The Austin Chronicle

Was Cop's Fatal Shooting Justified?

By Jordan Smith, October 7, 2011, News

According to the Austin Police Department, on the night of May 30, a teenager deliberately drove a vehicle into an APD officer, pinning the officer against a car parked on Eighth Street just east of I-35. Fearing for his partner's life, police say, another officer fired several shots into the car, wounding the 16-year-old driver and killing the passenger, 20-year-old Byron Carter.

Nonetheless, a Travis County grand jury on Sept. 29 "declined to approve a petition against the juvenile [driver], making a finding that there was no probable cause to proceed" with a criminal case against him related to the altercation, according to a press release from the Travis County District Attorney's Office. "The case against the juvenile is now concluded."

Still, Carter is dead, the juvenile was wounded, and the two officers, Nathan Wagner and Jeffrey Rodri­guez, have returned to regular duty. The officer-involved shooting death began when the officers noticed two young black men allegedly casing cars near an Eastside residential area.

The failure of the grand jury to hold the juvenile over for a determinate sentencing – a state law that, in cases involving certain crimes, allows for juveniles to be given longer sentences, kept behind bars after their 21st birthdays, and ultimately transferred to adult prisons to carry out the remainder of their sentences – is essentially the same as a grand jury issuing a no-bill in a case against an adult. The failure of the grand jury to act here suggests that the shooting incident may not be as cut-and-dried as police claimed. Were the young men driving around in a stolen car as police initially asserted? And were the two young men furtively skulking around the neighborhood for cars to steal and joyride as the two bicycle cops alleged? At this point, says the Carter family's attorney, Adam Loewy, the answer to each is a definite no. The two were walking toward the car they had driven Downtown and were readying to drive home when they were confronted by the officers, he says.

What specifically happened next is unclear – but Loewy says there was not a deliberate attempt by the teenage driver to strike or run over an officer. Rodriguez, police say, was pinned by the car and fell, prompting Wagner to fear for Rodriguez's life and to fire at the car.

The rest is uncertain – in part, says Loewy, because the city has blocked the Carter family's attempts to review the official autopsy report regarding their son's death. Loewy says photos from the scene show that Carter was shot in the back of the head. "This is enormously significant," Loewy says, to figuring out exactly what happened the night Carter was killed – including what Wag­ner could have seen if he was standing angled to the back of the car and firing into the passenger compartment. "And again ... no matter what the [juvenile] was doing" while driving the car, Carter "is a passenger in a car with no weapon," Loewy says.

Loewy suggests that the grand jury declined to press for a case against the driver because there is no evidence proving that the pair was a felonious duo caught attempting to escape police by any means necessary – including trying to kill an Austin officer. Which scenario is actually the most accurate remains to be seen. Police say they're still investigating the incident and last month recirculated a flier asking that any witnesses contact APD investigators.

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