Austin PD's "early warning system" is a failed PR stunt, like pretty much all of them

"Early warning systems" for police are one of those ideas that's touted by institutional players in the wake of bad police misconduct episodes - doubling down on the idea that we just need to identify and oust a "few bad apples" - but IRL, your correspondent has never seen one that worked well.

When I was Police Accountability Project Director at ACLU of Texas back in the day, I spent a fair amount of time trying to understand what information might be probative for managers to monitor in an "early warning system," and concluded that 1) there's no consensus about how these programs should operate and 2) in practice, they were touted by officials as a solution but never had real-world impact. As a result, it's not a reform Grits generally recommends.

It's been many years since I've been that deep in the weeds on the topic, but a new Austin city auditor report on their police department's "early intervention system" - known within the department as the "Guidance Advisory Program" (GAP) - confirms my sense that they're essentially worthless. Austin's, the auditor found, "does not effectively identify officers who may need assistance."

As is typical, there has been no local MSM coverage of the audit. (I know, gentle readers, you're shocked at the omission!)

APD's police early-warning system suffers both from over-identification and under-identification. It gathers only three, not-very-probative data points and ignores data used by systems in other cities. The thresholds to trigger review are set too low, so too many officers are identified for intervention and the system has little predictive value. At the same time, many officers meeting thresholds are not identified at all. On use of force (at APD, called "response to resistance), the department failed to identify about a third of officers who should have met the threshold for review. Moreover:

When officers are identified for assistance, the GAP does not connect these officers to existing APD support or wellness services. Also, APD does not track or analyze program trends to evaluate officer or program performance to ensure the GAP is fulfilling its mission. In addition, APD management has not generated true program buy-in and the GAP is not working as intended.

The auditor sampled 60 activations and found supervisors identified no issues 93% of the time, resolved the issue with a conversation 7% of the time, and NEVER created an action plan to correct officer behaviors, even though that's theoretically supposed to be triggered by the system. As a practical matter, they're just not doing anything with the information: 

APD staff said there are no performance metrics reported in relation to the GAP and they have no way to measure the program’s success. In addition, the department is not analyzing results to identify trends or determine if certain officers, assignments, or supervisors need additional support services.

Even an officer triggering the system three times in three quarters based on 45 total use of force incidents was found to have displayed no "pattern" that caused concern. Intervention after 45 incidents wouldn't seem particularly "early" to this writer, but if they're not going to review outliers, anyway, IRL it hardly matters.

The reality is, as the auditors wrote, "APD is not creating an environment of trust and transparency" regarding its responses to officer misconduct, either with officers or the public, and failures of the early warning system are a symptom of that broader problem.

That said, none of the other early warning systems in Texas work well, either. There are no real best practices and as a result, their structures are all over the map. Here's a summary from the report of the information gathered in each one, which varies quite widely.

Dallas' last chief Renee Hall proposed spending nearly a million dollars to revamp their system, with no results so far. The one in Houston tracks 10 different metrics, compared to 3 in Austin, but the Mayor's task force on police reform last year found it ineffective and recommended an upgrade (without specifying details).

I suppose it's possible an "early warning" system could be devised that would fulfill the goal of reducing misconduct, but academic reviews have found little evidence for their effectiveness (if plenty of enthusiasm for giving it the ol' college try). Grits believes their popularity stems largely from their PR value: It's something police chiefs can say they're implementing, improving, etc., that will take the heat off them in the near term because they ostensibly need time to launch a new program. The program never seems to work, though, whether they monitor three data points or 10. Then another scandal happens and suddenly we're revamping the early-warning system again.

Austin doesn't need APD to waste time on this pointless paper shuffling and IMO they should scrap it. If managers want a list of officers who need retraining or intervention, they should ask Farah Muscadin, the head of the Office of Police Oversight, for a list. She knows perfectly well who the problem officers are at this point, even if APD brass isn't paying attention.

The #TexasGeorgeFloydAct: What component bills are still moving in the #txlege homestretch?

Over the weekend, your correspondent put together an update on the status of all the various bills that make up the Texas George Floyd Act for the 65-group coalition promoting them, so let's re-post it here for Grits readers who may be interested. There are four weeks to go in the legislative session, so all these bills are in the make-or-break home stretch.

The Texas George Floyd Act, as distinct from federal legislation by the same name, fundamentally has eight component parts. These have also been broken up into individual, stand-alone legislation, and six of the eight have passed at least one chamber in the Texas Legislature and still have a chance to pass in 2021:

GFA Components:

Ban arrests for traffic offenses ☑

Ban chokeholds ☑

Improve use-of-force standards ☒

Duty to render aid ☑

Duty to intervene ☑

Qualified immunity ☒

Disciplinary matrix ☑

Corroboration in drug cases ☑

Here’s a list of individual bills still moving as of May 2, 2021, along with a summation of what’s not:

HB 830: Banning Class C arrests. This bill was scaled back in committee to ban arrests only for traffic offenses in the Transportation Code. Still, this change would have eliminated roughly 95% of the 64,000 arrests at Texas traffic stops in 2019. The bill passed the Texas House with a bipartisan vote of 113-18, including 57 Democrats and 56 Republicans. It has yet to be referred to committee in the senate.

SB 69: Banning chokeholds and neck restraints by police unless it “is necessary to prevent serious bodily injury to or the death of the officer or another person.” The bill passed the Senate unanimously and is not yet scheduled for a hearing in the House.

HB 833: Improving use of force standards to require an imminent threat. This legislation did not make it out of the Homeland Security and Public Safety Committee and probably can no longer pass this session.

SB 2212: Duty to render aid. This legislation passed out of the senate unanimously, but could be improved to clear up some ambiguity around when the duty is triggered. Officers should render aid unless there’s an “imminent threat.” Alternatively, their duty to render aid to injured members of the public should be the same as when a police officer is injured. It has been referred to the House Homeland Security and Public Safety Committee and there will be a public hearing May 5th.

SB 68: Duty to intervene. This legislation requires law enforcement to intervene when they witness excessive force when a list of four qualifying factors are met. We believe meeting any of these factors justifies intervention and the bill need modest amendment to achieve its goals. The bill is scheduled for a hearing in the House Homeland Security and Public Safety Committee on May 5th.

HB 614: Qualified Immunity: Creating a new cause of action for civil rights violations that bypasses qualified immunity was one of the most prominent demands in the original Texas George Floyd Act. But it has received the most pushback of all and has not moved in either chamber.

HB 829: Creating a disciplinary matrix to ensure fair punishment. In civil service cities, a common excuse for arbitrators overturning police-officer discipline is punishment that differs from other cases. This bill requires those departments to have a disciplinary matrix specifying presumed punishments, and tells arbitrators punishments within those ranges must be presumed reasonable. This will make it easier for chiefs to fire bad cops and make it stick. This bill has yet to be referred to committee in the senate.

HB 834: Corroboration of police testimony in drug cases. This legislation reacts to George Floyd’s conviction based on the testimony of corrupt Houston narcotics officer Gerald Goines in a case with a fabricated informant. This is another bill that passed out of the Texas House with solid bipartisan support, this legislation enjoyed support in the lower chamber from the Sheriffs Association of Texas and the Texas Police Chiefs Association. This bill has yet to be referred to committee in the senate.

***

For more background, check out the special, two-part podcast from Just Liberty on the Texas George Floyd Act: Here's Part One and Part Two.

UPDATE (5/5): The three senate bills discussed above all passed out of the Homeland Security and Public Safety Committee today (SB 69 was added via a rules suspension) with support from the police unions but tepid backing from police-reform advocates, several of whom testified "on" rather than "for" the legislation. The duty to render aid bill lets officers delay assistance until the scene is fully secured, whatever that means. (For my money, Grits thinks they should be taught to "render aid" with the same alacrity and preconditions as if it were an officer who's wounded.) Meanwhile the duty to intervene applies only to excessive force, not other types of misconduct (e.g., fabricating informants, as allegedly happened in George Floyd's Houston drug case). The original Texas-George-Floyd-Act versions were broader. These are probably still an improvement over current law, barely, but the lowest-possible-impact versions of such improvements. With that said, the same committee earlier passed a governor-and-police-union-backed mandate for training on duties to render aid and intervene that the Attorney General says don't currently exist (the police unions disagree). So putting these duties formally on the books is important. But the versions passed by the senate are pretty weak tea.

