Travis County and Officer-Involved Shooting Cases

“Before the Civil Rights Unit was created, cases involving lethal force by police officers were handled behind closed doors. I believe no person is above the law, and I created this Unit in order to hold police officers accountable by ensuring thorough investigations, maximum transparency, and impeccable fairness.”

District Attorney Margaret Moore

When I took office in 2017, it was my top priority to create a process for handling officer-involved shootings that would win the confidence of this community. I immediately established our Civil Rights Unit (“CRU”) and began to build policies and procedures that would address the many issues that surround the investigation and prosecution of these cases. We now handle not only lethal use-of-force cases, but also non-lethal cases where the use of force appears to be excessive.

REFORMING HOW WE HANDLE OFFICER-INVOLVED SHOOTING CASES: AN INDEPENDENT CIVIL RIGHTS UNIT

Before I took office, these incidents were handled by what was called the Critical Incident Unit. The Critical Incident Unit was several layers deep in the chain of command. It was tasked with not only reviewing incidents that involved injury, harm, or loss to a person, such as shootings, but also other misconduct such as misappropriation/misapplication of funds, fraud, forgery, and perjury, among others. I restructured by making the new CRU an independent entity with a head that reports directly to me. We moved officer-involved incidents that do not involve injury, harm, or death to our Public Integrity Unit. Deadly and non-deadly use-of-force cases are now reviewed by the CRU. The Unit does not handle regular police cases.

By creating a separate and specialized unit to investigate deadly and non-deadly incidents, our office is emphasizing how seriously we take these cases.  Making it independent from the rest of the office ensures that these cases are reviewed without any conflicts of interest associated with working with law enforcement officers in the traditional court setting. Because it is under my direct supervision, I, the elected District Attorney, give this community my personal accountability for how these cases are handled. And, because it is focused on use-of-force or violence by peace officers, we also ensure that these investigations are given the attention, expertise, and due diligence demanded by the Travis County community.

A COMMUNITY-INSPIRED AND LOCALLY CONTROLLED PROCESS

To build community confidence in our process, I recognized that I had to listen first. I reached out and consulted with members of our community whom I knew to be knowledgeable, concerned, and active in the area of civil rights, and, in particular, holding police accountable. The input I received from these meetings was invaluable, and it directed my thinking as we worked through exactly how we would structure the new CRU. Our Unit is truly responsive to the Austin/Travis County community, and it has features that are unique to us.

ELIMINATING BIAS: ENSURING JUSTICE TO ALL

No ethical, honest prosecutor can or should guarantee indictment or conviction. However, a prosecutor can and should guarantee her community that justice will be pursued vigorously.

The Texas Code of Criminal Procedure, which prosecutors swear an oath to uphold, mandates: “It shall be the primary duty of all prosecuting attorneys…not to convict, but to see that justice is done.” It is incumbent on me and the Civil Rights Unit that we carry out a very humble and special role in this community when we prosecute officer-involved cases. This does not weigh lightly on any of us. We strive to be accountable to the community, the injured party, the family affected by the death or injury, the law, and our own personal integrity.

We constantly check our decisions to examine whether our handling of a case against a peace officer is consistent with how we handle cases against citizens. It is a firm principle of this office that no person is above the law.

ENSURING TRANSPARENCY: PROCEDURES OF THE CIVIL RIGHTS UNIT

One complaint I heard often was that the community received insufficient information about officer-involved cases. It became obvious to me that we had to be more than just—we had to also be as transparent as possible. I began to consider how our process could be open to examination by the public without compromising the integrity of an investigation, causing further harm to the injured party or parties, or violating the rights of the accused officer. In other words, we not only had to hold officers accountable, we had to provide a way for us to be held accountable as well.

Written and Published Policies

We determined that, first, we would publish written policies and procedures. The CRU operates according to standard operating procedures, policies, and guidelines which are available online for public inspection on District Attorney’s office website. This allows the public to scrutinize our record and see whether we comply with our own representations in any given case.

Written and Published Decisions

Second, we decided that where the evidence in a case clearly demonstrated the use of force was lawful according to Texas law, we would decline the case rather than take it to a grand jury. We make a similar decision every day in prosecuting cases filed against citizens, so it seemed to us that would be fair and just to all. But, importantly, it also allowed us to take the next step: provide a thorough explanation of the case to the public. Prior to my tenure, all deadly and non-deadly were routinely presented to a grand jury. Texas law makes all proceedings before a grand jury that do not result in an indictment secret. As a consequence, the community was never fully informed concerning the incident or why it was no-billed.

By declining a case, we could issue declination letters that include a thorough presentation of the facts and evidence. Additionally, the letters set out the legal analysis applying Texas law to the facts. The letters are published and accessible to the public on my office’s website. This was never done before I took office.

With the policy changes I implemented, we now have a better-informed community and a much more transparent process on these critical incidents.

