Sunday, May 15, 2016

What does an Austin cop have to do to get charged with official oppression? (Hint: More than tazing a confused, supine homeless man)

While it's true that a small percentage of police officers are responsible for a disproportionate amount of misconduct, it's also true that, before video cameras proliferated in the last 10 years or so, such misconduct was both common as dirt and just as commonly ignored. Now, with the rise of dashcams, bodycams, ubiquitous surveillance and personal cell phone cameras, police misconduct can be harder to conceal.

Take the example of Austin PD rookie Ofc. Christopher Van Buren, suspended for his failure to determine the "objective reasonableness," or lack thereof, of force he used against a homeless man sitting on the ground. Van Buren tazed the guy within just a few seconds of getting out of his car and confronting him, because the fellow, who was reclining under a tree, didn't follow orders quickly enough.

The Statesman ran short items when the officer received a 90 day suspension and when a grand jury declined to indict him for anything, and the Chronicle covered his suspension, but neither chose to publish the video. See APD's suspension memorandum, which contains more detail than the news accounts.

The missus asked for and received video of the incident under the Public Information Act and it tells quite a story. Meanwhile, thanks to the generosity of Grits' contributors, I recently acquired some video editing software and have begun teaching myself the basics. So here's another example of what police misconduct looks like in Austin -- harsh enough to warrant a 3-month suspension without pay, but still not, apparently, rising to level of "official oppression." Watch for yourself and judge:

What does qualify as "official oppression" if that does not? If criminal laws don't forbid such an obvious abuse of power, what's the point of having official oppression charges on the books?

Regardless, video is crucial. If this fellow showed up in court without it and alleged this sequence of events had occurred, in the face of two police officers saying otherwise, he might well have been handed additional charges for filing false reports, etc.. But seeing is believing. And it's hard to justify what you see on that video.


Jim said...

That's pretty crappy behavior. But official oppression not only requires some kind of mistreatment, the policeman (in this case) has to know that his treatment of the victim is illegal (or tortious, or whatever). That's not an insurmountable burden, but there may not be enough in this video to infer his intent. I mean, we already know how quickly officers are trained to taze, and I know from past experience they think reasonable suspicion justifies any ordering around of a sleeping homeless person. So, maybe the grand jury just thought (or the prosecutor told them) that there was just no way to infer the required knowledge.

Chris H said...

Official oppression is a Class A misdemeanor. Because misdemeanor's can be filed by the DA, grand juries shirk their responsibility hoping that someone else will do the work.

Police officer's cannot keep their badge if they're convicted of a Class B or higher.
Perhaps a grand jury would be more inclined if they knew the buck stopped with them for this crime or if a grand jury would be required to hear from a "credible person" for this specific charge.

Jim said...

I think because it's an official misconduct case (even though it's a misdemeanor), it has to proceed by indictment.

Darrow said...

Official oppression ? What about aggravated assault ? But the homeless do not serve on grand juries.

Gritsforbreakfast said...

Good point, Darrow,

Jim, the Austin Chronicle reported the officer was three weeks out of the academy, so you can interpret that either as a) he was green and inexperienced and could later improve or b) his training was as fresh on his mind as it would ever be and things would only go downhill from there. Let's hope its (a) since he's now back on the force and patrolling East Austin on the evening shift, according to press accounts. What could go wrong?

Certainly, if he was trained on or had ever read the department's Taser policy (quoted at length in relevant part in the disciplinary memo), he would have understood that he should only use the device in response to aggression and not to punish noncompliance to verbal commands. In fact, the policy explicitly prohibits using a Taser on "passively resisting subjects."

To me, the wrongness of his behavior falls into the category of "knew or should have known," as the lawyers say.

Jim said...

Well, that's a good point about the training. I seem to recall an official oppression case where the evidence did turn on what the guy learned in the academy (he was convicted). OTOH, there's no "should have known" standard. Unless I'm wrong, the State has to prove that the defendant cop actually knew what he was doing was illegal or whatever. Which is a weird barrier but, as you point out, not insurmountable.

Gritsforbreakfast said...

No "should have known" standard? Perhaps not technically. But if he was trained on it six weeks prior but now says, "I forgot," or "I didn't know," do you think that would hold water? IANAL but I think in that situation the fact of the training should be sufficient.

Miketrials said...

Would this come under the rubric of "another good police operation?"

Not living in Texas, I'd hope a local grand jury would be more interested -- based on this video -- in protecting the public from Ofr. Van Buren than the one in Austin was. Hard to understand why they don't understand that next time it could be one of them (or us). I'm not sure he should have lost his badge, but the misdemeanor charge might have made him a bit more circumspect. Or not.

Lee said...

Why did the police even begin interacting with they guy in the first place? He was not involved in any obvious criminal activity and just harmlessly laying under a tree. Why even bother the guy in the first place?

Gritsforbreakfast said...

@ Lee, they had a report that he'd been urinating in public. Read the linked suspension memorandum for more details.

Anonymous said...

Funny thing is, if he had been standing up they would have tried to put him on the ground. Since he was on the ground they ordered him to get up.

Anonymous said...

Much of it comes from expectations, those of the public and those of the grand juries, police commanders who decide levels of discipline, and elected officials. Those of us on here that are shocked (no pun intended) at how the police reacted to the man are not usually seated on grand juries, are not police commanders, and are not elected officials. As such, making our voices heard loud and clear is important to affect change.

In police circles, I'm told that a 90 day suspension for a rookie is generally given sparingly as a means of trying to salvage all the training they have "invested" in him, the difficulty in finding better people such that they adjust the bar as needed. While I'd rather they just save us all some time and write this cop off now rather than wait for his next opportunity to go too far, I'm told that three months without pay is "more than he'd have gotten for a similar first time offense" under a criminal charge were he not a cop. I can't speak to that but I can speak to the growing expectation more people have about incidents like this one, most of us expecting better of our public servants.

I don't think most officers are quick to zap someone as Jim suggested above but I wonder how many seated on a grand jury have ever been subject to what these devices feel like. Maybe if they had some first hand experience, they would be more likely to indict for something, friends telling me it is an unforgettable experience that I am not interested in sharing.

Anonymous said...

The grand jury selection process is broke, period. It is just another employee of the DA's office!
Why is the justice system broke?
A.Grand jury
B.We are cowards
C.Police abuse

Anonymous said...

If Rosemary Lemberg didn't get indicted even after she was on a video that was widely distributed,
why would one be surprised that anyone else would not get indicted?

What does it take? Screaming "I'm guilty! I'm a facist!" in a crowded theater?