Unions fighting police reforms up at #txlege on Thursday

Three bills scheduled for votes on Thursday on the floor of the Texas House are all stand-alone parts of the Texas George Floyd Act: HBs 829, HB 830, and HB 834, and all by state Rep. Senfronia Thompson.

HB 829 requires civil-service cities to create a disciplinary matrix to keep arbitrators from overturning punishment so often.

HB 830 forbids arrests for Class C violations of the Transportation Code.

HB 834 requires corroboration for police officer testimony to secure a drug conviction.

For the most part, we've heard all the union's arguments before. (See links for HBs 830 and 834 for more background on those bills.) But the Combined Law Enforcement Associations of Texas put out a flyer critical of HB 829 which deserves special attention, as it's focused on a less-high-profile topic than the other two. Here's what CLEAT's distributing against the bill: 

Let's respond to the issues raised one by one.

1. CLEAT argues that Texas’ police civil service statute has not been changed since 2005 and decisions about departmental discipline have been left to local union negotiations, which they prefer.

It’s true the Legislature has not revisited the police civil-service statute for many years. Since that time, we’ve had plenty of opportunities to observe how those 2005 revisions played out in the real world. In Fort Worth, about half of fired officers get back on the force. In San Antonio, 70% of fired officers are reinstated. Notoriously, one San Antonio officer was reinstated after being fired for feeding feces between two pieces of bread to a homeless person. Police chiefs need authority to fire officers under such circumstances. HB 829 is a moderate effort to resolve this problem, giving officers, departments, and the public greater certainty about which punishments are reasonable. While the police chiefs association has suggested getting rid of arbitration altogether, Chairwoman Thompson’s bill keeps arbitration and simply provides arbitrators more guidance.

2. CLEAT argues that HB 829 would “severely limit the discretion of cities to negotiate these issues with their officers back home.”

This is disingenuous. The main thing that currently limits cities’ discretion to strengthen disciplinary processes is that, if the only way to do it is through local meet and confer agreements, the unions will never agree. If unions won’t sign off on a police contract, its provisions cannot take effect. It’s inappropriate to limit police discipline through union negotiations. That should be left to local policy and state law. Certainly no government employee union should have veto power over accountability reforms affecting their profession.

3. CLEAT claims the law would offend “the vote of the people who adopted civil service in the first place.”

This argument lacks context. Texas cities mostly adopted civil service in the 1940s and 1950s. The provisions they’re saying the law would change were not in place when voters adopted Chapter 143 of the Local Government Code, but were added many decades afterward at the unions’ behest. If it was okay to change the rules post hoc in 2005, Chairwoman Thompson should be able to do it now.

***

The other two bills up Thursday have received more attention and will likely draw more natural support on the House floor. HB 829, though, is a more deep-in-the-weeds technical issue which has flown relatively under the radar. Here's hoping all three of them move onto the senate without any hiccups.

Austin Police Monitor proposed rule changes to discourage officer discourtesy

When one digs into the details of complaints at most police departments, the category that stands out by volume isn't "use of force" but "rudeness," or some variant thereon. But most police-oversight discussions focus on beatings, shootings, etc., not the nasty, personal interactions that generate the greatest volume of grassroots antipathy.

So Grits was pleased that Austin's Office of Police Oversight in September put out recommendations to upgrade APD's Personal Conduct policy regarding officers' maintaining an "Impartial Attitude and Courtesy" in their interactions with the public. 

Like most newsworthy items coming out of Austin's OPO, local media have ignored these recommendations, which among other things, would impose more discipline for sustained rudeness complaints, including for officers who "ridicule, mock, taunt, embarrass, humiliate, belittle, or shame." For such violations of "tact, vulgar language, and diplomacy," the proposed changes would increase the lower threshold of punishments on the disciplinary matrix, "aligning discipline with the seriousness of the violation."

The biggest suggested change: racist or prejudicial comments previously had no punishment specified on the disciplinary matrix, leaving the supervisors free to punish these incidents disparately. The OPO recommended setting a disciplinary range for this offense in writing, with a minor suspension as the lowest punishment and indefinite suspension possible for the worst offenders.

Grits would add that APD supervisors should use dash-and-body-cam video more widely for training purposes in response to rudeness complaints. Pick several interactions and walk through them with the officer to show how it could have been handled differently.

In fact, doing this in group settings - the way professional football players review film in position meetings - may be an even better approach. This adds a mild, pro-social shaming effect, but mitigated substantially by using negative incidents as a training opportunity for everyone as opposed to isolating and belittling one person. In a group setting among cops, the takeaway isn't so much "John is bad," but "John made a mistake and now that I know what it is, I don't want to make the same one."

Your correspondent worked on the original 2001 legislation that required most Texas police cars to have dashcams, and one of the goals when we pitched it was that the video could be used for exactly this sort of individualized officer training. But much to my chagrin, things didn't pan out that way. To my knowledge, the video hasn't been used that way on a widespread basis, though I've heard of isolated examples.

Given that rudeness and its variants are the most common type of complaints, the topic deserves this level of focus. Reducing vulgar and discourteous treatment of the public through more aggressive oversight by supervisors is, in the end, the only way to address it. And supervisors can only enforce the rules on the books. So I'm glad to see the OPO paying attention to these "minor" violations and looking for ways to reduce them. These proposed changes deserve support both from Austin's city manager and its City Council.

See also Grits' earlier discussion of OPO recommendations related to Austin police supervisors who inject their personal opinions into the disciplinary process in lieu of departmental policies. Related: See KXAN's coverage of the OPO's recommendations. They added the news that APD did NOT accept key OPO recommendations.

Police Monitor: Austin police commanders ignore misconduct when they disagree with department policy

In public, previously un-reported recommendations, Austin's Office of Police Oversight earlier this month found it necessary to remind APD commanders that, "When presented with incontrovertible evidence of a policy violation, an accused employee’s chain of command should sustain the allegation related to that policy violation." Further, they declared, "This is especially true for policies that are not open to interpretation, such as those related to report writing."

Although we don't know the specific referent (the OPO can see confidential investigative files the public cannot), to me, this implies that APD brass are ignoring demonstrable police misconduct. It's not the first time.

In this instance, the context was an alleged excessive force incident from Christmas Day 2019 resulting in an arrest for "Pedestrian in the Roadway" and sustained allegations against Officers Christopher Williams and Jeffrey Hutchison, for which they received an oral reprimand.

It sounds like commanders substituted their own personal judgments for policy in issuing such a light sentence: "Should an officer’s commander disagree with any section of [APD policy] ... In no scenario should anyone in an officer’s chain of command impart their opinions about policy through the disciplinary process," the OPO advised.

One wonders with what policy commanders disagreed so much that they felt compelled to "impart their opinions ... through the disciplinary process"? That says to me that there's some policy one or more commanders disagree with so they failed to punish violations seriously. How tantalizing! I wonder what it is?

The OPO also expressed concerns about how investigators treated civilian witnesses, finding it necessary to warn that Internal Affairs investigators "should use caution with both the tone and subject matter of their questions and avoid questions that could discourage civilians from participating in current or future investigations."

The OPO further warned against IAD using "leading questions" with civilian witnesses and said their use threatened the "integrity of investigations."

They also pinpointed a pattern of manipulative questioning: "Interviewees should not be asked whether they believe that certain conduct meets a word's definition, especially when that word has a particular meaning in APD policy, without first having the word defined for them."

I'd sure like to know the backstory behind that recommendation!

Taken as a whole, even without a full explication of the basis for each of them, these recommendations seem telling: IAD investigators appear to be pushing civilian witnesses with leading questions and manipulative language, while commanders ignore clear policy violations when they disagree with the department's written policies.

Thank heavens for the OPO! Without that agency (and the police-contract adjustments in 2018 allowing for greater transparency), the public, and for that matter the Austin City Council and city manager, couldn't know about such problems.

Task Force on reforming Houston police: Empower oversight board, remove civil-service barriers to accountability at #txlege, and have someone besides the DA prosecute police misconduct (Grits has a suggestion)

"The loss of public trust and credibility makes it difficult, if not impossible, for the police to forge partnerships in local communities, let alone expect community cooperation in criminal investigations," declared the Houston Mayor's Task Force on Policing Reform (TFPR), which issued its recommendations this week. Even if your correspondent might have gone further, or may quibble with their suggestions (as indeed, I will, below), they're more significant than Grits had anticipated. Good for them!

The Houston Chronicle reported that the Mayor asked for "a few days" to digest the report and meet with the task force chairman, sub-committee chairs, and council members before formulating a response.

