Willful Ignorance

Before Mike Brown, there was Larry Jackson Jr.

On July 26, 2013, Jackson, a 32-year-old black man, unarmed, was shot and killed by an Austin police detective. While Jackson's death received local media coverage, it wasn't until the killing of Missouri teenager Brown on Aug. 9, 2014, that the long-simmering issue of police brutality would come to a boil, capturing the nation's attention. It's impossible to say exactly what it was about the circumstances of Brown's death in particular that made it a breaking point, but it wasn't surprising that many Ameri­cans felt a resurgence of outrage on Nov. 24, when St. Louis prosecutor Robert McCul­loch announced that a grand jury had failed to indict Darren Wilson, the officer who shot Brown.

In contrast, Jackson's killing did result in a manslaughter charge for since-retired APD Detective Charles Kleinert. Although the length of time between the May 12, 2014, indictment and the arraignment caused Jackson's family and others to worry about the case's progress, on Dec. 5, Travis County Judge David Wahlberg scheduled the trial to begin on April 20 of this year. It appeared Jackson's death might be one instance in which a law enforcement officer was held accountable for recklessly using deadly force. As Jackson's sister LaKiza, who asked to be identified by her first name only, wrote, "Getting the date set for the trial was another step towards getting justice for the egregious murder of Larry. It meant that the work we have put into this case has not been in vain."

But on Dec. 31, the case took an unexpected turn: Kleinert's attorneys filed a motion for removal to federal court, arguing that Kleinert was acting as a federal officer at the time of Jackson's death. Several observers speculated that Kleinert was hoping to avoid a Travis County jury; and attorney Adam Loewy, who represents Jackson's parents in their wrongful death suit, tweeted, "Kleinert wants a Federal jury comprised of citizens from outlying counties (read conservative) deciding this. He's scared of a Travis jury."

The motion is both an example of Kleinert's defense attorney properly acting as his client's zealous advocate, and a frustrating setback for Jackson's family members, who are eager to seek justice. U.S. District Judge Lee Yeakel had initially set the hearing for the motion for March 3, but recently postponed it due to a scheduling conflict. It's currently on his calendar for April 9.

Regardless of how Yeakel rules, the decision is likely to be appealed, pushing a trial date even further into the future. But trial dates and jury pools aren't the true complicating factors in the case. Kleinert should be in federal court, his attorneys argue, because if he was acting as a federal officer, then he's entitled to immunity by law.

The Claim of Immunity

Kleinert, a 20-year veteran of APD, was part of the Central Texas Violent Crimes Task Force, and was deputized to act as a federal officer. On the day of Jackson's death, Kleinert was investigating a bank robbery. Jackson was not a suspect in the robbery, but when Kleinert spoke to him outside the bank, Jackson fled, and Kleinert pursued him (without calling for backup). Kleinert briefly commandeered a private car and its driver, eventually spotted Jack­son, and chased him on foot down to the Shoal Creek Trail, where a struggle and the fatal shooting took place. Kleinert claims his gun accidentally discharged when he hit Jackson in the back of the neck with it.

Federal law immunizes federal officers from criminal and civil liability under state law when they're acting within their authority as federal officers, and are doing what they reasonably believe to be necessary and proper. (The legal basis for this immunity is the Constitution's Supremacy Clause.) Assert­ing immunity from prosecution is a different matter than mounting a defense against a criminal charge; a person with immunity may have committed what would otherwise be considered a crime, but can't be held criminally responsible for it.

Should Kleinert successfully argue that he was, indeed, acting as a federal officer, that he believed his pursuit of Jackson was necessary and proper, and that his belief was reasonable, he will evade prosecution for manslaughter using an argument not available to most people who face criminal charges. Part of the blame for such an outcome, according to Jackson's family, would be on the Travis County DA for not securing a murder indictment – if Kleinert had been charged with intentionally killing Jackson, it would make it much harder for him to claim that action was reasonable.

