Temporary suspension of Officer Eric McDonald III

RECEIVED
NOVEMBER 7, 2022
OF
12:48 P.M.
LESTER
FOUNDED
1839
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Joseph Chacon, Chief of Police
DATE:
November 7, 2022
SUBJECT:
Temporary Suspension of Police Officer Eric McDonald, III #4004
Internal Affairs Control Number 2022-0394
Pursuant to the provisions of Chapter 143 of the Texas Local Government Code, Section
143.052, and Rule 10, Rules of Procedure for the Firefighters', Police Officers' and
Emergency Medical Service Personnel's Civil Service Commission, I have temporarily
suspended Police Officer Eric McDonald, III # from duty as a City of Austin, Texas police
officer for a period of six (6) days. The temporary suspension is effective beginning on
November 8, 2022 and continuing through November 13, 2022.
I took this action because Ofc. McDonald violated Civil Service Commission Rule 10.03,
which sets forth the grounds for disciplinary suspensions of employees in the classified
service, and states:
No employee of the classified service of the City of Austin shall engage in,
or be involved in, any of the following acts or conduct, and the same shall
constitute cause for suspension of an employee from the classified service
of the City:
L.
Violation of any of the rules and regulations of the Fire
Department or Police Department or of special orders, as
applicable.
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The following are the specific acts committed by Ofc. McDonald in violation of Rule 10:
On May 15, 2022, Austin Police Department (APD) Ofc. Eric McDonald and another
officer responded to the 10000 block of Jollyville Road. The call text in the computer aided
dispatch (CAD) record stated that the complainant felt threatened by her husband, who she
identified as Mr. P. Ofc. McDonald was the first to arrive on scene and upon arrival, he
notified the APD Dispatcher that he had detained the suspect. After an on-scene
investigation, Mr. P was placed under arrest for Public Intoxication and Reckless Damage
or Destruction of Property and transported to the Travis County Central Booking Facility.
While in transit to the jail, Mr. P informed Ofc. McDonald that he wanted to speak to a
supervisor. Ofc. McDonald pulled over and called a Sergeant to the scene. Mr. P informed
the Sergeant that he wanted to file a complaint on Ofc. McDonald for allegedly tripping
him while placing him under arrest.
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The following day, Ofc. McDonald responded to a call for service at Research Blvd and
Braker Lane involving persons experiencing homelessness blocking an intersection.
Coincidentally, Ofc. McDonald noticed Mr. P was one of the persons involved in this call
for service. Mr. P came to Ofc. McDonald's patrol vehicle and they engaged in a
conversation.
A significant portion of this interaction was not captured on Ofc. McDonald's in-car audio
video (DMAV) or body-worn camera (BWC). Ofc. McDonald manually deactivated his
car's DMAV system within seconds of the start of his encounter with Mr. P. Moreover,
Ofc. McDonald failed to activate his BWC until 3 or 4 minutes after the encounter started.
Mr. P filed a subsequent external complaint stating he felt threatened by Ofc. McDonald
during the May 16, 2022, encounter. Specifically, on May 17, 2022, the Office of Police
Oversight (OPO) received an external complaint from Mr. P. The Notice of Complaint
(NOC), ultimately investigated by Internal Affairs (IA), stated in part:
The complainant was previously arrested on 5/15/2022 on Jollyville Road. While
the complainant was being handcuffed, he was tripped by this officer. The complainant
now has back pains as a result. The complainant requested to speak to a sergeant and
make a complaint against the officer because he was tripped. He now believes he is
being harassed by that officer because he made this complaint.
The next day, the same officer parked in the middle of traffic by a 7/11 parking lot
where the complainant was living because he is currently homeless. The officer called
out to the complainant "do you remember me?" and "oh you're out ofjail?" The officer
stated "you have someone looking at me right now because of what happened, because
you said I did this". The officer told the complainant "you fell by yourself and now 's
going to be on my record". To this the complainant replied, "No you tripped me". At
some point during this 15-20 minute interaction, the officer touched his chest, possibly
to turn the camera off, and then turned it on again. The complainant stated the officer
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Ultimately the investigation did not show that Ofc. McDonald tripped Mr. P.
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to turn the camera off, and then turned it on again. The complainant stated the officer
was harassing him throughout this interaction. Because the complainant complained
about this officer, he believes the officer has other officers watching him. The officers
are looking around at where he is living and he is not safe. The complainant also
believes the officer was racist when he tripped him.
The IA investigation
IA found the beginning portion of the interaction between Ofc. McDonald and Mr. P
captured on Ofc. McDonald's DMAV, before he deactivated it. In the portion IA located,
Ofc. McDonald can be heard telling Mr. P the following:
"Thanks, Mr. [P]. You remember me, right? Well, you made a complaint now. When
y'all complain on us and it's false, we have to go through the ringer and that could
put my job in jeopardy. You tripped on your own."
IA played this clip of the DMAV for Ofc. McDonald and asked him to describe his actions:
Ofc. McDonald:
I don't think it was rude or loud or yelling at him, but I was, I think,
I was in a car in the driver's seat and he was out in the - passing on
the sidewalk. So I don't think it was rude. I didn't believe I yelled at
him or scream or cursed at him.
