Unsettling Settlement: City of Austin Still Hides from Accountability, but Sanders Family is Vindicated Nonetheless

Imagine my surprise to open the Statesman yesterday to the editorial headline, “The unsettling Sanders shooting,” calling the City out on its “self-inflicted damage” and dismissing the grand jury ruling as “a far cry from validating Quintana’s judgment.” The $750,000 settlement is par for the course in an epic series of failings, further dividing a divided community. Between that and the US Supreme Court striking down the FCC’s indecency policy (envision a winged George Carlin striking a harp and howling four-letter hallelujahs), it seemed something just blipped in the universe of “expect the unexpected.”

Add to that the globally-significant occurrences around the Oscar Grant shooting trial and aftermath in Oakland/L.A., where in midst of some very powerful grassroots solidarity in a reasoned, common response of outrage, some took to rallying around the officer, whining he’s getting his feelings hurt by the negative reaction of the community. What wasn’t near strong enough a ruling for the general public was more than an officer had ever received in the state – and the police unions just can’t have us setting any precedents, as weak as “involuntary manslaughter” was in this case, ya feel me?

A similar cloud of injustice looms here in Austin, and the Sanders must have had the Grant family in their prayers in the last weeks as the Grants’ struggles with the trial surely sent foreboding chills down their spine.  But last Friday, in the 11th hour of the civil suit trial scheduled to begin July 19th, the City of Austin negotiated an unprecedented settlement with the Sanders family over the May 11, 2009 alleged-wrongful death of their son, brother, nephew, grandchild and cousin, Nathaniel Sanders, II. 

Only two weeks ago, the Texas Civil Rights Project was awarded a settlement of $12,000 to cover attorney’s fees in their suit against the City over its non-disclosure of the KeyPoint independent investigation – a suit that became legally moot after it was leaked to the press by an unknown source.

Dunn’s fired…Quintana’s gone (or is he?)…David Smith was run out…the KeyPoint report disclosed and that suit settled…a couple of memos written…the City settling with the family; to be confirmed at July 29th’s City Council meeting… 

Almost seems like it’s about over, right?

Not so much.

The reason this settlement is unprecedented, and therefore symbolic of even bigger issues that will take even more work to address, is that Austin’s never settled on a wrongful death suit where the officer wasn’t fired (for the actual shooting, that is)…where the shooting wasn’t “officially” ruled excessive use of force (that is if you consider the KeyPoint finding to not be an “official” ruling):

Sophia King: officer wasn’t fired/ruled justifiable force; court case dropped by family; officer cleared by DOJ; a subsequent ADA-related case against the City thrown out

Jesse Lee Owens: officer wasn’t fired/ruled justifiable force; court cased dismissed.

Daniel Rocha: officer was fired/ruled excessive force; City settled for $1 million.

Kevin Brown: officer was fired/ruled excessive force (by the Chief, independent investigators failed to make a ruling); City settled for $1 million.*

But Quintana’s actions were ruled excessive use of force by the independent investigator. Now…what was that investigation’s function again? Why did we just pay $62,000 for it and ignore it?  Why did the City battle the community in court to prevent them from seeing it?

Hmmm…well recently the Mayor asked City Manager Marc Ott just that. Well, not exactly in those words, but Ott explained in a June 3, 2010 memo that he chose to hire KeyPoint to conduct the independent investigation, review, analysis (shout out to City Council: it doesn’t matter what you call it; that’s not the point) because:

1. The CRP represents the community and he thought it important to respect their recommendation.

2. The community’s been up in arms and he thought it could “help the community see that the City’s interest was to reach a fair and impartial result.”

3. He wished to “add further credibility to the citizen oversight process, and … provide Chief Acevedo with another perspective on the policy violation issues he needed to address.”

Well, “fail” on #3.  The Chief didn’t listen to a word they said and outright sought to undermine their findings by externally seeking, and repeating to a degree, unprofessional and, in fact, borderline-slanderous talking points.  And, of course, citizen oversight is shot, and I don’t mean the Police Monitors Office and the Civilian Review Panel. They are only doing what they can do, which is very, very little. “Citizen oversight” doesn’t mean the little nook you siphon it off to; the little office in northeast Austin that’s hard to find, if you even know it exists.  It means that if we have a workable citizen oversight system; we collectively have accountability over our police, which our City must ensure exists - no ifs, ands or buts. The citizen oversight system we created together was supposed to be just one of the ways we ensured we got accountability, and when it breaks: the City must fix it.

“You should never make a promise that you can't keep,” chided the Austin Chronicle in 2002, when the same legal concerns were raised over the release of the Sophia King shooting independent investigation. We thought we had resolved the issue then; in fact, some say we did and that this recent addendum to the meet and confer contract, to 'allow' release of an independent report, was just for cover.

So if our City Manager admits that he intended, by hiring KeyPoint, for the community to view our City as “fair” and “impartial” and for us to regain trust in our City (“add further credibility”? Really??), then why did he not take it upon himself to release the report, good, bad or ugly? He’s the boss of Smith and if he didn’t believe Smith, didn’t want to believe Smith (as he plays up) or had any suspicion Smith’s advice was off, then he should have sought other legal opinions or at least listened to the ones that were being freely offered by community attorneys who knew more about the contract and state civil service law than he did (apparently). He should have said, “I will personally accept legal responsibility if it really is the wrong thing to do to release this report, but I’m a smart guy and I can read a piece of law, and what Smith’s saying is not what I’m seeing….plus all these other attorneys are telling me Smith’s full of (take this, FCC!) shit…a major civil rights group is suing us because I let Acevedo’s mistakes slide and played by Smith’s rules despite all evidence to the contrary…” (stop citing the AG opinion—it’s getting embarrassing) and put an end to the nightmare, thereby –depending on how early on in the debacle he’d have acted-- preventing/curbing the lawsuits; lessening negative publicity and community resentment; preventing further loss of valuable resources; and generally further avoid making a bad situation worse.