Grits, however, has no need to wait. Let's dig into this report and see what's there. Obviously at 104 recommendations, we don't have time to discuss all of them. And some of them are rather small-time, anyway. But let's run through the big stuff, describing their recommendations with Grits' own annotations. This is Part One of what I anticipate will be a three-part analysis: I read the 150-page report so you won't have to! :)

Community Policing (yawn)

So-called "community policing" has always been a hustle. No one can define it and in practice departments interpret it as officers spending time hanging out with whomever instead of responding to calls or performing police work. As fear of crime has declined as the go-to driver of more police spending, "community policing" offers departments a new metric -- percent of time available -- to demonstrate that we always need more officers no matter what is happening with local crime stats. At HPD, Chief Art Acevedo uses the term "relational policing," but, "The Task Force believes it is similar, if not mostly the same." In other words, it's a buzzword intended to confuse with results that can't be measured. None of the recommendations here seem destined to reinvigorate this tired and fruitless approach, from giving cadets community tours, making them sit through more lectures, or having officers document "out of car engagements with civilians and/or businesses."

Updating promotion matrices to give points for community policing might be helpful, once there is a consensus on what exactly officers should be doing, but the report failed to discuss taking points away for officers with misconduct records. That might help, too. In 2017 legislation, Houston state Rep. Senfronia Thompson recommended deducting points for officers found to have engaged in misconduct. Perhaps it's an idea worth reviving?

I liked the "mobile storefront" idea, which was the final recommendation (#16) in the community policing segment. Most of the rest in this section seemed pretty lightweight.

Independent Police Oversight Board

Grits has never been a great fan of civilian-review boards because most of them are as worthless as the one in Houston. Austin's oversight board, along with the Office of Police Oversight (essentially a Police Monitor-Board model), at least has become a window into policing problems we've never had before. (Local press don't cover the complaints, but they're out there from a credible source, and advocates discuss them.)

The Task Force agreed with city council members who recently said they have "no confidence in the current format" of the IPOB. Its powers are truncated and it fails to perform even the duties it's been assigned, they concluded. (These recall the complaints of an IPOB member who recently resigned over the group's inefficacy.) The Task Force laid out three broad models of police oversight:

• Auditor/Monitor Model
• Investigative Model
• Review Focused Model

They recommended IPOB expand to 31 members and adopt an "investigative model," but Grits wonders, "to what end?" Their investigation results would not be part of the department's decision making process when it comes to disciplinary decisions. They have their own investigators for that in the Internal Affairs division. How will these investigations affect real-world outcomes, including policies and practices, much less in the individual cases they investigate?

Since it's been empowered to a) review previously confidential documents and b) publish sometimes de-identified results, Grits has found Austin's fusion of Monitor/Review models (to use the Task Force's nomenclature) gives advocates more empowering information than we had before. The oversight board here reviews cases with an eye toward recommending policy improvements, and the record they create was been a valuable tool for documenting problems in a way that city officials are able to hear. Requiring the Chief to respond in writing to civilian oversight recommendations has also helped.

The Task Force does recommend hiring dedicated, paid staff to support the civilian review board, including investigators who it hopes will have "subpoena power." (FWIW, I'm not sure what more they think they'll get with a subpoena beyond what they get by mandating access to the department's full file.) Regardless, having staff led by a dedicated Police Monitor's position, as Austin did, has the added benefit of creating a counterweight to the chief in the city bureaucracy on police-misconduct questions, where officials might not listen to part-time civilian volunteers. That's a big practical benefit and has been welcome change.

Legislative changes needed to civil service

The portion of the report which made your correspondent jump out of his chair and whoop with sheer delight addressed legal changes needed at the state or city level, but with particular focus on the state.

They want to change the much-derided 180-day rule in two ways - one significant, one not. For the uninitiated, state law and many union contracts say officers in civil service cities can't be punished more than 180 days after they commit a misconduct violation. The Task Force recommended changing this in two ways: 1) have the clock launch on the "date of discovery" of the misconduct instead of the date it occurred, and 2) change 180 days to 210.

The first change is significant; the second much less so, though the first change magnifies its impact. Together, they'd be an important reform. That said, make Grits Philosopher King and I'd say for police the rule should be a full year from the date of discovery.

The Task Force wants to fix another civil-service practice your correspondent has railed against for years: "Require officers involved in incidents in which their conduct is under scrutiny to make statements at the beginning of the investigation." As the Task Force noted on p. 34, "Current practice allows officers to defer making statements until after the investigation is complete and they can read the entire file," as well as review any body camera footage.

Imagine if in a regular murder investigation they waited to interrogate the suspect until s/he reviewed the investigation file with their lawyer: Unthinkable!

Who should prosecute police misconduct?

The Task Force believes the District Attorney has a "symbiotic relationship" with the police department, which results in an "inherent pro-police bias." Thus they think "an independent agency," unnamed in the report, should prosecute those cases instead.

This has been suggested many times before. Some iterations see special prosecutors appointed each time, though that gets expensive.

Speaking of which, Texas Attorney General Ken Paxton has said he'd take the job, but I don't think anybody would trust him.

Grits has a suggestion I believe would be popular with everyone but Alex Bunin, the Harris County Public Defender: I think the Harris County Public Defender Office should take over prosecuting cops instead of the District Attorney.

I've given this a lot of thought: Bunin and his shop are respected, and they already have an oppositional relationship with the Houston PD. I can't think of another outfit that would care less about pissing off the union. They've got the talent in the office to do the job. Plus the commissioners court just expanded their budget.

Now, they may not want to do it. Many of those folks are life-long defense lawyers who chose not to go into prosecution for a reason. But sometimes, the person who doesn't want the job is exactly the right person to handle it responsibly. (They know what's required; that's why they didn't want it!) It wouldn't be that many cases by comparison to their usual docket and I believe they're the right crew to handle the job.

Next time: Improving the complaint process, body-cam policies, use of force, and "rebuilding trust through transparency."

Austin PD made bodycam policy worse, and no one in the Austin press reported it. Shocking.

Grits is still catching up on all that went on while I was under the weather these last few months, and wanted to visit the new, much-worse bodycam policy enacted by Austin PD on March 16. Farah Muscadin at the city's Office of Police Oversight put out a formal objection to the new policy two weeks ago that deserves readers' attention.

Basically, APD downgraded violations of the bodycam policy and made those violations much less transparent. Wrote Muscadin, "These changes delegitimize the discipline process by trivializing conduct that has historically been treated as a significant policy violation."

In essence, this is a reaction to the (relatively) new police contract enacted in 2018. Under the revised contract, written reprimands of officers became public records for the first time. Previously, the public couldn't know about disciplined officers unless they were suspended from duty as a punishment.

Under the old policy, on the first offense bodycam violations received punishments ranging from a written reprimand to a one to three day suspension, with penalties increasing by one level on the second  and third offenses.

Now, officers receive "oral counseling" on the first offense, get a "counseling memorandum" on the second offense, and on the third offense punishments range from an "oral reprimand" to a one-to-three day suspension.

So, as Muscadin notes, "Due to the March 16th changes, an officers third sustained violation of the [bodycam policy] now results in lighter discipline than an officer used to receive upon their first violation of those policies." And since they'll no longer receive written reprimands, the public can no longer discover these violations under the Public Information Act.

APD notified the Office of Police Oversight on the same day it took effect. Noted Muscadin, "APD's practice of soliciting feedback on proposed policy changes without providing adequate notice or opportunity to respond is unacceptable and contradictory to APD's support of civilian oversight."

Muscadin recommended the department reverse this policy and go back to the old one and Grits couldn't agree more. Enacting the policy without giving anyone - even the OPO - a realistic chance to respond reeks of bad faith, and mirrors their behavior gutting the police complaint process, which Grits discussed previously, to make that process more opaque.

Finally, this is another big story at Austin PD which has been utterly, 100% ignored by the local media. Apparently, if the APD Public Information Office doesn't spoon feed reporters a story, they just don't cover it. And when APD does spoon fed them something, they spin it to avoid saying anything critical.

Grits hopes the Austin City Council intervenes to reverse both the bodycam policy and the new policy on the complaint process. These changes appear intentionally designed to undermine police oversight and hard-won gains in the police contract process. They must not stand.

More on union chief thwarting investigation into Austin PD racism complaints

Grits' post on the recently released report analyzing racism allegations at Austin PD deserves a followup. I won't restate all that was written there, but go read it if you haven't.