IA:
Okay so how would you describe your tone of voice?
Ofc. McDonald:
I think it was a healthy professional conversation. I don't think it
was loud or out of professional courtesy.
IA:
So more like conversational or
Ofc. McDonald:
I think so - more like conversational.
IA:
Okay and so in between the time when the DMAV was deactivated
and then your body-worn camera was activated -- that three to four
minutes that were not captured on body-worn camera or DMAV can
you explain the conversation that took place in between those three
to four minutes?
Ofc. McDonald:
I remember that he said he spoke Spanish on a prior call. And so I
spoke to him in Spanish and I was trying to explain to him also what
I said in English making sure that he could understand. I explained
to him in Spanish, the same thing, as far as when you complain this
is what happened. And I did not do what you're saying I did. I didn't
trip you. I didn't throw you down. I didn't, you know, push you or
anything like that.
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Ofc. McDonald explained the purpose of telling Mr. P about the complaint process was to
educate him about what happens and what officers go through when they receive a
complaint. Ofc. McDonald reiterated that the conversation he had with Mr. P was a healthy,
professional conversation and Mr. P did not appear to be intimidated. Ofc. McDonald
further said he did not harass Mr. P and he could not see how the conversation could be
viewed as a veiled threat because he was just explaining things to Mr. P.
In sum, Ofc. McDonald stated that he did not recall deactivating his DMAV, nor could he
offer an explanation for deactivating the system. He also admitted that he failed to initially
activate his BWC and should have done SO from the inception of the interaction with Mr.
P. Ultimately, Ofc. McDonald only admitted to violating General Order (GO) 303.3.1,
When Department Issued BWC System Use Is Required.
Conclusion
I agree with Ofc. McDonald's Chain-of-Command who recommended to me that Ofc.
McDonald should be sustained for and disciplined for the following GO violations.
301.2
Impartial Attitude and Courtesy
303.3.1 When Department Issued BWC System Use Is Required
304.3
Digital Mobile Audio Video Recorder Operation
While I empathize with all officers, including Ofc. McDonald, who may be subject to a
false accusation, the manner in which Ofc. McDonald handled this situation is inconsistent
with my and his chain-of-command's expectations and is inconsistent with APD GOs.
Specifically, I concur with Ofc. McDonald's chain-of-command, who concluded that he
violated GO 301.2 Impartial Attitude and Courtesy and advised Ofc. McDonald in part in
his Notice of Sustained Allegations (NOSA), issued on October 26, 2022, of the following:
"[Ofc. McDonald] confronted the complainant by advising him that [he was]
getting 'jammed up' by his complaint. The complainant who has a right to file a
complaint, construed this dialogue to be an actual and/or veiled threat. Moreover,
this conduct is unprofessional and inconsistent with General Orders, which state
in part that Employees will perform all duties objectively and without regard to
personal feelings and/or animosities. [Ofc. McDonald] should have allowed the
complaint process to run its course and not confront the complainant for filing the
complaint against [him].
Moreover, I concur with the chain-of-command which advised Ofc. McDonald how he
violated the BWC GO 303.3.1 in part for the following:
Once [Ofc. McDonald] contacted the individual who had an active complaint
against [him], knowing [he] may confront him about it, [Ofc. McDonald was]
required to activate [his] BWC [Ofc. McDonald's] failure to activate [his] BWC,
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which did not capture all or a significant portion of the dialogue, is inconsistent
with policy. Activating the BWC in these instances, is in part, designed to protect
both participants of the interaction from false claims or disputed recollections, and
leaves the chain-of-command with an incomplete picture of the entirety of the
events."
Lastly, and similar to the BWC violation above, Ofc. McDonald left me and his chain-of-
command with an incomplete picture of the entirety of the events. I also concur with the
chain-of-ommand's conclusion that he violated the DMAV system GO 304.3. The NOSA
issued by the chain-of-command advised Ofc. McDonald:
"[The DMAV] initially began recording when you activated the in car PA system.
However, you then manually stopped the recording, preventing a significant
portion of the interaction from being captured on the DMAV system. Electronic
records confirm you deactivated the DMAV system."
By these actions, Ofc. McDonald violated Rule 10.03(L) of the Civil Service Rules by
violating the following rules and regulations of the Austin Police Department:
Austin Police Department Policy 301.2: Responsibility to the Community:
Impartial Attitude and Courtesy
301.2 Impartial Attitude and Courtesy
Employees shall provide equal and fair protection of all rights under local, state,
and federal law for all members of the community. Law enforcement will be
conducted in an impartial and equitable manner.
In an effort to create an organizational culture that is inclusive and
nondiscriminatory, employees shall act professionally, treat all persons fairly and
equally, and strive to interact with the community in a positive manner. Employees
will perform all duties objectively and without regard to personal feelings,
animosities, friendships, financial status, occupation or employment status, sex,
disability status, housing status, mental health or ability, citizenship, language,
national origin, creed, color, race, religion, age, political beliefs, sexual orientation,
gender identity, gender expression, ethnicity, or social or ethnic background.
