After less than two hours of deliberation, a six-member Travis Co. jury on March 31 returned with not-guilty verdicts against two APD officers charged with “official oppression” in connection with the September arrest of 25-year-old Ramon Hernandez. Under that verdict, APD Officer Christopher Michael Gray, a six-year APD veteran; and former officer William Bradley Heilman (who resigned on Oct. 31, after four years with the department) were cleared of the Class A misdemeanor charge that carries a potential punishment of up to one year in state jail and/or up to a $4,000 fine. (A third officer, rookie Joel Ellis Follmer, was also indicted in the case, but has yet to be tried.)
The three officers were indicted in December in connection with the Sept. 21 arrest of Hernandez after he fled from the scene of a traffic accident on Burnet Road in North Austin. After officers arrived at the scene of the collision, Hernandez took off on foot; Heilman, who was in route to the accident, found Hernandez near a transmission shop on Buell Avenue and tried to arrest him, but, according to APD, Hernandez resisted and tried to struggle free. Heilman reportedly tried to subdue Hernandez with his Taser, but that didn’t work. According to APD, when Follmer and Gray arrived on the scene, “it appeared to them” that Hernandez was trying to take Heilman’s gun, and it took all three officers to get Hernandez under control and into handcuffs.
Hernandez testified that he never tried to take Heilman’s gun; instead, he said that as the force used against him continued to escalate, he tried to place his hand of the grip of Heilman’s pistol to keep Heilman from drawing the weapon and firing at him. That explanation was disputed by employees of the transmission shop, who told the court they saw Hernandez grabbing for Heilman’s weapon – testimony that appeared to have a powerful effect on the jurors, court watchers told the Chronicle.
But the altercation didn’t end there. Indeed, while cuffed, Hernandez lurched free of the officers again, landing on the ground a few feet away and, for the first time during the incident, within the range of Heilman’s in-car video camera, which recorded the three officers planted on top of Hernandez (one with a foot on his shoulder, one pinning his legs, and one straddled on the small of his back), who was lying on his stomach, cuffed, face down on a fire-ant mound. The video is startling: in total, Gray delivers 14 punches to Hernandez’s kidney area while Follmer straddles Hernandez, apparently delivering at least one additional drive-stun Taser shot to Hernandez’s legs and Heilman stands with his boot on Hernandez’s shoulder, keeping Hernandez pressed into the dirt – a use-of-force combination that, among other things, appears to violate APD policy on Taser use.
Prosecutors argued that the video depicted three out-of-control officers wielding far more force than necessary to arrest Hernandez; defense attorney Terry Keel argued that the force was within reason, given that Heilman and Gray were in a “death struggle” against an out-of-control Hernandez. After a four-day trial, the jury in District Judge Jon Wisser‘s courtroom apparently agreed with Keel and declined to find Heilman and Gray guilty. The state, juror Joel Ellingsworth told the Statesman, simply didn’t prove the elements required to convict on a charge of official oppression. (Such a charge includes that, while “acting under color” of office, the officers intentionally subjected Hernandez to “mistreatment” they knew was unlawful, thereby violating Hernandez’s civil rights.) “Anybody who would just see that video without any knowledge of the case would say that looks bad,” Ellingsworth told the Statesman. “I agree it looks bad. They weren’t asking us if it looks bad.”
Nonetheless, the trial has raised more questions about APD training and techniques. One officer, Joel Stinson, who has taught use-of-force at the APD academy, called the officers’ techniques “disgusting,” while defense witnesses – namely Officer John Coffey (who was put through the public wringer after he shot and killed Sophia King in 2002) and former APD academy trainer Joe Alvarado (who contracted with the city to teach defensive tactics) – echoed Keel’s death-struggle defense to argue that the force was within reason. What is “reasonable” under those standards, and what is in fact within policy will be considered in the weeks to come, as APD’s Internal Affairs detectives undertake their administrative inquiry into the incident. Among the issues likely to be studied is whether the officers, when arresting Hernandez, did indeed violate the department’s policy on use of force. For example, according to the March 29, 2005, use-of-force policy memorandum, officers are forbidden from using a Taser once a suspect is in handcuffs; moreover, once a Taser has been used, the policy requires police to place a person in an upright position, in order “to avoid the potential of positional asphyxia.” In Hernandez’s case, it appears the officers failed to comply with either mandate. Additionally, the policy forbids police from using a Taser against a suspect “fleeing from officers for a misdemeanor or non-violent offense” unless the suspect is armed and “poses an immediate threat” to officers or others, neither of which occurred in this incident.
Officers Gray and Follmer had been suspended without pay, pending the outcome of their criminal trials; Gray will now be placed on restricted duty, with pay, pending the outcome of the IA investigation and disciplinary review board, headed by Chief Stan Knee.
This article appears in April 7 • 2006.