Whether Kleinert is found guilty, not guilty, or immune from prosecution, his rapidly convoluting case illustrates the criminal justice system's inability to adequately address police use-of-force issues. If it's rare to get an indictment for the use of excessive force, and rarer still to get a conviction, how can the remote possibility of such charges have any deterrent effect? And without that deterrent, what should be done instead?

In looking for an answer to those questions, it would be helpful to first have an idea of how many injuries and fatalities result from encounters with law enforcement. But getting accurate and sufficient information on those encounters – locally and nationally – is surprisingly difficult.

Nothing Counted Here

Yvette Smith's name was missing from the list. In February 2014, the 47-year-old black woman, a mother of two, was shot dead by a Bastrop County Sheriff's deputy when she opened the door of a friend's house. Her killing would appear to be a clear example of what Texas state law defines as a "death in custody": "a person [who] dies while in the custody of a peace officer or as a result of a peace officer's use of force or ... incarcerated in a jail, correctional facility, or state juvenile facility." The law requires that all custodial deaths be reported to the Texas Attorney General within 30 days. The AG's office compiles a list of custodial deaths and publishes them on its website. Yet a year after Smith's death, her name was still missing from that list.

The omission was certainly not due to any uncertainty about the cause of her death. The Bastrop County Sheriff's Depart­ment received a call on Feb. 16, 2014, reporting two men fighting over a gun. BCSD Deputy Daniel Willis drove to the address given, saw Smith standing near the front door of the house, and ordered her to come out. As she opened the door, Willis shot her. Smith was unarmed.

The circumstances surrounding the incident are particularly disturbing, painting a damning picture of both Willis and BCSD. The gun Willis used to kill Smith was not standard issue for BCSD, but Willis' own personal semi-automatic assault rifle, which, for some reason, BCSD had permitted him to use on duty. Willis at first claimed Smith was armed, a statement BCSD initially supported before it was forced to retract. The deputy had a history of using excessive force during his previous employment as a jailer with the Travis County Sheriff's Department, and his application for a patrol position at APD was denied after he failed the psychological exam. Despite these and other warning signs, Willis was hired by BCSD in 2013.

Willis has been indicted by the Bastrop County DA for murder, and Smith's twin sister Yvonne Williams has sued the county, Sheriff Terry Pickering, and Willis for wrongful death. Although her death is not well-known nationally, it hasn't gone unremarked. But the fact that her name was glaringly absent from the AG's Deaths in Custody list raises an uncomfortable question: How many other names might be unrecorded? When asked about the missing names, Lauri Saathoff, a representative for the AG's office, said that the AG simply compiles the information reported; it's up to the individual law enforcement agencies to decide how they implement the requirement to report.

BCSD had only been reporting those deaths that occur when a person is "in custody, control, restraint, or under arrest at the time of death," according to BCSD spokesperson Sissy Jones. She said that it was BCSD's "understanding or belief" that the custodial death reporting requirement only pertained to those types of deaths, and not to use-of-force deaths as well, but that "in light of [the Chronicle's] inquiry, the Sheriff ... requested a legal opinion. The use-of-force requirement was unknown to this department." At press time, BCSD was "now working on completing the Custodial Death Report for the incident involving Yvette Smith," Jones told the Chronicle.

The Data Gap

The lack of data is a national problem. In a Feb. 12 speech at Georgetown University, FBI Director James B. Comey asked, "How can we address concerns about 'use of force,' how can we address concerns about officer-involved shootings, if we do not have a reliable grasp on the demographics and circumstances of those incidents? We simply must improve the way we collect and analyze data to see the true nature of what's happening in all of our communities." He went on to say that while the FBI tracks some data, the reporting done is voluntary: "That means we cannot fully track the number of incidents in which force is used by police, or against police, including nonfatal encounters, which are not reported at all."

