AUSTIN (KXAN) - Byron Carter Sr. has been waiting nearly two years for an official explanation about why an Austin police officer shot and killed his son.
Police Chief Art Acevedo and others say they'd like to give Carter the answers he's seeking about the night of May 30, 2011, when his son and namesake was shot dead.
But they say their lips are sealed by law and by the city's agreement with the Austin Police Association.
Ultimately, Acevedo decides whether officers took the right actions or whether they should be punished. But while police conduct their own internal investigations, someone else is watching, too. And KXAN uncovered a major discrepancy in that process and in a case from two years ago, which is currently at the heart of a lawsuit against the City of Austin.
Austin is unique in that it has an Office of the Police Monitor with the purpose of enhancing public trust in the Austin Police Department and to make sure that when police investigate their own, everything is done properly. The Police Monitor does its own investigation and a panel of citizens makes recommendations on whether an officer should be disciplined.
But the public may never know the Police Monitor's findings and the Citizen Review Panel's recommendations and critics say it's not the system of checks and balances intended.
Byron Carter Sr. says he and his son were like best friends and knew everything about each other. But he doesn't know much about the night police shot and killed his son two years ago.
Wrong person shot
Byron Carter Jr. was shot five times, including once in the back of the head while in the passenger seat of a car police were trying to stop. Carter is suing the City of Austin and the Austin police officer who shot his son.
The officer, who shot Carter, Nathan Wagner, admitted in his deposition he shot the wrong person. He said he was trying to shoot the 16-year old driver.
Carter's father says he's never talked to anyone from the city since that night. "Nobody from the city called and said, ‘Mr. Carter, we're sorry your son's dead?" asked Chris Willis.
"No, Sir," Carter replied.
And Carter believes no one will. That's because details of the case are being kept from the public. The secrecy is part of the part of a "Meet and Confer Agreement" between the City of Austin and the Austin Police Association.
"We want to be as transparent as possible but we are governed by the law just like everybody else," Austin Mayor Lee Leffingwell told KXAN.
Civil service law
The mayor is referring to a state civil service law that helps keep details of an investigation of police misconduct secret in some cases, like the case of Nathan Wagner.
The Police Monitor was established to watch over those police investigations for the public. The operating budget for the office costs taxpayers $1,010,972 a year.
The Citizen's Review Panel is made up of volunteers, appointed by City Manager Marc Ott with input from the City Council, and hears disputed internal affairs cases and makes its own recommendation on discipline for an officer.
Both are supposed to serve as watchdogs for the public. However, the same "Meet and Confer Agreement" that created those watchdogs also keeps their findings secret if the disciplinary action against an officer results in a punishment of less than a one day suspension from duty.
"Ultimately, if the chief makes a decision that he is not going to discipline, and I have made a different recommendation or the panel has made a different recommendation, it's not public," said Margo Frasier, the former Travis County sheriff who currently serves as the Austin Police Monitor for a salary of $147,098 a year.
Frasier, bound by law and the agreement, would not discuss her findings in the investigation of Officer Nathan Wagner. But other sources say the Police Monitor and the Citizens Review Panel found issues that the police internal affairs investigation did not.
Those sources told KXAN the Citizen's Review Panel recommended Austin Police Chief Art Acevedo terminate Officer Nathan Wagner's employment over the shooting of Byron Carter Jr.
The lawsuit allegations
According to court documents filed by Byron Carter Sr.'s attorney in the lawsuit, Wagner and his partner, Officer Jeffrey Rodriguez admitted in depositions that Byron Carter Jr. and his friend were not committing any crimes when they spotted them. The officers were looking for car burglars and thought the two were acting suspiciously.
The court documents show the officers said it was dark, they did not use flashlights, and used the "cover of the night" and the "element of surprise" to sneak-up on Carter Jr. and the juvenile driver.
The officers also claim the juvenile driver used the car as a deadly weapon and tried to run them over, and the car hit Officer Rodriguez at 25 mph and dragged him under the car, which Acevedo publicly affirmed.