Employees will endeavor to understand and respect cultural, national, racial,
religious, physical, mental, and other differences.
(a)
Employees will not express or otherwise manifest any prejudice
concerning any of the categories or characteristics listed in this
section in a context or manner that would cause a reasonable person
to question the employee's fairness or impartiality related to the
performance of their duties.
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1.
Employees will respect the rights of individuals and will not
engage in discrimination, oppression, or favoritism whether by
language, act, or omission.
(b)
Employees will be tactful in the performance of their duties, control
their tempers, exercise patience and discretion, and shall not engage
in argumentative discussions even in the face of extreme
provocation.
(c)
Employees will treat all persons with dignity, will be courteous and
respectful toward all persons, showing consideration for the welfare
of all persons with whom they interact.
(f)
Officers shall not encourage, condone, or ignore any of the
behaviors described in subsections (a)-(e)
Austin Police Department Policy 303.3.1: Body Worn Camera Systems: When
Department Issued BWC System Use Is Required
303.3.1 When Department Issued BWC System Use Is Required
This section is not intended to describe every possible situation where the system
may be used. In some circumstances it may not be possible to capture images of an
incident due to conditions or location of the camera, however the audio portion can
be valuable evidence and is subject to the same activation requirements. The BWC
should only be activated for law enforcement purposes.
(a)
All units responding to a scene shall activate their department issued
BWC equipment when they:
1.
Arrive on-scene to any call for service;
2.
Have detained or arrested a person;
3.
Are attempting to detain or arrest a person;
4.
By the nature of the call for service, are likely to detain or
arrest a person; or
5.
Any consensual contact in which the employee or a citizen
believes activation of the BWC would be in the best interest of
the community.
(b)
Examples of when the department issued BWC system must be
activated include, but are not limited to:
1.
Traffic stops;
2.
Foot pursuits, until completion of enforcement action;
3.
DWI investigations including field sobriety tests;
4.
Warrant service, including the execution of a search warrant
for a vehicle or physical structure (this includes the entire
duration of the search);
5.
Investigatory stops; or
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6.
Any contact that becomes adversarial in an incident that would
not otherwise require recording.
7.
While interviewing an employee during a Response to
Resistance review.
(d)
In addition to the required situations, employees may activate the
system anytime they believe its use would be appropriate and/or
valuable to document an incident.
(e)
There may be instances in which an employee is required to take
immediate action in response to an event which may not allow time
to activate their BWC. In those situations, it may be impractical or
unreasonable for employees to activate their BWC system before
taking police action. It is expected that once the immediacy of the
situation is over, employees will activate their BWC system to
record the remainder of the incident. Employees shall articulate the
reasoning for the delayed activation of their BWC in an offense
report, supplement, or other form of Department approved
documentation.
Austin Police Department Policy 304.3: Digital Mobile Audio Video
Recording: Digital Mobile Audio Video Recorder Operation
304.3 Digital Mobile Audio Video Recorder Operation
(a)
The DMAV system is designed to turn on automatically when any
of the following are detected:
1.
Emergency lights.
2.
Siren.
3.
Driver's door opening.
4.
Crash sensor.
5.
Speed in excess of 90 MPH.
6.
Activation of a wireless body microphone.
7.
Manual activation by pressing the record button on the camera,
the mobile data computer, or the Video Processing Unit.
(c)
Employees shall not:
1.
Bypass or override the automatic activation of the equipment.
2.
Erase, alter, or delete any recording produced by the DMAV.
By copy of this memo, Ofc. McDonald is hereby advised of this temporary suspension and
that the suspension may be appealed to the Civil Service Commission by filing with the
Director of Civil Service, within ten (10) days after receipt of a copy of this memo, a proper
notice of appeal in accordance with Section 143.010 of the Texas Local Government Code.
By copy of this memo and as required by Section 143.057 of the Texas Local Government
Code, Ofc. McDonald is hereby advised that such section and the Agreement Between the
City of Austin and the Austin Police Association provide for an appeal to an independent
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third-party hearing examiner, in accordance with the provisions of such Agreement. If
appeal is made to a hearing examiner, all rights of appeal to a District Court are waived,
except as provided by Subsection (j) of Section 143.057 of the Texas Local Government
Code. That section states that the State District Court may hear appeals of an award of a
hearing examiner only on the grounds that the arbitration panel was without jurisdiction or
exceeded its jurisdiction, or that the order was procured by fraud, collusion or other
unlawful means. In order to appeal to a hearing examiner, the original notice of appeal
submitted to the Director of Civil Service must state that appeal is made to a hearing
examiner.
SwtsP 2192 for
11-7-22
JOSEPH CHACON, Chief of Police
Date
TO WHOM IT MAY CONCERN:
I hereby acknowledge receipt of the above and foregoing memorandum of temporary
suspension and I have been advised that if I desire to appeal that I have ten (10) calendar
days from the date of this receipt to file written notice of appeal with the Director of Civil
Service in accordance with the provisions of Chapter 143 of the Texas Local Government
Police Code. Officer Eric McDonald, III yood #4004
11-07-22
Date
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