The Austin Police Association issued a press release yesterday deflecting blame from their president, Ken Casaday, whom the report revealed had informed Assistant Chief Justin Newsom of a confidential complaint against him, allowing him to retire before an investigation could be launched. According to the release, "The conversation regarding whether or not APA President Casaday can or should be punished for having a conversation with a dues paying member is laughable," and they "struggle to find a relevant general order that prohibits conversations between an association member and the association president."

Since they're struggling, let's help them out.

First, to review the issue, here's how Casaday's actions were described in the Tatum report:

In discussions with Detective Casaday, he commented on the fact that everyone in the Department keeps talking about “who snitched” and told AC Newsom about the complaint against him (Complaint 1), alleging racist behavior using text messages, enabling him to retire with a significant amount of accumulated leave pay. Detective Casaday acknowledged he became aware of Complaint 1 against AC Newsom and admitted he told AC Newsom about the anonymous complaint. Detective Casaday did not state how or when he became aware of Complaint 1 or exactly when he discussed Complaint 1 with AC Newsom. However, the consequence of the notification allowed AC Newsom to make the decision to leave the Department before an investigation could be initiated, making AC Newsom eligible to receive his full leave pay upon retirement.

According to the Tatum report, many current and former officers viewed this as improper:

Interviews with other witnesses, particularly other active and separated sworn employees, consistently shared their concern over AC Newsom’s departure with full benefits and no review of the allegations raised against him. There seemed to be an understanding of policy; however, the feeling of betrayal and an abuse of the system were quite prevalent.

Grits suggested that Casaday violated departmental rules because of Art. 16, Sec. 8 of the police contract, which says "Information concerning the administrative review of complaints against officers, including but not limited to Internal Affairs Division files and all contents thereof, are intended solely for the department's use pursuant to Sec. 143.089(g) of the Texas Local Government Code." I interpret that to include information about complaints, not just investigations.

As for the general orders, Sec. 900.3.1c may be the most on point: "Employees will not attempt to conceal, divert, or mitigate their true culpability in a situation, nor will they engage in efforts to thwart, influence, or interfere with an internal or criminal investigation." IMO, Casaday definitely thwarted and interfered with an internal investigation. By informing Newsom about the confidential complaint before the department could act, Casaday directly prevented an investigation from occurring.

To be clear, if Newsom had already been told about the complaint, he was allowed to consult with the union under Art. 17, Sec. 6 of the contract. But Casaday finding out through gossip channels and sharing information about a complaint with its target, by my reading, violates Art. 16, Sec. 8 of the contract and Sec. 900.3.1c of the general orders. I'm not an attorney (and neither is Casaday), but the plain language of those provisions seems clear.

More generally, Casaday had a duty not to tell Newsom under the Law Enforcement Code of Ethics, General Orders, p. 2, in which officers must swear "Whatever I see or hear of a confidential nature or that is confided to me in my official capacity, will be kept ever secret unless revelation is necessary in the performance of my duty." The code also states that an officer "shall guard against the use of his office or person, whether knowingly or unknowingly, in any improper or illegal action."

To the extent Casaday's actions were "a betrayal and an abuse of the system," as it was characterized by officers per the Tatum report, arguably both those provisions apply. With hindsight, it's hard not to describe what happened as "improper," since it thwarted the formal departmental investigation process.

Then, under Sec. 900.3.2a of the general orders (Acts bringing discredit on the department), we find a rule stating, "Employees will not commit any act which tends to destroy public confidence in, and respect for, the department or which is prejudicial to the good order, efficiency, or discipline of the department." Helping Newsom avoid a formal investigation by revealing confidential complaint information surely falls into that category.

Finally, the press release insisted, "if the department wished to investigate APA President Casaday, we are still within the 180-day period to suspend him for his conversation with then Asst Chief Newsom." Grits had written that we were past the 180-day point, but if not, perhaps this should be (quickly) considered?

APA is right that Chief Brian Manley is uniquely culpable for Newsom not being investigated and punished. Honestly, I wouldn't be surprised or disappointed if Manley lost his job over it. But that doesn't change the fact that it was improper for Casaday to do what he did and his actions made the situation worse.

Austin PD racism, local media's lapdog nature, all exposed by one report

Grits has said many times that the local press in Austin reside, in large part, in the breast pocket of their law enforcement sources and generally do more to cover up problems than expose them. That was certainly true of initial coverage of a just-published report commissioned by the City Council regarding allegations of racism among Austin PD command staff. Headlines included:

• "Probe finds no proof of racist remarks by Austin police leader, but calls for change"
• "Investigator largely unable to corroborate claims of bigotry against high ranking Austin police"
• "Independent investigation into APD racism, homophobic allegations finds no policy violations"

These summations wholly misstate what the investigation actually found. They did find evidence of racist remarks, did corroborate claims of bigotry, and definitely identified policy violations, although departmental policies forbid punishing them if they happened more than 180 days ago. Frankly, media coverage of this report amounted to an embarrassing coverup. Or maybe all the reporters are just incredibly lazy. Or, perhaps most likely, both things may be true.

The report emphasized repeatedly that the investigation was launched after a great deal of publicity around the incidents so that everyone had plenty of time to scrub all their phones and communications. "I can't recall" appears to have been the most common response to all specific questions. Attorney Lisa Tatum herself described her task as akin to "being named an honorary detective who was assigned to investigate an outdoor crime scene after it had already rained — twice." So take all the "no racism found" memes in the local media with a massive grain of salt.

The nearly 50-page document is frankly repetitive, poorly written, leaves out many relevant details (often from its frustrating overuse of the passive voice), and was very hard to follow. Honestly, I've read more artfully written probable-cause affidavits!  So Grits went through to pull quotes regarding some of the highlights. Otherwise, I fear even stakeholders won't read all the details because the document is so hard to get through. Separating the wheat from the chaff, though, there's definitely some important detail in there which was mostly ignored by the press coverage so far.

Racism well-known, tolerated at highest levels of the department
Let's start with the racism allegations.  The Tatum Law Firm was hired to investigate several specific allegations, including an assistant chief allegedly using the N-word in text messages. While they could not confirm that specific usage, they discovered plenty of evidence of racism, and in particular many people corroborated such attitudes by Assistant Chief Justin Newsom.

They received reports from "several" people alleging "that AC Newsom has used inappropriate language or made blatantly biased statements." Among APD employees interviewed, "By several accounts, AC Newsom's use of racist language was well known throughout the Department as was the use of such language by other officers who were known to be close friends with AC Newsom and used such language openly and often."

Further, "there are those who believe the alleged behavior to be true based on past accounts and the close circle of colleagues known to associate with AC Newsom who have reputations for making such comments."

"Reports came to us, from different ranks, races and genders, advising of the fact that the racist and sexist name calling and use of derogatory terms associated with race and sex persists. Anecdotal history indicated that even members of the executive staff over the years had been known to use racist and sexist language, particularly when around the lower ranks or other subordinates."

"We listened to many anecdotes illustrating inappropriate comments over the years through which APD personnel expressed concern about racist behavior, but also sexist behavior, and dissimilar treatment in the handling of officer discipline and those who may be served by APD chaplain services with the denial of marital services to same sex couples. There are some real cultural issues that are in need of attention."

The investigators were left with an impression that APD brass simply didn't want to know the truth about racism in the department. "In addressing issues of race," they opined toward the end, "it is difficult to see what cannot be seen and is often more difficult to get recognition from those who do not want to see." Isn't it, though?

Manley, the un-investigator
Another recurring theme in the report was Chief Brian Manley seeking to avoid investigating serious allegations of misconduct. In September 2019, weeks before any of this became public:

AC Newsom told Chief Manley that he was concerned about his text history becoming public at the arbitration, so much so, AC Newsom stated to Chief Manley if the texts became public he would leave the Department. There was not discussion regarding the nature of the text messages. Chief Manley did not ask about the text messages. Chief Manley advised AC Newsom to speak to the Law Department if he had concerns about his testimony.

The investigators believed Manley should have intervened at that point, but he did not. "AC Newsom’s self-report, the email complaint and Complaint 1 suggest that AC Newsom was in violation of policy with sufficient information to review or investigate AC Newsom’s behavior. Chief Manley did not send these allegations for review or investigation." Later, they added:

Tatum Law was able to establish that Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart. The October 7, 2019, email received by Chief Manley alleging similar facts to those later alleged in the October 30, 2019 complaint about AC Newsom’s use of the derogatory term “nigger” in text messages to refer to African Americans provided sufficient information to suggest that AC Newsom was in violation of policy for review or investigation. Chief Manley did not send these allegations for review or investigation.

