Austin Police Department’s Civil Rights Violation Costs $1 Million

By: Jermaine Hopkins & Millie Thompson


Carlos Chacon sued the City of Austin and Austin Police Department Officers Eric Copeland and Russell Rose for their use of excessive force against him. His attorney, Broadus Spivey, filed the case in Federal Court, pursuant to 42 U.S. Code § 1983 – Civil action for deprivation of rights. On Thursday evening, March 5, 2015, a jury of 12 decided the case in Chacon’s favor. Chacon was awarded $1,000,000.00 in damages. We discuss the case, the legal process, important details of the trial, and how APD’s brass inconsistently treats dishonesty by police officers.

Facts of the Case:

Chacon sued based on damages sustained at the hands of APD Officers Rose and Copeland. Chacon called 9-1-1 as a victim of a crime, informing the 9-1-1 operator that he paid for a massage but the woman offered sex, and when Chacon went to leave, a man began kicking the motel room door, yelling at him. After he made the first 9-1-1 call, the same man threatened to kill him and reached into his shorts as if grabbing a gun. Chacon entered his silver BMW, began driving around, and again called 9-1-1 to report the threat.

En route to the motel, the 9-1-1 dispatcher twice explained to the responding APD officers that the suspect was a ‘black male’ in a white shirt, black hat and black shorts, with a gun, and that the complainant (victim) – Chacon – was driving his silver BMW. There was no record of any other 9-1-1 calls being placed regarding this incident, other than Chacon’s two.

When the officers arrived at the motel, Officer Rose inexplicably asked an African American male matching the description of the suspect if he had called about a gun. The male immediately replied in the negative, but instead said that there was a drunk guy driving around in a silver BMW. The African American male claimed that he himself had called 9-1-1, about the drunk guy.

Chacon approached, driving his vehicle, and Officer Rose immediately drew his gun and pointed it at Chacon – the victim who had called 9-1-1. Rose didn’t identify himself as a police officer. Rose ordered Chacon to show his hands, and Chacon responded: “I don’t have a gun, he’s the one.” Officer Copeland joined Rose and then drew his gun, pointing it at Chacon. When the officers yanked Chacon from the vehicle, Chacon tried to again calmly explain that he was not the one with the gun. Rose and Copeland wrestled Chacon to the ground, giving conflicting commands, and Copeland punched him in the face twice, causing a cut above Chacon’s eye. Then, Officer Rose tased Chacon. Chacon was arrested for resisting arrest. That resisting arrest case was dismissed.

You can find the dash-cam video/audio here.

Procedural History of the Federal Civil Rights Case:

Officers Rose and Copeland tried to have the case tossed on qualified immunity grounds, arguing that they were immune from suit because they were acting properly in their official capacity as police officers. On May 21, 2013, Federal District Judge Sparks issued a ruling denying the City of Austin’s Motion for Summary Judgment in Chacon’s lawsuit. In his ruling, Judge Sparks pointed out Rose’s “obvious post-hoc explanation for his behavior, and is completely discredited by his actions as captured by his own dashboard camera… The Court therefore disregards Officer Rose’s explanation, and instead defers to the video evidence, which clearly contradicts his affidavit’s claim.” Rose, a white officer, to-date has not been terminated or disciplined for dishonesty.

On March 2 and 3, 2015, Chief Acevedo was provided with information regarding the dishonest and rehearsed testimony given under oath by Rose, Copeland, and Smith. To date, Chief Acevedo has not responded to that information.

Both the district court and Fifth Circuit Court of Appeals refused to dismiss Chacon’s case against the two officers. In the officers’ interlocutory appeal (meaning that they didn’t have to wait for a jury to hear the case before they could appeal on the issue of immunity from suit), the Fifth Circuit had to decide whether there was a factual dispute regarding whether the police violated an actual constitutional right, considering 1) the severity of the crime at issue, 2) whether Chacon posed an immediate threat to the safety of the officers or others, and 3) whether Chacon actively resisted arrested or attempted to flee.

