Wagner Walks, Loewy Balks
No disciplinary action and no indictment in officer-involved fatal shooting
Austin Police Department Chief Art Acevedo on March 9 announced that the administrative investigation into Officer Nathan Wagner has been closed and that the officer will face no discipline in connection with the fatal shooting in May 2011 of 20-year-old Byron Carter.
After considering the "totality of the evidence," Acevedo said Wagner's use of force the night that ended in Carter's death was "objectively reasonable." After an "exhaustive" review of the actions of Wagner and his partner, Officer Jeffrey Rodriguez, he had concluded that the tactics employed by the officers and the decision by Wagner to use deadly force were in line with Texas law and department policy. "Our hearts, as always in these cases ... go out to [the Carter family] for the loss of their son," a solemn Acevedo said during a press conference. Nonetheless, he said the tactics used were "solid" and "appropriate" and Wagner's decision to fire his weapon – five rounds in less than 1.5 seconds – was "based on [Wagner's] reasonable belief" that his and Rodriguez's lives were in danger.
Carter was shot multiple times as he sat in the passenger seat of a car driven by a 16-year-old friend on the evening of May 30, 2011, off East Eighth Street. Wagner and Rodriguez were patrolling the area as part of an effort to reduce a surge of vehicle burglaries in the area. The officers spotted Carter and his friend walking down the street; the two allegedly acted furtively after spotting the officers – they made eye contact then looked away and quickened their pace, Acevedo said – prompting the officers to follow in an attempt to have a "consensual contact" with the pair. Instead, Acevedo said, the two quickly got into their car and before the officers could make contact, the driver "suddenly, without warning, accelerated" the vehicle, striking Rodriguez and forcing Wagner to press himself against a parked car to avoid being hit. Wagner knew Rodriguez had been hit, Acevedo said, and made the decision to use deadly force. Although Wagner did so with the intent to stop the driver, the teen was only grazed; instead, four rounds hit Carter – including one to the head, one to the gut, and a third that shattered his femur. The fact that Carter was killed is regrettable, Acevedo said, but even though he was not the intended target, the officer behaved in accordance with the law.
Also Friday, District Attorney Rosemary Lehmberg announced that a grand jury had declined to indict Wagner for his use of force. (A grand jury had previously also declined to indict the 16-year-old.) The diverse panel heard from 30 witnesses before deciding to clear Wagner of any criminal wrongdoing, Lehmberg said in a statement that detailed the events of the night of the shooting, closely following the APD's account. That the two stories match so much bothers Adam Loewy, who represents Carter's family in a federal civil rights suit filed against Wagner and the APD. "I was not surprised that this [D.A.] did not obtain a single indictment because she has proven time and again she will protect officers who kill innocent citizens at all costs," he wrote in an email to the Chronicle. "However, I was absolutely shocked and disgusted that her summary of the 'facts' was literally a 100% verbatim copy of what APD has said about the shooting," he continued. "There is ample evidence that disputes the entire version of APD's events, but instead of acknowledging this, Lehmberg just decided to repeat various APD lies about the shooting." Loewy said he is confident that the truth about what happened to Carter that night will come out as part of the federal lawsuit. (See also: "Investigation of Officer-Involved Shooting Closed," Newsdesk, March 9.)