The Austin Chronicle

'Reckless Tactics' ... and the Blowback

Suppressed report charged APD negligence in Sanders shooting

By Jordan Smith and Richard Whittaker, May 14, 2010, News

Outside investigators asked by the city to review the Austin Police Department Internal Affairs investigation into last year's police shooting death of Nathaniel Sanders II by Officer Leonardo Quintana concluded that Quintana acted "reckless[ly] to the point that he needlessly endangered himself, his fellow officers, the suspects and the onlookers."

That was the assessment revealed by an unredacted version of that report (containing still a few brief omissions) acquired last week for review by the Chronicle from an anonymous source. Beyond its details, the report has been a subject of roiling controversy, which exploded publicly last weekend because the city has been fighting to keep large sections of the report confidential, reportedly even to City Council.

The report had been publicly available only in a heavily redacted form, which, among other deletions concerning Quintana's personnel record, omits most of the major conclusions reached by independent investigators with KeyPoint Government Solutions, the consulting firm hired by the city to do an independent review of the IA investigation at the request of the city's Citizen Review Panel – which had itself recommended a 90-day suspension of Quintana. Despite numerous open records requests (including one from the Chron­icle), the city has continued to decline to release the full version of the report, claiming that it's exempt from public disclosure because it was commissioned in the course of the internal inquiry. A lawsuit filed by the Texas Civil Rights Project seeking release of the full report is pending in state district court.

Earlier this week, we posted online our transcript of the previously redacted sections of the report; that full transcript remains online along with the earlier redacted version so that readers can review what is available of the entire report. (The Chronicle broke the KeyPoint story on its website the evening of May 7, and shortly thereafter the Statesman also began posting what became its front-page takeout on the story Saturday morning.)

The Shooting

Quintana shot and killed Sanders in the parking lot of the Walnut Creek apartment complex on Springdale Road in East Austin on May 11, 2009. Sanders was asleep in the backseat of a Champagne-colored Mercedes-Benz station wagon when Quintana approached him; Quintana said that when Sanders awoke, he grabbed a gun tucked into his waistband. Quintana said he feared for his life and shot Sanders twice as he retreated from the car. The city's Citizen Review Panel recommended a 90-day suspension for Quintana, but ultimately, a Travis County grand jury declined to indict him on any criminal charges in connection with Sanders' death, and APD Chief Art Acevedo sustained just one of the five administrative charges leveled at Quintana, handing the officer 15 days off for failing to activate his in-car video recorder. (Last week, Quintana was terminated – "indefinitely suspended," in civil service parlance – although not in connection with the Sanders incident: He had subsequently been charged with a DWI that ended in a car wreck in Williamson County.)

But according to the unredacted KeyPoint report, the independent investigators concluded that Quintana should have been disciplined for multiple infractions – including failing to identify himself as a police officer, failing to use proper police tactics during the incident, and for unnecessarily using deadly force. The report calls his actions "well beyond merely careless or negligent. We believe his actions ... were reckless to the point that he needlessly endangered himself, his fellow officers, the suspects and the onlookers." It goes on: "We characterize Officer Quin­tana's tactics as reckless mindful of the legal import of the term. Reckless conduct can be criminal if it involves taking actions knowing that they are likely to yield a particular result but the actor does so despite the risk. ... It is not a long stretch between finding that Officer Quintana disregarded standardized Departmental training and tactics in confronting potentially armed suspects resulting in his killing one and wounding the other, and finding that he disregarded the substantial and unjustifiable risk that he would lose control of the volatile situation resulting in having to use deadly force." The report recommended related violations against two officers also involved in the incident. (See key excerpts from the redacted text in "The KeyPoint Report.")

The Reactions

As we reported April 30 ("Cutting on the Bias"), the Internal Affairs detectives investigating Quintana's actions in the Sanders shooting determined that the allegation of the failure to activate his camera should be sustained but that he should be cleared on charges related to his failure to identify himself, on his choice of tactics (they found he had not acted in a way incompatible with his training), and for his use of deadly force against Sanders, who died, as well as against another passenger of the car (Sir Smith, who was shot and wounded).

The IA detectives' supervisor, Cmdr. Charles Johnson, disagreed with his subordinates' findings on several counts; he determined that Quin­tana should be disciplined for failing to identify himself and for his failure to use sound tactics. But Johnson concluded that, ultimately, Quintana's use of deadly force was justifiable. "Quintana's choice of tactics and his approach to Sanders contributed directly to the chain of events that followed, which ultimately led to Quintana using deadly force against Sanders. If different tactics had been employed, the necessity to use deadly force may have been avoided entirely," Johnson wrote in his August 2009 summary report on the IA investigation. "However, [the use of deadly force allegation] is treated separately, outside the larger situational context," he continued. "Officer Quintana believed that lethal force was reasonably necessary to defend his own life and the life of his fellow officers."

