APD Cleared Officers Who Fatally Shot Man With Baby in the Car. His Family Wants Jury to See Internal Investigation Records.

A federal lawsuit raises questions about APD’s internal probe

A flier posted near the site of Alexander Gonzales’ shooting on Wickersham Lane in 2021 (photo by John Anderson)

In January 2021, an off-duty officer shot at a car after he said the driver of that car, Alex Gonzales, pointed a gun at him. Moments later, police killed Gonzales and injured his girlfriend Jessica Arellano, as their 2-month-old child sat in the backseat.

In 2022, a Travis County grand jury declined to indict either officer on criminal charges for the killing. Then APD leadership declined to discipline the two officers. Now, a civil lawsuit filed over the police killing of Gonzales is igniting new questions over the Austin Police Department’s use of a secret personnel file (known as the G file) used to store certain disciplinary investigation records.

Attorneys representing members of Gonzales’ family argue that the secret file contains key evidence that jurors should see if the case goes to trial as scheduled Dec. 2. City of Austin attorneys are fighting to keep the file confidential.

This case represents yet another way in which the city is fighting to keep G file records secret, despite Austin voters opting to do away with the secret file when they overwhelmingly approved the Austin Police Oversight Act one year ago.

The “G file” is where APD keeps the full Internal Affairs investigative record for misconduct investigations that do not result in severe discipline for officers (even when allegations were proven). Investigations that do result in severe discipline are added to the officer’s personnel file, which is available to the public through the Texas Public Information Act.

After officers Luis Serrato and Gabriel Gutierrez fatally shot Gonzales, both the Office of Police Oversight and Community Police Review Commission recommended former Chief Joseph Chacon fire Gutierrez, but Chacon declined to discipline the two officers. That means records from the department’s investigation into the shooting have been locked away in the G file.

Though contents of that file are not available to the public, attorneys representing Gonzales’ family obtained the full investigative file through discovery. They say information contained within the file would not only be critical to their case, but that it would offer public insight into the nature of APD’s internal investigation into the shooting. It’s a process that, an expert for the plaintiffs concluded, was not “conducted according to generally accepted standards and practices” of Internal Affairs investigations.

“The Gonzales plaintiffs urge the court to put an end to [the city of Austin]’s shenanigans.”   – Donald Puckett, Attorney for Gonzales’ Family

“The disputed facts and events of this case cannot begin to be understood without reference to APD’s IA investigation and the information that resulted,” wrote Donald Puckett, one of the attorneys representing the family, in a May 13 motion filed after the city moved to designate the G file materials confidential May 6.

With the city arguing that the file is confidential, motions filed in the case that reference G file material are heavily redacted – as is the transcript of the deposition attorneys took from David Shand, the Internal Affairs investigator who led the probe into the Gonzales shooting.

Puckett argues that the city has “waived any confidentiality” over the materials by using them as part of their own litigation in the case. For example, a report written by an expert witness for the defense, filed March 18, quotes at length from statements both Serrato and Gutierrez made to Internal Affairs detectives. Selective disclosure of G file materials in this way, Puckett argued in a May 21 motion, demonstrates how the city is using the secret file as a “sword and shield” in the case.

The city’s argument for preserving the confidentiality of the G file leans on the state law that allows police departments to maintain the file in the first place. “Every Texas appellate court to examine the question has concluded that records contained in this optional file ... are confidential or privileged,” City Attorney Anne Morgan argued in the May 6 motion. In criminal cases, the city has successfully quashed multiple subpoenas from prosecutors seeking G file material with the same argument.

But that optional confidentiality is established by state law, which Puckett argues does not apply to this lawsuit, which was filed in federal court where he argues different rules around confidentiality apply.

“APD has worked hard to shield its own investigations into these events from public transparency and accountability,” Puckett wrote in the May 13 motion. “The Gonzales plaintiffs urge the court to put an end to COA’s shenanigans with respect to the internal affairs investigation file and the information from that investigation.”

With briefs over the G file’s confidentiality filed by both parties, U.S. District Judge Robert Pitman – who is presiding over the Gonzales case – has referred the plaintiff’s motion to U.S. Magistrate Judge Dustin Howell for a ruling.

It is unclear when a ruling will be made, but Puckett says it could be a matter of weeks. If Howell agrees with the plaintiffs, APD’s internal investigation records would provide an unprecedented degree of transparency into the department’s internal accountability process.

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