The Fifth Circuit reasoned that the video of the assault did not entirely confirm the officers’ version of events, nor did it entirely refute Chacon’s version. Notably, Chacon was given contradictory commands during the assault, including to “not move,” but “get on the ground,” but “stop moving,” but “turn over.”

The Fifth Circuit concluded that there was a fact issue that a jury must decide: “Even if some action by Chacon demonstrated resistance, the fact question found by the district court remains: whether, even considering his possible resistance, shoving Chacon to the ground while he attempted to explain himself, punching him in the head while he was on the ground, or shooting him with a Taser, constituted excessive force. Police are entitled only to measured and ascending responses to the actions of a suspect, calibrated to physical and verbal resistance shown by that suspect.”

And, so, the case against Officers Rose and Copeland proceeded to the jury.

The Trial – The Jury Had to Decide Who Was Credible:

The dash-cam video was played numerous times and dissected in the courtroom. Despite the efforts of the Assistant City Attorney to discredit him, Carlos Chacon came across as a very credible witness as he described the events taking place on that traumatic night and how those experiences have adversely impacted his life. He informed the jury that he reached out to Chief Acevedo, who did not respond to his letter. He also denied consuming any alcoholic beverages that painful evening.

Rose testified that he did not hear the information provided by the dispatcher, while the dash-cam audio clearly captured the dispatcher twice describing the suspect and victim.

Copeland testified that he detected the strong odor of an alcoholic beverage emitting from Chacon, but Chacon was never charged with Public Intoxication or Driving While Intoxicated. Additionally, Chacon’s hospital records failed to confirm Copeland’s alcohol allegation, which was also refuted by Rose’s prior testimony. Nevertheless, according to his police report, Rose claimed to suspect that Chacon was under the influence of alcohol/drugs.

Rose and Copeland’s supervisor, Sgt. Robert Smith, also testified that he detected a strong odor of an alcoholic beverage emitting from Chacon, but he was never as close to Chacon as Rose, nor was he able to explain why the medical personnel at the emergency room did not report any signs of intoxication in Chacon’s medical records. However, Smith stated that it did not mean anything to him. Chacon’s attorney Broadus Spivey asked Smith about why Chacon was not charged with Driving While Intoxicated or Public Intoxication; Smith responded, “I think we don’t just arbitrarily stack charges on someone.” But, when later asked why he recommended that Rose or Copeland conduct sobriety tests on Chacon, who was already under arrest for the alleged Resisting Search offense, Smith replied “to see if there were any other charges we could put on him.” (Authors’ Note: Rest assured, despite what the officers claimed, APD never lets a DWI go!)

Leading up to trial, Judge Sparks questioned Sgt. Smith about why the Austin Police Department failed to investigate the circumstances that prompted Mr. Chacon to call the police. However, contrary to his self-described job duties, Smith could only say “I don’t know.” As Copeland and Rose’s supervisor, it was his job to know.

Chacon’s legal team called expert witness Dr. George Kirkham, a criminologist out of Florida. Despite Dr. Kirkham’s extensive experience that far exceeded that of Rose and Copeland’s expert witness, William Terryl, the Assistant City Attorney objected to Dr. Kirkham being allowed to testify. Judge Sparks quickly overruled the objection and decisively affirmed “he’s an expert.”

Dr. Kirkham testified, based upon his expert opinion, that the actions of Rose and Copeland were contrary to standard police practices and procedures, and that their force used was objectively unreasonable.

Had the jury believed the officers’ version of events, they would have held in the officers’ favor and Chacon would have lost the lawsuit. Instead, they found one million reasons to hold in favor of Carlos Chacon.

The jury found Russell Rose liable for $1,000,000.00, not Eric Copeland. Rose was the officer who immediately pulled his gun on Chacon, and tased him. Copeland punched Chacon in the face twice. Copeland made the news one year after the Chacon assault when he shot and killed a man.