ENSURING TRANSPARENCY: A VICTIM-CENTERED OUTREACH TO VICTIMS AND DECEDENT’S FAMILIES

It is our policy to provide victim services counseling to family members and/or their representatives and victims of non-lethal use of force. We do this in every case, irrespective of whether we conclude that the use of force was justified or unjustified. In addition, the CRU shares its entire investigative file with surviving family members and/or representatives so that they may be first to learn of the facts and circumstance surrounding an incident.

Prosecutors regularly meet with victims and surviving family members and/or their representatives to assist them in understanding the legal complexities of these cases and to help answer any questions about the facts surrounding an incident. Although following this policy presents some of the most difficult and challenging of our responsibilities on the human side of the CRU’s work, we have followed it without exception in each and every officer-involved shooting incident that has occurred during my tenure as Travis County District Attorney.

It is our commitment to be as accessible and transparent to these families as is possible in what surely is one of the most difficult occurrences in their lives.

ELIMINATING BIAS AND PROVIDING GREATER SCRUTINY: CALLING SPECIAL GRAND JURIES

We present a case to a grand jury if we need further investigation or if the facts warrant prosecution.

No person can be held accountable for a felony in Texas unless a grand jury returns a true bill of indictment. This is the necessary first step in a prosecution. Grand juries are selected from randomly drawn panels and typically meet for three-month terms. These grand juries are hearing hundreds of cases per term, and it is not unusual for them to interact with police witnesses.

Acting on a suggestion made to me by a former prosecutor who served this community as Police Monitor over APD, we instituted the practice of presenting these cases to a “special” grand jury, impaneled to hear these only Civil Rights Unit cases. Because the scope of their duties is limited, we are able to conduct a voir dire examination designed to address bias issues and enable the district judge selecting the grand jury to choose the most diverse and unbiased members. The resulting grand jury is given a comprehensive orientation specific to use of force and the law applicable to police conduct, and, because these grand juries hear only CRU cases, they are able to devote the time and attention that official misconduct cases require.

ACCOUNTABILITY: ENSURING THOROUGH INVESTIGATIONS

We cannot expect confidence in our actions unless we can assure the public that all the facts have been gathered in a thorough investigation. To that end, we now have signed Memoranda of Understanding (MOUs) with the key law-enforcement agencies that handle these cases: the Austin Police Department, the Travis County Sheriff’s Department, and the Texas Department of Public Safety Texas Rangers. These MOUs specifically grant us unfettered access to these investigations as they are conducted. The CRU is notified of a lethal use of force immediately, and we respond to the scene. I, myself, go to the scene if at all possible. We are continuously briefed on the case during the investigation, and, when the case is turned over to us as a complete investigation, we conduct our own review to determine what additional evidence we consider necessary to finalize our decision or present the case to a grand jury.

ACCOUNTABILITY: LITIGATING OFFICER-INVOLVED USE OF FORCE CASES

The CRU handles both lethal and non-lethal use-of-force cases. The key issue in these cases is whether there is no legal justification for the conduct under Texas law. If there is evidence raising the defense of justification, which is also known as self-defense or defense of a third person, the State must prove the conduct was NOT justified beyond a reasonable doubt. If I believe that a reasonable jury following Texas law could find the use of force was not justified, I have given the CRU the mandate to prosecute these cases as vigorously within the bounds of law as any other case in our office.

Although deadly force cases deservedly garner the public attention and scrutiny they absolutely deserve, in many instances the discussion of officer-involved non-deadly cases are equally important to the public’s confidence in law enforcement. Early in my tenure as Travis County District Attorney, our CRU indicted three separate cases involving non-deadly force. Of these cases, we required one officer to surrender his license, and he entered a plea to the charges; we tried another to a Travis County jury. The remaining case is set to be tried to a jury this fall. Emphasizing prosecution of these cases when appropriate is important to our commitment to hold officers who use force that is without legal justification accountable.

ACCOUNTABILITY TO THE COMMUNITY: THE CIVIL RIGHTS ADVISORY COUNCIL

In an effort to provide transparency and information to the community about the work of the Civil Rights Unit, I assembled a Civil Rights Advisory Council comprising a broad cross-section of community leaders. The Council meets several times a year and is given an overview of the cases reviewed by the Civil Rights Unit. The Council participates in discussion and gives feedback on the work being done by the Civil Rights Unit.

Members of the nearly 30-member council include NAACP Austin President Nelson Linder, LULAC leader Linda Chavez, Austin Justice Coalition Executive Director Chas Moore, among others. In order to ensure that this Council remains reflective of the many diverse voices in our community, we encourage current members to invite other community stakeholders, with whom we may not be acquainted, to serve on the Council. Likewise, to ensure that our conversations remain relevant and that our discussions are robust, we also invite council members to set questions and issues they wish for me and the CRU to address on meeting agendas.

It is important that we hear from this community, because we are always open to changes that will enhance confidence in our process.

FOR FURTHER INFORMATION ABOUT THE CIVIL RIGHTS UNIT, PLEASE GO TO: https://www.traviscountytx.gov/district-attorney/office-divisions/civil-rights/cru