Yet immediately after the shooting Rodriguez reportedly said "I've already been to Internal Affairs. We are going to get in trouble over this (expletive)." Rodriguez reportedly suffered an injury to his Achilles tendon after getting run-over by the car.
But Carter's attorney claims in court documents filed in February that Rodriguez' Achilles injury actually occurred weeks prior to the shooting and records from a doctor on the night of the shooting show "...no deformity, discoloration or swelling to the site" and "he has a minor abrasion and complains of pain in the right ankle that he states is the same pain as when he injured his Achilles tendon recently. Patient has no other injuries or complaints on head to toe."
"We believe it's overwhelmingly clear that he was not hit by a car," said attorney, Adam Loewy, who represents the Carter family in the lawsuit against the City of Austin and Officer Nathan Wagner.
Loewy and the Carter family believe there should have been disciplinary action against Wagner, who admitted shooting the wrong person several times, killing him, especially when that that person had not committed a crime. If the car was used as a deadly weapon by the 16-year-old driver, as the officers say, why wasn't the driver (who lived) held responsible?
"Even though these allegations are made, this young man, the juvenile who was driving was not indicted for a single crime," said Loewy.
Wagner and Rodriguez were not indicted either. Sources tell KXAN the Police Monitor's Report and the Citizen's Review Panel recommendation were not given to the Travis County District Attorney's Office or the Grand Jury to consider because those records are all sealed and confidential.
Loewy argued in federal court that the protective order in the case should be lifted. But a federal judge denied the motion to lift the protective order, keeping the case under seal.
The decision on discipline
Acevedo stands by the decision not to discipline Wagner.
"I'm going to make my decisions based on the law, based on the evidence, based on policy, and based on my professional judgment," he told KXAN.
The reaction from top city leaders
Acevedo also told KXAN he believes the public should know everything about the Byron Carter case.
"If it's up to me, release it," said Acevedo. "The problem is that I'm precluded by law from releasing information unless the person's suspended."
Beginning more than a month ago, KXAN requested comment from every member of Austin City Council regarding the City's "Meet and Confer Agreement" with the Austin Police Association. All declined to comment except for Leffingwell and Councilman Chris Riley.
Riley sent KXAN a statement saying, "The City of Austin is committed to transparency, and this is one instance where transparency would be especially helpful. I'm also hopeful that access to the monitors' reports will be considered and addressed in the course of the ongoing, public negotiations between the City and the APA."
City representatives are currently negotiating a new agreement with the Austin Police Association. KXAN asked top officials about how those negotiations are going and if will negotiate the release of the Police Monitor's findings and Citizen Review Panel's recommendations.
"For over a month the City of Austin has been in the process of negotiating labor agreements with the union representatives for the Austin Police Association," wrote Assistant City Manager, Michael McDonald in a statement.
"In an effort to foster mutual and direct communication, both sides have agreed to limit comments outside the formal, public negotiations," the statement continued. "Once police union members ratify the agreement and the Austin City Council adopts it, the contract becomes final," McDonald's statement concluded.
Austin Police Association President, Wayne Vincent says he believes both sides will agree on measures to allow for the public release of the Police Monitor's findings and Citizen Review Panel's recommendations, regardless of whether an officer is disciplined following an internal affairs investigation.
"The city wants to be able to release those things regardless of whether discipline is imposed or not," said Vincent. "We understand that and that would be better transparency for the public and we'd like that too as long as our issues are addressed as far as the officers privacy rights," Vincent continued.
Vincent says the Austin Police Association and the City of Austin can reach an agreement as long as when released, the reports and recommendations don't include sensitive, private information that is irrelevant to the case and would only serve to harm the officer.
"Our issue is always about the officer's privacy and their protection when they're involved in critical incidents," said Vincent.
The current contract between the City and the Association expires in September.
If you'd like to contact your city council members to let them know how you feel about this issue click on their names below.
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