also agreed that Quintana should be punished for his failure to turn on his camera, although the oversight panel recommended that Quintana be given "a minimum" of a 90-day suspension for that and other tactical violations redacted from the report. Acevedo did not concur, allotting only a 15-day suspension without pay.
After announcing his disciplinary decision, Acevedo said he had also revised the department's policy covering use of the mobile video recorders, requiring officers to use the cameras "in nearly every incident out there," he said. Now cameras must be activated whenever "the officer has detained or arrested a person, is attempting to arrest or detain a person, or by nature of the call for service the officer is likely to detain or arrest a person," reads the policy. An "intentional failure" to turn on the in-car camera would now net up to a 15-day suspension; a second violation would result in "immediate and indefinite suspension" (the civil service equivalent of termination), as would failure to turn on a camera during a "critical incident" – such as a police shooting.
Acevedo said he understands the controversy that lingers because of Quintana's failure to turn on his camera. But he said that there is still plenty of evidence (including Hitzelberg's camera and audio, ballistics and trajectory information, and the statements of Quintana and others) to conclude, definitively, that Sanders was a threat and that Quintana's response was justified. "I do not take these situations lightly, and I do not make decisions lightly," he said. And he has "no doubt" that Quintana's use of force was "objectively reasonable." Indeed, he said, had Quintana turned on his camera, it would be clear to everyone that the use of deadly force was justifiable: "Had all [three cameras] been on, interest in this [shooting] would've waned a long time ago."
But of course, only one camera was on, notes attorney Loewy. And he's still unconvinced that the remaining evidence has not been filtered so as to justify Quintana's actions. "This [process] has been secretive, behind closed doors. The next part of the process," when a federal lawsuit filed by the Sanders family goes to trial next summer, "will not be behind closed doors and ... Chief Acevedo will not be able to control it," Loewy said. "I am confident that when a jury hears" what happened in the parking lot that morning, "with the curtain lifted, we will prevail."
Download the KeyPoint review of APD’s investigation here.