In a rare decision, a federal judge decided that the plaintiffs in a civil lawsuit over a fatal police shooting can take the city of Austin itself to trial, based on allegations that the shooting was the direct result of the city creating a “culture of impunity” among officers “by under-investigating and under-disciplining” officers accused of using excessive force.
The opinion was issued by U.S. District Court Judge Robert Pitman on March 27 in the lawsuit brought by Jessica Arellano and Elizabeth Gonzales over the 2021 shooting in which Austin police officers shot Arellano and fatally shot her boyfriend Alex Gonzales Jr., who was Elizabeth Gonzales’ son.
“The Court finds that Plaintiffs have offered sufficient evidence to show that the city had a practice of permitting excessive force by under-investigating and under-disciplining the majority of officers who engaged in excessive force,” Pitman wrote on page 72 of his 81-page opinion. “The Court also finds that a reasonable jury could find that such a practice created a culture of officer impunity.”
Pitman’s ruling clears the way for the city to face trial – perhaps for the first time ever – for repeatedly failing to discipline officers accused of police brutality.
Typically, plaintiffs in police violence cases file suit against the individual officer alleged to have used excessive force and the municipalities that employ them. Overcoming the legal standard necessary to sue an individual officer (known as “qualified immunity”) is itself a high bar to clear.
But law experts say that the legal standard which protects municipalities from liability (known as “Monell doctrine” stemming from a 1978 U.S. Supreme Court decision) offers an even more difficult hurdle to clear. (Pitman recently issued a similar decision in the lawsuit brought over the police killing of Javier Ambler.)
The Gonzales shooting began with a road rage incident between Gonzales and off-duty officer Gabriel Gutierriez, who was driving home from the gym after midnight on Jan. 5, 2021. Gutierrez claims Gonzales pointed a gun at him, which prompted the officer to fire into Gonzales’ car multiple times, shooting Gonzales in the head and Arellano in her back, shoulder, and arm. (Pitman’s opinion notes there are “several pieces of evidence” that contradict Gutierrez’s narrative.)
After Gutierrez dialed 911, Luis Serrato, an APD officer on patrol nearby, arrived on scene. Serrato and another officer yelled commands at Gonzales urging the injured man to stop as he stumbled to the backseat of the car where his and Arellano’s infant son sat. (Serrato testified that he did know a child was in the car, but that Gutierrez told him Gonzales was armed.)
After Gonzales opened the car’s rear door and began reaching inside, Serrato fired 10 shots at Gonzales, hitting him multiple times. Later, investigators found a firearm under the front seat of Gonzales car, but it was not ready to fire. In 2022, a Travis County grand jury declined to indict either officer on criminal charges and a year later, Austin’s police chief at the time, Joseph Chacon, declined to discipline the officers.
In his decision, Pitman ruled that Serrato’s use of force was constitutional and, as a result, dismissed him from the suit. However, Pitman allowed the claims against Gutierrez and the city to proceed.
Proving a Pattern
Already, the Gonzales and Arellano plaintiffs have won a rare victory by advancing their Monell claims to this stage. If they actually make it to a trial, rather than agreeing to a settlement with the city, they will have won an ever rarer victory. If they were to win a verdict at that trial, they would achieve a legal feat that may be without precedent.
That’s according to research conducted by UCLA School of Law professor Joanna Schwartz, who has spent her entire academic career studying police misconduct investigations. Over the past 13 years, Schwartz has written numerous academic papers studying the subject and in 2023 she authored a book on the topic, titled Shielded: How the Police Became Untouchable.
A jury might conclude that the shooting “would not have occurred but for APD’s culture of impunity, which flowed directly from a longstanding practice of under-investigating and under-disciplining officers for excessive force.” – Federal Judge Robert Pitman
In 2023, Schwartz looked at more than 1,000 civil lawsuits filed in five different federal judicial districts (the review did not include the Western District of Texas, where Pitman’s court is located). The vast majority of those lawsuits involved Monell claims; about 97% of them were either settled before trial, dismissed, or abandoned by plaintiffs. Only one case resulted in a verdict for the plaintiff at trial, but it was later overturned by the Fifth Circuit Court of Appeals.
In a phone conversation, Schwartz explained why Monell claims are so difficult to prove. First, plaintiffs must prove their constitutional rights were violated, then that the violation was due to a “pattern or practice” by the municipality that amounts to official policy, even if unwritten. Plaintiffs must also show that the municipality knew about or was “deliberately indifferent” to the practice, and that their deliberate indifference caused the plaintiff’s constitutional violation.
Rather than providing a court with facts related to one specific incident (as would be the case in a claim brought against an individual officer), Schwartz told us, Monell requires review of potentially years’ worth of municipal documents. “Proving a Monell claim is very hard at every stage of the case,” Schwartz said. “Plaintiffs need to provide robust evidence that may be difficult to find or may not exist at all.”
But that was not an issue in the Gonzales case. Pitman wrote that Arellano’s attorneys presented persuasive evidence showing that “deficiencies in APD’s [Internal Affairs] investigations have long been known to be a problem to APD’s police chiefs.”
That evidence includes: an expert report highlighting 19 “high profile” use-of-force cases in Austin where officers were not disciplined; letters from the Department of Justice in 2008 and 2011 identifying problems within APD’s Internal Affairs division; two different independent reports commissioned by the city (one in 2009 and another in 2022) that found few excessive force complaints against officers were investigated and even fewer resulted in discipline; and various reports from city oversight offices from 2009-2020 identifying similar issues.
The plaintiffs also secured key testimony from within the police department. Then-sergeant David Shand, lead Internal Affairs investigator in the Gonzales shooting case, said he was given no formal training, had never investigated a homicide, and that “it was not his job to establish witness credibility” or “to question an officer’s honesty.”
Pitman notes that this all “appears to have been in accordance with APD policies” because Chacon testified that the Gonzales investigation was “appropriately handled.” Former chiefs Robin Henderson and Brian Manley offered similar testimony adding that, to their knowledge, Internal Affairs investigations were always handled that way.
Taken together, Pitman wrote, the evidence could lead a jury to conclude that city and APD leaders “had the option to start disciplining officers, implement regular audits to ensure administrative investigations were adequately happening, and make the other structural changes that had been repeatedly recommended as early as 2008, but chose not to – instead, allowing the problem to persist.” That makes the accusation that “the city had an official, unwritten practice of allowing excessive force” credible enough to warrant jury consideration.
Pitman also wrote that a jury might conclude that the shooting “would not have occurred but for APD’s culture of impunity, which flowed directly from a longstanding practice of under-investigating and under-disciplining officers for excessive force.”
This article appears in April 11 • 2025.