Point Austin: 'This Case Is Different'

Monday's ruling by federal Judge Lee Yeakel should not be comforting to the Austin Police Department or the city. Rejecting a summary judgment motion filed by APD Officer Nathan Wagner concerning the 2011 Byron Carter shooting, Yeakel summarized the most prominent evidence to explain his denial of Wagner's motion – that there is sufficient evidence to suggest "unreasonable force" was used, and that the lawsuit filed by Carter's family should go to trial.

"The evidence is clear that Wagner and [Officer Jeffrey] Rodriguez followed L.W. [Leyumba Webb] and Carter in a manner such that the officers would not be seen by L.W. and Carter, that the officers approached the car without verbally identifying themselves as law-enforcement officers, and that neither Wagner nor Rodriguez shouted at L.W. to stop the car. Additional evidence, including an internal report regarding Wagner's conduct and the report of ... Greg Karim [firearms examiner for the Austin Police Department], finding that the gunfire-defect pattern indicates only that Wagner was on the driver's side of the car when he fired his weapon, suggests that Wagner's actions were not objectively reasonable."

As Jordan Smith reports in more detail, ("Judge on Byron Carter Case: Take It to a Jury"), Yeakel's ruling is not conclusive; he did not determine that the officers used unreasonable force, only that the question should be placed before a jury. Previously (and predictably), a grand jury reviewing the case did not bring charges against the officers; more tellingly, they also did not bring charges against Webb, who was wounded in the shooting that killed his friend and fled the scene. At a minimum, that suggests the grand jury was skeptical of the officers' testimony that they were under threat, but was institutionally reluctant to act against police officers. We don't know what a jury may decide, given all the evidence. But in a sense, as Smith reports, a jury of sorts has already reviewed the case and come to a harsh conclusion: that APD should terminate Officer Wagner.

Indefensible Force

That body was the Citizen Review Panel, which, after reviewing the evidence, concluded that "Wagner used deadly force without an objectively reasonable belief that lethal force was reasonably necessary to defend another's life or prevent imminent serious physical injury," as required by law and APD policy. The CRP wrote that to APD a year-and-a-half ago in a still-confidential memorandum; Smith was able to review a copy of the memo, which a trial jury should find quite compelling. In particular, the panel points out that while it found six previous officer-involved shootings defensible, "This case is different."

"To date in calendar year 2011, the Citizen Review Panel has reviewed six officer-involved shootings that resulted in the death of a civilian," the CRP noted, "and has not recommended any discipline in any shooting except the one at issue here. We note the fact that we do not habitually recommend discipline in officer-involved shootings to emphasize our opinion that this case is different."

In its memo – which is likely to become fully public when the trial takes place next month – the CRP cites several of the same aspects noted by Yeakel. The officers apparently racially profiled Carter and Webb; they had no objective reason to pursue or stop the young men; they failed to identify themselves as police as they approached the car; and their version of the shooting itself – that Wagner feared his partner was being dragged under the car – is apparently not supported by the physical evidence. Whether the officers were deceitful or simply mistaken remains to be seen. Taken together, these elements were sufficient to convince the CRP that Wagner had acted wrongly and should be dismissed from the force.

The Larger Questions

No one knows, of course, if a trial jury will find, by "a preponderance of the evidence" (the civil standard) that Wagner, and hence the city, violated Carter's civil rights. Juries are notoriously reluctant to find fault with police officers, and Acevedo insists that "once all the evidence ... can be released," the officers will be exonerated of wrongdoing. Until then, we have to take it on faith – although the people specifically tasked by the city with reviewing the matter via the CRP clearly did not agree with the chief, nor did Judge Yeakel consider the question readily answered without a trial.

From what we know now, this looks frankly like a case of overzealous cops arbitrarily pursuing two unsuspecting young black men on a dark street – with the resulting confrontation producing instantaneous panic on both sides. Carter and Webb reacted instinctively to what they thought was a car-jacking, and Wag­ner (at least) overreacted to the car's movements and started firing wildly – only wounding the driver but firing five lethal bullets into Byron Carter. If the grand jurors had believed that the wounded and fleeing Webb (who survived only by sheer luck) had been in any way culpable for what happened, they could have cited any number of charges against him. That they did not do so suggests they concluded that the officers' version of events simply made no sense.

Whatever the jury eventually decides, the episode leaves another bitter cloud over the city and the APD, calling into question – once again – the department's recruitment and training methods, its disciplinary control over frontline officers, and, most shamefully, its ingrained institutional approach to enforcement involving minorities, especially young black men. Chief Acevedo did not create these problems – which are larger even than Austin – but he bears primary official responsibility for a renewed and very public effort to engage and resolve them.