Austin police chief won’t discipline officers who shot driver with baby in backseat
Two police officers will not be disciplined for the 2021 fatal shooting of Alex Gonzales Jr. and the wounding of his girlfriend while their infant was in a car with them, the Austin Police Department announced Thursday.
Police Chief Joe Chacon's decision against disciplinary action comes in striking contrast to the recommendation of a citizen panel that examined the evidence and urged the Police Department to fire the two officers involved. The interim director of the city's civilian Office of Police Oversight also recommended that one of the officers be fired.
Last month, Travis County grand jurors declined to indict the officers, but activists and Gonzales' family have called for the officers to be terminated. Both officers will resume their full-time roles as officers, the Police Department said Thursday.
Police officer Gabriel Gutierrez, who was off-duty at the time, told authorities that 27-year-old Gonzales pointed a gun at him in a moment of road rage. Gutierrez then drew his own weapon, shooting and injuring Gonzales, who had his girlfriend and baby in the car. Gutierrez then called for backup, police said.
More:No charges for 2 Austin police officers in 2021 fatal shooting of driver reaching for baby
Some law enforcement experts have pointed out that Gutierrez could have instead retreated, described the car and given its license plate number to 911 dispatchers before allowing uniformed officers to take charge.
Officer Luis Serrato, who responded to the scene, shot the wounded Gonzales as he reached into the backseat of his car, where his infant child was, police video of the incident shows.
"These decisions are not made quickly or lightly," the Police Department said in a statement. "The investigation of the incident revealed that when Officer Gutierrez came into contact with Mr. Gonzales, he acted as a private citizen who defended himself in the face of a deadly threat. Officer Gutierrez was not in a police vehicle or police uniform."
The statement continued: "Further, the investigation showed that Officer Serrato's actions in response to the incident were in accordance with APD's policy and training. The department recognizes the sensitive nature of the officer-involved shooting and is aware of the high level of public interest. The officers involved acted according to their training and APD policy."
Scott Hendler, attorney for the Gonzales family, urged the city to fire Chacon in light of this decision. He also urged the Travis County district attorney to resubmit the case to a new grand jury.
"It’s time to make a course correction," Hendler said in a statement. "Chief Chacon cannot lead the Austin Police Department with the character required because he is unable or unwilling to discipline the officers under his command for excessive violence and even murder."
Austin police Internal Affairs on Monday provided Austin's Office of Police Oversight as well as the city's community police review commission with a private case briefing. They also heard input from members of the public during Monday's meeting.
Sylvia Hardman, interim director of the Office of Police Oversight, recommended Gutierrez be fired and suggested that Serrato receive counseling and guidance. Meanwhile, the Austin community police review commission unanimously recommended Gutierrez be fired and voted 6-1 to recommend Serrato's firing.
What we know about the shooting
The incident happened Jan. 5, 2021, while Gutierrez was off duty and traveling in his personal vehicle. He told investigators that he noticed another vehicle driving erratically. Gutierrez said he did not call 911 to report the erratic behavior as he did not believe anyone was in danger, according to Hardman's report, which was published after she reviewed the evidence.
"Officer Gutierrez states — and evidence supports — that the other vehicle eventually pulled up along the side ofhis vehicle," Hardman wrote. "Officer Gutierrez states that he saw the driver of the car pointing a gun in his face and he thought he was going to get shot and was going to die."
Gutierrez then grabbed his personal gun and shot eight times at Gonzales, emptying his magazine, the oversight agency's report says.
Hardman called this decision reckless and contended that Gutierrez took no action to deescalate the situation.
Gutierrez then reloaded and looked at Gonzales, who appeared to have been shot in the side of the head. Gonzales’ face was covered with blood, and he was slumped over.
"Officer Gutierrez states that he then heard screaming and realized that someone else was in the car," Hardman said. "He states that, prior to that, he didn’t know that anyone else was in the car."
Gutierrez called 911, and Gonzales rolled a short distance and stopped at a curb.
Gonzales' girlfriend, who had been shot by Gutierrez, fell out of the passenger seat onto the ground, police have said. As officers arrived and told Gutierrez to step back, Gonzales got out of the car.
The officers gave multiple commands for Gonzales to get away from the vehicle and not to reach for anything, the video shows. Gonzales initially complied with the commands, but eventually walked around and reached into the car's backseat, and Serrato shot and killed him.
Questions surrounding police actions
The parents' lawsuit against the city and the officers argues Gonzales's behavior was reasonable for someone who had just been shot while his partner and child were in the car, and police should have anticipated that.
"Because Gonzales sustained a gunshot wound in the head at close range, his hearing and ability to process what he could hear, more likely than not, were impaired, making it unlikely that he could understand the conflicting commands of the officers. … Because no one came to his or his passengers' aid, Gonzales made his way to the passenger side of the car to reach his wounded girlfriend and check whether Gutierrez had shot his child," their lawsuit states.
Hardman also raised several other issues with Gutierrez's actions, including:
Gutierrez said he didn't communicate verbally with Gonzales during their initial encounter, but a civilian witness said there was an exchange of words. "This inconsistency impacts Officer Gutierrez’s credibility," Hardman wrote.
Gutierrez failed to inform 911 dispatchers or other officers that he shot Gonzales.
Gutierrez continued to shout “put the gun down” despite the fact that he saw Gonzales’ hands and saw he wasn't holding a gun.
However, Hardman concluded that Serrato’s shooting appeared to be within policy, since he and the other on-duty officer at the scene gave Gonzales several commands not to reach into the car.
"Officer Serrato reasonably believed that Mr. Gonzales had a weapon and that Mr. Gonzales was attempting to retrieve a weapon," Hardman wrote.
'10 shots may have been excessive'
However, she still raised concerns with the fact that Serrato fired 10 times at someone who had already been shot.
"Officers are trained to shoot until the threat has ended," she wrote. "This standard/training should be reviewed and revised to provide more direct guidance on what this standard actually means. Under the facts and circumstances of this case, it appears that 10 shots may have been excessive."
Hardman also was concerned that Serrato fired while Gonzales' injured girlfriend was nearby and could have been shot, she wrote.
In the Police Department's statement, police officials thanked the oversight director and committee for their input, but did not acknowledge that both parties had recommended firing Gutierrez.
The commission's "advisory role is integral to transparent, thorough and effective public safety processes and policies, and APD thanks them for their service," the statement says.
Gonzales family attorney Hendler slammed Chacon's decision Thursday.
"Alex Gonzales’ parents, Elizabeth and Alex Gonzales Sr., are disgusted with Chief Chacon and have no faith in his ability to control the rogue officers in his department," Hendler said. "They have been let down by the Austin criminal justice system, which has abdicated its responsibility to hold the officer who murdered their gravely wounded and unarmed son accountable under the law."
Austin activists also decried Chacon's decision.
"If any one of the 18 bullets police fired had struck Alex’s baby, we all know those officers would be fired, if not facing prison time," said Chris Harris, policy director of the Austin Justice Coalition. "It is by pure luck that Alex’s baby was unharmed. Lucky, reckless police are still reckless police, and they threaten our community with their continued employment."
This article originally appeared on Austin American-Statesman: Austin police officers who shot Alex Gonzales Jr. won't be fired