Chief Art Acevedo’s Inconsistent Handling of Dishonesty Among his “Troops:”

On October 28, 2013, Officer Blayne Williams, an African American APD officer who had in the past filed a charge of discrimination against Chief Acevedo, was terminated based solely upon Chief Acevedo’s subjective opinion that Williams was dishonest. Chief Acevedo failed to indicate in Williams’ disciplinary memo exactly how Williams was dishonest. Even an Internal Affairs investigator testified at Williams’s arbitration that he did not know what specific statements Chief Acevedo believed were dishonest. Officer Blayne Williams fought against his termination, and an arbitrator determined that Williams was not dishonest and that he should not have been terminated.

One particular APD Officer Gallenkamp has developed a reputation for dishonesty amongst the Travis County Criminal Defense Bar. Ask your friendly criminal defense attorney about the reasons. Nevertheless, Copeland and Rose are still in uniform, having never been disciplined.

Media Presence Lacking at Chacon’s Trial:

The press did not cover Carlos Chacon’s trial, and brief news reports about the trial were only released after the jury awarded $1,000,00.00 in damages. Typically, when a case involves a matter of public concern, especially on a hot-button issue like police abuse, the press shows up during the trial testimony. Often, one will see photographers outside the courthouse, waiting to click shots of the parties. Not so in Carlos Chacon’s trial.

Austin Police Department’s Police Chief Art Acevedo is well known in Austin for his mastery of the media. In 2010, he made it clear that he wanted to stay in Austin in order to finish projects he started and “he want[ed] to finish working with the media.”

Acevedo has developed such a rapport with the media that news stations would rather fire their own than to upset him. Reporter Philip Perea committed suicide in January of this year after he was fired for posting an unflattering picture of Art Acevedo on facebook. Acevedo had responded to the assault of a jogging jaywalker by saying that “In other cities there’s cops who are actually committing sexual assaults on duty, so I thank God that this is what passes for controversy in Austin, Texas.” The picture Perea posted on facebook made Acevedo look like a buffoon. When Acevedo took issue, Perea was fired. Acevedo’s quote turned into a meme with the phrase “at least we didn’t rape you.”

APD lost more credibility when two of Acevedo’s officers joked about rape, captured by their dash-cam equipment: “Go ahead. Call the cops. They can’t unrape you.’

Acevedo lost still more credibility when he suggested that young women should not defend themselves with firearms, but should go ahead, be raped, get counseling, and get over it.

Acevedo does more than exercise some control over how the media reports on him, he has outright banned people from his twitter and facebook. These social media accounts are considered public fora, and yet, Acevedo handles them as if they were his private accounts. We’ll report more about Acevedo’s handling of social media in a subsequent blog.

Congratulations to Chacon:

In the meantime, hats-off to Carlos Chacon for being fearless and going after APD. It is frightening taking on an entity with that much power and weaponry. Hats-off to Chacon’s legal team including Broadus Spivey for fighting the good fight and winning.

City of Austin Mayor Steve Adler, are you paying attention to how much APD is costing Austin? Austin City Counsel, are you? While this assault may not have happened on y’all’s watch, you’re on-watch now. Will you protect your citizens?

Jermaine Hopkins is an Iraqi War veteran, and 14-year police officer, whose own tribulations with APD are detailed here.

Millie Thompson is a criminal defense attorney, whose office is located in Austin, Texas.

Reprinted with permission from MILLIE L. THOMPSON, ATTORNEY.

Antonio Buehler Found Not Guilty!

Antonio Buehler was found Not Guilty on the charge of Disobeying a Lawful Order last evening, after six hours of deliberation by the jury.

During closing arguments, Millie Thompson, Buehler’s defense lawyer, argued that Buehler did not have to obey Oborski’s orders to put his hands behind his back because Oborski’s orders were illegal. They were illegal because the detention, assault and arrest of Norma Pizana were illegal, and because the detention and assault on Buehler in advance of his arrest were also illegal. She implored the jury to review the videos and audio if need be, to read carefully the jury charge, and to stand by their convictions and to not be intimidated by the Austin Police Department that had upwards of a dozen police officers in the court during the trial. She also encouraged them to have the courage to stand up for others the way that so many stood up on New Year’s Day, 2012. Norma Pizana stood up for the rights of her driver. Buehler stood up for Pizana. Numerous witnesses then came forward to stand up for Buehler, including a witness who testified that Officer Robert Snider then threatened him with arrest. Finally, Jermaine Hopkins, an Austin Police Officer said that he couldn’t in good conscience allow Buehler’s civil rights to be violated, so he crossed the thin blue line to testify on behalf of the defense.

