Temporary suspension of Sergeant Eric Cleveland

RECEIVED
Civil Service Office
OF
CITY
CLUB
JAN 1 3 2020
11:00 AM
FOUNDED
1H39
MEMORANDUM
Austin Police Department
Office of the Chief of Police
TO:
Joya Hayes, Director of Civil Service
FROM:
Brian Manley, Chief of Police
DATE:
January 10, 2020
SUBJECT:
Temporary Suspension of Police Sergeant Eric Cleveland #5145
Internal Affairs Control Numbers 2019-0753
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 Sergeant Eric Cleveland #5145 from duty as a City of Austin, Texas
police officer for a period of ten (10) days. The temporary suspension is effective beginning
on January 11, 2020 and continuing through January 20, 2020.
I took this action because Sergeant Cleveland 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 Sergeant Cleveland in violation of Rule
10:
On July 16, 2019, the APD's Street Narcotics Unit conducted a buy/bust operation. Sgt.
Eric Cleveland was assigned as a close cover officer during the operation. During his
assignment, Sgt. Cleveland assisted with the apprehension of the fleeing suspect by driving
his city vehicle onto the sidewalk, causing the suspect's bicycle to collide with his vehicle.
Upon review of Sgt. Cleveland's use of force by his chain of command, it was determined
that Sgt. Cleveland's involvement and subsequent use of force violated APD Street
Narcotics Standard Operating Procedures and APD General Orders. Sgt. Cleveland
acknowledged to Internal Affairs that he did not operate his vehicle in a prudent manner,
which culminated in the collision with the suspect. He further stated in hindsight, although
he had no malicious intent, his decisions in this case were erroneous. Moreover, Sgt.
Cleveland acknowledged he did not fully comply with APD's General Orders on Body
Worn Camera (BWC) devices as his device was not properly attached to his person nor
was it powered on for the entirety of the time that he was involved in enforcement actions.
By these actions, Sergeant Cleveland 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 200.3: Response to Resistance
200.3 Response to Resistance
While the type and extent of force may vary, it is the policy of this department that
officers use only that amount of objectively reasonable force which appears
necessary under the circumstances to successfully accomplish the legitimate law
enforcement purpose in accordance with this order.
(a)
Assessment shall be ongoing - As the circumstances of a situation change,
the force necessary to affect a detention, arrest, search, or transportation of
a subject or to protect officer or other persons from imminent harm may
also change. Officers will therefore need to re-evaluate their determination
of the appropriate response to resistance as circumstances change.
(b)
Officer Discretion - Understanding that no order can realistically predict
every situation an officer might encounter, it is recognized that each officer
must be entrusted with well-reasoned discretion in determining the
objectively reasonable response to resistance in each incident.
(c)
Improvising Permitted - Circumstances may arise in which officers
reasonably believe that it would be impracticable or ineffective to use a
standard tool, weapon, or method provided by the Department. Officers
may find it more effective or practicable to improvise their response to
rapidly unfolding conditions they are confronting. In such circumstances,
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the use of any improvised device or method must still be objectively
reasonable and used only to the extent which reasonably appears necessary
to accomplish a legitimate law enforcement purpose.
(d)
Injury to Officer Not Required - While it is the ultimate objective of every
law enforcement encounter to minimize injury to everyone involved,
nothing in this order requires an officer to actually sustain physical injury
before applying objectively reasonable force.
(e)
Reporting Required - Any complaint by a subject that an officer caused pain
or injury shall be treated as a response to resistance force incident, except
complaints of minor discomfort from unresisted handcuffing.
By copy of this memo, Sgt. Cleveland 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, Sgt. Cleveland is hereby advised that such provides for an appeal to an independent
third party hearing examiner. 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.
By copy of this memo, Sgt. Cleveland is hereby advised that this temporary suspension
may be taken into consideration in my determination as to whether a valid reason may exist
to bypass Sgt. Cleveland for promotion in accordance with APD General Order 919.
Fish 3840 for Brian Chief
BRIAN MANLEY, Chief of Police
Date
1/10/2020
Manley
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
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Service in accordance with the provisions of Chapter 143 of the Texas Local Government
Code.
E
01/10/2020
Police Sergeant Eric Cleveland #5145
Date
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