Posted on 05/09/2010 7:27:40 AM PDT by Shimmer1
Austin police officer Leonardo Quintana used excessive deadly force in a fatal shooting last year and was so reckless in his tactics that his actions may have been criminal, a consultant concluded in a confidential report obtained by the American-Statesman.
The 162-page report by KeyPoint Government Solutions, which was hired by the City of Austin to independently investigate the fatal shooting of Nathaniel Sanders II, reached conclusions that stand in contrast to the findings of police Chief Art Acevedo, who found that Quintana had not used excessive force or poor tactics. The consultant's report was completed last fall, but its key findings were kept secret.
It said that Quintana fired at Sanders even though he never saw Sanders remove a gun from his waist or point the weapon at anyone.
The report also said Quintana's tactics in the moments before the May 11, 2009, shooting were far worse than careless or negligent and instead bluntly declared them "reckless." Investigators wrote in the report that they were "mindful of the legal import of the term."
"Reckless conduct can be criminal if it involves taking actions knowing that they are likely to yield a particular result but the actor does so despite the risk," the report said.
Investigators quoted Texas criminal law concerning "culpable mental states" because they said they wanted to emphasize the severity of their concerns.
"If Officer Quintana had employed even the most basic officer safety tactics in this situation as he had been trained, the necessity to use deadly force might well have been avoided," the report said.
Acevedo last year rejected many of KeyPoint's findings, saying that he thought Quintana's tactics and force were within departmental policy.
He stood by that decision Friday. He issued a statement noting that reviews by department leaders and the police monitor and its citizens review panel "all determined that Officer Quintana's use of deadly force was objectively reasonable and within Austin Police Department policy."
He also noted that a grand jury reviewed the evidence and declined in August to indict Quintana on any charge. The grand jury's decision came before the KeyPoint report was completed.
District Attorney Rosemary Lehmberg said Friday that she had not viewed the full KeyPoint report — she has been shown only the heavily redacted version made public last fall — but remains confident in the grand jury inquiry.
She said jurors studied Quintana's tactics and state laws concerning negligence and recklessness and found that his actions were not criminal.
Lehmberg said she would consider taking the case to jurors again "if I had new or different evidence. I have not heard anything new or different, but I don't have a copy of the report."
Attorney Tom Stribling, who represented Quintana in the internal affairs investigation, declined to comment. Robert Icenhauer-Ramirez, who is Quintana's lawyer in a federal civil rights lawsuit, also declined to comment. Both have viewed the report.
Adam Loewy, an attorney representing Sanders' family in the lawsuit, also would not comment. He obtained the report about four months ago under a federal protective order.
On Thursday, Acevedo fired Quintana over Quintana's drunken-driving arrest in Williamson County in January. The arrest came the morning after Quintana had been questioned for more than six hours as part of the lawsuit.
Quintana plans to appeal the decision.
The report also contains revelations about Quintana's work history and performance, including information that he had been the subject of nine previous allegations of excessive force that were deemed to be unfounded.
Those previous incidents cited by the report included an internal affairs finding that Quintana was excessive in his force when he used his Taser on a handcuffed suspect. However, Quintana's supervisors overturned that finding, and he was not disciplined. The report does not say when or where that incident occurred.
It also said that Quintana had a history of not activating his patrol car camera — one of the key issues in the case — and that he attributed those lapses to various factors, including forgetfulness.
According to the report, Quintana was counseled on one occasion for failing to synch his microphone and camera. The document said that department officials after the shooting also reviewed numerous calls to determine how often Quintana did not activate his camera.
They found that of 593 calls, 174 required video activation, but Quintana did not do so in 13 instances.
Officials have said that Quintana shot Sanders, who had been asleep in the back of a Mercedes-Benz station wagon in the parking lot of an East Austin apartment complex, when the two struggled for a gun that Sanders had at his waist.
Quintana also fired at Sir Lawrence Smith, a passenger in the car, after, police officials said, Smith lunged at Quintana. Smith was wounded but has since recovered.
The shooting ignited unrest among spectators who later gathered at the scene, some of whom shattered patrol car windows and hurled bottles and other objects at officers.
Much of the independent investigative report has remained protected from public view since its presentation to the city Sept. 30.
Public petitions have attempted to persuade city officials to release the document, and lawyers for the Texas Civil Rights Project have filed a lawsuit in an effort to obtain it.
"I have great suspicions about what they are hiding," project Director Jim Harrington said. "I think we are entitled to know."
Citing state law, city officials have vigorously fought against making the document public in full and have instead released heavily redacted portions. Those disclosures did not include many of the investigators' most basic findings, however.
City officials have said that more than 30 pages of the KeyPoint report are exempt from public view because they contain information about allegations for which Quintana was not punished. They said the Texas attorney general's office has sided with them.
City attorneys said state law prevents the release of such information to protect officers' reputations from unfounded allegations.
Acevedo suspended Quintana in November for 15 days for not activating his patrol car camera but said Quintana's decision to fire at Sanders was "objectively reasonable based on the totality of the circumstances."
Acevedo said that although he might not have approached the stop the same way Quintana did, "I cannot simply replace his judgment with my own."
An internal affairs investigation had recommended to Acevedo a finding that Quintana did not use excessive force but violated departmental policies requiring him to use sound tactics and to activate his patrol car camera. But Acevedo rejected the finding that Quintana's tactics violated department standards.