In the end, if the city council had not commissioned Tatum's review, the issue would never have been investigated. "At the conclusion of the collaboration with Internal Affairs," according to the report, "we learned there were no reports leading to any investigation or review of AC Newsom’s alleged use of racist language by Chief Manley, Internal Affairs or OPO." This failure upset quite a few people among APD brass:

Frustration was expressed by some 20% of the executive floor with the fact that apparently no questions were asked of AC Newsom about the text messages. Who received the text messages and why had the text messages caused such concern? What did the text messages say? When were the text messages sent? If questions were asked, the answers apparently were not shared or acted upon back when AC Newsom was talking about them.

It's worth mentioning, though, that this attitude of ignoring serious alleged misconduct reportedly extends beyond this one episode. Former Commander Jason Dusterhoft, who admittedly comes to this exercise with sour grapes after he was fired for an off-duty episode of "rough sex," provided an example about a sergeant, who was later promoted to Commander, who allegedly made false statements to Internal Affairs about falsified time sheets. Dusterhoft believed this episode justified felony evidence tampering charges, but "Commander Dusterhoft reports that Chief Manley agreed with his determination but later asked him to sign off on the case with no finding of wrongdoing."

The department apparently has had a significant problem with officers "double dipping" by working overtime jobs when they're supposed to be putting in hours for APD. The memo says policy changes were made in the latest meet-and-confer agreement to address this, but no details were supplied and it's not at all clear from this document the issue has been rectified.

Dusterhoft also alleged Manley ordered him to stop looking into problems at Austin's DNA lab, which months later had to be completely shut down because of incompetence and bad forensic practices.

Dusterhoft alleged he informed Chief Manley on a number of occasions that the Forensic Division/DNA Lab was in need of reform. Discussions with personnel and our investigation revealed that there were significant issues in the recent past involving the Forensic Division/DNA Lab, much of which were covered by the media. According to Chief Manley, this matter was addressed. He described some of the concerns as a clash of personalities between the Director of the Forensic Division and Commander Dusterhoft, who was supervising the division. Chief Manley advised that leadership did report that there were issues about people in the division but that there were no issues with evidence. Media coverage and updates, as recent as February of 2019, provided to City Council from the City Manager’s Office suggest there was subsequently much more involved. The information gathered was sufficient to address the purposes of this report.  

Commander Dusterhoft’s written responses report that this incident occurred in the last few months of Director’s tenure with the Austin Police Department. By his account, he presented a number of concerns to Chief Manley several months prior to Director’s departure and was advised by Chief Manley “to leave it alone.” Dusterhoft’s concerns include mismanagement and the Director’s direct attempts to undermine his efforts to reform the Forensic Division.

As it turns out, the DNA lab had serious problems and telling the commander in charge of the division to back off of oversight was a severe disservice to the department and the public.

Missing reprimand letters, Occupy Austin docs

Another recurring theme was documents missing - particularly related to officer discipline - that by any reasonable standard should have been maintained, particularly "letters of reprimand" issued for misconduct. This turned out to be a significant hindrance to their investigation.

There were several occasions when Tatum Law learned about the existence of documents and those documents could not be located. As part of the investigation, a series of document requests were made working with the City of Austin and the Austin Police Department. We were told by complainants and witnesses that certain documents were seen, delivered and, in some instances signed. It was their understanding that those documents were placed in case files or personnel records where such records are to be maintained in compliance with policy and statute. Some of those documents could not be located and, in our opinion, should have been able to be retrieved for review. Other documents Tatum Law learned about are documents generated and maintained in the course of regular business operations. Some of those documents were also not able to be produced. On the occasions when such documents were not produced, no explanation was provided as to the absence of a record or document. [Emphasis added.] Tatum Law cannot say whether a document in question was lost, damaged, destroyed, destroyed pursuant to a record retention policy or otherwise.

Reprimand letters in particular seem to vanish into thin air with remarkable frequency. They appear to be kept on file for some people, but disappear whenever APD brass gets them.

We learned that some documents that should be maintained are not maintained. An example is the Letter of Reprimand of a Commander regarding Use of Force review, who should have been provided with a signed copy and the signed copy should have been in the personnel file. Since the reprimand was part of a larger policy and/or performance review, then there should be a copy in the review file or an IA file. Another example is AC Gay’s Letter of Reprimand. Neither the Law Department nor Internal Affairs were able to locate this document. Tatum Law learned several managers were issued Letters of Reprimand for the same incident and we were able to obtain a copy of the letter from someone else involved in the reprimand process.

In the case of Assistant Chief Gay, whose reprimand was issued over misbehavior by undercover operatives who infiltrated the activist group Occupy Austin, his case was the subject of a full-blown "tribunal." But somehow, the records fell off the back of a truck on their way to the file room and can no longer be found.

The report specifically recommended that the city implement full-blown audits of Internal Affairs documentation and strengthen policies on file maintenance and record retention. I hope the city council picks up on that and follows through, it's important.

Union boss circumvented disciplinary process by informing investigation target

Notoriously, Assistant Chief Newsom found out about the complaints against him prematurely and resigned before his alleged racist texts could be investigated. This created tremendous consternation within the department.

Interviews with other witnesses, particularly other active and separated sworn employees, consistently shared their concern over AC Newsom’s departure with full benefits and no review of the allegations raised against him. There seemed to be an understanding of policy; however, the feeling of betrayal and an abuse of the system were quite prevalent. 

For months, everyone watching this clusterf*#k has wondered, how did Newsom learn of the allegations before an investigation was implemented? Turns out it was union boss Ken Casaday who told Newsom what was coming in time for Newsom to resign, clear out his things, and get out of Dodge before any formal investigation started. The Austin Police Association president admitted this directly to investigators.

As a result, Newsom got a nice payday, and Ken Casaday got to call for Manley's head in the press for it as though he hadn't set the whole situation up. This would be a significant policy violation that could be punished as misconduct, except for the 180 day rule (see below). By the time Casaday (almost gleefully, from the report) fessed up, he could no longer be punished.

(CLARIFICATION (4/21): Casaday claims to have snuck through a loophole on this question, saying his actions wouldn't formally constitute a violation unless a formal investigation had launched. However, Art. 16, Sec. 8 of the police contract, says "Information concerning the administrative review of complaints against officers, including but not limited to Internal Affairs Division files and all contents thereof, are intended solely for the department's use pursuant to Sec. 143.089(g) of the Texas Local Government Code."  That's the provision Grits believes he violated. Regardless, by leaking this information to Newsom prematurely, Casaday prevented an investigation from occurring. So if it was not a policy violation, it remains a "betrayal and an abuse of the system.")

180-day rule prevents adequate oversight

Casaday did what he did understanding full well how this department avoids punishing certain officers. A provision in the meet-and-confer contract forbids APD from punishing officers beyond an oral reprimand for behavior which occurred more than 180 days prior, even if it takes longer than that to investigate. This lets many offending cops off the hook and is occasionally manipulated strategically by brass to avoid punishing favored officers.

Administrative Policies and procedures allow for a degree of discretion in investigations which, when used appropriately, enables leadership to address employment concerns and policy violations as part of a scale of disciplinary options based upon the facts at hand. When used inappropriately, a violation of policy may be overlooked, left unattended or disregarded until 180 days have passed barring the more strict consequences from consideration or recommendation when addressing behavior in a complaint. An argument can be made that inappropriate use of discretion and the time limitation can lead to a complete avoidance of a review or an investigation and the potential consequences for misconduct. Misuse of the same policies can also lead to a higher standard of scrutiny being used and adverse employment action for some officers and not others.

Among officers interviewed, "There was a high level of frustration expressed because complaints of discrimination are often known to fall on deaf ears, sit in files without action in excess of 180 days, then are discounted or disregarded." 

Advocates have complained about this problem for at least two decades, so it's nice to see the problem confirmed by an independent reviewer.

Fears of retaliation, failures to investigate

Finally, I'd be remiss not to mention the sentiment repeated throughout the document that officers who want the department to improve fear speaking up because of "almost certain" retaliation.

[T]here have been reports of complaints, race-based or otherwise, made against officers to include executive staff that have been seemingly placed on hold or otherwise delayed and even swept under the rug and disregarded. It has been shared that on more than one occasion multiple complaints were made about a certain individual’s behavior. Some accounts led only to informal verbal counseling repeatedly. Other accounts advise that the complaint goes under review and then seems to disappear without redress. Still others are discounted and never acted upon. Officer testimony, from all races, ages and ranks, suggests the outcome depends upon both the subject and the audience. Some officers complain that the outcome may have been different if the information actually made it to the Chief of Police. Still other officers are doubtful anything will change.