A database that allowed the public to see the "demographics and circumstances" of custodial deaths would – simply by acknowledging the reality of the situation – help address the anger many feel about the disproportionate numbers of unarmed black men, women, and children killed by law enforcement each year. Color of Change, a national organization working to "make government more responsive to the concerns of Black Americans and bring about positive political and social change for everyone," has been campaigning for "a comprehensive, streamlined, public national-level database of police shootings, excessive force, killings, misconduct complaints, traffic and pedestrian stops, and arrests, broken down by race and other demographic data, with key privacy protections, the exclusion of personally identifying factors and information, and deportation immunity for civilians."

Color of Change Organizing Director Matt Nelson says, "Police violence is happening on a regular basis across the country, but unfortunately we don't know the scale." Until there is an official, mandatory reporting requirement, the group has partnered with Fatal Encounters, a crowdsourced database of "people who are killed through interactions with police," to create an interactive map of police killings, which is available at www.killedbycops.org. Fatal Encoun­ters founder D. Brian Burghart writes that he was inspired to start the collection because "in the 21st century, the only reason this information would not be tracked, data-based and available to the public is because somebody somewhere decided Americans shouldn't know how many people are killed by police and under what circumstances." (See "Counting the Dead," below.)

In addition to quantifying the racial bias in use of force, a comprehensive database would also, one hopes, highlight protocols that proved to be unnecessarily dangerous, and perhaps prevent avoidable injuries and fatalities.

The Price of Ignorance

For instance, law enforcement agencies might take better note of the unnecessary death of 44-year-old William Slade Sullivan, who, like Smith, isn't on the AG's Custodial Deaths Report, but is in the Fatal Encounters database. On March 21, 2014, Sullivan was at Rick's Cabaret in Round Rock. He had gotten drunk after being promised a ride home by a Rick's employee, but then, after he got in an argument with management about his bill, the employee reneged. Sullivan asked for his car keys so that he could go to his truck, charge his phone, and call a friend to give him a ride. While Sullivan was sitting in his truck in the parking lot, an employee called Round Rock PD and told them an intoxicated person was trying to drive away. When the police arrived, they found Sullivan in his truck, charging his phone. Sullivan, a white man, was both obese and partially disabled, and had a disabled placard hanging from his rearview mirror. The officers demanded Sullivan get out of his truck, and when he didn't, they forcibly pulled him out, slamming him to the ground. His resulting injuries left him paralyzed; he died in August while still in the hospital. His attorney Broadus Spivey believes the officers should have known their actions would endanger a disabled person such as Sullivan, and that the dash cam video of the incident shows that they quickly realized they'd made a mistake after Sullivan hit the ground.

Sullivan's death highlights how an officer's cavalier use of force can turn fatal when used on a person with health problems. While none of the six officers involved have been charged with a crime, three of them, as well as the city of Round Rock and Rick's Cabaret, are defendants in a wrongful death suit Spivey's firm has filed on behalf of Sullivan's mother. Nelson says that in addition to the "devastation and loss of life" police brutality causes, taxpayers would do well to think about the costs of civil judgments paid out by municipalities.

Those costs can be significant. The city of Austin recently finalized a settlement of $1,250,000 with Jackson's children. City Coun­cil declined to settle separate wrongful death suits brought by Jackson's parents and his wife, although attorney Loewy says, "I am optimistic the new Council will sit down and resolve this." Failing that, the cases are set to be heard after the conclusion of Kleinert's criminal trial. And Wil­liams, as the executor of Smith's estate, is asking for $5 million in damages from Bastrop County and its officials.

In the cases of Jackson, Smith, and Sullivan, the officers involved were never in mortal danger. Kleinert was determined to stop Jackson from getting away, but he had other options, such as calling for backup, or holstering his gun before attempting to physically detain Jackson. Willis, for whatever reason, decided to fire at Smith before determining whether she was any threat. Six RRPD officers decided to pull a disabled man from his parked truck rather than wait for him to come out on his own. How many other instances are there in which law enforcement decided someone else's life was a risk they were willing to take?

Right now, we're not even trying to find out.