City officials hired KeyPoint in August to independently investigate the shooting, in part to raise public confidence in the investigation. Colorado-based KeyPoint officials last year completed an eight-year term as the court-appointed monitor of the Los Angeles Police Department.
Early in their review, KeyPoint officials were the first to flag evidence of possible bias in the investigation and reported their concerns to the city. Acevedo later fired Detective Chris Dunn for failing to maintain an impartial attitude, a decision Dunn is appealing.
Officers' tactics questioned
Much of the KeyPoint report focuses on the tactics of Quintana and fellow officers Mohammad Siddiqui and Alex Hitzelberg, who served as his backup during the incident. Siddiqui and Hitzelberg remain on the force, but an attorney representing them had no comment.
It said they failed to safely approach the encounter through "incompetence, laziness, bravado or expediency."
According to the report, one of Quintana's first errors was not asking a dispatcher to perform a check of the car's license plates. That information could have provided Quintana valuable information about the driver's history, the report said.
Quintana then contacted the driver of the car, Michael Franklin, without waiting for backup officers, even though they were not far behind.
Once on the scene, Quintana, Siddiqui and Hitzelberg approached the car without developing or discussing a plan, including possibly using less-than-lethal force, according to the report.
KeyPoint officials also said that Siddiqui and Hitzelberg should be held responsible for their tactics.
The report said that Quintana did not properly identify himself to Sanders. It said that while Sanders may have known he was reacting to a police officer, it is also possible that he showed the "instinctive defensive reaction of someone, awakened from a sound sleep, in response to feeling someone grabbing his gun."
"A possible startled reaction is something that Officer Quintana should have anticipated and could have possibly prevented by verbally identifying himself as a police officer," the report said.
KeyPoint investigators said they also disagreed with the analysis of internal affairs investigators into whether Quintana used excessive force.
They wrote that detectives emphasized what happened in the "final frame" of the incident to find that the deadly force was within departmental policy but that they should have considered events that led up to the shooting.
The report said that Austin police officers are trained to weigh several factors before firing, including the opportunity to de-escalate a situation and the chance to develop an approach.
Quintana also used excessive force against Smith, according to the document, and the report said that his version of events about why he fired at Smith did not match physical evidence.
On Friday, two top city officials declined to widely discuss the report.
City Manager Marc Ott said he had only reviewed the redacted version because the findings — and how Acevedo acted on them — were a matter for the chief.
Mayor Lee Leffingwell said he also had not seen the full report.
When told the conclusions, Leffingwell said that they are "just one opinion, which is not supported by other opinions. Everybody has the right to have an opinion."
How the Statesman got the report:
The American-Statesman has made numerous requests of city officials and attorneys involved in the case for a full copy of an independent investigative report into the fatal police shooting of Nathaniel Sanders II. All have repeatedly declined to discuss the report or to provide copies.
City officials have released portions of the report but not the key conclusions by the KeyPoint analysts.
This week, American-Statesman reporter Tony Plohetski received a call from a person who did not identify himself and said he had a complete copy of the document. The man declined to say how he had possession of the report but agreed to meet Plohetski so he could review it. When they met, Plohetski did not recognize the man, who again did not identify himself. He allowed Plohetski to review it for nearly three hours.
Plohetski compared the complete copy with a redacted copy he obtained through the Texas Public Information Act and was satisfied they were identical.
Too many cops automatically protect “one of their own” even when he is demonstrably a bad cop.
I know, but there’s just so darn much smoke around this particular fire.
HOWEVER, Officials have said that Quintana shot Sanders, who had been asleep in the back of a Mercedes-Benz station wagon in the parking lot of an East Austin apartment complex, when the two struggled for a gun that Sanders had at his waist.
It became a "good shoot." If you are struggling for a gun your life is in mortal danger.
They should be fired are made an unarmed (We do not want them shooting the kiddies) school crossing guard the rest of their life.
One last point is this was in the UNAMERICAN Austin Statesman. Thus we have no idea what is the truth in this incident. I suspect both sides are lying. Please note that Austin is a very liberal town and the officers were not indicted.
“City officials have released portions of the report but not the key conclusions by the KeyPoint analysts.”
It’s almost as if these bureaucrats don’t feel they’re accountable to the people that pay their salaries. I can’t understand it.
“One last point is this was in the UNAMERICAN Austin Statesman. Thus we have no idea what is the truth in this incident”
Your statement is ‘UNAMERICAN’ in that we have freedom of speech in this country. They may be liars and poltroons but you don’t have to read their rag or believe it.
I wouldn’t believe them or the cops personally.
They have taken advocacy positions that gives aid and comfort to the enemy. In particular I am speaking about they constant refrain during the Bush Presidency that the Iraq war was unwinable and that we had lost the war. That encouraged the enemy to fight on and results in American Deaths. This same paper gives the Obama administration a complete pass on the same subject in Afghanistan. They should have taken the same attitude to the Bush administration.
I have absolutely no problem with the Statesman saying anything they want to on the Editorial page. However, when they selectively publish articles from the AP and Reuters that were critical of Bush they in effect have changed the front page to the editorial page. This without any doubt prolonged the Iraq war and cost us American soldiers lives and treasure. That is UNAMERICAN!!! I read the Austin American Statesman so that I will know my enemy.
“I read the Austin American Statesman so that I will know my enemy.”
You’re a better man than I am. I tried to read the Denver Post but had to cancel my subscription.
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