Similarly:

Whether it is about a grievance or misconduct there is an overwhelming sentiment among officers, at or previously involved with the Austin Police Department, and regardless of rank, that an officer, or even civilian staff member, who wishes to right a wrong, complain about improper conduct, or participate in an investigation such as this one, must be prepared in the present climate and culture to face almost certain retaliation, and not necessarily from Chief Manley, directly or solely. The wariness has been frequently attributed to networks of officers within the Department and is dependent upon the circumstances and the network of officers involved. These accounts of retaliation span almost thirty years of officer careers up to and as recently as February 2020.

There's more, but your correspondent still isn't 100% back on my feet, so Grits will leave it there for now. However, with the local press in virtual unison doing their "Move along, nothing to see here" Officer Barbrady homage, I felt like somebody needed to mention what the report actually found, instead of focusing only on what it didn't. So now you know.

Harris DA sanctioned for Brady/Michael-Morton Act violations

In Harris County, reported the Houston Chronicle's Keri Blakinger, Judge Andrew Wright issued a monetary sanction of $500 on the Harris County DA's office for failing to hand over evidence to the defense under Brady v. Maryland/the Michael Morton Act.

The issue arose because the DA's office did not hand over evidence of sustained misconduct against an arresting officer in a DWI case until the eve of trial, many months after it was in their possession and the judge ordered them to turn it over. Reported Blakinger:

“The Court finds that the State has engaged in bad faith litigation tactics,” Wright wrote in an one-page order signed Aug. 23. “The Court further finds that this is a regular and pervasive course of conduct and that sanctions are necessary to deter future bad faith conduct.”

The DA's office claims the judge has no such authority, but Judge Mike Schneider was quoted in the story saying they have ample authority to apply sanction; he only questioned whether the one-page order was broad enough.

The District Attorney's office, however, claimed the only thing the judge could do was keep giving prosecutors ever-more time to comply: “The remedy for late disclosures is simple — more time,” DA spokesman Dane Schiller told the Chronicle.

The DA says they shouldn't have to turn over such information unless there's a protective order barring public disclosure of officer misconduct. But the officer was from the LaPorte PD, which isn't subject to the confidentiality provisions around personnel files in the state civil service code. That means the records under discussion are public under the Texas Public Information Act. 

Announcing you won't release public records unless a court makes them secret seems a tad disingenuous to this writer. Attorney Jordan Lewis bore down on that point, again, from Blakinger:

“They’re only asking for protective orders when they’re handing over police disciplinary files - so they’re asking for special treatment for police officers,” he said. “This is the same office that daily stands in front of a courtroom and repeats all of the bad unproven things that cops say about ordinary citizens.” 

In addition to the $500 sanction, Wright tossed all testimony from the former officer and banned any reference to him. 

Afterward, prosecutors moved to dismiss the case.

I have no idea who's right about the legality of monetary sanctions in such a situation, but this behavior has gone on for a long time and other sanctions haven't seemed to change it. By contrast, clearly the $500 fine got the DA's office's attention! 

Why we know so little about the bad cop at the center of the botched Houston drug raid

A couple of weeks ago, Grits raised numerous questions about a drug-raid-gone-bad in Houston that left four officers shot and two homeowners and two of their dogs dead. Police-union leadership blamed police-accountability activists for the episode, and the mayor and city council members backed them up.

Now, it turns out the informant identified in the search warrant may not exist, and the narcotics officer in question has a lengthy disciplinary history, though much of it only documented in closed records that are not part of his official disciplinary file. It's become clear that the officer in question, Gerald Goines, should have been ousted from the force long ago, or at least rotated off the narcotics squad.

Revisiting key questions
To sort through this unqualified mess, let's start with some of the questions Grits raised immediately after the episode. For several of them, we now have answers.

What was the informant's background, and what was their relationship to their detective handler? It turned out the informant did not exist. Relationship to the detective? Imaginary friend.

Where did the informant get the heroin? Officer Steven Bryant retrieved the heroin out of Gerald Goines car, it did not come from the home in question.

Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? No. This was a fabrication; it did not occur.

I'd asked, "Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past?" But now that question shifts to cases by officer Goines and Bryant. (The latter man turned on Goines during questioning, but he was part of the faked-buy bust and was the one who turned planted evidence into the lab for testing.) There is at least one man currently petitioning the Court of Criminal Appeals to be declared actually innocent from one of Goines' past drug stings.

Why were Goines' disciplinary records secret?

Finding the answers to these questions shed a lot more light on the episode, but also raises many more, including about the department's policies related to body cameras and over-use of SWAT tactics for routine search warrants. There will be lots of time to delve into those in the coming weeks and months as more information comes out, but here's an interesting one that relates to pending Texas legislation: 

Why were so many of Officer Goines misconduct episodes absent from his personnel file? As you read through the Houston Chronicle story, multiple incidents involving Goines that appeared in the newspaper's archives were not recorded in his official disciplinary history reporters received from the department.

Here's why: Houston is one of about 70 Texas municipalities that have opted into the state's "civil service code" for police and firefighters (Ch. 143 of the Texas Local Government Code). Most cities whose voters opted into it did so in the 1940s and '50s. But thirty years ago, police unions succeeded in making most disciplinary records secret in these "civil service cities." Under Ch. 143.089(g) of the Local Government Code, only information about misconduct that results in a suspension is public, and then only a summary, not the whole file.

That means the episodes documented by the newspaper probably do exist in the department's Internal Affairs files somewhere, but are secret in Houston because of Ch. 143.

By contrast, if the same episode had occurred in Dallas, which never opted into Ch. 143, every jot and tittle of the old investigative files would be public, only excepting narrow issues related to personal privacy like addresses, social security numbers, etc..

This is a huge carve-out: Texas has more than 2,600 agencies employing licensed peace officers, about 1,800 of which are municipal police departments, plus another 254 county sheriffs. Of those, all but 70 "civil service" departments and all but one sheriff (Harris County) operate with their disciplinary files subject to disclosure under the Texas Public Information Act. (N.b., many cities and counties have some version of "civil service" in their own charters or codes, but here I use the term only to apply to Ch. 143 cities.)

This leads to absurd results. For example, in Fort Worth, the police department is under the civil service code and the Sheriff is not. Let's say an FWPD officer and a Tarrant County Sheriff's deputy engage in the same misconduct - in fact, let's say for illustrative purposes that they committed the misconduct together - and both were given a written reprimand.

At the Sheriff's Office, the entire investigative file regarding the incident would become a public record after the reprimand was handed down. At FWPD, there would be no public record of the episode at all. If the two were suspended, only a summary of the FWPD officer's misconduct would be released, but requestors would not receive remotely the level of detail available down the street at the Sheriff's Office.

This secret file even creates problems for prosecutors. Under Brady v. Maryland and (particularly) the Michael Morton Act, prosecutors are required to disclose impeachment evidence about their witnesses to the defense. So, for example, in Officer Goines situation, his misconduct in this case, or past details about the cases described by the Chronicle, might call into question his reliability as a witness. But police departments cannot release that information, even to prosecutors, under Ch. 143, leading people like Barbara Hervey of the Court of Criminal Appeals to support making such records public.

At the Legislature this go-round, Sen. Juan "Chuy" Hinojosa this year has filed SB 433 to open currently closed records under that 143.089(g) file, referred to colloquially as "the g file" in civil-service parlance. The bill has already been referred to the Criminal Justice Committee. Hinojosa filed the same bill in 2017 after a terrible episode in San Antonio where evidence of innocence was concealed by police from Bexar County prosecutors, allowing a man who'd been beaten by police while handcuffed to plead guilty to assaulting a police officer. 

Now, in the HPD's Gerald Goines, we have another excellent example of how making these records secret undermines justice and accountability.

There will be many more policy issues arising from this episode, Grits is certain, in the coming weeks and months. But this issue of secret-misconduct files is one the Texas Legislature should address this session. SB 433 (Hinojosa) should be passed as soon as possible.

Austin police union overplaying its hand by rejecting accountability measures

After their President was last seen screaming at city council members for not signing a contract with the Austin Police Association, the union this week rejected all accountability measures proposed by the city, the Austin Statesman reported. 

