Point Austin: Accountable to No One

It was encouraging to hear Travis County District Attorney Rosemary Lehmberg announce that she intends to appeal the decision by federal Judge Lee Yeakel that former Austin Police Detective Charles Kleinert be granted immunity from state criminal prosecution in the killing of Larry Jackson Jr. "I intend to pursue it as far as it takes," Lehmberg told the Statesman this week. She may need to do that, as the first level of appeal – the 5th U.S. Circuit Court – is more likely than not to follow its usual practice of blessing whatever a lower court has concluded in stamping approval on the actions of police.

We will never know certainly what happened between Kleinert and Jackson under that Shoal Creek bridge in July of 2013 – one of the participants is dead – but Yeakel's decision, unless it's overturned, means we will not even receive a thorough chance of getting closer to that knowledge. Indeed, Yeakel's opinion seems to consider such an omission reassuring – that in fact it is better to leave unexamined the occasionally violent actions of police in performance of their duties. "This court will not slice the four-minute sequence of events on July 26, 2013, into discrete segments, requiring Kleinert to stop and reevaluate his position while in pursuant [sic] of Jackson," Yeakel wrote in his order. "To do so would render meaningless the Constitution's position as supreme, and open each instance of federal-officer action to second guessing under state law. Immunity exists to avoid such result."

Yeakel says as he watched Kleinert testify in his court, he was persuaded that Kleinert was sincere in his belief that his actions, which ended in the fatal shooting of Jackson, were "objectively reasonable" and "necessary and proper" to fulfilling his duties as an APD officer acting under his federal task force assignment to investigate bank robberies and related felonies, and that the prosecution failed to show otherwise. Therefore, ruled the judge, Kleinert is granted federal immunity from state prosecution.

Although indicted by both state and county grand juries, he won't be tried for manslaughter.

No Standard of Judgment

Lehmberg repeatedly said she finds Yeakel's opinion offensive, and pointed out to the Statesman that grand juries are seldom inclined to indict police officers, as they did Kleinert. Even APD Chief Art Acevedo was puzzled by the ruling, since it appears to suggest that a federal assignment is a get-out-of-jail-free card for any officer who believes he performed reasonably, whatever the result. While Acevedo didn't presume to judge Kleinert's specific actions, he told the Statesman, "I believe it is in the best interest of our nation for all federal, state, county, municipal and special officers to be held to the same standard as it relates to deadly force. ..."

Police shootings are seldom premeditated. Instead, they generally occur in these murky, panicky circumstances, in which an officer makes a series of hasty decisions, each of which might be understandable in isolation, but which (as in this case) accumulate into disaster. That's why departments have preventive policies and repetitive training under stress. Yeakel's opinion itself acknowledges that the federal standards for police action are in several ways more lenient than the training policies of the APD, with much more left to an officer's individual discretion. Pleading immunity allowed Kleinert's actions to be examined under that lesser standard.

Can't Blame Me

Even that might be acceptable, if one believed that federal prosecutors would now step in and say, "Kleinert was our officer, and we'll take it from here." That isn't going to happen. I wish I could say I am confident that the higher federal courts will overrule Yeakel and insist that Kleinert stand trial, under some standard of homicide, before an actual jury of his peers. More likely is a reiteration of the judicial shell-game represented by the federal immunity defense: i.e., Kleinert could be prosecuted if he were acting as an APD officer, but since he was on federal assignment ... accountability for reckless homicide doesn't apply.

Whatever you believe about Kleinert – and prior to this episode, he had a good reputation as an officer – it seems simply indefensible that an officer should essentially execute a person for running away, hardly a crime that merits the death penalty. That Kleinert should escape culpability as a federal officer should not only alarm all Austinites, who like to presume we're all equal before the law. It should also worry federal authorities, who accept responsibility for police officers who increasingly work in concert with them, on various "task forces." Instead, they're likely to take comfort from the court's decision, because if Kleinert isn't accountable for his actions, neither are they.