As the Statesman described, the “independent report … itself became the topic of controversy and reopened nagging questions about its use of deadly force.”  Ott should have managed the situation and prevented this. That was his job. Now it’s his job to explain why we are not taking the independent report’s findings seriously, or why it was acceptable for Acevedo to trash the Johnson report.

Quintana’s tactics were determined to be in violation of policy by the head of Internal Affairs – in the official, “Johnson” report filed with the Chief (who filed that in the trash that and handed over the biased one to the District Attorney, hence no chance of getting a grand jury indictment, and hence him not firing Quintana for the shooting) – as well as by KeyPoint.

But the Chief, who fired Dunn for the biased email that shaped a biased report, relied on this report without public explanation of the incongruity, won’t acknowledge these VERY IMPORTANT FACTS and neither will his boss, the guy who hired KeyPoint in the first place.  Never mind the Statesman claim, “Quintana's tactics in approaching Sanders and his companions drew criticism from the police chief,” as it’s completely inaccurate. The Chief did nothing but claim otherwise.  Outside of the camera violation, he explicitly denied that Quintana made tactical violations leading up to the shooting, where he fired Michael Olsen for very similar violations (in the Kevin Brown shooting).

So, the settlement? The City recognizes this as the political blow it is to them, whether they admit this publicly or not, but while it’s bad publicity for them to settle, bringing additional scrutiny on all their failings, they could not afford to go to the court of public opinion - the trial would greatly magnify those failings. This is an expensive attempt at further damage control. Certainly making an offer wasn’t to save them any more time and money, they’ve spent over a year on this, and the trial would have been over a week from Friday, thereabouts. If they thought they could win, they would not have settled.

Make no mistake: this is a historical moment in our fight for police accountability; but the fight in this incident’s not over (remember the DOJ is reviewing this and other use of force cases in our City, for starters) as it’s intrinsically tied to our overall fight for accountability. Out of the three settlements on wrongful death suits in the last seven years, two officers were fired over the shootings but this one was not. This one they just…can’t…fathom…publicly admitting they were ‘dead’ wrong and that the officer should have been fired – for the shooting. That day one, Acevedo should never had backed them into a collective corner by stating he had no intention of reaching a “fair and impartial result,” by already deciding “the initial shots were justified;” AND Ott shouldn’t have allowed him to back the City in that corner.

Ott should have had a “coming to Jesus moment” with him right then; as he should have when, 30 minutes after the Echelon Building exploded into flames, the Chief arrived by helicopter (a +/-$7,400 trip) to be first on camera to announce that he’d alone decided “it wasn’t a terrorist act.”  Whatever happened to the sanctity of the investigative process, something he spoke so eloquently about when he was courting our City for the job?  Ott should have also had another sit-down with him for getting in his Chief formal suit (as if representing the City) and speaking on camera at an execution in support of the convicted victim’s family, but offering no words to the families of victims of the state much less the victims of police bullets here in Austin, like the Sanders. I mean really, who’s running the City here?

While this unprecedented settlement is not a “victory” outright because Nathaniel Sanders, II will never see justice, much less the birds in the sky or the smile of his own child, it is symbolic of the City finally accepting responsibility for their role in, if not his death, the botched process that brought needless burdens among many and resulted in broken trust with the community. It should indicate Ott now owes us “a full and unblemished accounting of the incident” (Statesman) and his May 27, 2010 memo most definitely does not qualify, although his June 3 memo would make a good coversheet to it.

What policies did the Chief violate in this case? Can we bring KeyPoint back for that? Let’s apply his own disciplinary matrix to HIM. 

It’s a tragic victory. For the Sanders, it’s a victory they don’t have to live through the additional nightmare the Grants endured: replaying the detailed accounts of their son’s violent –and needless-- death over and over in a court of law, and under public scrutiny: a victory for their ability to really start the healing process, which has certainly been stifled in the stress of the debacle.  For the community, it was a painful eye opener of the failings of our City. Not that we weren’t already aware of them, but this felt like we were Alex in “A Clockwork Orange,” except needlessly (we didn’t relish cover-ups going in) getting the full-on Ludivico technique: body straps, eye clips, drugs, puking and all. There’s been no escape.

For the City, for Ott, for Acevedo, hopefully this will be a major teaching moment, on many, many fronts. “Forgetting about the case would be a waste.” There’s much work ahead of us to end and heal “the community division that the case sparked and continues to feed” (Statesman). Unlike Oscar Grant and Nathaniel Sanders, II, but like the Oakland community, we have another chance.

* Other deaths, like Michael Clark, aren’t noted as there was no discipline,  no independent investigation and no civil suit was filed or was thrown out like with the 4th amendment suit where APD let an ex-boyfriend into the girl’s apartment via the apartment manager because they bought his “he was worried” story, they leave him there, she arrives and he kills her.