Their lead negotiator, Ron DeLord (founder of the Combined Law Enforcement Associations of Texas and a friend of the blog), told the paper the union wants more money without any new accountability measures, declaring:

“We are in a position once the city makes a financial offer and gives us some idea of what they want in oversight (that) I think we’ll get a deal or no deal next week,” DeLord said. “That could change, but if the city brings a money offer and we can accept it, I think we’ll reach a deal. If we can’t, there may be no contract, or we’ll continue bargaining.”

This is posturing. The city already told them what oversight measures they want, and DeLord rejected them out of hand. Why in heaven's name would the city pony up more money if the union won't agree to any of the measures they requested? The status quo suits the city just fine.

In years past, the big threat was that the union would oppose city council members in low-turnout municipal elections in which they were a big player. But having moved elections to November and switched to single-member districts, that advantage has largely evaporated. Looking at the various council races on the ballot this fall, reformers are likely to end up with even more City Council support, while no competitive candidate of whom I'm aware is championing the police union's message.

Austin police officers are already the highest paid in the state. There's little danger many will quit to go work for less elsewhere. The rich contracts larded on the union for the last two decades will inevitably, effectively serve as golden handcuffs for the foreseeable future. The union president may be angry, but not angry enough to quit and take another job paying tens of thousands of dollars less.

In other words, the union has no leverage. Police administrators have tried to claim, with their usual "sky is falling" tone, that changes to promotions practices which reverted to state law when the contract fell apart somehow justify giving the union extra money. But the fact is, some 70-plus other civil service cities around Texas operate under the state-law provisions. Even if sub-optimal, it's hard to argue those state-law provisions are some huge problem.

The council members most worried about these human-resources issues are mainly focused on expanding diversity at the department. But if that's the concern, they're barking up the wrong tree, anyway. The old provisions weren't some great diversity panacea! (Witness the police-chief finalist list: one white guy.) If the city wants to improve diversity in its police force, it needn't look to the contract. Instead, the city should focus on changing recruitment practices and setting higher and better hiring goals outside the contract. At current salary levels, APD is a good option for any college graduate who wants to settle down here.

Bottom line: There's nothing the union has that the city needs except acquiescence to the reform proposals that they just flatly rejected. If they want a wage hike, or for that matter if they want their stipends renewed that ceased when the contract ended, union negotiators must accept the accountability changes proposed.

The alternative isn't to get the money without agreeing to any reform measures, it's to go home with nothing, like they did last year. That should play well at the next union leadership election.

Austin police oversight ineffective, says audit; local media silent on narrative-busting analysis

The Austin Civilian Review Panel, as it worked under the now-expired police contract, was a failed oversight mechanism, the city auditor found. A  report issued in June concluded that, "Citizen oversight did not create substantive change within the Austin Police Department, largely due to the effects of City procedures and police department practices."

Your correspondent has been saying the same thing about Austin's oversight system on this blog since at least 2005 (and on its now-defunct, antecedent website, earlier than that). Even at its best, it never made any impact on the problems that spurred its creation.

Austin's citizen panel had access to more information about Internal Affairs cases than the public, but less than they needed to do their  job, according to the report.

Moreover, city legal staff edited recommendations from the citizen's panel before the chief saw them, if he ever did, and the panel never knew how they were altered. (The department never responded to most recommendations from the panel.)

Indeed, because the recommendation letters were altered by city legal, the Police Monitor didn't have copies of the final versions, and neither city legal nor APD kept them, at least not systematically. Auditors recreated the recommendations from multiple sources to get a clear view of the system and generate metrics.

Once they made their recommendations, panelists told auditors they went into a "black hole" and the panel never knew what happened to them - neither how the legal department may have changed the recommendations nor whether or how APD responded to them.

It's not that citizen panelists weren't doing a decent job: The appendix at the end of the report lists panel recommendations which, had the department quickly responded and made real changes to policy and procedure, might have saved lives. The panel recommended policy changes related to mental-health first response, firearm discharge, care for injured suspects, ride-along rules and much more. With no public debate and no discussion with the panel itself, these recommendations simply faded to nothing.

That's why your correspondent joined the Austin Justice Coalition in December to ask the city council not to renew the police contract. The oversight system, as I told the city council that night, was a "piece of junk." It was always a piece of junk. And we knew it long before this audit parsed the details. But it's nice to see it in an official city document. It's one thing for Grits or local police critics to say the system isn't working, and quite another for the city auditor to say so. Makes the conclusion harder to argue.

BTW, providing further evidence that local media has been completely in the can for the police union when it comes to debates over the contract and police oversight, this audit has received almost no media attention. The Austin Monitor covered it when it came out, and did a short followup, but neither the Statesman nor any local TV station - where activists' complaints last year about a crappy oversight system were routinely poo-pooed and dismissed - has seen fit to relate the auditors' findings to their readers/viewers.

Funny, that. IMO, if the audit had parroted their police-driven narrative from last year that the oversight system is wonderful and it would be a tremendous loss if it were eliminated, this story would have been front page news and led nightly coverage on multiple local stations.

UPDATE: Three days after I published this, the Statesman finally put out a story about this audit, more than a month after its release (and after the Austin Monitor scooped them). However, covering it AFTER being criticized hardly merits praise. And they quoted the police union spinning the story, but not any of the advocates whose research and analysis was finally confirmed by the audit. I don't know why my local paper has been so hostile to the local police-reform movement, to the point of failing to report news like this audit that supports reformers' positions while touting fact-free spin from the police union and APD management with no basis in reality. But that's what their coverage on these topics has been like these last couple of years. They only seem to honestly address police reform issues when shamed into doing so, and even then they're loathe to provide a voice to anyone actually pushing to reform the police department.

'How does the warden sleep at night?'

The demotion of a warden and several other "ranking officers" in response to Keri Blakinger's reports in the Houston Chronicle on illegal quotas being applied to inmate discipline systems at multiple units has had Grits singing the opening verse to this tune from the Old Crow Medicine Show all morning. TDCJ has dismissed around 500 disciplinary cases that officers filed against inmates under these quota systems, and it's a safe bet there are more among them which were fabricated but will now never be adjudicated.

It's the thought of those never-to-be-unearthed, fabricated cases that's caused the chorus from the Old Crow Medicine Show to bounce around Grits' head all morning: "How does the warden sleep at night, after the long day's through? Does he toss and turn? Does his conscience burn? Is he a prisoner, too?"

Snippets of opposition to Austin's police-union contract

A local Austin activist posted on YouTube some of the testimony from December at the Austin City Council against the police-union contract. (See Grits' writeup after the event.) Your correspondent was one of the speakers in opposition, and I post my testimony here mainly to show off Grits' favorite shirt:

Since Grits had earlier interviewed Campaign Zero's Sam Sinyangwe and highlighted his research on Austin police contract, let's also post his testimony from the same hearing.


And here's Chris Harris, a super-bright, young activist from Grassroots Leadership, who like many others that night did a great job, but who in particular made some excellent, data-based points that the local media have avoided over the many months this contract was being debated:


Go here to watch more testimony from the hearing.

Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero cofounder

Campaign Zero's Sam Sinyangwe was in town this week to lobby the Austin City Council for reforms in its meet and confer agreement, fresh off of being honored  at Forbes 30 Under 30 gathering (and trolling Warren Buffett on Twitter in the process). We'll publish an interview with Sam in next month's Reasonably Suspicious podcast, but in the meantime, here's a recording of a speech he gave Thursday evening at the Windsor Park Library in Austin, introduced by Chas Moore of the Austin Justice Coalition. (Chas' remarks were a bit crackly, but the audio clears up once Sam starts speaking.)


And here's his presentation:


Find a transcript of his speech after the jump.

You make the call: Police union boss says Breaion King arrest didn't merit discipline

Austin activist Chris Harris obtained video of the meet and confer negotiations between the City and the Austin Police Association and, with editing help from Lewis Conway, created this short video juxtaposing the details of Breaion King's arrest with union boss Ken Casaday arguing against changing the rule that prevented the officer involved from being disciplined. They presented the video to the Austin City Council last night arguing to reject the meet-and-confer agreement with the union and address the police department's staffing and discipline issues through normal city processes:


According to Casaday, "half" of Austin PD officers see no problem with the way this young schoolteacher was treated. How about you?

Unpunished police misconduct drives down crime reporting rates

In the past couple of years, we've heard a lot about the so-called "Ferguson effect," where cops supposedly react to public criticism by failing to do their jobs and intentionally allowing crime to flourish. Grits has expressed skepticism that that's really the attitude of the cop on the beat, but regardless, it's a common meme.