The KeyPoint investigators – led by two former prosecutors and a former cop – concluded that Johnson's conclusions regarding the use of deadly force were wrong: "we believe that Internal Affairs' analysis is flawed by examining this allegation separate from the events that led up to Officer Quintana's use of deadly force," they wrote. "As noted above we believe that Officer Quintana's tactics were reckless and that if Officer Quintana employed even the most basic officer safety tactics in this situation as he had been trained, the necessity to use deadly force may very well have been avoided."

The KeyPoint investigators concluded that it was Quintana's actions that caused the interaction with Sanders to go badly. "Ultimately it is our finding that significant tactical errors that rose to the level of recklessness were made by the involved officers, and that but for this recklessness the use of deadly physical force might very well have been avoided," the report states, and "we have also found that the use of deadly physical force by Officer Quintana was not justified, as any belief that there was an imminent danger to himself or others was not objectively reasonable."

Official Reaction

Over the weekend, city officials began responding to the news of the additional information from the KeyPoint report. On Saturday, Acevedo held a press conference in which he said he stood by his original judgment in the Quintana decision and insisted that the city is "following the law" and a federal court order in not releasing the entire report. (In the Sanders family's wrongful death lawsuit against the city, federal Judge Sam Sparks has issued a protective order restricting release of the report.) Acevedo angrily rejected charges of a "cover-up" (most prominently from Texas Civil Rights Project attorney Jim Harrington), even suggesting that Har­ring­ton should be reported to the state bar for his "offensive, inflammatory, and irresponsible" charges of a cover-up.

In response, Harrington noted that it is the city which sought an attorney general's opinion and the court order to allow it to withhold the report's conclusions, and he said he would demand an apology from the city for Acevedo's charges. "The verbal and written statements by Chief Acevedo yesterday to the press that 'a federal court and state law prohibit him from releasing the complete information' and 'The Department is precluded by Texas State Law and a standing Federal Court protective order' doing so are false and dissembling," said Harrington in a statement, "or, to use his words, 'offensive' and 'irresponsible.'" Addition­ally, he said, "It is flat out wrong to say that state law prohibits the release of the report. Nor does the City's Meet and Confer Agreement [with the Austin Police Association]."

Mayor Lee Leffingwell initially told the States­man that he had not read the full KeyPoint report but that it constituted just one "opinion" about the incident. The next day, he released a more measured statement: "The Austin City Council was advised by the City Attorney several months ago that the unredacted version of the KeyPoint report was not legally available to the Council for review. As such, the Council remained unaware of the full details of the report until they appeared in the media. Like everyone, I'm troubled by the findings of the report, and intend to review the matter fully with the City Manager and Police Chief."

Under the City Charter, the City Council is forbidden from getting directly involved in most personnel matters, which might partly explain the reported advice of the city attorney to the council. It may also reflect the legal department's apparent determination – in order to reinforce its position in state court defending against the TCRP's open records lawsuit – to reduce the circulation of the report to the absolute minimum number of readers. More troubling was a statement from City Manager Marc Ott – who does have ultimate responsibility in all city personnel matters – who said last week he had also not read the unredacted version of the KeyPoint report but had left the review and decision entirely up to Acevedo.

Timeline of Sanders Shooting Official Review

May 11, 2009: Nathaniel Sanders II is killed by APD Officer Leonardo Quintana; APD begins criminal and administrative investigations.

June 2, 2009: Sanders' family files a federal wrongful death lawsuit against APD and Quintana.

Aug. 5, 2009: Travis County grand jury declines to indict Quintana.

Aug. 18, 2009: Completed APD Internal Affairs inquiry submitted to Citizen Review Panel.

Aug. 19, 2009: Citizen Review Panel asks for outside review of the IA investigation. City hires KeyPoint Gov­ern­ment Solutions for review two days later.

Sept. 30, 2009: KeyPoint submits its final report to the city.

Oct. 5, 2009: A heavily redacted version of the KeyPoint report is released.

Nov. 4, 2009: Acevedo suspends Quintana for 15 days for failing to activate his video camera but finds Quintana did not violate policies related to tactics or use of deadly force.

Nov. 5, 2009: Acevedo terminates Detective Christopher Dunn for exhibiting bias in favor of Quintana during the IA investigation.

Jan. 11-12, 2010: Quintana is deposed in connection with the Sanders federal civil suit and early the next morning is arrested for drunken driving in Williamson County.

April 2010: Texas Civil Rights Project files suit in state district court seeking release of the complete and unredacted KeyPoint report.

May 2010: An anonymous source provides the Chronicle with an unredacted copy of the KeyPoint report for review.

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