Thompson had a well prepared defense that included a T-chart that she wrote on a white board that compared the legal orders that were given by the officers versus the illegal orders. The legal orders side was left blank while the illegal orders side had at least a half dozen listed. She also questioned the notion that Buehler was a threat, highlighting that even Pizana who was in extreme distress as she was being assaulted knew that Antonio was holding a camera, not a potential weapon as asserted by City Prosecutor Matthew McCabe; that Buehler never got in the face of Oborski or Snider; and that Buehler never articulated a threat of any sort towards the police, but instead simply asked them why they were assaulting Pizana. As an alternative to him being a threat, she wrote on the other half of the whiteboard that what really bothered the police officers was that he questioned their manhood. He did so, Thompson said, because he was the one who was in control of himself that night; he questioned the cops on their aggressive assault of an unarmed, nonviolent woman; and he spoke to the police officers as if he were a father figure as Snider claimed, as if the cops were naughty little children.

The Prosecution then presented their closing arguments, again falling back on the notion that nothing the police said or did before the order to put hands behind the back mattered, and that Buehler could only be judged based on his decision not to at that point. They also argued that any police officer has the right to handcuff anyone so long as they deem the person a threat – an argument never presented before by Officer Oborski. The Assistant City Prosecutor who tried the case, Matthew McCabe, continued with his ethically questionable antics during closing arguments. He seemingly intentionally misstated the law over and over again, despite objections by the Defense. He also decided to demonstrate how palms forward, arms out to the side, may not be a universal symbol of non-aggression, but instead a very challenging aggressive stance. He threw his arms out to the side, threw his his chest forward, and stepped toward the jury numerous times demonstrating how Buehler’s efforts to deescalate a situation with a police officer who had assaulted him might actually be a threatening gesture. The move likely backfired, as several jurors who had seen videos showing only Oborski advancing toward Buehler, had looks of disgust on their face.

Buehler was elated at the ruling. He said, “Finally, after three years, I no longer have charges hanging over my head from an incident in which I saw two Austin Police Officers violently assault an innocent woman, and in which I was violently assaulted for filming and speaking out about the crimes of Officers Patrick Oborski and Robert Snider. The lengths that the City Attorneys and the Austin Police Department have gone to try to railroad me and permanently stain my record with a crime they know I didn’t commit are despicable. I hope that the people of Austin begin to realize that the police in this city are not here to protect and serve the people of Austin. I also hope that the people of Austin recognize the immense courage of the jury and all the witnesses who were willing to stand up and do the right thing, instead of folding under the threat of retaliation by the Austin Police Department.”

He went on to reiterate points made by his attorney Millie Thompson, “There were so many heroes in this trial. Norma stood up for Ashley. I stood up for Norma. Numerous people stood up for me at that 7-Eleven both that night and in the aftermath of my arrest. And during the trial a police officer stood up for me by crossing the thin blue line. And now five jurors stood up for justice in the face of lies and intimidation from the city prosecutors and police.

Thompson added, “APD delayed trial. APD withheld evidence. And the prosecution tried at every turn to protect APD by obstructing our ability to lay out the facts and law for the jury. The jury, however, saw this case for what it was, and said by their verdict: “Not Guilty.”

Antonio Buehler is an entrepreneur in the education space, a West Point, Stanford and Harvard graduate, and the founder of the police accountability activist group, the Peaceful Streets Project. Buehler currently has a pending Federal Civil Rights lawsuit against the City of Austin as well as several Austin Police officers, including Patrick Oborski and Robert Snider.