What's less commonly discussed is the reverse problem: when police misconduct goes unpunished, resulting in a loss of trust by the community and a failure to report crimes for fear of interaction with the cops. A Columbia Law Review article by Tracey Meares includes this summary of some recent research on exactly how that occurs:

In a recent study, Professors Matthew Desmond, David Kirk, and Andrew Papachristos present an example of how researchers can use such data. The researchers studied how police brutality against unarmed Black men affects cities and the Black community in particular by examining whether there was a change in the number of 911 calls in Milwaukee before and after a highly publicized incident of police violence against an unarmed Black man, Frank Jude. Jude was attacked by several White police officers in October 2004 after they accused him of stealing a police officer’s badge at a party. The officers stomped on his face with heavy boots and punctured his eardrums with pens. After the incident, Jude’s photo was shown in the newspaper demonstrating his extensive injuries. The results of the researchers’ analysis of 911 calls surrounding this incident are startling. After Jude’s beating was reported in the local press, Milwaukee residents—and especially residents of Milwaukee’s Black neighborhoods—were less likely to report crimes by calling 911. The magnitude of the crime-call decline in Milwaukee was large and long lasting. It persisted for over a year, “result[ing] in a loss of approximately 22,200 911 calls, a 17 percent reduction in citizen crime reporting, compared with the expected number of calls.” Moreover, the “missing” calls were primarily confined to the areas of Milwaukee in which mostly African Americans lived. After a year, the number of calls went up again.

Blain: 'What does actual police reform look like?'

Charles Blain of the Restore Justice project at Empower Texans has a column in The Hill posing the question, "What does actual police reform look like? More training and more oversight." Blain represents the grassroots conservative wing of the party represented by the Freedom Caucus in the Texas House and Lt. Gov. Dan Patrick in the senate. So what does police reform look like from that perspective?

For starters, he wants more "purposeful training."

In some states, like New York, California, and North Carolina, obtaining a barber’s license requires more hours of training than to become a sworn officer 

In Louisiana becoming an officer takes less training than becoming a manicurist.

Blain also suggests that, "local governments should fully embrace independent police oversight boards giving civilians have a voice in policing." Further, "Out of 18,000 police departments in the country, only about 200 have an independent or civilian oversight board," he lamented. Blain offered up this unusual (for a conservative) discussion of the benefits of a civilian review board:

Two persistent problems on many oversight boards are the scope of authority entrusted to them and the requirements for civilians to participate. 

In Texas alone, the scope of authority for boards in major cities spans across the spectrum. In San Antonio, the Chief’s Advisory Action Board has the ability to interview officers before making a recommendation for disciplinary action to the chief. 

Dallas’ review board is authorized to hire investigators, take sworn testimony, and subpoena witnesses. Houston’s operates largely in private and only takes cases referred to them by the internal affairs bureau of the department. 

Many of the boards require members to have extensive background in policing, law, or criminal justice, which excludes much of the community whose concerns they are meant to address. 

Civilian boards need power, resources and autonomy to be as effective as possible.

Blain embraced body cameras. And although he recognizes the public policy problems with how they've been implemented, including in Texas, he punted on prescribing what good policies might look like:

Policies determine when the officer has the discretion to turn the camera on or off, how regularly it must be charged, if the data on it is subject to public information, the officer’s ability to review it prior to making a statement on an incident, chain of custody for the camera, and policy regarding data retention and manipulation just to name a few. 

Without a sound policy, body worn and dash cameras don’t serve their intended purpose.

He recommended customizable apps to facilitate public engagement, and use of ShotSpotter technology to identify the sources of gunshots.

Grits appreciates Mr. Blain's taking a first stab at thinking through policies that might constitute "actual police reform." But your correspondent would be remiss if I didn't point out that "actual" reform must go further than these proposals or it will be ineffective and fail.

For starters, Grits simply disagrees that civilian review boards can ever be an effective check on police misconduct no matter what their structure. I'm unaware of any such review board anywhere in the country which has achieved the goals of reform activists who got them created. (When I was Police Accountability Project Director of the ACLU of Texas from 2000 to 2006, this was basically my beat.)

Think about it: What does the public demand when an officer shoots someone improperly or engages in misconduct? His or her termination or reprimand. Yet those are precisely the things civilian review boards cannot do. At most they only advise and that advice is routinely and easily ignored because the structure of the police disciplinary process insulates decision makers from being accountable for outcomes - they can typically only be held accountable for complying with the process. Civilian review boards are structurally not capable of satisfying public concern over these issues and may help provide political cover for misconduct when they are weak and ineffectual, which is all the time.

The power to discipline and fire police officers cannot be wrested from departments and even if  it could, that would be a bad idea. Instead, management's ability to enforce rules must be strengthened at the expense of labor. Even when one does not fully trust police management, the best play for police accountability activists is to seek to empower them vis a vis the union.

Re: Training. More is fine, but what's really needed is for police department policies to change to emphasize deescalation, then to retrain on those policies. More training on the sort of cowboy-style shoot-em-up methods taught by a lot of modern training consultants isn't going to help much. Policies and practices must change, then more training will help.

On body cameras, the transparency/privacy questions must be answered because, as presently constituted in Texas, body camera footage for the most part is secret unless a law enforcement agency decides releasing it will somehow help them, thanks to a terrible law passed by Sen. Royce West in 2015. Texas must roll back that thicket of thick-headedness before body cameras will be a true reform measure here.

Finally, some of the most important police accountability measures needed aren't broached in Blain's column. In a column in 2011, Grits identified a few of them:

Transparency: Independent, aggressive press oversight, as a practical matter, is MUCH more effective than any civilian oversight mechanism I've ever heard of, anywhere. Civil service cities like Houston have most of their disciplinary records closed unless officers are severely disciplined (more than two days suspension), and then only summary information is public. So, for example, in Dallas or El Paso, which never opted into the civil service code, reporters get a LOT more information on police misconduct than Houston or other civil service cities, and it really shows in their coverage, particularly at the Dallas News. Easily the most effective change to improve police oversight in Houston and other civil service cities, without costing the taxpayers a dime, would simply be to re-open police disciplinary files; hundreds of non-civil service cities and every Texas Sheriff operate just fine under the Public Information Act, and so would civil service cities if they were brought back under its umbrella. 

Another key, too-often neglected transparency issue: Former Harris County DA Johnny Holmes and the Texas Supreme Court, abetted by the Legislature after the fact, gutted the Law Enforcement exception (Govt Code 552.108) to the Public Information Act in Holmes v. Morales. State Rep. Harold Dutton still carries a bill (see here) every session to change the standard back to what it what from the inception of the Open Records Act until that episode. This change was pivotal, casting a thick blanket of secrecy over information which had been public for decades. If we don't fix the transparency problem - both reinvigorating the law enforcement exception and re-opening disciplinary files in civil service cities - IMO all other "solutions" will founder. 

Accounting for Misconduct in Promotions: Then-state Rep. Chuy Hinojosa filed a bill back in 2001 that never went anywhere but which would have required sustained misconduct to be counted against officers when considering them for promotions, see here. I've always thought that would give a lot more oomph to internal disciplinary decisions than is currently the case and potentially play a big preventive role. 

Bolstering Disciplinary Decisions: The biggest problem with the civil service code regarding police misconduct at Texas police departments is that, too often, fired officers too often don't stay fired. The state could require civil service cities to have a "Uniform Disciplinary Matrix," which is a pre-set array of punishments available for different types of misconduct. This helps prevent arbitrators from overturning punishments when they comply with the disciplinary matrix, including indefinite suspensions/terminations, establishing what's a reasonable punishment as a matter of policy instead of letting the arbitrator make an arbitrary determination after the fact in each case. (See the discussion here.)

There are also an array of special protections in for misbehaving officers in the state civil service code which need to be reformed. And additional provisions limiting accountability are sprinkled throughout meet and confer agreements between local municipalities and police unions. These are all important sites for reform work.

There are other ideas which Blain could have mentioned, including one Restore Justice supported during the legislative session: Eliminating arrests for Class C non-jailable offenses. Arrests are dangerous for both officers and suspects and this reform would reduce their number by more than ten percent.

This is not an exhaustive list, but it's more complete than Mr. Blain's offering in The Hill. There's no sense in limiting the array of possible reforms on the front end, nor in repeating mistakes of the past. See the solutions page at Campaign Zero for more reform ideas.