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The investigations that begin when APD officers discharge their weapons

Thursday, July 14, 2016 by Audrey McGlinchy, KUT

While investigations into the police shootings of black men in Louisiana and Minnesota have begun, a writer for feminist publication Ravishly wonders how each local jurisdiction investigates cases like these.

Writer Ijeoma Oluo poses these questions: “Who reviews civilian complaints? Is there any civilian oversight? How are people appointed to review panels? Is there regular auditing of reviews? Is the chief of police required to take action in disciplining an officer if it is recommended by the review?”

Here in Austin, the process is complex — and most investigative power lies within the Austin Police Department. It starts with a shot fired. As APD Assistant Chief Troy Gay said, an investigation starts regardless of injuries or fatalities. An officer simply has to discharge his or her weapon with the intention of that bullet hitting someone.

“If they discharge a weapon, it enacts an officer-involved investigation,” he said.

A slew of people are called to the scene from various offices: the Office of the Police Monitor, the Travis County District Attorney’s Office, the APD.

“Our job, and particularly my job, is to make sure that from the very beginning that the investigation is conducted in a complete, thorough manner,” said Police Monitor Margo Frasier.

The officer is then offered a walk-through of the scene.

“It gives the officer the opportunity to provide us basic information of what took place,” said Gay. “That is not his official written statement, but it’s his initial recollection of what took place, and very little questions are asked at that point.”

In the case we’re talking about — in which a civilian is shot and killed by police — the fired shot initiates two investigations: one criminal, the other administrative.

Criminal Investigation

APD’s Special Investigations Unit runs the criminal investigation. And while the criminal and administrative investigations run parallel to one another, according to Gay, criminal investigators take the lead, gathering evidence and usually getting the first go at questioning the officer.

“They would be doing ballistics testing; there may be DNA testing,” said Dayna Blazey, director of the Strategic Prosecution Division in the Travis County District Attorney’s Office. “They’re putting together what would be considered a criminal investigation to determine whether the officer was legally justified under the justifications or defenses in the Texas Penal Code in discharging their firearm.”

The investigation is then turned over to the District Attorney’s Office. The office has investigative power and can, for example, re-interview witnesses — but at this point, the bulk of evidence collection and investigation has been done by APD.

The district attorney then presents all the evidence to a grand jury, which decides whether to indict the officer.

Administrative Investigation

Administrative investigators are trying to tackle a different question than criminal investigators: Did the officer follow all department protocol in deciding to fire his or her gun? If Internal Affairs answers yes no to this question, the police chief may decide to discipline the officer — with suspension (an unpaid number of calendar days) or indefinite suspension (firing).

While there is no set deadline, the department aims to have these investigations completed within 45 days. And while there is a Citizen Review Panel (see below) that can recommend disciplinary action to the chief, these recommendations are nonbinding, and he has the final say.

Article 16, Section 4 of the contract between the city of Austin and the Austin Police Association: “The final decision as to appropriate discipline is within the sole discretion of the Chief of Police, subject to the Officer’s right of appeal of any discipline imposed as provided by Chapter 143 of the Texas Local Government Code and this AGREEMENT.”

Access to records

When it comes to the administrative process, an officer who has shot and killed someone receives access to recordings of the incident prior to being questioned by administrative investigators.

Article 17, Section 4 of the contract between the city of Austin and the Austin Police Association: “Before the Officer who is the subject of an investigation provides a statement to an investigator, the Officer and his representative shall be provided an opportunity to review any videotape, photograph, or other recording of the operative conduct or alleged injuries….”

“It’s not like you can just call them right now and say, ‘Come in and give a statement,’ said Gay. “You have to give them notice.” Ken Casaday, president of the Austin Police Association, said that because the officer is required to give a statement or otherwise lose his or her job, the officer deserves to be privy to evidence.

Additionally, when the Citizen Review Panel plans to review a case, the officer is permitted to review the Internal Affairs file on the incident for up to eight hours.

Although the officer is to be treated like any other civilian  during the criminal investigation, Gay said it’s common practice to allow the officer to view the dashboard camera footage before having to sit down with a criminal investigator. When asked if citizens are granted this right, Gay said no.

Citizen Review Panel

Article 16, Section 4 of the contract between the city of Austin and the Austin Police Association: “The Panel shall serve to make recommendations to the Chief of Police as provided in this Article, and in addition to review individual cases of Officer conduct as authorized in this Article. Panel members shall perform their duties in a fair and objective manner.”

In terms of citizen oversight, the Citizen Review Panel is a seven-member panel of civilians appointed by the city manager. The panel has the power to review officer shootings, misconduct by the department of a single officer and complaints against officers. But, the panel’s power is limited.

“I think that’s accurate to say we don’t have much power,” said local attorney Rebecca Webber, who has served on the panel for the past six years. “Our only power stems from the chief’s willingness to engage with us and listen to us. And he does, to a great extent.”

Though the panel has no investigative power, it can recommend certain disciplinary action, a review of department policy, further investigation of a case or that an independent investigation of a case be done. However, disciplinary recommendations and calling for independent investigations are up to the sole discretion of the chief.

Webber said that, generally, the criminal investigation is allowed to run its course before the Citizen Review Panel weighs in on the administrative investigation — although, she said, there is no statute or rule mandating this. In one recent case, this timing was flip-flopped. In the shooting death of David Joseph on Feb. 8, APD announced that the officer would be fired nearly two months before a grand jury decided not to indict him.

This story is the result of a partnership between the Austin Monitor and KUT News. Photo by Miguel Gutierrez Jr./KUT News.

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